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KELLY, J.: ¶ 1 Appellant, Marjorie Wolloch, has appealed from each of the five orders entering summary judgment in favor of Ap-pellees, Robert Aiken, M.D., Michelle Meltzer, M.D., Richard Keohane, M.D., Pennsylvania Hospital, and Thomas Jefferson Hospital, in Appellant’s medical malpractice case. Specifically, Appellant asks us- to determine whether the trial court abused its discretion in granting Appellees’ motions for summary judgment. Following our review of the record in light of applicable law, we affirm summary judgment in favor of Appellees Keo-hane, Pennsylvania Hospital and Thomas Jefferson Hospital; we reverse the judgments in favor of Appellees Aiken and Meltzer, and remand for further proceedings. ¶2 The relevant facts and procedural history of this case as gleaned from the certified record on appeal are as follows. On or about June 4, 1992, Appellant came under the medical care of Appellee Melt-zer, complaining of intermittent throbbing pain in her left lower back with intermittent radiation of the pain down her left leg and ankle. Appellee Meltzer ordered a cervical spine film, due to Appellant’s complaints of arm numbness, and a spine series. The films were taken at Pennsylvania Hospital and read by Appellee Keohane. The films were read as normal. Appellant was prescribed pain medications. Appellant continued under Appellee Meltzer’s care for only three weeks. ¶ 3 On or about June 24, 1992, Appellant consulted Appellee Aiken at Thomas Jefferson Hospital for complaints of intense discomfort relating to her left leg and ankle. Appellee Aiken diagnosed Appellant’s condition as lumbar radiculopathy and recommended pain medication, Naprosyn, heat, massage, and ultrasound. By September 1992, Appellant’s condition appeared to be improving on the Naprosyn and physical therapy regimen. On October 21, 1992, Appellee Aiken ordered a MRI of Appellant’s left spinal canal. The MRI indicated a minimal bulging at L4-5. Appellee Aiken referred Appellant to the Jefferson Pain Clinic for nerve block injections. Soon thereafter, Appellant began to experience radicular pain of increased and constant intensity. Appellant was treated with epidural steroids through December 1992. Appellant continued under Appellee Aiken’s care until January 1993. ¶ 4 On January 26, 1993, Appellant underwent a radiographic film of her left hip. The next day, Appellant was admitted to the hospital with severe back and left leg pain and a fever of 102 degrees. X-rays showed a probable lesion. Appellant’s CT scan indicated a large mass, which arose in the left ilium and extended from the iliac joint to invade the sacrum. There was also some indication of pulmonary metastases. A bone scan indicated destruction of the left sacrum, left sacroiliac joint and medial portion of the ilium. A biopsy showed osteosarcoma. Her pelvic MRI showed a large mass arising in the left iliac bone, displacing local muscles, and extending into the abdominal cavity. ¶ 5 Appellant underwent a program of aggressive chemotherapy and related treatment until July 1993. She was referred to UCLA Medical Center for a left hemipelvectomy and extensive related surgery, with post-operative chemotherapy recommended. Following her August 1993 stay at UCLA Medical Center, Appellant was admitted to Magee Rehabilitation Hospital in Philadelphia on September 3, 1993. Appellant continued a rigorous course of post-operative and rehabilitative treatment throughout 1994. By December 1994, Appellant’s test results indicated no evidence of recurrence, and her March 1995 films showed no metastases as of that date. ¶ 6 Appellant commenced this action by Writ of Summons on May 31, 1994. She filed her Complaint on June 25, 1994. In her Complaint, Appellant claimed that her treatment by all Appellees fell below the proper standard of medical care. As a result of Appellees’ failure to recognize Appellant’s symptoms and to diagnosis her condition, Appellant alleged, her diagnosis and treatment for cancer were inappropriately delayed, allowing her tumor to grow and causing Appellant increased pain and suffering, permanent disability, and other losses. ¶ 7 Appellees promptly filed preliminary objections to Appellant’s Complaint. The court overruled Appellees’ respective preliminary objections. Appellees’ Answers to Appellant’s Complaint were duly filed by January 1995. Discovery proceeded without incident by the parties’ voluntary and cooperative exchange of information through interrogatories, requests for production of documents, and depositions. Appellee Meltzer’s deposition was the last, taken in November 1997. ¶ 8 Appellant’s case came under the purview of the Philadelphia County Court of Common Pleas’ Day Backward Program, as determined by the court term during which the Complaint had been filed. The case was listed for a case management conference, which was held on April 10, 1997. The case management order listed the case on the complex track, adopting the complex track time standards for discovery and other pretrial deadlines. According to that order, Appellant was required to identify her medical expert and to provide an expert report and curriculum vitae no later than February 2, 1998. Ap-pellees were to provide their expert information no later than April 6, 1998. As well, the case management order required all pretrial motions to be filed by April 6, 1998. Settlement memos were due by May 4, 1998; pretrial memos were due by May 18, 1998. The parties were directed to be ready for trial by August 3, 1998. ¶ 9 Shortly before Appellant’s expert witness deadline of February 2, 1998, Appellant’s counsel filed an unopposed Petition for Extraordinary Relief to extend the case management deadlines for thirty days. By order of the case management judge, Appellant’s Petition was granted and her expert witness deadline was extended to March 2, 1998. Appellees’ expert deadline was also extended thirty days, to May 6,1998. ¶ 10 March 2, 1998 came and went without submission of Appellant’s expert reports) and/or curriculum vitae. Further, Appellant did not file a timely second Petition for Extraordinary Relief before March 2, 1998, by which she might have obtained another extension of the expert witness deadline. Accordingly, Appellee Aiken filed a motion for summary judgment on March 10, 1998, followed by motions for summary judgment on behalf of Appellee Pennsylvania Hospital, filed on March 17, 1998; Appellee Thomas Jefferson Hospital, filed on March 18,1998; Appellee Keo-hane, filed on March 19,1998; and, Appel-lee Meltzer, filed on March 20, 1998. The thrust of Appellees’ motions was that Appellant had failed to submit timely expert report(s) delineating the applicable standard of care; stating how Appellees had deviated from the acceptable standard of care; and, with the proper degree of medical certainty, that their deviation caused or contributed to Appellant’s alleged harm. Without an expert report, Appellees contended, Appellant could not make out a prim a facie case of medical malpractice. ¶ 11 In response, Appellant challenged only the motions for summary judgment of Appellees Aiken and Meltzer on April 13 and April 15, 1998, respectively. The gist of Appellant’s opposition was the alleged difficulty in obtaining an appropriate expert to review Appellant’s extensive treatment records. Appellant again requested an additional thirty days to supply the expert reports, admitting that counsel had seriously underestimated the time required to obtain the reports. ¶ 12 Importantly, in her answers in opposition to the motions for summary judgment filed by Appellees’ Aiken and Melt- zer, Appellant explicitly stated that she did not intend to respond to the motions for summary judgment filed by Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital. On April 14, 1998, Appellant also filed copies of her letters to counsel for these Appellees, advising the court that Appellant was not opposing the summary judgment motions of Appellee Keohane and the two hospitals. At no time in this flurry of dispositive motions did any party question the fundamental necessity of an expert opinion to support Appellant’s case. ¶ 13 On April 29, 1998, the trial court entered five orders granting summary judgment in favor of each Appellee, thereby disposing of Appellant’s case. On May 4 and May 14, 1998, however, counsel for Appellant forwarded to Appellees’ counsel copies of two reports by Appellant’s expert, Richard S. Goodman, M.D. and a copy of his curriculum vitae. On May 20, 1998, Appellant’s counsel also forwarded to Appellees’ counsel a copy of the report of another expert, Donna Glover, M.D., along with a copy of her curriculum vitas. ■ ¶ 14 On May 21, 1998, Appellant filed a motion with the trial court to vacate all five summary judgment orders. Attached to her motion to vacate were copies of the expert reports and curriculum vitae previously forwarded to Appellees. In the motion to vacate, counsel for Appellant admitted that efforts to secure appropriate experts were first made in September 1997. Counsel claimed that the “enormous quantity of records requiring review” as well as the difficulty in obtaining experts who could review Appellant’s clinical records and render an informed opinion, had seriously hampered their efforts. Counsel also complained that, on March 24, 1995, the original x-ray films from June 5, 1992 had to be.returned to Pennsylvania Hospital and that Appellant had only copies of the films to submit to the expert for review. Counsel asserted that there had been no willful disregard of the discovery deadlines or prejudice to Appel-lees caused by the delay in providing Appellant’s experts’ reports. Counsel further stated that he had not received the court’s order granting his initial request for Extraordinary Relief until March 10, 1998, which was too late to file a timely second request for Extraordinary Relief from the March 2, 1998 deadline. Accordingly, Appellant asked the trial court to reconsider/vacate its summary judgment orders and to issue a new case management order. Realizing that the trial court would not address the motion for reconsideration until after Appellees had thirty days to respond, on May 22, 1998, Appellant filed appeals from the five orders granting summary judgment in favor of all Appellees. ¶ 15 In their answers in opposition to Appellant’s motions to vacate, Appellees principally argued that the trial court no longer had jurisdiction to grant Appellant’s motion to vacate, because the court had not expressly granted reconsideration of its April 29, 1998 orders within thirty days of the date of the orders. They also contended that Appellant had misrepresented the nature of her discovery violations, in that she had violated not one but two orders of the court, and had missed not one but two deadlines. Appellees stated that they had complied with Appellant’s discovery requests and/or submitted to depositions. Appellees maintained that Appellant had been given ample time and information to secure a proper expert and to submit a timely report, at least by the extended deadline of March 2, 1998. Ap-pellees concluded that Appellant’s failure to proceed with due diligence in the face of the court’s deadlines, and despite extended opportunity, was inexcusable, willful, prejudicial, and warranted dismissal of her case. ¶ 16 Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital also took the position that Appellant had expressly acquiesced to summary judgment in their favor by stating on the record that she did not intend to oppose their motions. These Appellees concluded, therefore, that Appellant was bound by her prior position and was now estopped from challenging the orders entering summary judgment in their favor. ¶ 17 By order dated July 2, 1998, the court declared that it no longer had jurisdiction to entertain Appellant’s motions to vacate and denied Appellant’s motion. An appeal from the trial court’s denial of the motion to vacate was subsequently filed but later quashed, sua sponte, by this Court. The present appeals, however, are properly before this Court. ¶ 18 On appeal, Appellant raises the following issue for our review: WAS THE GRANT OF SUMMARY JUDGMENT FOR ALL [APPEL-LEES] AND REFUSAL OF [APPELLANT]’S REQUEST FOR THIRTY (80) ADDITIONAL DAYS WITHIN WHICH TO SUPPLY EXPERT REPORTS AN ABUSE OF DISCRETION WHERE THERE WAS NO EVIDENCE AND NO FINDING BY THE TRIAL COURT OF WILLFULNESS BY [APPELLANT] OR PREJUDICE TO [APPELLEES]? (Appellant’s Brief at 2). ¶ 19 Summary judgment is governed by the Pennsylvania Rules of Civil Procedure as follows: RULE 1035.2 MOTION After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. A proper grant of summary judgment depends upon an ev-identiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Pa. R.C.P. 1035.2 Note. Where a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve the cause of action. If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. The non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party. As with all summary judgment cases, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party as to the existence of a triable issue. Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions. In reviewing a grant of summary judgment, the appellate Court may disturb the trial court’s order only upon an error of law or an abuse of discretion. The scope of review is plenary and the appellate Court applies the same standard for summary judgment as the trial court. McCarthy v. Dan Lepore & Sons Co., Inc. et al., 724 A.2d 938, 940-41 (Pa.Super.1998), appeal denied, 559 Pa. 692, 743 A.2d 921 (1999) (internal citations omitted). See also Moses v. T.N.T. Red Star, 725 A.2d 792 (Pa.Super.1999), appeal denied, 559 Pa. 692, 739 A.2d 1058 (1999). Further, Rule 1035.3 provides in pertinent part: RULE 1035.3 RESPONSE. JUDGMENT FOR FAILURE TO RESPOND (a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion..., or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. (b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence to justify opposition to the motion and any action proposed to be taken by the party to present such evidence. (c) The court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such order as is just. (d) Summary judgment may be entered against a party who does not respond. Pa'.R.C.P. 1035.3 (emphasis added). The rule allows the non-moving party to supplement the record or set forth reasons why that party cannot present the evidence essential to justify opposition to the motion as well as any action intended to be taken by the party to present the evidence. Pa.R.C.P. 1035.3(b). Thereafter, the court may rule on the motion or allow more discovery or make such order as is just. Pa.R.C.P. 1035.3(c). The rule also permits entry of judgment for failure to respond to the motion, but does not require it. Pa. R.C.P. 1035.3(d); Pa.R.C.P. 1035.1 Explanatory Comment-1996. ¶ 20 The rules on summary judgment are replete with discretionary power. Nevertheless, the exercise of judicial discretion requires: action in conformity with the law on facts and circumstances before the trial court after hearing and consideration. An abuse of discretion is not merely an error of judgment. Rather, the trial court abuses its discretion if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason. Similarly, the trial court abuses .its discretion if it does not follow legal procedure. Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa.Super.1997) (internal citations omitted). ¶21 Appellant argues that the orders granting summary judgment in favor, of Appellees were based solely on Appellant’s failure to meet the Day Backward discovery deadline for expert reports. Appellant characterizes the court’s orders as discovery sanctions. Appellant further contends that the entry of summary judgment constituted the severest of sanctions, because her case was dismissed. Appellant maintains that the sanctions were imposed without any evidence or findings of willful ness on Appellant’s part or prejudice to Appellees. Appellant also claims that the trial court abused its discretion by simply ruling on the motions, despite the assertions in her answers of extenuating circumstances and her request for additional time to supplement the record and provide the reports. Appellant concludes that the court’s action constitutes essentially a failure to follow legal procedure. With respect to Appellees Aiken and Meltzer, we agree. Therefore, we cannot affirm the two orders granting summary judgment in their favor. ¶ 22 To review the propriety of the court’s decision, we first consult the general rules regarding discovery sanctions, particularly where the discovery violation is a failure to identify an expert witness and the effect of the sanction is dismissal of the action through summary judgment. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, a trial court may “make an appropriate order” if a party “fails to make discovery or to obey an order of the court respecting discovery.” Pa.R.C.P. 4019(a)(l)(viii). The decision to sanction a party and the severity of the sanction is a matter vested in the discretion of the trial court. Croydon Plastics v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa.Super.1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). ¶ 23 Dismissal of an action as a discovery sanction is permissible under Rule 4019. Stewart v. Rossi, 452 Pa.Super. 120, 681 A.2d 214 (1996), appeal denied, 547 Pa. 731, 689 A.2d 235 (1997). Because dismissal is the most severe sanction, however, “it should be imposed only in extreme circumstances, and a trial court is required to balance the equities carefully and dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced.” Id. at 217. Therefore, heightened review of a sanctions order is appropriate when the practical effect of the order is dismissal of the sanctioned party’s case [or defense]. Croydon, supra; Steinfurth v. LaManna, 404 Pa.Super. 384, 590 A.2d 1286 (1991) (observing that dismissal of malpractice action as result of grant of summary judgment based on appellant’s failure to present expert testimony to establish doctor’s care fell below applicable standard of care is subject to strict scrutiny and should be imposed only in extreme circumstances). ¶ 24 Rule 4003.5 governs the disclosure of an expert’s facts and opinions otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (1995). If the identity of an expert witness is not disclosed, Rule 4003.5 also authorizes sanctions, such as preclusion of the proposed expert’s testimony. Pa.R.C.P. 4003.5(b). We note, however, that in Feingold v. Southeastern Pennsylvania Transp. Authority, 512 Pa. 567, 517 A.2d 1270 (1986), our Supreme Court specifically abandoned the concept of mandatory preclusion in this context, holding that Rule 4003.5 requires the trial court to balance carefully the facts and circumstances of the case to determine the prejudice to each party caused by the discovery violation. Id. at 573, 517 A.2d at 1273. The multi-factor approach espoused in Feingold involves several basic considerations: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling [undisclosed] witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and, (4) bad faith [or] willfulness in failing to comply with the court’s order. Id. at 574, 517 A.2d at 1273. See also Luszczynski v. Bradley, 729 A.2d 83 (Pa.Super.1999), appeal withdrawn, 559 Pa. 692, 739 A.2d 1058 (1999) (adding consideration of importance of precluded evidence in light of failure to comply); Stein-furth, supra (applying Feingold analysis to discovery sanction imposed under Rule 4019). In balancing these factors as they relate to each party, the court must examine the relative prejudice, which cannot be presumed. See Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 546 A.2d 1226 (1988), appeal denied, 522 Pa. 584, 559 A.2d 527 (1989) (stating that complaining party must demonstrate prejudice to proper preparation of case for trial as result of dilatory disclosure). See also Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 521 A.2d 451 (1987) and Linker v. Chumetski Transp., Inc., 360 Pa.Super. 366, 520 A.2d 502 (1987), appeal denied, 516 Pa. 641, 533 A.2d 713 (1987) (illustrating requisite proof of prejudice). ¶ 25 Pennsylvania law makes clear that “local rules cannot be construed as to be inconsistent with state rules.” Harris v. Hospital of University of Pennsylvania, 744 A.2d 769, 1999 PA Super 340 (en banc) (quoting Feingold, supra at 572, 517 A.2d at 1272). See also Pa.R.C.P. 239(b)(1) (stating that local rules shall not be inconsistent with any general rule of the Supreme Court or Act of Assembly). Our Supreme Court has explained: The trial of a lawsuit is not a sporting event where the substantive legal issues which precipitated the action are subordinate to the “rules of the game.” A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair' fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question. A rule which arbitrarily and automatically requires the termination of the action in favor of one party and against the other based upon a procedural misstep, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure. Rule 126 is not a judicial recommendation which a court may opt to recognize or ignore. Rather the rule is a statement of the requirement of fairness and established an affirmative duty courts are bound to follow in applying all procedural rules whether they be statewide or local in origin. Byard F. Brogan v. Holmes Elec. Protective Co. of Philadelphia, 501 Pa. 234, 240, 460 A.2d 1093, 1096 (1983). The Brogan Court recognized that a mandatory, harsh and inflexible application of a rule that requires termination of an action is an abuse of discretion, where the court enforces the rule without determining whether “an obvious injustice was done to the complaining party and if so, was the reason given for the noncompliance more than the mere inadvertence of counsel.” Id. at 241, 460 A.2d at 1096-97. ¶ 26 Although courts have the power to formulate local rules of practice and procedure, local rules cannot abridge, enlarge or modify the substantive rights of a litigant. Pennridge Elec., Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 615 A.2d 95 (1992). See also McGratton v. Burke, 449 Pa.Super. 597, 674 A.2d 1095 (1996), appeal denied, 546 Pa. 667, 685 A.2d 546 (1996) (holding invalid local rule prohibiting all post-arbitration discovery); Everhardt v. Akerley, 445 Pa.Super. 600, 665 A.2d 1283 (1995) (declaring invalid local rule that allowed for dismissal of exceptions to recommended support order for appellant’s failure to file a brief at least fifteen days in advance of argument date); Murphy v. Armstrong, 424 Pa.Super. 424, 622 A.2d 992 (1993) (holding that sanction of dismissal for noncompliance of local rule is unauthorized). ¶ 27 We are also mindful that to state a cause of action for medical malpractice, Pennsylvania law requires plaintiff to establish the following: (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm. Moreover, the patient must offer an expert witness who will testify to a reasonable degree of medical certainty, • that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Eaddy, supra at 642 (internal citations omitted). See also Gregorio v. Zeluck, 451 Pa.Super. 154, 678 A.2d 810 (1996), appeal denied, 546 Pa. 681, 686 A.2d 1311 (1996). Addressing this standard as it applies to medical malpractice cases involving the failure to diagnose a disease, our Supreme Court has stated: In many cases, this [standard of proof] is not a problem for a plaintiff. However, certain cases make this an impossible standard. These are cases in which, irrespective of the quality of the medical treatment, a certain percentage of patients will suffer harm. An example of this type of case is a failure of a physician to [make a timely diagnosis]. Although timely detection of [a disease or medical condition] may well reduce the likelihood that the patient will have a terminal [or adverse] result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the [plaintiff] would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts of omissions of the physician were a substantial factor in bringing about the harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62-63, 584 A.2d 888, 892 (1990). Moreover, the expert need not testify with absolute certainty or rule out all other possible causes for the harm suffered by the patient. Id. The expert in these cases has been permitted to testify under the relaxed degree of certainty enunciated in Section 323(a) of the Restatement (Second) of Torts, that the defendant’s failure to exercise reasonable care in the diagnosis and treatment increased the risk of harm. Id. at 66-67, 584 A.2d at 894. See also Smith v. Grab, 705 A.2d 894 (Pa.Super.1997) (reiterating reduced standard of certainty applicable to cases involving failure to diagnose). ¶ 28 Although preferred, the expert is not necessarily required to use the “magic words” of “increased the risk,” so long as the opinion is expressed to the requisite degree of medical certainty. Mitzelfelt, supra. The substance of the expert testimony is viewed in its entirety to determine whether it has expressed the appropriate standard of certainty. Id. ¶ 29 The instant case involves the interplay and balance of all these legal principles. We agree with Appellant that her case against Appellees Aiken and Meltzer was dismissed by virtue of summary judgment without any application of the balancing factors enunciated in Fein-gold, supra; Brogan, supra; Luszczynski, supra; Kearns, supra. ¶ 30 Here, the parties engaged in discovery over the course of three years without incident. No party needed to request court intervention to compel compliance with discovery requests. This case does not involve ongoing dilatory, obdurate or vexatious discovery practices requiring court intervention, or any deliberate defiance of court orders compelling discovery responses. See, e.g., Croydon, supra; Stewart, supra. ¶ 31 Further, Appellant timely requested an extension of the court’s case management deadline once it became apparent that her experts’ reports would not be ready by February 2, 1998. Appellant’s petition was unopposed. Although Appellant should have requested more time or, in the alternative, filed another petition for relief from the deadline as a precautionary measure, Appellant’s answer to the motions for summary judgment of Appellees Aiken and Meltzer provided extenuating circumstances and put the court and counsel on notice that Appellant’s expert reports were imminent. The failure to provide the expert reports by the new March 2, 1998 deadline was Appellant’s first and only discovery violation. The importance of the experts’ reports to Appellant’s case was undisputed whereas dismissal was a harsh enforcement of the case management deadline. Thus, we conclude that the court should have looked more carefully at the equities presented, particularly in the absence of any history of willful or bad faith failure to comply with the discovery deadlines. See Feingold, supra; Brogan, supra; Luszczynski, supra. ¶ 32 Additionally, the motions for summary judgment and responses were not filed on the eve of trial. Trial in this matter was still five months away and open to a request for continuance by any party. Further, Appellees had all of Appellant’s medical records and plenty of time to prepare a response to Appellant’s expert reports. Therefore, we conclude that Appellees’ bare allegation of prejudice without a showing of prejudice in fact does not support dismissal of Appellant’s case. See Curran, supra; Kearns, supra. ¶ 33 With respect to the remaining orders granting summary judgment in favor of Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital, Appellant specified her intention not to oppose the motions in her answers in opposition to the motions filed by these Appellees. On April 14, 1998, Appellant also filed with the court copies of the letters to Appellees’ counsel, advising the court that she would not oppose summary judgment in favor of Appellee Keohane and the two hospitals. Accordingly, these motions for summary judgment were entered unopposed as a matter of record and cannot now be assailed. See Pa.R.C.P. 1035.3(d). ¶34 Based upon the foregoing, we affirm the orders granting summary judgment in favor of Appellees Keohane, Pennsylvania Hospital and Jefferson Hospital. We reverse the orders granting summary judgment in favor of Appellees Aiken and Meltzer. We remand the matter to the trial court for further proceedings consistent with this opinion including, but not necessarily limited to, a consideration of Appellant’s expert reports to determine whether they meet the requisite legal standard regarding Appellees Aiken and Melt-zer. ¶35 Orders granting summary judgment affirmed in part and reversed in part; case remanded to the trial court for further proceedings. Jurisdiction is relinquished. . The Philadelphia County Court of Common Pleas Day Backward Programs, and the successor Day Forward Programs, are case management programs designed to reduce the Philadelphia trial court’s backlog of untried cases by setting definite pretrial deadlines and trial dates. Prior to the institution of these programs, the First Judicial District had been plagued with poorly defined trial pools and unpredictable trial dates that allowed cases to languish in the court system and defeat closure at the will of either party. The programs helped to create a level playing field for the parties while promoting efficient court proceedings. The discovery cut-off dates are intended to move the cases along and protect against trial by ambush. As a whole, these programs have been viewed as a boon to plaintiffs. The team leader or trial judge retains certain discretion in enforcing these deadlines. See, e.g., Zito v. Merit Outlet Stores, 436 Pa.Super. 213, 647 A.2d 573 (1994) (affirming trial court's imposition of financial sanctions for cost of delay against party requesting one-half day recess of trial to permit taking of expert’s video deposition). In other words, the trial court is not obligated to dismiss a case or preclude evidence for failure to adhere to the deadlines prescribed in the case management order. . The Philadelphia County case management program requires the parties to file all Petitions for Extraordinary Relief, requesting extensions of the deadlines prescribed in the case management orders, before the expiration date of the applicable deadline. . See Cheathem v. Temple University Hosp., 743 A.2d 518, 520 (Pa.Super.1999) (reiterating well settled rule that, regarding final orders, thirty-day appeal period is tolled only by order expressly granting reconsideration within thirty days of entry of final order; any other order is inadequate to stay appeal); Mente Chevrolet, Oldsmobile, Inc. v. Swoyer, 710 A.2d 632 (Pa.Super.1998) (stating that in situations involving final orders, best procedure for party seeking reconsideration of final order is to file motion for reconsideration and notice of appeal; if reconsideration is granted within thirty days of final order, appeal becomes inoperative; if reconsideration is denied [expressly or by passage of thirty-day period for appeal], appellate rights have been preserved). . But see Hightower-Warren v. Silk, M.D., 548 Pa. 459, 698 A.2d 52 (1997) (holding that expert medical testimony is not required if matter is so simple or lack of skill or care is so obvious as to be within range of experience and comprehension of even lay persons). See, e.g., Gregorio, supra (presuming physician’s failure to remove surgical gauze from patient following delivery and episiotomy is example of deviation from accepted medical standards that can be comprehended by lay person even without expert opinion provided). . Section 323 of the Restatement (Second) of Torts provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Restatement (Second) of Torts Section 323 (emphasis added) (all pronouns intended as gender neutral). . As a practical matter, we recognize that plaintiff and defense counsel alike exercise little control over their experts, whose reports are often tendered at the last minute regardless of the precarious position in which this practice places the parties.

OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal by allowance from a memorandum decision of the Commonwealth Court which reversed in part an order of the Workmen’s Compensation Appeal Board and reinstated an award of total disability benefits and medical expenses for Robert M. Newcomer, appellee. At issue is the competency of certain expert medical testimony that was relied upon by Newcomer to prove that a workplace accident was the cause of his shoulder disability. Whether the testimony was based on a false medical history is the pivotal question. The factual background of Newcomer’s injury and treatment is as follows. While employed as a truck driver for Ward Trucking Corporation (WTC), Newcomer sustained an injury at work on February 1, 1989. The injury was occasioned by a severe impact to Newcomer’s abdomen, which caused a perforated bowel and torn stomach and chest muscles. Newcomer did not return to work until April 17,1989. He was then assigned to light-duty work loading pallets of light bulbs onto a trailer. Within two days he stopped performing that job on the ground that it was too strenuous. He was assigned to another light-duty job on May 1,1989. This was an office job that consisted of emptying trash cans, answering telephones, and dispatching. However, claiming that stress associated with office work aggravated his pre-existing peptic ulcer and relying on the advice of his family physician, Newcomer quit working on November 1,1989. Newcomer subsequently filed a claim for reinstatement of temporary total disability benefits. He had been paid benefits for temporary total disability from the date of the accident until April 17, 1989. Thereafter he had been receiving partial disability benefits. In March of 1991, a hearing on the claim for increased benefits commenced. However, during the hearing, WTC offered Newcomer a job scanning bar codes on freight cartons. Newcomer agreed to try the job, so the proceeding adjourned. Around April 1, 1991, Newcomer worked at the job for a couple of shifts but then quit. In October of 1991, Newcomer was experiencing shoulder discomfort so he consulted an orthopedic surgeon, Dr. John B. O’Donnell. He told Dr. O’Donnell that his shoulder had been injured in the same workplace accident that caused injuries to his stomach and chest. After performing various tests, Dr. O’Donnell diagnosed Newcomer’s problem as a torn rotator cuff and degenerative changes caused by osteoarthritis. Surgery was then performed. Workmen’s compensation hearings on the claim for reinstatement of total disability benefits resumed in 1993. It was Newcomer’s burden to prove that he was unable to obtain any work within the physical limitations caused by his work-related injury. See Dillon v. Workmen’s Compensation Ap peal Board, (Greenwich Collieries), 536 Pa. 490, 504, 640 A.2d 386, 393 (1994) (burden of proof). Newcomer introduced deposition testimony given in May of 1991 by his family physician, Dr. George W. Baker, Jr. Dr. Baker, who had treated Newcomer on an ongoing basis for aftereffects of the workplace accident, stated that treatment had been directed at abdominal muscle tears and strains and that Newcomer had not fully recovered from the injury. He confirmed that around November 1, 1989, he had advised Newcomer to discontinue working in an office environment because job stress was aggravating Newcomer’s preexisting ulcer. In addition, Newcomer introduced deposition testimony given in 1992 by Dr. O’Donnell. Dr. O’Donnell testified that Newcomer should avoid repetitive motions with his right arm and avoid lifting more than fifteen pounds. He further testified that, due to such limitations, Newcomer was unable to work as a truck driver, trailer loader, or scanner. Significantly, Dr. O’Donnell stated his opinion that the shoulder problem was caused by the workplace accident that occurred on February 1, 1989. He acknowledged that he had not reviewed any of the hospital records relating to the original injury. Nor had he been involved in any of the treatment that immediately followed the injury. Instead, he based his opinion solely and expressly on the medical history provided by Newcomer. This was the only expert opinion offered by Newcomer to establish a link between the shoulder disability and the accident. Predictably, Newcomer testified at the 1993 hearing that he injured his shoulder in the workplace accident and that he continued to be affected by disability and discomfort that were not fully rectified by the 1991 surgery. He also testified that he quit the job operating a scanner in April of 1991 because wearing the scanner on a strap around his neck and repeatedly moving the scanning wand, a device similar in size and weight to a marking pen, caused discomfort in his right shoulder. WTC did not introduce any expert medical testimony, but did provide testimony regarding the multitude of jobs that had been offered to Newcomer. During the hearing WTC offered Newcomer yet another job, this time as a night watchman. Dr. O’Donnell later provided an opinion, however, that Newcomer’s shoulder problem made him incapable of working as a night watchman. The workmen’s compensation judge concluded that Newcomer was entitled to reinstatement of total disability benefits retroactive to November 1, 1989 as well as reimbursement for medical expenses related to the shoulder injury. The judge also awarded attorney’s fees, finding that WTC failed to establish a reasonable basis for having contested liability. The Workmen’s Compensation Appeal Board reversed the award of total disability benefits, medical expenses, and attorney’s fees. It ordered the continued payment of benefits for partial disability. The board’s rationale was that Dr. O’Donnell’s opinion had no basis in fact and was incompetent as a matter of law because it was based on a false medical history supplied by Newcomer. An appeal was taken to the Commonwealth Court. The board’s order was then affirmed insofar as it held WTC not liable for attorney’s fees, but it was reversed to the extent that it held WTC not liable for total disability benefits and medical expenses related to the shoulder injury. The court reasoned that the board erred in its assessment that Dr. O’Donnell’s testimony lacked competency. We granted allowance of appeal to review the basis for Dr. O’Donnell’s testimony that the shoulder disability was attributable to the workplace accident of February 1, 1989. Establishing a link between the disability and the accident is critical to Newcomer’s claim, since WTC is not required to accommodate physical limitations arising from disabilities that were not caused by the workplace accident. Markle v. Workmen’s Compensation Appeal Board (Caterpillar Tractor Co.), 541 Pa. 148, 154, 661 A.2d 1355, 1358 (1995). Having reviewed the record, we agree with the board’s determination that Dr. O’Donnell’s testimony was based on a false medical history and was, therefore, incompetent as a matter of law. A close examination of the testimony relating to Newcomer’s medical history is essential. During the 1991 hearing, Newcomer’s testimony made no reference to a shoulder injury. Newcomer described the accident as one in which he received a blow on the cheek and on the chest, resulting in damage to his chest muscles and lower abdomen. When asked about lingering effects of the injuries, he said, “I have constant pain in the chest, sometimes back under here in the rib cage.” When questioned about his ability to lift objects, he replied, “There’s a lot of things I can’t do. I can’t even sit and read the newspaper like this because it just falls out. I have to lay the newspaper on my — and if I reach up it just bothers me.” On cross-examination, Newcomer’s problem with lifting and reaching was further explored: Q. You mentioned you have trouble lifting a book or something like that? A. Right. Q. What is it that makes you say it has to be real light? A. Well, it just pulls like sandpaper up through here if I reach up (indicating). Q. That’s in your chest? A, That’s in my chest. Newcomer’s failure to mention any shoulder problem in 1991 was consistent with deposition testimony given later that same year by his family physician, Dr. Baker. Dr. Baker diagnosed Newcomer’s injury as a severe blow to the abdomen caused when a tool handle was set in motion by a co-worker’s fall. He testified that treatment had been directed at abdominal muscle tears and strains, and that a satisfactory recovery from these injuries had not yet been achieved. He stated that, as far as limitations on lifting were concerned, Newcomer “should not lift more than 20 pounds and only then occasionally.” On cross-examination, the reason for this limitation was elicited: Q. Specifically what is it, Doctor, that he has not recovered from at the present time which causes you to put him on the limitations? A. His abdominal muscle strain. Q. So it’s the status of his abdominal muscles that causes you to put restrictions on this gentleman, no other reason as I understand it, correct? A. Correct. Dr. Baker also said that Newcomer reported severe pain when he attempted to return to work loading light bulbs onto a truck. Dr. Baker opined that the pain was due to having re-injured certain abdominal muscles. He also stated that the task of scanning bar codes on freight cartons was one that Newcomer should be able to perform. Nowhere in Dr. Baker’s testimony was there any indication that Newcomer suffered from any sort of shoulder problem. In his 1992 deposition testimony, Dr. O’Donnell indicated that shoulder pain is commonly “referred,” and that chest pain can be consistent with a shoulder injury. With regard to the specifics of Newcomer’s injury, Dr. O’Donnell testified about the medical history that he was provided. Newcomer told the doctor that his shoulder had been injured in the same workplace accident that caused injuries to his stomach and chest. He described the accident as one in which a co-employee fell into his back and on top of him while getting off of a truck. Newcomer said that his arm was positioned out to the side at the time and that a shoulder injury resulted. Newcomer told the doctor that, ever since that time, he had been troubled by pain in his right shoulder. However, this description of the accident plainly differed from his earlier descriptions of the event. At the time of the accident, Newcomer told treating physicians that he suffered abdominal and chest injuries when a co-employee who was getting off of a truck slipped and fell into an empty hand truck that in turn fell back and struck him in the lower abdomen. No mention was made of a shoulder injury. On cross-examination in the 1993 hearing, Newcomer was questioned regarding this discrepancy in the two accounts of the accident: Q. Right after that injury occurred you went to the Chambersburg Hospital Emergency Room, is that correct? A. Yes Q. When you got there you didn’t tell them about hurting your shoulder or the upper part of your chest, would you agree with that statement? A. At that time all the pain was here (indicating). I didn’t even think about — I knew, I referred to the pain in my face. Q. I’ll tell you what I read them saying [in the emergency room records] and tell me if you agree with it or not? You were complaining of hitting abdomen with a hand truck. The action was; your hand truck was on the ground and friend got off truck, slipped and fell into empty hand truck which fell back hitting patient, lower part of the abdomen. You said you did not lose your consciousness and you did not have back pain, is that an accurate statement of what you told the hospital? A. If that’s what I told ... them that’s what’s on there. Additional cross-examination focused on Newcomer’s failure to have earlier claimed a shoulder injury: Q. Do you recall in July of 1990 talking to a representative of Liberty Mutual ... a claim representative? A. Yes Q. She asked you a question; “What type of injury did you have?”, and your response was “Well, that type of injury was that the force of it blew a hole in my lower bowel which I was operated on later on in the evening for.” Do you agree you made that statement? A. Yes Q. Further you said, “We thought there might have been a broken rib. They had chest pains, nothing showed on the x-rays and as time went on the pain continued in my chest. So apparently there was trauma to my muscles. That’s the only way I can explain it.” Do you think they typed that correctly? A. Yes Dr. O’Donnell, too, testified on cross-examination regarding Newcomer’s delay in claiming a shoulder injury. He conceded that although the degenerative condition of the shoulder was a progressive one that probably became increasingly troublesome, it would indeed have been “unusual” for two and one-half years to have elapsed from the time of an injury in February of 1989 to the time when medical treatment was first sought in October of 1991. On this record, we agree with the board’s determination that there was not substantial competent evidence to support the conclusion of the workmen’s compensation judge that Newcomer’s shoulder disability resulted from the workplace accident. See Bethenergy Mines v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 291, 612 A.2d 434, 436 (1992) (scope of appellate review is whether the record contains substantial evidence that supports the findings of the workmen’s compensation judge). While an expert witness may base an opinion on facts of which he has no personal knowledge, those facts must be supported by evidence of record. See Kozak v. Struth, 515 Pa. 554, 558, 531 A.2d 420, 422 (1987). Dr. O’Donnell’s testimony was incompetent in that it was unsupported by the medical record and by the factual history of the accident. The description of the accident provided to Dr. O’Donnell was patently different from that which was the basis for treatment at the time of the injury. Newcomer was treated for an abdominal injury. For two and one-half years thereafter, he received absolutely no treatment for any shoulder problem. Dr. O’Donnell’s opinion as to causation was based solely on Newcomer’s representation that he suffered the shoulder injury in the work-related accident. The medical records of treatment following the accident simply do not support Newcomer’s claim. In short, Newcomer’s personal opinion of causation was the sole basis for Dr. O’Donnell’s expert opinion. The expert opinion lacked, therefore, a competent foundation in the evidence of record. The decision of the Commonwealth Court must be reversed to the extent that it modified benefits from partial to temporary total disability status for the indefinite period after November 1, 1989, and to the extent that it allowed recovery of medical expenses related to the shoulder disability. A job within the physical limitations attributable to the work-related injury was available on or about April 1,1991, when Newcomer was given a job operating a scanner. Benefits must, therefore, be modified from temporary total to partial disability status as of that date. The order of the Commonwealth Court is reversed in part, and the case is remanded to the board for modification of benefits consistent with this opinion. NEWMAN, J., did not participate in the consideration or decision of this case. WTC has filed a motion requesting that we dismiss an issue contained in Newcomer’s brief, namely an allegation that the Commonwealth Court erred in affirming the board's reversal of the award of attorney’s fees for unreasonable contest. Newcomer did not file a petition or cross-petition for allowance of appeal. WTC correctly asserts that this issue has not been preserved. Hence, the motion is granted.

ORDER PER CURIAM: AND NOW, this 25th day of March, 1997, the appeal is dismissed as improvidently granted.

OPINION NIGRO, Justice. J.B. Boyd appeals the denial of his claims under the Post Conviction Relief Act, 42 Pa. Cons.Stat. §§ 9541-9546 (“PCRA”). Boyd asserts that his trial counsel was ineffective for advising him to reject the prosecution’s plea offer and for advising him not to testify at trial. We find that the Superior Court erred in holding that Boyd’s claim that his counsel improperly advised him to reject the plea offer is not cognizable under the PCRA. However, we affirm the lower court’s decision that Boyd is not entitled to a new trial. J.B. Boyd was socializing with his former girlfriend, D.J. Thrush, at a nightclub. Herbert Jolly, another man who had a relationship with Thrush, saw Boyd and Thrush together and followed them back to Thrush’s apartment. Jolly entered the apartment that he had shared with Thrush and found Boyd and Thrush in bed together. Boyd ordered Jolly out of the apartment. The two men began to fight and Boyd stabbed Jolly many times. Jolly ran to another apartment and the man who lived there took Jolly to the hospital. The police questioned Jolly at the hospital about the incident. The police went to Thrush’s apartment and observed Boyd’s and Thrush’s wounds and recovered a bloody knife as evidence. Upon learning that the blood on the knife matched Jolly’s blood, the police arrested Boyd and charged him with aggravated assault and recklessly endangering another person. Boyd’s counsel argued at trial that Boyd stabbed Jolly in self-defense and emphasized Boyd’s own wounds in support. Jolly testified that he did not bring a knife to the apartment and that Boyd attacked him when his back was turned. Boyd did not testify. Boyd’s counsel argued that Jolly’s testimony was incredible and inconsistent with his testimony at the preliminary hearing. He also asserted that the laboratory results on blood from the knife were unreliable. During the trial, the prosecution offered Boyd a plea to the misdemeanor, simple assault mutual combat. Boyd rejected the plea offer. The jury convicted Boyd of aggravated assault and reckless endangerment and the court sentenced him to four to eight years imprisonment. Boyd appealed and the Superior Court affirmed. We denied Boyd’s petition for allowance of appeal. Boyd then filed a pro se petition for post-conviction relief. His appointed PCRA counsel filed an amended petition claiming that trial counsel was ineffective for advising him to reject the prosecution’s plea offer and for advising him not to testify at trial. Following an evidentiary hearing, the court found that Boyd’s counsel reasonably believed that Boyd could prevail at trial and that he was motivated only by his client’s interests when he advised Boyd to reject the plea offer. The court also held that Boyd’s counsel acted reasonably in advising him not to testify at trial. On appeal, the Superior Court held that Boyd’s claim that his counsel was ineffective for advising him to reject the plea offer was not cognizable under the PCRA because it did not implicate the truth-determining process. The Superior Court also found that Boyd’s counsel acted reasonably in advising him not to testify at trial. The Superior Court erred in holding that Boyd’s claim that his counsel was ineffective for advising him to reject the plea offer is not cognizable under the PCRA. While the Superior Court correctly recognized that ineffective assistance of counsel claims under PCRA section 9543(a)(2)(ii) require that counsel’s conduct undermine the truth-determining process, see Commonwealth v. Buehl, 540 Pa. 493, 505, 658 A.2d 771, 777 (1995), it failed to consider that ineffective assistance claims that do not implicate the truth-determining process but involve certain constitutional or statutory violations are also cognizable under the PCRA. Under PCRA section 9543(a)(2)(v), relief is available to persons who are convicted or sentenced as a result of a violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of federal habeas corpus to a state prisoner. 42 Pa. Cons.Stat. § 9543(a)(2)(v). An ineffective assistance claim, for example, that counsel ignored a request to file a direct appeal is thus cognizable even though the claim does not implicate the truth-determining process. Commonwealth v. White, 449 Pa.Super. 386, 391, 674 A.2d 253, 256 (1996). The Superior Court has held that a claim that counsel was ineffective for failing to communicate a plea offer to his client is cognizable under the PCRA. Commonwealth v. Korb, 421 Pa.Super. 44, 49, 617 A.2d 715, 717 (1992). While counsel’s failure to tell his client about the offer would not have affected the truth-determining process, the Superior Court found that such a failure would deny the defendant his constitutional rights. Id. Because the defendant would be entitled to relief in a federal habeas corpus action for such a violation, he stated a claim under PCRA section 9543(a)(2)(v). Id. at 50, 617 A.2d at 718. The reasoning in Korb applies here. Boyd argues that his counsel was ineffective for advising him to reject the prosecution’s plea offer. In addition to telling a client about a plea offer, counsel has a duty to explain the advantages and disadvantages of accepting or rejecting it. Commonwealth v. Copeland, 381 Pa.Super. 382, 394-96, 554 A.2d 54, 60-1 (1988)(quoting Commonwealth v. Napper, 254 Pa.Super. 54, 60-1, 385 A.2d 521, 524 (1978)), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). A defendant cannot make an informed choice without such assistance from counsel. Id. Just as a defendant’s constitutional right to effective assistance of counsel may be violated when counsel fails to communicate a tendered plea, that right may be violated by a failure to properly explain the advantages and disadvantages of accepting or rejecting a plea offer. See United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3rd Cir.1982)(stating that the decision to reject a plea offer is a critical stage at which the right to effective assistance of counsel attaches). Counsel’s ineffective assistance with respect to a plea bargain would require the grant of federal habeas corpus relief to a state prisoner. See, e.g., Turner v. State of Tennessee, 858 F.2d 1201 (6th Cir.1988)(habeas corpus granted where petitioner was denied effective assistance when counsel advised him to reject a plea offer); Zelinsky, 689 F.2d 435 (ineffective assistance claim for failure to communicate a plea offer is cognizable under habeas corpus statute); Beckham v. Wainwright, 639 F.2d 262 (5th Cir.1981)(habeas corpus granted where petitioner was denied effective assistance when counsel advised him to withdraw plea). Boyd’s claim is thus cognizable under PCRA section 9543(a)(2)(v). While Boyd’s claim is cognizable under the PCRA we agree with the trial court that Boyd failed to prove that he is entitled to a new trial. To establish that counsel was ineffective for advising him to reject the plea, a defendant has the burden of proving that counsel had no reasonable basis for his advice. See Copeland, 381 Pa.Super. 382, 554 A.2d 54 (setting forth defendant’s burden of proof to establish counsel’s ineffectiveness for failing to communicate a plea). At the post-conviction hearing, Boyd’s counsel testified that he conveyed the plea offer to Boyd and told him that the misdemeanor to which he could plead guilty carried a maximum sentence of six months to one year. While Boyd was interested in the bargain, his counsel discouraged him from taking it. Boyd’s counsel felt that no jury would convict Boyd because Jolly was a poor witness. His testimony was inconsistent and he admitted to perjury on the witness stand. Boyd’s counsel felt there was reasonable doubt as to who owned the knife that caused Jolly’s wounds. He explained to Boyd, however, that the final decision as to whether to accept the plea was his. Based upon this testimony, the trial court found that counsel reasonably believed that he had a good chance of prevailing at trial, that there was no indication that counsel was motivated by interests other than his client’s and that counsel discussed the offer with Boyd and rendered honest advice. Compare Napper, 254 Pa.Super. 54, 385 A.2d 521 (counsel did not advise his client to accept a favorable plea so that he could try his first case). We agree that counsel provided a reasonable basis for his advice to Boyd and hold that counsel was not ineffective for advising Boyd to reject the plea offer. Boyd also argues that counsel was ineffective for advising him not to testify. He contends that if he testified, he could have disputed Jolly’s testimony and supported the theory that he acted in self-defense. In order to establish that counsel was ineffective for advising against testifying, a defendant must show that counsel interfered with his freedom to testify or gave him advice that was so unreasonable that it vitiated his knowing and intelligent decision not to testify on his own behalf. Commonwealth v. Fowler, 362 Pa.Super. 81, 87, 523 A.2d 784, 787, appeal denied, 517 Pa. 598, 535 A.2d 1056 (1987). At the post-conviction hearing, Boyd’s counsel testified about the conversation he had with Boyd concerning whether he would testify at trial. Boyd told his counsel that the knife involved in the fight belonged to him and that he struck Jolly with the knife. Given this information, Boyd’s counsel believed that his testimony would undermine the argument that Jolly resorted to deadly force first and Boyd acted in self-defense. Boyd’s counsel was also concerned that the prosecution would raise Boyd’s prior record. He thus advised Boyd not to testify and told him that Jolly’s own contradictions would raise reasonable doubt in the minds of the jurors. Boyd’s counsel also testified that he left the ultimate decision to Boyd. We agree with the lower courts that counsel’s advice to Boyd was reasonable and that Boyd has not shown that his counsel interfered with his freedom to testify. We therefore reject both of Boyd’s claims for relief under the PCRA. The Superior Court erred in holding that Boyd’s claim that his counsel was ineffective for advising him to reject a plea is not cognizable under the PCRA. However, Boyd failed to establish that his counsel did not have a reasonable basis for his advice with respect to the plea offer or for his advice not to testify at trial. Thus, Boyd is not entitled to a new trial. CASTILLE, J., files a concurring and dissenting opinion in which NEWMAN, J., joins. . The PCRA affords relief to a person who was convicted as a result of "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa. Cons.Stat. § 9543(a)(2)(ii). . Appellant filed his PCRA petition before the 1995 amendments to the Act became effective in January of 1996. Therefore, former PCRA section 9543(a)(2)(v) applies to this case.

ORDER PER CURIAM. AND NOW, this 14th day of February, 1997, we GRANT this Petition for Allowance of Appeal and REMAND this matter to the Commonwealth Court for a determination of the timeliness of Petitioner’s notice of review to the Commonwealth Court pursuant to Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996).

ORDER PER CURIAM. AND NOW, this 11th day of April, 1997, the Emergency Motion for a Stay of Execution, Request for Briefing Schedule and Full and Fair Appellate Review, and if necessary, Petition for Allowance of Appeal is herewith transferred to the Superi- or Court. CASTILLE, J., files a dissenting statement.

ORDER PER CURIAM: AND NOW, this 6th day of February, 1997, there having been filed with this Court by Stephen J. Marcincin his verified Statement of Resignation dated December 13, 1996, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of Stephen J. Marcincin be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

OPINION OF THE COURT FLAHERTY, Chief Justice. The United States appeals a judgment of the Superior Court which affirmed an order of the Court of Common Pleas of Cambria County granting a petition filed by the Estate of Francis J. Romani to transfer real estate in lieu of execution. We affirm. Francis J. Romani, who died on January 13, 1992, left an insolvent estate with debts greatly exceeding the value of the sole asset, a piece of real estate valued at $53,001.00. This real estate is burdened by a judgment lien and a federal tax lien. On January 25, 1985, a judgment hen was entered and properly revived against Mr. Romani in favor of Romani Industries, Inc. in the amount of $400,000. Subsequent to the entry of judgment against decedent, the Internal Revenue Service filed notice of a federal tax hen against the decedent for unpaid taxes and an unpaid civil penalty that, with interest, totaled $489,720.04. The administrator of the Estate of Francis J. Romani filed a petition in the Court of Common Pleas of Cambria County to transfer the real estate in lieu of execution on behalf of the judgment creditor, Romani Industries, Inc., and the United States opposed the petition. Both parties claimed priority to the property. The lower court granted the administrator’s request for relief, holding that the status of Romani Industries, Inc. as a first-in-time judgment lien creditor gave it priority over the government’s subsequently filed tax lien. Order dated July 7, 1994, Court of Common Pleas of Cambria County, G.D. No. 11-94-14. The Superior Court affirmed per curiam. In re Estate of Francis Romani, 445 Pa.Super. 637, 664 A.2d 1064 (1995). This appeal followed. The question presented is whether section 6323(a) of the Tax Lien Act, 26 U.S.C. § 6323(a), (“section 6323”), limits the operation of section 3713(a)(1) of the federal insolvency statute, 31 U.S.C. § 3713(a)(1), (“section 3713”), as to tax debts. Romani Industries, Inc. argues that its judgment lien has priority over a tax claim of the United States because, under section 6323, the holder of a properly entered judgment lien has priority over subsequently filed tax lien debts. The United States disagrees, arguing that it has an absolute priority under section 3713 to all proceeds remaining in an insolvent estate, regardless of the time of filing of the tax liens. Section 6323 provides for a “first in time” priority to the rival lien in federal tax lien matters as follows: Validity And Priority Against Certain Persons (a) Purchasers, Holders of Security Interests, Mechanic’s Lienors and Judgment Lien Creditors. — The lien imposed by section 6321 [a federal tax lien] shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary---- Tax liens have been authorized by predecessor tax lien statutes. See, Act of July 13, 1866, ch. 184, § 9, 14 Stat. 107. It was not until 1966 with the amendment of section 6323, however, that the statute specified priority rules to resolve conflicts between federal tax liens and rival liens. Section 3713 provides for an absolute priority for federal tax claims in insolvency as follows: Priority Of Government Claims (a)(1) A claim of the United States shall be paid first when-(B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all the debts of the debtor. The predecessor to section 3713 was Revised Statute § 3466, 31 U.S.C. § 191, which has been substantially unchanged since 1797. (“section 3466”). See, Act of March of March 3, 1797 ch. 20, § 5,1 Stat. 515. The Court has not decided the question presented. It has cautioned, however, that in considering whether other provisions of the tax lien act operated as implied exceptions to the insolvency statute, “[o]nly the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of section 3466.” United States v. Emory, 314 U.S. 423, 433, 62 S.Ct. 317, 322-23, 86 L.Ed. 315, 325 (1941); United States v. Key, 397 U.S. 322, 90 S.Ct. 1049, 25 L.Ed.2d 340 (1970). In Key, the Court said that a reviewing court is to determine whether the statutes are facially inconsistent and, if so, whether the legislative history of the competing statute reflects a congressional intent to modify the effect of the insolvency statute. Id. at 324, 90 S.Ct. at 1051, 25 L.Ed.2d at 344 (1970). The first issue is whether there is a plain inconsistency between the priority of section 6323 and the absolute priority granted the United States by section 3713. Here, the government’s relative priority as a creditor differs depending on which section is applied. Section 6323 states that nonfederal claims that have been duly filed prior to the filing of the federal tax claim are valid as against federal tax claims. On the other hand, section 3713 gives an absolute priority to the United States against other creditors of insolvent debtors for tax liens regardless of when the tax lien was filed. We are constrained to find a facial inconsistency because, with respect to tax liens, section 6323 provides for a “first in time” priority while section 3713 gives absolute priority to the United States. Since we have determined that the statutes are plainly inconsistent, we next address whether the Tax Lien Act of 1966 evidences a congressional intent that federal priorities in insolvency be limited in the tax area. We look to United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) as the most recent expression of the Court on the policy considerations that underlie the question of whether the government in the tax arena is to be treated as an ordinary creditor or as a creditor with super-priority. In Kimbell Foods, the Court held that Congress intended that the “first in time is first in right” principle of section 6323 applied in federal government lending cases involving solvent debtors. The Court ruled that government lending agencies, such as the Small Business Administration, are to be afforded the same priority as private lenders under non-discriminatory state laws, absent a congressional directive to the contrary. 440 U.S. at 740, 99 S.Ct. at 1465, 59 L.Ed.2d at 731. The Court articulated two reasons for its holding. First, Congress, by the passage of the Tax Lien Act of 1966, expressed its disapproval of “unrestricted federal priority” in tax matters. 440 U.S. at 738, 99 S.Ct. at 1463, 59 L.Ed.2d at 730. See, 26 U.S.C. §§ 6323(b), (c), (d), and (e). The Court explained that, prior to the 1966 law, it had formulated the “choate lien” test which modified the “first in time is first in right” idea by requiring that the nonfederal lien be sufficiently specific and perfected to overcome the priority of the United States in insolvency cases. 440 U.S. at 720, 99 S.Ct. at 1454, 59 L.Ed.2d at 719. The practical effect of the choateness test, the Court said, was that rival liens were defeated because they failed to pass its strict test. Id. The Court concluded that the Tax Law of 1966 reflected congressional intent to disapprove unrestricted federal priority in tax matters and to displace the “choateness” doctrine. 440 U.S. at 720 n. 6, 99 S.Ct. at 1454 n. 6, 59 L.Ed.2d at 719 n. 6. Second, the Court explained that restrictions on federal tax lien priority are necessary to facilitate commercial stability and to avoid the frustration of expectations of superior lien holders. The Court recognized that federal lien priority undercuts the reliability of the notice filing system, which plays a crucial role in commercial dealings. 440 U.S. at 739 n. 42, 99 S.Ct. at 1464 n. 42, 59 L.Ed.2d at 731 n. 42. Prior creditors either have no trustworthy means of discovering the undisclosed security interest or, if they are aware of the federal lien, have to adjust their lending arrangements to protect against the stringent choateness requirements. 7d Further, the Court said, considerable uncertainty would also result from the choateness approach because the development of priority rules on a case-by-case basis, depending on the types of competing liens involved, leaves creditors without a definite body of law they require in structuring sound business transactions. Id. For these reasons, the Court concluded, Congress intended that restrictions on federal tax lien priority exist. Although Kimbell Foods involves the priority to be accorded a federal consensual loan where the debtor is solvent, and the case at bar involves the question of the priority to be accorded a federal tax lien where the debtor is insolvent, we believe that Kimbell Foods and other cases provide guidance as to how the federal courts would resolve the case at bar. Here, there is a plain inconsistency between the competing statutes. Also, the Tax Lien Act of 1966 evidences a congressional intent that federal priorities be limited in the tax area, regardless of whether the debtor is insolvent. Further, to hold otherwise would frustrate the congressional purpose by defeating in insolvency the very interests that were specifically protected against federal priority in non-insolvency situations. Finally, the grant of absolute federal priority in insolvency cases, as in solvency cases, would be destructive of commercial stability and would frustrate legitimate commercial expectations. We hold, therefore, that section 6823 limits the operation of section 3713 as to tax debts. Order affirmed. CASTILLE and NIGRO, JJ., concur in the result. . As the Superior Court noted, although there was no order of final distribution in this case, the practical effect of the court’s order was to end the administration of the estate by awarding its sole asset to one of the competing creditors. Therefore, the order is final and appealable. See Estate of Montgomery, 367 Pa.Super. 31, 532 A.2d 439 (1987). . The original judgment was entered at No. 1985-205 and it was subsequently revived on June 7, 1989. The 1989 judgment was entered at No. 1989-1311 and remains unpaid. . Tax Lien Act of 1966, Pub.L.No. 89-719, 80 Stat. 1125, amending 26 U.S.C. § 6323. . We addressed this issue in Estate of Berretta, 493 Pa. 441, 426 A.2d 1098 (1981) where an evenly divided plurality held that section 6323 impliedly repealed the operation of the relevant insolvency statute, Revised Statutes § 3466, 31 U.S.C. § 191, with respect to tax lien debts of a decedent’s insolvent estate. Berretta dealt with the relative priority of a “first in time” judgment creditor, a bank, and the United States to certain proceeds remaining from the sale of two parcels of real property included in the insolvent estate of the taxpayer. . Section 6321, 26 U.S.C. § 6321, creates a lien in favor of the United States for the amount of tax that anyone has neglected to pay on the property belonging to such person. . Although section 6323 is undoubtedly a lien statute, it also addresses the priority of federal tax liens against judgment lien creditors. Thus, both statutes address priority of competing liens. . Emory involved a federally guaranteed loan under the National Housing Act (“NHA”). When the debtor became insolvent, the United States was owed $5,988.88 as the guarantor of the NHA loan and claimed priority under section 3466. The nonfederal parties claimed "about $900” for wages. The Court held that Section 3466 and the NHA were not plainly inconsistent because there was no provision in the NHA that expressly relinquished the priority of the United States with respect to claims arising under it. 314 U.S. at 430, 62 S.Ct. at 321, 86 L.Ed. at 323. . Key involved a bankruptcy reorganization plan that provided for payment of claims of unsecured creditors before full payment of the federal tax claims. The Court found that section 3466 prevailed because no inconsistency existed between that section and three relevant sections of the Bankruptcy Act which required that the United States be paid its taxes under a reorganization plan. The Court concluded that neither the requirement that the United States be paid nor the requirement that the payment be fair and equitable conflicted with the command of section 3466 that the United States be paid first. 397 U.S. at 328-29, 90 S.Ct. at 1053, 25 L.Ed.2d at 346-47. . We could utilize a principle of statutory construction to resolve the conflict and conclude that section 6323 limits section 3713. That principle is that a conflict between various statutes is to be avoided and, if possible, the apparent conflicting provisions must be construed together with the more specific provisions prevailing over the general ones. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Here, section 6323 is the more specific provision because it applies only to federal tax liens, whereas section 3713 is the more general provision in that it applies to any unpaid claim of the government against an insolvent debtor. Therefore, applying this principle of statutory construction, the general provisions of section 3713 are limited by the specific provisions of section 6323. . The United States argues, and other courts have held, that no plain inconsistency exists between the statutes. See, e.g., Carter v. Carter and T-Cas of America, Inc., 681 F.Supp. 323, 326 (E.D.Va.1988) where the court said that because Congress was silent on the matter, the court would infer that Congress intended the Tax Lien Act of 1966 to supplement section 3713 and not to displace it so that in certain cases of taxpayer insolvency, section 3713 governs, and in all other cases, section 6323 controls. We disagree with this conclusion and find support in other federal cases. See note 17, infra. . In Kimbell Foods, O.K. Super Markets, ("O.K.”) borrowed, during 1968, $27,000 from Kimbell Foods. The parties executed security agreements containing a standard "dragnet” clause that provided that the collateral would secure future advances from Kimbell Foods. Kim-bell Foods properly perfected its security interest. In February, 1969, O.K. borrowed $300,000 from Republic National Bank, ("bank”) with the bank accepting as security the same property specified in Kimbell Foods’ 1968 agreements. The bank perfected its security interest. The Small Business Administration ("SBA”) guaranteed 90% of this loan under the Small Business Act, which does not, in this situation, specify priority rules to govern the SBA’s security inter ests. O.K. used the bank loan to satisfy the remainder of the 1968 obligation to Kimbell Foods and to discharge a debt for inventory purchased from Kimbell Foods on open account. In late 1970, the bank assigned its security interest to the SBA. O.K. defaulted on the SBA-guaranteed loan shortly before mid-January, 1971. Kimbell Foods continued to sell to O.K. on open account until the debt was over $18,258.57 on January 15, 1971, when Kimbell Foods sued O.K. to recover on its inventory debt. The SBA recorded the bank’s assignment on January 21, 1971. The United States honored its guarantee on the defaulted loan and paid the bank 90% of the outstanding debt on February 3, 1971. That same day, O.K., with the approval of its creditors, sold its equipment and inventory and placed the proceeds in escrow pending the resolution of the competing claims to the funds. A year later, the state court entered judgment against O.K. and awarded Kimbell Foods $24,445.37, which represented the inventory debt and other items. Kimbell Foods then brought suit in early 1972 in federal court to foreclose on its lien, claiming he had a security interest in the escrow fund that was superior to the SBA's interest. . The Court also stated that it applied the choateness doctrine in the solvency context to give federal tax liens special priority. See United States v. Security Trust & Savings Bank, supra, 340 U.S. at 51, 71 S.Ct. at 111, 95 L.Ed. at 53. For a discussion of the history of the choate lien test, see Kennedy, The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L.J. 905 (1954). Kimbell Foods, 440 U.S. at 721 n. 8, 99 S.Ct. at 1454 n. 8, 59 L.Ed.2d at 719 n. 8. . We observe that the Court has not yet held that a perfected and specific lien is excepted from the operation of section 3466 or section 3713. Rather, the Court has raised but avoided the issue in cases before 1966 by holding that the asserted lien was not sufficiently perfected and specific to qualify under any possible exception. See, United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); Illinois v. Campbell, 329 U.S. 362, 67 S.Ct. 340, 91 L.Ed. 348 (1946); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945); United States v. Texas, 314 U.S. 480, 62 S.Ct. 350, 86 L.Ed. 356 (1941); and, New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754 (1933). . The Court further explained that: ... Of particular relevance here, the Act added mechanic’s liens to the list of private interests already protected against unrecorded tax liens. 26 U.S.C. § 6323(a). Holders of consensual security interests also receive priority over unrecorded tax liens. Ibid. Moreover, the Act gives priority to many types of nonfederal liens even when the Government had filed notice of the tax lien. § 6323(b). Included in this group are repairman’s liens in personal property, S 6323(b)(5), ... and in limited situations, liens securing advances. § 6323(c). 440 U.S. at 738 n. 41, 99 S.Ct. at 1464 n. 41, 59 L.Ed.2d at 730 n. 41. . We also note that the legislative history of the Tax Lien Act of 1966 indicates a Congressional intent that priority to the “first in time" lien exists whether a lien was “choate” or not. See Senate Finance Committee’s Report 1708 which stated: [ I]t is intended that, under the bill, the various types of interests defined in this provision are to have a priority over a nonfiled Federal tax lien if they come within the definitions of these terms [e. g., "purchaser,” "judgment lien creditor,” etc.] ... whether or not in all other regards they are definite and complete at the time notice of the tax lien is filed. U.S.Code Congressional and Administrative News, 89th Congress, 2d Sess., v. 3, 1966, 3722, 3724-25. . Judge Haynsworth observed that the Tax Lien Act of 1966 would be essentially meaningless if the insolvency statute always prevailed. See, the concurring opinion of Judge Haynsworth in H.B. Agsten & Sons, Inc. v. Huntington Trust & Savings Bank, 388 F.2d 156, 161 (4th Cir.1967), cert. den. 390 U.S. 1025, 88 S.Ct. 1413, 20 L.Ed.2d 282 (1968): ... The question of priorities [between section 6323 and section 3713] is wholly or largely academic, unless the debtor is insolvent, and the clearly stated purpose of the Federal Tax Lien Act of 1966 was to regulate the priority of federal tax claims when competing for payment out of the assets of an insolvent taxpayer with secured claims which would enjoy priority under state law. . See United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971) (specific priorities of the Bankruptcy Act override the general priority of the United States under section 3466). See also, United States v. S.K.A. Associates, Inc., 600 F.2d 513 (5th Cir.1979) (SBA lien in an insolvency held not entitled to priority under section 3466); United States v. Burlington Industries, 600 F.2d 517 (5th Cir.1979) (contest between federal agency’s security interest and a warehouseman to be decided under nondiscriminatory state law); City of Vermillion, S.D. v. Stan Houston Equipment Co., 341 F.Supp. 707, 713 (D.S.D.1972). Court decisions announced before the Tax Lien Act of 1966 support an opposite result. While we do not disregard these cases, we believe that Congressional enactments in the federal tax lien area place the older cases in a less persuasive perspective. See United States v. Vermont, 377 U.S. 351, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964) (in dictum: section 3466 applies to all an insolvent’s debts to the government, whether or not arising from taxes); United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954) (in dictum: section 3466 imposes an absolute priority in insolvency, but not applied because the record did not establish that the debtor was insolvent); United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953) (United States tax lien held to have priority under section 3466); United States v. Security Trust and Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53 (1950) (in dictum: section 3466 permits no exception and applies to all debts of the United States whether or not arising from taxes whether or not secured by a lien). We also are not persuaded by the reasoning of other federal courts that have held that section 3713 provides for absolute priority in tax lien cases for, we believe, those court did not adequately address the policy considerations weighed in Kimbell Foods. See, e.g., Jonathan’s Landing, Inc. v. Townsend, 960 F.2d 1538 (11th Cir.1992); Westmoreland v. Westmoreland, Executrix, and the United States, 716 F.Supp. 217 (D.S.C.1988); Carter v. Carter and T-Cas of America, Inc., 681 F.Supp. 323 (E.D.Va.1988) and Nesbitt v. U.S., 445 F.Supp. 824 (N.D.Cal.1978). . Since we are construing federal statutes, federal law controls. A state cannot impair the standing of federal liens without the consent of Congress. United States v. City of New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 369, 98 L.Ed. 520, 525 (1954). . Finally, the United States argues that the lien of Romani Industries, Inc. was not sufficiently specific and perfected to displace the first priority of the United States under section 3713. Since this issue was not addressed by the lower courts, it is inappropriate for us to consider it at this time.

OPINION OF THE COURT CASTILLE, Justice. Two issues are raised in this appeal. The first is whether an adjudication of delinquency in which the juvenile court maintains supervisory authority over the juvenile is a final order subject to appeal. The second issue is whether the trial court erred in preventing defense counsel from cross-examining an eyewitness as to whether he had been drinking prior to his observing the crime at issue. For the reasons stated herein, we affirm the order of the Superior Court. The relevant facts are that on September 6, 1992, at 1:20 a.m., from the car in which he was a passenger, off-duty police officer Juan Perez observed a suspicious male standing in an alley beside a restaurant and bar located at the corner of Whitaker and Wyoming Streets in Philadelphia. The male appeared to the officer as if he were acting as a lookout. Officer Perez asked the driver of the car to circle the block and, upon returning to the same location, again observed the same male and two apparent companions holding bolt cutters and tampering with the lock on the cellar doors of the restaurant. When the three males looked in the direction of the vehicle in which Officer Perez was a passenger, they proceeded further into the rear of the same alley and began tampering with another lock on the side door of the restaurant. Officer Perez then flagged down a marked police car that was on routine patrol in the vicinity of the restaurant and reported what he suspected to be a burglary attempt to the uniformed officers. While Officer Perez was describing his observations to the uniformed officers, appellant and his two companions apparently observed the marked police car and immediately fled. Officer Perez pursued on foot and the uniformed officers pursued in their police vehicle. Appellant and his two companions jumped into a nearby waiting vehicle with an unknown driver behind the wheel who immediately began to pull away from the location. Officer Perez managed to reach the driver’s side of this vehicle, whereupon he reached into the driver’s window and attempted to remove the keys from the ignition while the vehicle was still in motion. He was unsuccessful in this effort, but he continued to hold onto the door handle of the moving vehicle until the driver hit two parked cars, at which time Officer Perez fell from the vehicle. The uniformed officers in the patrol car then continued to pursue the fleeing vehicle. Officer Perez returned to the scene and retrieved the bolt cutters. Meanwhile, the uniformed officers pursued the vehicle in question until it eventually came to a halt, at which time four males exited the vehicle and fled with the officers in pursuit on foot. As a result of the description of the four perpetrators broadcast over the police radio band by the pursuing uniformed officers, appellant was arrested by another police officer and was returned to the scene of the crime. Appellant was then positively identified by Officer Perez as one of the individuals he had observed tampering with the locks of the restaurant. Appellant, who was a juvenile at the time, was charged with attempted burglary, criminal conspiracy, aggravated assault, simple assault, possession of an instrument of crime, recklessly endangering another person, resisting arrest and criminal trespass. Following a hearing in the Philadelphia Family Court, appellant was found guilty of attempted burglary, criminal conspiracy and possession of an instrument of crime. The trial court adjudicated appellant delinquent and placed him on intensive drug and alcohol probation subject to review in sixty days. On appeal, a divided en banc Superior Court affirmed. We granted allocatur in order to review the two issues raised since the Superior Court has been unable to reach a consensus on either. The first question raised on appeal is whether the order placing appellant on probation subject to a sixty day review is a final appealable order. The Superior Court sua sponte raised the issue of the finality of the probation order in this matter in order to address concerns arising out of its decision in In the Interest of K.B., 432 Pa.Super. 586, 639 A.2d 798 (1994), alloc. denied, 540 Pa. 613, 656 A.2d 118 (1995), in which a juvenile was adjudicated delinquent and placed on “temporary” intensive drug and alcohol probation pending a review in sixty days. A panel of the Superior Court in that case interpreted that order as an evaluative disposition to determine whether the juvenile was amenable to rehabilitation, which it held was not a final order and, therefore, not appealable. The en banc court in the present case determined, however, that the order in this case was distinguishable on the basis that the trial court did not describe appellant’s probation as “temporary,” and that, therefore, the probationary order was final and appealable. Notwithstanding the reasoning of the Superior Court in In the Interest of KB., an order placing a criminal defendant on probation is an appealable order, regardless of whether the defendant is an adult or a juvenile. Commonwealth v. Nicely, 536 Pa. 144, 151, 638 A.2d 213, 216 (1994) (an order placing an adult defendant on probation is immediately appeal-able); Commonwealth v. Croft, 445 Pa. 579, 582, 285 A.2d 118, 120 (1971) (an order of the juvenile court placing a juvenile on probation is a final order). A juvenile has a right to appeal, which is governed by the Rules of Appellate Procedure. In the Interest of Thomas, 533 Pa. 572, 577, 626 A.2d 150, 153 (1993). Failure to appeal in a timely manner from a probation order results in waiver of the right to appeal any issues arising from the trial which resulted in the probation order. Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425, 427 (1975). The Juvenile Act expressly provides that placement of a juvenile on probation subjects the juvenile to ongoing court supervision and conditions. 42 Pa.C.S. § 6352(a)(2) (providing for placement of a delinquent child on probation under court supervision, subject to conditions). Therefore, by its very nature, any sentence of probation is “temporary,” and a trial court’s characterization of a probation order as “temporary” constitutes mere surplusage. If a trial court wishes to supervise a juvenile for a period of time prior to entering a final order, the Juvenile Act provides several alternatives by which to do so, including informal adjustment, 42 Pa.C.S. § 6323 (providing for a maximum of nine months’ supervision by a probation officer prior to filing a petition to have a juvenile adjudicated delinquent); consent decrees, 42 Pa.C.S. § 6340 (providing for up to on^year of supervision by a probation officer after the filing of a petition but prior to an adjudication of delinquency); and continuation of disposition hearings, 42 Pa.C.S. § 6341(e) (allowing a court to continue a disposition hearing for a “reasonable period to receive reports and other evidence bearing on the disposition or the need for treatment, supervision or rehabilitation”). To the extent that In the Interest of K.B. holds that a sentence of probation is not a final order, it was -wrongly decided and is expressly overruled. With respect to the second issue, appellant contends that the trial court improperly restricted cross-examination by preventing defense counsel from asking Officer Perez on cross-examination if he had been drinking prior to observing the attempted burglary. A trial court has broad discretion to limit the scope of cross-examination, and rulings doing so will not be reversed absent a showing that the court abused that discretion. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992). While a witness may be cross-examined as to whether he was intoxicated at the time of an occurrence to which he has testified, there must be, at a minimum, some factual basis upon which to conclude or to suspect that the witness was intoxicated before questions regarding alcohol consumption are permissible. Commonwealth v. Drew, 500 Pa. 585, 591, 459 A.2d 318, 321-22 (1983) (questions regarding defendant’s alcohol consumption on the evening of the crime are admissible where prior testimony had established that defendant had been drinking and playing cards for seven hours prior to the crime and where defendant’s blood alcohol content at the time of arrest was .18). While evidence of intoxication may be admissible to challenge a witness’ ability to perceive the events to which he is testifying, evidence that the witness was simply drinking prior to the observations is not. Commonwealth v. McGuire, 302 Pa.Super. 226, 233, 448 A.2d 609, 613 (1982); see also Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508, 508-09 (1969) (evidence of drinking is prejudicial in automobile negligence action; only evidence of intoxication permitted). In the present case there was no evidence that Officer Perez was intoxicated. However, appellant relies on three factors which he asserts provide an adequate factual basis to support an inference of intoxication. First, appellant asserts that Officer Perez described the lookout as a dark Hispanic male while the officer who apprehended that suspect identified the same person as a black male. However, nothing in the record indicates that it was Officer Perez who was mistaken in the race of the lookout. Second, appellant emphasizes a discrepancy in Officer Perez’s testimony that he believed that two of the suspects who were apprehended were returned to the scene of the crime for identification at the same time, while the officers who apprehended those suspects testified that they did not recall seeing any other suspects at the time of the respective identifications. Finally, appellant relies heavily on the fact that the officer was a passenger being driven home in a vehicle at 1:20 a.m. on a Saturday night going into Sunday morning. Minor inconsistencies between Officer Perez’s testimony and that of two other witnesses combined with the additional fact that the officer received a ride home with a friend in the early morning hours on a weekend do not create a sufficient factual basis for questioning regarding the witness’ intoxication. See, e.g., Drew, supra; In Interest of Wright, 265 Pa.Super. 278, 288, 401 A.2d 1209, 1214 (1979) (court should have allowed questions regarding intoxication to impeach credibility where testimony on direct examination established that witness had been drinking); Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 259-60, 269 A.2d 387, 388-89 (1970) (cross-examination on drug usage permitted where defense had received statement given by witness to police in which eyewitness stated that he was under the influence of drugs at the time of the crime). Here, appellant did not establish a sufficient factual basis which would allow him to pursue his desired line of questioning of whether or not Officer Perez was intoxicated at the time in question, nor has he identified any grounds upon which to justify an inference of intoxication. Given the lack of evidence of intoxication, the trial court did not abuse its discretion in refusing to allow defense counsel to cross-examine Officer Perez as to whether he had been drinking on the evening in question. For the foregoing reasons, the order of the Superior Court affirming the order of the family court is affirmed. NIX, Former C.J., did not participate in the decision of this case. ZAPPALA, J., files a concurring opinion. NIGRO, J., files a concurring and dissenting opinion in which NEWMAN, J., joins. . 18 Pa.C.S. § 3502. . 18 Pa.C.S. § 903. . 18 Pa.C.S. § 2702. . 18 Pa.C.S. § 2701. . 18 Pa.C.S. § 907. . 18 Pa.C.S. § 2705. . 18Pa.C.S.§ 5104. . 18 Pa.C.S. § 3503. . The trial court sustained a demurrer on the charge of criminal trespass and found appellant not guilty of the remaining charges. . The opinion in support of affirmance was authored by Cirillo, J., and joined by three other judges. The opinion in support of reversal was authored by Kelly, J., and joined by three other judges, one of whom, Beck, J., also authored a separate dissent. Rowley, P.J., concurred in the result. The court was divided both on the issue of the scope of cross-examination and the applicability of In the Interest of K.B., 432 Pa.Super. 586, 639 A.2d 798 (1994), alloc. denied, 540 Pa. 613, 656 A.2d 118 (1995). . The male in question was not further identified at trial, nor was any evidence presented in order to establish a correct racial description. The conflicting descriptions were given at the adjudication hearing, and neither witness was asked about the inconsistencies. Officer Perez did not provide any description of appellant on the night of the crime. The radio description which led to appellant’s apprehension was given by one of the uniformed officers on the scene.

OPINION OF THE COURT CASTILLE, Justice. This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Montgomery County. Following a jury trial, appellant was convicted of first degree murder, robbery, theft of movable property, possession of an instrument of crime and criminal conspiracy to commit murder. The jury determined that the two aggravating circumstances it found outweighed the three mitigating circumstances established by the evidence and returned a sentence of death. In addition to the court’s imposition of the jury’s verdict of death for the murder conviction, the trial court sentenced appellant to a consecutive term of ten to twenty years imprisonment on the robbery conviction, a concurrent term of five to ten years imprisonment on the conviction for criminal conspiracy and a concurrent term of two-and-a-half to five years imprisonment on the conviction for possessing an instrument of crime. Post-sentence motions were denied. I. SUFFICIENCY OF THE EVIDENCE Appellant first contends in this appeal that the evidence was insufficient to support his conviction for first degree murder. The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to support all the elements of the offense beyond a reasonable doubt. Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-34 (1986). The evidence at trial established that on January 11, 1991, at approximately 4:45 p.m., Montgomery County police were called to the King of Prussia Shopping Center to investigate suspicious circumstances at a store called Jewelry by Alex. The manager of the shopping center had become concerned because, while touring the mall during regular business hours, he noticed that one of the jewelry cases in the store which was visible from outside the store was broken and that no one appeared to be in the store even though the store was supposed to be open for business. The manager also noticed that the store’s security door was locked. Police disabled the security lock and entered the store, where they observed that one of the four glass jewelry cases was broken and empty of all jewelry. They also noticed that there were empty display boxes scattered on the floor in front of the broken case. Further investigation revealed three fingerprints and a palm-print on one of the intact display cases. These prints were later determined to be those of appellant. Police also observed the safe in the office in the rear of the store open and empty, with empty jewelry boxes scattered in front of it as well. An inventory later determined that approximately $60,000 worth of bracelets, diamonds and loose gemstones, as well as all lay-a-way and repair items, were missing from the store. Upon further investigation, the police discovered the body of Alexander Gutman, the owner of the store, in the bathroom with two gunshot wounds to his face. The coroner determined that the fatal shots were fired from approximately five to eighteen inches away from the decedent. Police also determined that the gun which the decedent kept in his desk drawer was missing and found the empty holster on the decedent’s desk. A ballistics expert determined that the bullets which killed the decedent and were from the box of ammunition found in the decedent’s desk were fired from the same type of gun as that owned by the decedent. On February 27, 1991, appellant of his own volition contacted Philadelphia police investigators and stated that he wished to discuss the murder of another jeweler, Jerome Slobotkin, which had occurred in Philadelphia on February 19, 1991. Appellant told the police investigators that he was on his way to Florida to flee the country, but that he had changed his mind and decided to confess to the Slobotkin murder. After returning to Philadelphia from South Carolina, appellant waived his Miranda rights and gave a detailed written confession admitting to the Slobotkin murder. Appellant was later convicted of the Slobotkin murder in February of 1992. However, on May 21, 1991, at appellant’s request, police from Montgomery County met with appellant to discuss his knowledge of the Gutman murder. After being advised of his Miranda rights, appellant recanted his confession to the Slobotkin murder and told police that both Slobotkin and Gutman had been killed by a high-level member of what appellant referred to as the “Russian mafia.” Appellant would only identify that person as “Mr. X.” Appellant stated that he knew Gutman from when the decedent had been a dentist in the Russian-Jewish community and he also knew that the decedent now owned a jewelry store. However, he denied ever having been to the store and claimed that he did not know where either the store or the King of Prussia Shopping Center was located. He further claimed not to have seen the decedent in more than two years. At trial, Laura Sechrist testified that she passed the Jewelry by Alex store at approximately noon and saw two men in the store talking to the decedent. Larry Bainbridge, the postal carrier whose route included the jewelry store, testified that he passed the store at 12:45 p.m. and that although he saw a man he did not recognize behind the counter, he did not see the decedent. Alexander Daniels testified that he passed the store at approximately 3:15 p.m. and saw a man standing outside the store. Notwithstanding appellant’s denial of having been to the decedent’s jewelry store, each of these witnesses later identified appellant from a photo array as having been at or in the decedent’s store on the afternoon of the murder. Wilson Perez testified at trial that sometime during January of 1991, after the Gutman murder but before the Slobotkin murder, he was riding in appellant’s car in Philadelphia when appellant told him he had killed a guy in a jewelry store “out past the boulevard” and had taken his jewelry. Perez further testified that appellant had given unset gemstones, including diamonds, to Perez’s brother. Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Specific intent to kill can be inferred by the use of a deadly weapon upon a vital part of the body. Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972). Furthermore, all co-conspirators to a murder can be found guilty of first degree murder, regardless of who actually inflicted the wound which resulted in death. Commonwealth v. Jones, 542 Pa. 464, 482, 668 A.2d 491, 500 (1995), cert. denied, — U.S. —, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996), citing Commonwealth v. Joseph, 451 Pa. 440, 449, 304 A.2d 163, 168 (1973). Here, the evidence the Commonwealth presented sufficiently established that appellant and an unknown co-conspirator went to the decedent’s store, shot him twice in the face at close range and stole from the store a substantial amount of jewelry. Such evidence clearly demonstrated that the killing was committed with the malice aforethought sufficient to sustain appellant’s conviction for first degree murder. Hence, no relief is warranted on this issue. SUPPRESSION OF STATEMENTS Next, appellant alleges that the trial court erroneously denied his motion to suppress two statements which appellant made to the police investigators. In reviewing a ruling on a suppression motion, the standard of review is whether the factual findings and legal conclusions drawn therefrom are supported by the evidence. Commonwealth v. Bond, 539 Pa. 299, 306, 652 A.2d 308, 311 (1995). The first statement which appellant contends should have been suppressed was his February 27, 1991, confession given to Philadelphia detectives regarding the Slobotkin murder. Appellant alleges that the detectives induced him to waive his Miranda rights by stating that: We will do what we can for you ... [But] there is not much we can do for you when you are charged with murder.” The Commonwealth bears the burden of establishing whether a defendant knowingly and voluntarily waived his Miranda rights. Commonwealth v. Hughes, 521 Pa. 423, 443, 555 A.2d 1264, 1274 (1989). In order to do so, the Commonwealth must establish that the warnings were given, and that the accused manifested an understanding of the warnings. Hughes, 521 Pa. at 443, 555 A.2d at 1274. However, a defendant’s waiver of his Miranda rights must be free of an impermissible inducement by the police that the defendant would receive special treatment or a deal if he made a confession on the spot rather than waiting for his attorney. Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409 (1989). Here, the trial court made findings of fact in denying the suppression of appellant’s February 27, 1991 statement concerning his involvement in the Slobotkin murder. Specifically, the trial court found that on February 26, 1991, appellant began making a series of phone calls to the Philadelphia police expressing his desire to speak with someone about the Slobotkin murder. On February 27, 1991, appellant met a Philadelphia detective outside of the Philadelphia Police Administration building. The Philadelphia detective then escorted appellant inside the building and into an interview room where he read appellant his Miranda rights. Appellant then stated that he shot Slobotkin. The Philadelphia detective then promptly administered another set of Miranda warnings and appellant answered and initialed each question on the Miranda form utilized by the Philadelphia police. Appellant subsequently gave a detailed account of his involvement in the Slobotkin murder. The Philadelphia detective admitted making the statement which appellant now alleges induced him into waiving his Miranda rights. The trial court noted that there was no period of time during which appellant made the challenged statement concerning the Slobotkin murder that appellant was arrested, confined, placed in handcuffs or restrained in any way. Based on these facts, we conclude that appellant was not improperly induced into waiving his Miranda rights. The Philadelphia detective’s statement, when viewed in its entirety, could not have induced appellant to waive his Miranda rights because the statement accurately described that facts surrounding a murder prosecution and appellant was never placed under arrest or restrained while he made the statement. Hence, this claim must fail. The second statement appellant contends should have been suppressed was a statement he made to Montgomery County detectives on May 21,1991, regarding the Gutman murder. Appellant contends that the statement was inadmissible because police initiated contact with him after he had retained counsel. In Pennsylvania, the Sixth Amendment right to counsel is specific to the offense charged. Commonwealth v. Santiago, 528 Pa. 516, 521-22, 599 A.2d 200, 202 (1991), citing McNeil v. Wisconsin, 501 U.S. 171, 175-76, 111 S.Ct. 2204, 2207-08, 115 L.Ed.2d 158 (1991). The United States Supreme Court declined to extend that right to all future investigations in McNeil because: The police have an interest ... in investigating new or additional crimes [after an individual is formally charged with one crime]. To exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel has not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in investigation of criminal activities. Id. (ellipse and brackets in original; citations omitted). Here, the trial court found that appellant initiated the May 21, 1991 contact with Montgomery County detectives after he was arrested and charged with the Slobotkin murder. While appellant had retained counsel for the Slobotkin murder, he was not arrested or charged in connection with the Gutman murder nor had he retained counsel in his defense for the present charges* Therefore, the fact that appellant had invoked his Sixth Amendment right to counsel in the Slobotkin murder did not preclude police from questioning him in the present case, since he had not yet been charged with any offenses giving rise to these charges. JURY SELECTION ERRORS 1. Voir Dire Questions Appellant next argues that the trial court erred in precluding defense counsel from questioning prospective jurors as to whether they could follow a limiting instruction on evidence of other crimes. Specifically, defense counsel requested the following voir dire question: The prosecution may present testimony that Mr. Bronshtein told authorities in February, 1991, that he killed a man named Jerry Slobotkin, for the sole purpose of attempting to prove identity in this case. Judge Ott will instruct you that you may only consider such testimony for that limited purpose and no other. Would you be able to follow this instruction, or would you automatically become so biased against Mr. Bronshtein upon hearing such testimony that you could not follow this instruction? N.T. 4/4/94 at 3. The trial court refused that particular question, but instead asked all prospective jurors whéther they would be able to follow an instruction to consider certain evidence only for a specific purpose and no other. Id. at 13. The scope of voir dire is within the discretion of the trial judge, and is intended to provide guidance in selecting a fair and impartial jury. Commonwealth v. Paolello, 542 Pa. 47, 77, 665, A.2d 439, 455 (1995). In determining the ability of prospective jurors to be impartial, questions which make reference to specific facts of the case to be tried are improper. Commonwealth v. Christian, 480 Pa. 131, 138-39, 389 A.2d 545, 548-49 (1978) (voir dire question prefaced by specific facts from case is improper). See also Paolello, supra (upholding as proper the decision of a trial judge to exclude questions concerning prospective jurors’ opinions regarding alcohol use); Commonwealth v. Terry, 513 Pa. 381, 406, 521 A.2d 398, 410, cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987) (no abuse of discretion for trial court to preclude specific questions regarding how venirepersons felt about prisoners). The question submitted by appellant improperly referred to specific facts of the case. The question actually posed by the trial court was designed to ensure the impartiality of the jury and to avoid prematurely prejudicing the jury with facts about another murder appellant committed. Therefore, the trial court did not abuse its discretion in precluding the requested voir dire question. 2. Batson Claim Appellant’s next allegation of error is that the Commonwealth violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using a peremptory challenge to exclude a prospective Russian-Jewish juror from the final jury panel. In order to establish a prima facie case on a Batson claim, defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury selected. Commonwealth v. Simmons, 541 Pa. 211, 231-32, 662 A.2d 621, 631 (1995), cert. denied, — U.S. —, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996), citing, Commonwealth v. Spence, 534 Pa. 233, 246, 627 A.2d 1176, 1182-83 (1993). In the present case, appellant relies solely on the fact that the prosecutor used a peremptory strike against “the only venire person of Russian-Jewish ethnicity.” This Court has never held that “Russian-Jewish” is an ethnic classification for the purposes of a Batson claim, and we need not determine this issue at the present time for several reasons. First, appellant failed to develop a record setting forth the race or ethnicity of the rest of the venire or the jurors eventually empaneled as required by Simmons, supra. Furthermore, after the appellant lodged his objection to the Commonwealth’s peremptory challenge to the single potential juror at issue, the trial court found that appellant did not establish a prima facie case of discriminatory use of peremptories. Accordingly, the trial court did not ask the Commonwealth to explain why it used a peremptory strike against the juror in question. However, the record reveals that the prospective juror equivocated on the death penalty on moral, religious and philosophical grounds and expressed serious reservations about serving on the jury because it would entail being separated from her “support group” during the anticipated two weeks of sequestration. N.T. 4/5/94 at 158-75. Reasons such as these have been found by this court to be a proper basis for exercising a peremptory challenge. See, Bond, supra at 309-11, 652 A.2d at 313 (upholding as racially neutral use of peremptory strikes against a juror who equivocated on the death penalty and a juror who expressed reluctance to serve on the jury). TRIAL ERRORS 1. Admission of Evidence Regarding Other Crimes Appellant next alleges that the trial court erred by admitting appellant’s statement in which he admitted that he murdered Jerome Slobotkin. Although evidence of other crimes committed by a defendant is generally not admissible at trial, such evidence is relevant and admissible for the purpose of establishing the identity of the perpetrator or the existence of a common scheme, plan or design embracing the commission of two crimes which are so related to each other that proof of one tends to prove the others. Commonwealth v. Hughes, 521 Pa. 423, 459, 555 A.2d 1264, 1283 (1989). The existence of a common scheme is relevant to establish any element of a crime (e.g. the identity or intent of the perpetrator) so long as it does not merely indicate the defendant’s propensity to commit similar crimes. Commonwealth v. Miller, 541 Pa. 531, 548, 664 A.2d 1310, 1318 (1995), cert. denied, — U.S. —, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996). In order for other crimes evidence to be admissible under this exception, a comparison of the crimes must establish a logical connection between them. Hughes, supra. Here, the trial court expressly allowed evidence regarding the Slobotkin murder for the limited purpose of establishing the identity of the murderer in the Gutman murder. Thus, the issue is whether there was a logical connection between the two crimes in question that would allow admission of this evidence to prove the identity of the perpetrator. See, Miller, supra. The probative value of the degree of similarity of the crimes is inversely proportional to the time period separating the crimes. Id. at 549, 664 A.2d at 1319 (citations omitted). In the present case, Slobotkin and Gutman, both identified as Russian-Jews, were murdered with firearms in the course of robberies at their respective jewelry stores. Both victims were shot in the head at close range. Appellant initially denied his involvement in both crimes but told police that he knew who had committed the crimes. Although appellant initially confessed to the Slobotkin murder, he later recanted that confession and told police that the two murders had been committed by the same person, a mysterious “Mr. X.” Finally, the Slobotkin murder was committed only five weeks after the Gutman murder. Given the similarities between these two crimes occurring only weeks apart, evidence indicating the identity of the perpetrator of the Slobotkin murder was admissible for the purpose of establishing the identity of the perpetrator of the Gutman murder through a common scheme, plan or design. Id. (rape and attempted murder admissible at trial for other murders where crimes occurring over a five-year period were similar in the manner in which victims were chosen, the geographic location of the murders and wounds inflicted on the victims); Commonwealth v. Reid, 533 Pa. 508, 513, 626 A.2d 118, 121 (1993) (subsequent murder properly admitted at trial for prior murder to establish identity where the same gun was used in both crimes); Hughes, supra (prior rape properly admitted at trial for subsequent rape and murder occurring ten months later where crimes were similar in geographic location, time and method of attack and characteristics of victims). Furthermore, the trial court gave limiting instructions both at the time the evidence was presented to the jury and in the jury charge that the evidence of the Slobotkin murder was only to be considered by the jury for the limited purpose of establishing identity. The prosecution properly restricted its references to the Slobotkin murder to the issue of identity and mentioned the Slobotkin murder only five times in a seventy-one page closing argument, again properly limiting those references to a comparison between appellant’s behavior in regard to the two crimes to establish the identity of appellant as the perpetrator of the Gutman murder. Under these circumstances, this Court finds that the testimony was properly admitted to demonstrate a common scheme in order to establish the identity of the perpetrator. 2. Statement of Wilson Perez Appellant next argues that the trial court erred in allowing Commonwealth witness Wilson Perez to testify that appellant had told Perez that he killed someone “out past the boulevard” and had been paid for it. This statement was made to Perez in late January of 1991, several weeks after the Gutman murder but before the Slobotkin murder. Appellant contends that the statement was too vague to be admissible in relation to the Gutman murder and that, because it was too vague to be a clear reference to that murder, it improperly placed before the jury evidence of a prior bad act. The admissibility of evidence is a matter addressed to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Commonwealth v. LaCava, 542 Pa. 160, 172, 666 A.2d 221, 227 (1995) (citation omitted). Extrajudicial statements, which differ from confessions in that they do not acknowledge all essential elements of a crime, are generally considered to qualify for admission into evidence under the party admission exception to the hearsay rule. Simmons, supra at 238, 662 A.2d at 634 (citation omitted). Evidence is relevant and, therefore, admissible if it logically tends to establish a material fact in the case, if it tends to make a fact at issue more or less probable, or if it supports a reasonable inference or presumption regarding the existence of a material fact. LaCava, supra at 172-76, 666 A.2d at 227-28. At the outset, appellant’s statement to Perez was more detailed than that portion cited by appellant in his brief. Perez’s testimony established not only that appellant stated to him that he had killed someone “out past the boulevard” and that he had been paid for it, but also that he had killed the victim in a jewelry store and taken the victim’s jewelry. N.T. 4/13/94 at 190. Perez also testified that appellant had given several unset gemstones, including diamonds, to Perez’s brother. Id. at 190-91. Therefore, contrary to appellant’s assertions, the testimony was not so vague as to make any connection to the crime charged purely speculative. Appellant’s admission to Perez that he had committed a crime in the general geographic location of the Gutman murder in a jewelry store and had stolen jewelry from the store were facts corroborated by appellant’s fingerprints found in the victim’s jewelry store, by appellant’s possession of unset gemstones and by appellant’s own statements to police, clearly support the reasonable inference that it was appellant who murdered the decedent. Appellant’s admission to Perez was therefore admissible. 3. Karlitsky Evidence Next, appellant argues that the trial court erred in precluding the defense from offering the testimony of a private investigator that Adik Karlitsky, the alleged “Mr. X,” had been involved in a staged robbery of his own jewelry store at the Leo Mall for the purpose of defrauding his insurance company. Karlitsky was never charged in that robbery, in which no one was injured. As discussed above, a trial court’s ruling on an evidentiary matter will only be reversed on a finding of an abuse of discretion. LaCava, supra. The trial court found that the proffered testimony was entirely collateral to the proceedings. Given that appellant failed to offer any evidence that there was any logical connection between the Slobotkin and Gutman murders and this dissimilar case, we hold that the trial court did not abuse its discretion in excluding testimony regarding the Leo Mall jewelry store robbery. 4. Prosecutorial Misconduct Appellant next contends that the trial court erred in refusing his numerous motions for mistrial based upon alleged prosecutorial misconduct in opening and closing arguments. It is within the discretion of the trial court to determine whether a defendant has been prejudiced by misconduct or impropriety to the extent that a mistrial is warranted. Simmons, supra at 246-47, 662 A.2d at 638. Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Sam, 535 Pa. 350, 362, 635 A.2d 603, 608 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994) (closing statements); Commonwealth v. Jones, 530 Pa. 591, 607, 610 A.2d 931, 938-39 (1992) (opening statements). In considering appellant’s claims of prosecutorial misconduct, we note that a prosecutor’s comments are not evidence. LaCava, supra at 180, 666 A.2d at 231, citing Commonwealth v. Green, 525 Pa. 424, 461, 581 A.2d 544, 562 (1990). Indeed, the trial court clearly and repeatedly instructed the jury, which is presumed to follow the court’s instructions, on this rule of law. N.T. 4/13/95 at 17-18, 23-24; N.T. 4/20/94 at 165; Commonwealth v. Johnson, 542 Pa. 384, 400, 668 A.2d 97, 105 (1995), cert. denied, — U.S. —, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996), citing, Commonwealth v. Steele, 522 Pa. 61, 78, 559 A.2d 904, 913 (1989). With these standards and circumstances in mind, we find that the complained-of comments were not improper. (a) Opening Statement Appellant contends in his brief that the prosecutor improperly stated to the jury during opening arguments, “don’t be deceived by the appellant’s Mr. Rogers appearance.” Appel lant’s Brief at 30. At the outset, this is a mischaracterization of the prosecutor’s statement. The actual comment to which appellant refers, in context, reads as follows: [Prosecutor]: ... I will prove to you during the case that you will hear over the next week and a half, that what you see over there in that Defendant, Mr. Bronshtein, dressed like a young Mr. Rogers in a sweater and tie and shirt— [Defense Counsel]: I object. [The Court]: Overruled. It’s opening. [Defense Counsel]: Mr. Rogers? [The Court]: It’s opening statement. [Prosecutor]: —did acts which belie his appearance that he brings before you. I will prove this to you through the evidence that you will hear in this courtroom from the Commonwealth witnesses. You will see that he didn’t look that way on January 11, 1991. He didn’t have nice glasses on, wasn’t wearing a sweater. His hair wasn’t quite as well-groomed and short, and he had a big mustache at the time---- N.T. 4/12/94 at 26. Opening statements must be fair deductions from the evidence which the prosecutor expects will be presented at trial. Jones, supra at 607, 610 A.2d at 938; Commonwealth v. Fultz, 478 Pa. 207, 214, 386 A.2d 513, 516 (1978). At trial, the Commonwealth presented evidence that appellant had drastically changed his appearance since the time when the murder was committed, including shaving his mustache and wearing glasses. Because the complained-of statement was a fair deduction from the evidence and was within the bounds of proper oratorical flair, it did not rise to the level of prosecutorial misconduct and a mistrial was not warranted. (b) Closing Statement Appellant also alleges several instances of prosecutorial misconduct in the closing argument which he claims entitle him to a new trial. The complained-of comments must be considered in the context of the entire seventy-one page summation and allegations of prosecutorial misconduct will not warrant the grant of a new trial unless they are such as to arouse the jury’s emotions to such an extent that it is impossible for the jury to reach a verdict based on relevant evidence. Johnson, supra at 404-08, 668 A.2d at 107-08. Appellant first alleges in his brief that the prosecutor argued that appellant was a “liar.” At the outset, nowhere in the entire summation did the prosecutor expressly characterize appellant as a “liar.” Although appellant does not quote any specific language, which in and of itself violates the Rules of Appellate Procedure, he refers this Court to the pages of the transcript at which the prosecutor discussed appellant’s confession to the Slobotkin murder, appellant’s subsequent recantation of that confession, and his statement that the same person committed both the Gutman and Slobotkin murders. N.T. 4/20/94 at 107-10. This allegation is meritless. Appellant next alleges that the prosecutor’s argument exceeded the scope of the trial court’s ruling which appellant claims limited the evidence of the Slobotkin murder to appellant’s single statement that he killed Slobotkin. The trial court’s order dealing with the use of the Slobotkin evidence provided as follows: The Court determines that other crimes evidence germane to proving the identity of the murderer of Alexander Gut-man, including pertinent portions of Defendant’s alleged confession of February 27, 1991, wherein he said he killed Jerome Slobotkin, shall be admissible at the trial of the within case because that admission, coupled with other evidence establishes a logically connection between the crimes whereby proof of one will tend to show the Defendant is the person who committed the other. Tr.Ct. order dated March 29,1994. A fair reading of the trial court’s order in its entirety shows that appellant is taking a single phrase out of context and is attempting to assert that the trial court limited the evidence only to appellant’s statement. Such a strained reading is not only inaccurate, but it also borders on violating an attorney’s ethical requirements of candor to the tribunal. Because appellant’s entire voluntary confession to the Slobotkin murder and his subsequent recantation of that confession were admitted for the purpose of establishing the identity of the Gutman murderer, and were therefore properly before the jury, the prosecutor was permitted to argue that the facts in evidence supported such a connection. Where the prosecutor’s arguments are supported by the evidence and contain inferences which are reason * y derived therefrom, no new trial is warranted. LaCava, supra at 172, 666 A.2d at 227; Commonwealth v. Hardcastle, 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Next, appellant contends the prosecutor engaged in misconduct when he made the following statement: ... And I suggest to you they would search high and low, heaven and hell, to try and get somebody in this courtroom, expert or otherwise, that can put Karlitsky somehow related to some scam— They would be more than happy to find somebody that would come in here and link him to some scam, link him to some involvement in the mob. Ask their own so-called expert, the man they’re putting forth as the expert, “Have you ever heard of Karlitsky?” * * * Did you hear that question even posed to their expert? Did you hear he heard him involved in anything? What is this, what he has labeled, Nicky Scarfo-like head? What’s his criminal background? No robberies, like he said. No murders, like he said. Big Nicky Scarfo, Daddy Warbucks Scarfo, headed this Russian Mafia, Russian Mob, has a shoplifting arrest from 1990. That’s where they got his fingerprints from, a shoplifting arrest. No other criminal history, nothing with robberies, nothing with murders, no murder in Philadelphia where he says somebody was shot, or New York, where he says he shot forty-seven times. There’s a smoke screen, ladies and gentlemen, you can conclude based on the evidence that’s been presented to you. That’s something where they’re trying to take your focus off the ball, trying to get your attention deflected off of what you can conclude based on the law and the evidence is the real truth in this case. They want you to believe a Karlitsky. They have to have you believe in a Karlitsky if their defense is going to apply, if their defense is going to work. But nobody has heard of him. He’s not linked to any scams, not linked to organized crime— * * * No links whatsoever that have been brought forward in this case no matter how many times he wants to object, but that’s still the way it is. And that’s still the facts in this case. The only thing they even alluded to — and I suggest to you, they didn’t even give you the whole picture — was they alluded to some Leo Mall store he had as a jeweler. He starts talking about this consignment stuff. You haven’t heard one word about any consignment from Leo Mall. You haven’t heard one word about his involvement in any scam from Philadelphia Police involved in the Leo Mall, not one iota about that; but they bring it forth and they argue it to you when they come here in closing to try and say, “Well, we’ll infer he was involved in a scam here; so we’ll take that and infer through our expert that Russians Jews are involved in scams and a lot of organized crime. From that, they do scams, and so we’ll link him from maybe being in a scam, from being a Russian Jew to maybe working in scams they do. Wah-la [sic]. He’s organized crime.” Think of the steps that takes. Think of the leaps they take when they try and take that to you and whether it’s founded in any of the evidence that has been presented to you. Think of that, because that’s the linchpin of their defense; because if this fear is dispelled, if this Karlitsky does not exist in terms of doing anything in this case, then their defense goes down the tubes. N.T. 4/20/94 at 96-99. Appellant complains that this was improper comment on the failure of appellant to present evidence which had been specifically excluded by the trial court. However, a review of the transcript of an in camera discussion reveals that, although appellant’s expert had personally investigated the possibility of Karlitsky’s involvement in an alleged scam at the Leo Mall jewelry store, there had been no evidence to link Karlitsky to any such scam or to link any jewelry scam to the Gutman murder. N.T. 4/19/94 at 42. Thus, the evidence which was suppressed was the unsubstantiated speculation of the expert, not any factual information which linked Karlitsky either to a scam at the Leo Mall jewelry store or to the Russian “mafia.” Trial counsel dedicated more than half of his sixty page closing argument to the theory that Karlitsky had committed the murder as part of a jewelry store scam involving the Russian “mafia,” and that appellant had confessed to the Slobotkin murder out of fear of Karlitsky. Given that there was no evidence, either at trial or in the defense proffer on the substance of the excluded testimony, of Karlitsky’s involvement in an alleged scam at the store or his connection to the Russian “mafia,” it was not improper for the prosecution to ask the jury to draw an inference that no such evidence existed. See, Commonwealth v. Griffin, 537 Pa. 447, 461, 644 A.2d 1167, 1174 (1994) (the prosecutor is permitted to respond to closing remarks of defense counsel). Therefore, no relief is warranted on .this issue. The next statement which appellant challenges is: Ladies and gentlemen, Wilson Perez also testified in this case, and there’s no getting round he’s a character either. But again, like the timing with Bronshtein’s statements, the timing of Wilson Perez is critical. And also some of the promises that the Defense made to you in their opening is important with Mr. Perez. Mr. Perez isn’t the Commonwealth’s problem. Mr. Perez is Mr. Bronshtein’s problem. It’s not the Commonwealth people that were hanging around with Wilson Perez. He was. He was his running buddy. He was the guy that kept the same company as Wilson Perez. They travelled around together, been [sic] to each other’s apartments. So when you’re assessing Wilson Perez, you can also think what kind of person is hanging around with Wilson Perez. What’s he like? How did he get into that situation or with those type of people? How do you meet somebody when you’re down in front of a stoop in the Badlands section of Philadelphia? How do you meet somebody? Does he look like the kind of person you would meet down on a stoop right now in the Badlands of Philadelphia hanging around with Wilson Perez, or does that verify what Detective Augustine said about looking like a choir boy today and how he looks, and his appearance, and what it is he’s trying to show you folks? Ask yourselves why this person who’s hanging around with Wilson Perez in the Badlands of Philadelphia — what kind of person is he? What kind of person is he? What do I think of Wilson Perez? What do I think of him? N.T. 4/20/94 at 120-21; 140. Appellant contends that this comment inferred appellant’s guilt as a result of his association with Perez, in violation of Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987). In Johnson, this Court held that the following statement by the prosecutor constituted reversible error: Sure, I’d like to have law-abiding citizens as witnesses. The problem is that crimes usually aren’t committed in front of law-abiding citizens. It is other criminals who see crimes committed. They are the ones who see the crimes. Robert Ahlborn and Scott Dunn, they are the criminals. They have lied. The defendant, Michael Johnson, is their friend. What does that tell you about Michael Johnson? Ask yourselves that. Who do criminals associate with? Id. at 529, 533 A.2d at 995. However, there are several significant distinctions between the statement in Johnson and the complained-of statement in the present case. First, the statement in Johnson implied that the defendant was a liar and a criminal because his associates were liars and criminals. However, in the statement at issue in the present case, the prosecutor did not brand Perez as either a liar or a criminal, despite the fact that Perez had a criminal record. All that can be inferred logically by the statement at issue was that appellant’s acquaintance with Perez meant that he was a person of less than sterling character as opposed to a liar and a criminal. Second, the Court held in Johnson that the comment constituted an inference of guilt by association requiring reversal “in the absence of a proper foundation.” Id. at 533-34, 533 A.2d at 997 (emphasis added). In the present case, defense counsel laid a proper foundation in his closing argument. Several times during summation, defense counsel acknowledged that appellant was involved in fencing stolen jewelry at the time of the murders. N.T. 4/20/94 at 22-23; 37-38. Furthermore, defense counsel stated in his summation, “Mr. Bronshtein isn’t around those type of people anymore. He’s not around that type of activity anymore. He was a kid mixed up with the wrong people back at that time.” N.T. 4/20/94 at 71. Accordingly, defense counsel’s inference of appellant’s new-found good character opened the door for the prosecutor to comment on the character of appellant as judged by his earlier acquaintances. Even if such a statement were improper, appellant is still not entitled to relief. This court’s consideration of claims of prosecutorial misconduct is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect trial. LaCava, supra, citing Commonwealth v. Holloway, 524 Pa. 342, 353, 572 A.2d 687, 693 (1990) (citation omitted). Given that appellant himself testified that he associated with people of questionable character at the time of the murder and was himself engaged in criminal activity, the prosecutor’s statement was a fair comment on the evidence presented and did not rise to the level of prejudice which would deprive appellant of a fair trial. Therefore, this issue does not warrant the grant of relief. Appellant’s final allegation of prosecutorial misconduct is that the prosecutor improperly referred to a prior consistent statement made by Wilson Perez which was not in evidence. Contrary to appellant’s assertions, however, the statement to which the prosecutor referred was in fact admitted into evi dence during Perez’s testimony. N.T. 4/13/94 at 183-92. Because the prosecutor was referring to facts in evidence, the statement was not improper and no relief is warranted. Johnson, supra, 542 Pa. at 406, 668 A.2d at 108, citing Commonwealth v. Lawson, 519 Pa. 175, 190, 546 A.2d 589, 596 (1988). PENALTY PHASE — JURY INSTRUCTIONS Appellant argues that the trial court erred in denying his request that the jury be instructed that the death penalty could only be imposed if the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. However, the death penalty statute does not specify a fixed burden of proof for the weighing of aggravating and mitigating circumstances. 42 Pa.C.S. § 9711(c)(1)(iv); Commonwealth v. Murphy, 540 Pa. 318, 335 n. 5, 657 A.2d 927, 935 n. 5 (1995); Commonwealth v. Zettlemoyer, 500 Pa. 16, 66-67, 454 A.2d 937, 963 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) (lack of fixed burden of proof in penalty phase of capital case is not unconstitutional). Appellant was therefore not entitled to an instruction which is not an accurate reflection of the law. Appellant’s final claim of error is that the trial court erred in stating to the jury that it “should have no difficulty writing in the aggravating circumstances in the space provided” on the verdict slip. Appellant contends that this statement implied to the jury that aggravating circumstances existed. In reviewing the propriety of jury instructions, the jury charge must be considered as a whole. Commonwealth v. Saunders, 529 Pa. 140, 144, 602 A.2d 816, 818 (1992). At the outset, appellant has once again misquoted the record. The actual statement was as follows: So then you go to Section A. There you will check “death” or “life imprisonment.” You already know from the instructions, if it’s death, you have to complete B. If it’s life imprisonment, you go and complete C. Let’s assume for the sake of discussion — we’ll do it both ways — if you choose death, one of the two circumstances that I’ve described is here or found. “B. The findings on which the sentence of death are based are” — either—“1. At least one aggravating circumstance and no mitigating circumstance.” And then you have to say, “The aggravating circumstance unanimously found is or are” — and you’ll write them in, [Jury Foreman], just like they were written under Roman Numeral I-B-l. I realize there’s only three lines in there. You’ll squeeze it in, and you can go above it and below it. That’s not a big deal. N.T. 4/22/94 at 182-83. This statement was made in the midst of six pages of jury instructions in which the trial court reviewed the entire verdict slip with the jury and explained how to fill it out properly. N.T. 4/22/94 at 179-84. The trial court then went on to instruct the jury on how to fill out the verdict slip if they determined that the appropriate sentence was life imprisonment. Given the context in which the statement was made and the thorough instructions on the proper method of recording either a death or life sentence, the statement by the trial court, taken completely out of context, was not improper. LEGALITY OF SENTENCE Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), this Court has a duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S. § 9711(h)(3). After reviewing the record below, we conclude that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor, but rather was based upon the evidence that appellant killed the victim with premeditation and malice aforethought during the commission of a robbery. In addition, the evidence supports the finding of at least one aggravating circumstance specified in 42 Pa.C.S. § 9711(d). Here, the two aggravating circumstances found by the jury were that appellant committed the killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6) (commission of a robbery), and that appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). The Commonwealth presented evidence that appellant had been convicted of the February 19,1991, first degree murder and robbery of Jerome Slobotkin and of a February 24, 1991, burglary. Thus, the evidence supported each of these aggravating circumstances. Finally, in accordance with Zettlemoyer, supra at 63, 454 A.2d at 961, we are required to conduct a proportionality review of the sentence. This Court does not take lightly its statutory and constitutional duties and will conduct an independent evaluation of all cases decided since the effective date of the sentencing procedures under consideration (September 13, 1978). This independent review mandated by 42 Pa.C.S.A § 9711 (h)(3)(iii) will utilize all available judicial resources and will encompass all similar cases, taking into consideration both the circumstances of the crime and the character and record of the defendant in order to determine whether the sentence of death is excessive or disproportionate to the circumstances. Id. As this Court has mandated, we have conducted our own proportionality review by independently examining similar cases, by reviewing the facts underlying the first degree murder, and by considering the sentencing data compiled by the Administrative Office of the Pennsylvania Courts (AOPC) pertaining to similar cases and conclude that the sentence of death imposed upon appellant is not excessive or disproportionate to the sentences imposed in similar cases. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). Accordingly, we affirm the verdict and sentence of death imposed upon appellant by the Court of Common Pleas of Montgomery County. ZAPPALA, J., concurs in the result. Former Chief Justice NIX did not participate in the decision of this case. . 42 Pa.C.S. § 9711(h)(1). . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 3701. . 18 Pa.C.S. § 3921(a). . 18 Pa.C.S. § 907. . 18 Pa.C.S. § 903. . The aggravating circumstances were that appellant committed the killing in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); and that appellant had a significant history of felony convictions involving the use or threat of violence, 42 Pa.C.S. § 9711(d)(9). The mitigating circumstances were that appellant was suffering from an extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2); that the appellant had a poor childhood upbringing; 42 Pa.C.S. § 9711(e)(8); and that there was a possibility that the appellant did not actually pull the trigger, 42 Pa.C.S. § 9711(e)(8). . The security door locked automatically when closed, and could only be opened by someone inside the store pushing a button behind the counter. . A spring and part of a clip from a semi-automatic weapon were found on the floor by the body, but ballistics determined that the bullets which killed the victim could not have been fired from the type of gun from which the broken clip and spring came. . See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Appellant refused to provide further information unless the police would grant him complete immunity, place him in the Federal Witness Protection Program and pay him $50,000-100,000. “Mr. X” was later identified by appellant as Adik Karlitsky, a person who allegedly had staged a robbery of his own jewelry store. . At the time appellant made this statement to Perez, they were driving on Roosevelt Boulevard, a street that runs in a northerly and southerly direction through Northeast Philadelphia. In order to travel to Montgomery County from a large section of Northeast Philadelphia, it is necessary to cross the Roosevelt Boulevard in a westerly or northerly direction. . The identity of the other man seen in the jewelry store with appellant was never determined. . Appellant’s presentation of the facts surrounding this statement differ quite markedly from that found by the trial court. An example of this discrepancy is that appellant contends that the Montgomery County police initiated the contact that resulted in appellant making a statement regarding his involvement in this case. Obviously, the trial court made a credibility determination based upon the evidence and we will not disturb this determination. Commonwealth v. McCracken, 540 Pa. 541, 551, 659 A.2d 541, 546 (1995) (Supreme Court must defer to credibility determinations made by trial court which had the opportunity to observe demeanor and hear testimony of witnesses.) Thus, since appellant initiated the interview in which he gave statements concerning the Gutman murder, that he was advised of his Miranda warnings and that he waived his right to counsel on that date, we conclude that the statements were made after a voluntary waiver of appellant’s rights. Commonwealth v. Youngblood, 453 Pa. 225, 234, 307 A.2d 922, 927 (1973) (willingness of defendant to speak to police, indicated by interview initiated by defendant, and Miranda warnings constitutes a voluntary waiver). . The record does not provide details of the venireperson's “support group." . The jury is presumed to follow the court’s instructions. Commonwealth v. Tilley, 528 Pa. 125, 142, 595 A.2d 575, 583 (1991). . N.T. 4/13/94 at 181-82. . The proffer in the record concerning the substance of the investigator's testimony is extremely vague. Although defense counsel agreed to limit the testimony to what the investigator did in order to avoid hearsay concerns, he acknowledged that excluding hearsay would likely limit the testimony to the fact that the investigator was working with Philadelphia Police on a investigation which focused on Karlitsky. N.T. 4/19/94 at 43. . The reference to "Mr. Rogers” apparently alluded to the popular children’s television program “Mr. Rogers’ Neighborhood” where Mr. Rogers is a mild-mannered, avuncular adult figure who can in no way be portrayed as a violent criminal. The complaint that the prosecutor refers to appellant as a "Mr. Rogers” can hardly be viewed as a negative comparison. . See Pa.R.A.P. 2119(c) ("the argument must set forth ... a reference to the place in the record where the matter referred to appears”). . Appellant also contends that appellant’s initial statement denying killing Jerome Slobotkin was not in evidence. This is simply not true. Lt. Augustine of the Philadelphia Police Department testified at length regarding appellant’s telephone call from South Carolina in which he denied committing that murder and his subsequent confession to the murder. N.T. 4/15/94 at 190-98. . This proffer indicated that if the expert had been asked if he ever heard of Karlitsky, his answer would apparently have been yes. It was therefore improper for the prosecutor to infer that the expert had never heard of Karlitsky. However, Montgomery County Homicide Detective Rohner testified before the jury that he received information that Karlitsky was suspected of having hired a third party to rob his store at the Leo Mall and relocated the “stolen” jewelry to another store. N.T. 4/15/94 at 15. In light of the fact that the jury was therefore informed that Karlitsky was in fact investigated for, but never linked to, that robbery, the prosecutor’s improper statement did not prejudice appel lant. Aside from this error, the challenged statement accurately reflects the evidence presented at trial. . Appellant was also convicted of robbery in connection with this murder. As recounted in more detail above, the record demonstrates that three eyewitnesses placed appellant at the jewelry store where the murder occurred, that one of the four jewelry cases was broken into and approximately $60,000 worth of jewelry was missing, and that appellant’s fingerprints and palmprint were found on the jewelry cases. Given this evidence, there was sufficient evidence to support a finding of at least one aggravating circumstance: that the killing was committed in the perpetration of a robbery. 42 Pa.C.S. § 9711(d)(6). . See, e.g., Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (1994) (judgment of sentence of death affirmed where jury found as aggravating circumstance that the defendant committed the killing while in the perpetration of a felony and that appellant had been convicted of another murder committed at the time of the offense at issue and as mitigating circumstances that the defendant had no significant history of prior criminal convictions, that the defendant was under extreme mental or emotional disturbance, the age of the defendant and an unspecified circumstance under the catchall provision); Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992) (judgment of sentence of death affirmed where jury found as aggravating circumstance that the defendant committed the killing while in the perpetration of a felony and that appellant had a significant history of felony convictions involving the use of threat of violence and as mitigating circumstances that the defendant was under extreme mental or emotional disturbance, that the capacity of the defendant to appreciate the criminality of his conduct or conform his conduct to the law was impaired and an unspecified circumstance under the catchall provision). . Within ninety days of the date the sentence of death is upheld by this Court, the Prothonotary of this Court is directed to transmit to the Governor’s office the full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court pursuant to 42 Pa.C.S. § 9711 (i).

OPINION OF THE COURT CASTILLE, Justice. The sole issue on appeal is whether the Superior Court erred in quashing appellants’ appeal from the trial court’s grant of appellee’s motion for nonsuit prior to trial based on appellants’ failure to file a post-verdict motion to remove the nonsuit. Because we find that the grant of nonsuit was improper, where, as here, no evidence was presented by appellants at trial as to liability, and because we find that appellants’ failure to file a motion to remove the nonsuit was not fatal to their appeal, we reverse the order of the Superior Court quashing appellants’ appeal and remand the matter for further proceedings consistent with this opinion. The relevant facts in this appeal are that on December 25, 1989, appellant, Peggy Lewis, was involved in a motor vehicle accident. On December 26, 1989, Mrs. Lewis went to the Lawndale Community Hospital’s emergency room where she was examined by Dr. Edward Whalen. Dr. Whalen requested x-rays of Mrs. Lewis’ spine, shoulder and right clavicle. Thereafter, appellee, Dr. Steven Munzer, examined the x-rays and determined that there was no dislocation or fracture evident. Thus, Mrs. Lewis was released from Lawndale Community Hospital. Mrs. Lewis, however, continued to suffer pain and after a few weeks went to Germantown Hospital and Medical Center in order to seek treatment for her continuing pain. There, Mrs. Lewis was diagnosed as having a dislocated right sternoclavicular joint. On November 6, 1991, Mrs. Lewis and her husband sued both Dr. Munzer and Lawndale Community Hospital for medical malpractice based on the misinterpretation of her x-rays and for loss of consortium. The parties then proceeded to arbitration. On December 12, 1994, the arbitrators entered an award in favor of Dr. Munzer and Lawndale Community Hospital. Appellants timely appealed the arbitration award to the Court of Common Pleas, Philadelphia County. On May 15, 1995, appellants withdrew their claim against Lawndale Community Hospital. On that same date appellee, Dr. Munzer, filed a motion in limine seeking to preclude appellants’ expert medical witness from testifying at trial on the basis that appellants’ medical expert failed to state with the required degree of medical certainty that appellee’s actions caused Mrs. Lewis’ injuries. Appellants countered by making an oral motion to supplement the record with a revised expert report which would have stated the required degree of medical certainty. This request was based on appellants’ assertion that their medical expert was unable to initially formulate an appropriate opinion to the required degree of medical certainty since he was not timely given all relevant evidence by appellee. The trial court conducted hearings on these motions and on May 16, 1995, the trial court granted appellee’s motion in limine and denied appellants’ motion to supplement the record. After having his motion in limine granted, appellee then filed a motion for compulsory nonsuit. The trial court granted the motion for nonsuit even though appellants had not presented any evidence at trial as to liability. Appellants did not file a post-verdict motion to remove the nonsuit with the trial court. Instead, on June 2, 1995, appellants filed a direct appeal to the Superior Court. Appellee filed a motion to quash the appeal alleging that appellants waived their right to appeal because of their failure to file a post-verdict motion to remove the nonsuit. See Pa.R.Civ.P. 227.1(c) (motion to remove nonsuit must be filed within ten days after notice of nonsuit). On August 22, 1995, the Superior Court, in a per curiam order, granted appellee’s motion to quash the appeal. This Court granted allocatur in order to decide whether the Superior Court erred in quashing appellants’ appeal for failing to file a timely post-verdict motion to remove the nonsuit. Appellants argue that the trial court erred by granting appellee’s motion for nonsuit before they presented their liability evidence at trial. Appellee contends that appellants waived their right to appeal the grant of the nonsuit because appellants failed to file post-verdict motions with the trial court within 10 days of the trial court’s grant of the nonsuit. Rule 230.1 of the Pennsylvania Rules of Civil Procedure provides that: In a case involving only one defendant, at the close of plaintiffs case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial court shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit. Clearly, Rule 230.1 provides that the trial court may enter a nonsuit at the close of plaintiffs case on liability. Also, the Explanatory Comment to this rule, while not binding on this Court, instructs that: “[T]he motion for nonsuit may not be made prior to the conclusion of plaintiffs evidence as to liability.” This Court has never addressed whether a trial court can enter nonsuit pursuant to Rule 230.1 prior to the presentation of plaintiffs liability evidence at trial. The Superior Court, however, addressed this issue with a similar factual scenario in Gallagher v. Harleysville Mutual Insurance Company, 421 Pa.Super. 192, 202, 617 A.2d 790, 796 (1992), appeal denied, 535 Pa. 620, 629 A.2d 1381 (1993). In Gallagher, the trial court, sua sponte, entered nonsuit against plaintiffs’ breach of contract claim before the trial began and before the plaintiffs presented any evidence as to liability. On appeal, the plaintiffs alleged that nonsuit should not have been entered pursuant to Rule 230.1 because a nonsuit may only be granted after the plaintiffs presented their evidence at trial as to liability. The Superior Court agreed and held that a trial court’s grant of nonsuit prior to trial could not be characterized as granting nonsuit under Rule 230.1, since such a motion may only be granted after a plaintiffs liability evidence has been presented to the jury. The Superior Court found instead that the trial court’s action should have been characterized as either a grant of summary judgment or a judgment on the pleadings. Thus, the Superior Court held that post-trial motions to remove the nonsuit were not required under Rule 227.1 since the proceedings did not constitute a trial. Gallagher, 421 Pa.Super. at 202, 617 A.2d at 796; Accord, Ray v. Armstrong Developers, 445 Pa.Super. 211, 664 A.2d 1387 (1995). The Superior Court’s interpretation of Rule 230.1 is supported by older precedent handed down by this Court in Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967). In Ruhe, this Court stated that: [ W]e know of no proceeding which permits the court to enter a compulsory nonsuit without testimony having been taken in court. In fact, the Act of March 11, 1875, P.L. 6, 12 P.S. § 645, grants the court the power to enter judgment of nonsuit if in the court’s opinion ‘the plaintiff shall have given No such evidence as in law is sufficient to maintain the action.’ (emphasis supplied). This Act, together with all of the cases decided thereunder setting forth the weight that a court must give to the adduced testimony and evidence, clearly indicates that a nonsuit is not to be entered prior to the taking of testimony. The law is clear that a compulsory nonsuit may not be entered at the commencement of trial on the ground that a plaintiffs proposed evidence is insufficient to sustain his cause of action. Ruhe, 425 Pa. at 215, 228 A.2d at 751. While the holding in Ruhe was predicated on 12 P.S. § 645, the Explanatory Comment to Rule 230.1 states that new Rule 230.1 is adapted from 12 P.S. § 645 and for the most part, continues the prior practice of that statutory section. Therefore, based on the above, we hold today that Gallagher is a correct statement of the law and that nonsuit may not be entered by the trial court pursuant to Rule 230.1 prior to the commencement of trial before plaintiffs presentation of evidence as to liability. Here, as in Gallagher, the trial court entered nonsuit prior to providing appellants with the opportunity to present any evidence as to appellee’s liability for appellants’ pain and suffering. Thus, the trial court erred in granting the nonsuit. Instead, the trial court should have treated appellee’s motion as being one for either summary judgment or for judgment on the pleadings. Therefore, the Superior Court erred in quashing appellants’ appeal since appellants’ failure to file a motion to remove the nonsuit was not fatal to their appeal and appellants filed a timely notice of appeal after the trial court entered its order. Accordingly, the order of the Superior Court is reversed and the matter is remanded to the Superior Court for consideration on the merits of appellants’ appeal. . Lawndale Community Hospital is not a party to this appeal. . In Ray, the defendant presented a motion in limine on the morning of trial to preclude plaintiff's expert from testifying because plaintiff's expert opinion was not rendered with the required degree of medical certainty. The trial court agreed and the defendant moved for summary judgment. The trial court granted the defendant's motion, but because of confusion over what to term the order, entered judgment in favor of defendant as one "as a matter of law in the nature of a non-suit.” On appeal to the Superior Court, the defendant moved to quash the appeal because plaintiff failed to first file a post-trial motion seeking to remove the nonsuit. The Superior Court, following the reasoning of Gallagher, declined to quash the appeal. . Section 645, in pertinent part, provided that: “[Wjhenever the defendant, upon the trial of a cause in any court of common pleas of this Commonwealth shall offer no evidence, it shall be lawful for the judge presiding at the trial court to order a judgment of nonsuit to be entered, if, in his opinion, the plaintiff shall have given no evidence as in law is sufficient to maintain the action.” . Rule 903(a) of the Rules of Appellate Procedure requires a parly to file a notice of appeal within thirty (30) days of the entry of the order from which the appeal is taken. Here, the trial court entered its order on May 16, 1995. Appellants filed a notice of appeal with the Superior Court on June 2, 1995. Thus, appellants’ appeal was timely. . Appellants’ brief also raises the following three issues: (1) whether a motion for summary judgment or judgment on the pleadings may be granted on the morning of trial; (2) whether the trial court erred in not allowing appellants to file a supplemental expert report; and (3) whether an expert witness should have been allowed to testify regarding his supplemental expert report. These issues, however, were not raised in appellants’ petition for allowance of appeal filed with this Court, and, therefore, it would be improper for this Court to address these issues. See, Pa.R.A.P. 1115(3) (only those questions set forth in the petition or fairly comprised therein, will ordinarily be considered by the court in the event an appeal is allowed).

ORDER PER CURIAM: AND NOW, this 30th day of December, 1996, upon consideration of the Certificate of Admission of Disability by Attorney that the respondent-attorney is suffering from disability by reason of physical disability which makes it impossible for him to prepare an adequate defense to a complaint of professional misconduct brought against him in connection with Office of Disciplinary Counsel file No. 137 DB 96, it is hereby ORDERED that Cyril D. Brain is immediately transferred to inactive status pursuant to Rule 301(e), Pa.R.D.E. for an indefinite period and until further Order of this Court. Respondent shall comply with Rule 217, Pa.R.D.E. All pending disciplinary proceedings against the respondent-attorney shall be held in abeyance, except for the perpetuation of testimony and any further proceedings necessary pursuant to Rule 301, Pa.R.D.E.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted. CASTILLE and NEWMAN, JJ., dissent and would reach the merits of the case.

ORDER PER CURIAM. AND NOW, the order of the Common Pleas Court of Philadelphia County is AFFIRMED. See, Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc., 547 Pa. 142, 689 A.2d 213 (1997).

ORDER PER CURIAM. Appeal dismissed as having been improvidently granted. CASTILLE and NEWMAN, JJ., dissent.

ORDER PER CURIAM: AND NOW, this 7th day of January, 1997, on certification by the Disciplinary Board that the respondent, ARNOLD YALE STEINBERG, who was suspended by Order of this Court dated September 9, 1996, for a period of ninety-one days, has filed a verified statement showing compliance with all the terms and conditions of the Order of Suspension and Rule 217, Pa.R.D.E., and there being no other outstanding order of suspension or disbarment, ARNOLD YALE STEIN-BERG is hereby reinstated to active status, effective immediately.

ORDER PER CURIAM: AND NOW, this 22nd day of January, 1997, there having been filed with this Court by William D. Hobson his verified Statement of Resignation dated December 5,1996, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of William D. Hobson be and it is hereby accepted and he is DISBARRED ON CON SENT from the Bar of the Commonwealth of Pennsylvania; and it is farther ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

ORDER PER CURIAM. AND NOW, this 20th day of December, 1996, the Commonwealth’s Petition for Reconsideration is granted. This Court’s order of August 21, 1996 is vacated. The Petition for Allowance of Appeal is GRANTED BUT LIMITED to the question of whether the Superior Court erred by denying Petitioner’s PCRA Petition alleging that counsel was ineffective by failing to object to the submission of written instructions to the jury. It is further ordered that the case be submitted on briefs and consolidated with Commonwealth v. Todaro, 547 Pa. 2, 688 A.2d 165 (1996).

ORDER PER CURIAM. AND NOW, this 23rd day of May, 1997, it is ordered that the warrant of execution scheduled for the week of June 1, 1997 is stayed pending the filing of a petition for writ of certiorari or a petition to extend the time thereof with the United States Supreme Court. Upon the timely filing with the United States Supreme Court, the execution shall be stayed pending action by the United States Supreme Court on the petition for certiorari from this Court’s ruling in Commonwealth v. Craver, 547 Pa. 17, 688 A.2d 691 (1997). This stay is automatically dissolved by the failure to file the aforesaid petitions by June 6,1997.

OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal by allowance from an order of the Superi- or Court which affirmed an order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of the John F. Kennedy Memorial Hospital in a medical malpractice case brought by the appellant, Stephen P. Flanagan. The case was based on allegedly inadequate care that Flanagan received when he went to the hospital for treatment of a collapsed lung on December 2, 1991. Treatment involved the insertion of a tube into his chest wall. Flanagan claims that he received substandard nursing care after insertion of the tube and that this led to “progressively worsening subcutaneous emphysema.” Specifically, he asserts that the nursing staff failed to document his complaints of pain and responses to medication, and that it failed to monitor his breathing and palpate his chest — these being measures that would have detected at an early stage the onset of subcutaneous emphysema. The nursing staff’s derelictions allegedly caused Flanagan’s condition to worsen so much that, by the time his condition was brought to the attention of a physician, an immediate transfer to intensive care was required. Flanagan planned to offer the testimony of only one expert witness at trial. That witness was a nurse, Audrey Stephan, Ed.D., R.N. However, when trial was about to commence, a motion in limine was granted in favor of the hospital, thereby precluding Stephan from testifying as to the identity of Flanagan’s medical condition and the causes thereof. Stephan would have testified in accordance with her expert report that “it is my nursing expert opinion, to a reasonable degree of nursing certainty, that all of the nurses ... did not meet the standard with respect to their nursing care of Stephen Flanagan and as such were a substantial contributing factor in his progressively worsening subcutaneous emphysema.” The trial court concluded that Stephan’s testimony went not only to the proper standard of nursing care, which was an appropriate subject for her testimony, but also to a medical opinion regarding the ultimate effect of that care. The court reasoned that the latter called for a medical diagnosis which a nurse is precluded by statute from rendering. Finding that the exclusion of this testimony prevented Flanagan from stating a prima facie case of malpractice, the court granted summary judgment in favor of the hospital. It is undisputed that Stephan is a well educated and highly experienced nurse who is competent to provide expert testimony regarding applicable standards of nursing care. It is recognized, too, that she is qualified to offer opinion testimony as to whether the nursing procedures followed in Flanagan’s case were substandard. What is at issue, however, is her competency to testify regarding the identity and cause of Flanagan’s medical condition. The decision to permit a witness to testify as an expert rests with the sound discretion of the trial court, and, absent an abuse of that discretion, the decision will not be disturbed on appeal. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995). To be qualified to testify in a given field, a witness normally needs only to possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Id. at 481, 664 A.2d at 528. Ordinarily, therefore, the test to be applied is whether the witness has a reasonable pretension to specialized knowledge on the subject matter in question. Id. at 480-81, 664 A.2d at 528; Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 10, 588 A.2d 1, 5 (1991). Here, however, the normal test of competency is constrained by a statutory provision limiting the deemed competency of nurses. Flanagan was not diagnosed by a physician as having subcutaneous emphysema until December 4, 1991. If Stephan had been permitted to testify that Flanagan had progressively worsening subcutaneous emphysema between December 2 and December 4, and to testify that this condition was the result of the nursing staffs deviation from appropriate standards of care, she would necessarily have been providing an opinion that Flanagan was in fact afflicted with subcutaneous emphysema at an earlier point than December 4. Thus, Stephan’s testimony would have consisted of a medical diagnosis of Flanagan's condition on December 2 or 3, as well as an opinion as to why that condition existed and worsened. We agree with the courts below that this testimony would have exceeded the bounds of what is permissible under statutory provisions that limit the scope of professional nursing. The Professional Nursing Law, 63 P.S. § 211 et seq., provides the following definition of the practice of nursing: (1) The “Practice of Professional Nursing” means diagnosing and treating human responses to actual or potential health problems through such services as case finding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed physician or dentist. The foregoing shall not be deemed to include acts of medical diagnosis or prescription of medical therapeutic or corrective measures, except as may be authorized by rules and regulations jointly promulgated by the State Board of Medicine and the Board, which rules and regulations shall be implemented by the Board. 63 P.S. § 212(1) (emphasis added). Thus, although the statute permits nurses to diagnose human responses to health problems, it expressly prohibits them from providing medical diagnoses. Hence, it recognizes a firm distinction between a nursing diagnosis and a medical diagnosis. The proper scope of a nursing diagnosis is set forth through statutory definitions of the terms employed in 63 P.S. § 212(1), supra. “Diagnosing” is defined as “identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.” 63 P.S. § 212(4). “Human responses” are defined as “those signs, symptoms and processes which denote the individual’s interaction with an actual or potential health problem.” 63 P.S. § 212(6). Thus, a nursing diagnosis identifies signs and symptoms to the extent necessary to carry out the nursing regimen. It does not, however, make final conclusions about the identity and cause of the underlying disease. The statute clearly states that the proper scope of nursing practice does not include acts of “medical diagnosis.” The statute provides no definition, however, of that term. Hence, an interpretation in accordance with common and approved usage applies. Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a). A medical diagnosis is commonly understood to be an identification of a disease based on its signs and symptoms. See Random House Dictionary (2d ed. unabridged 1987) (defining diagnosis for medical purposes as “the process of determining by examination the nature and circumstances of a diseased condition”); Webster’s Third New International Dictionary (unabridged 1976) (defining “medical” as “concerned with physicians or the practice of medicine” and defining “diagnosis” as “the art or act of identifying a disease from its signs and symptoms”). See also Commonwealth v. Green, 251 Pa.Super. 318, 323, 380 A.2d 798, 801 (1977) (“Medical diagnosis ... entails a 'conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms.’ Paxos v. Jarka Corp., 314 Pa. 148, 153-54, 171 A. 468, 471 (1934).”). Stephan’s opinion testimony regarding the specific identity and cause of Flanagan’s condition would clearly have constituted a medical diagnosis. Given the express statutory language preventing a nurse from providing such a diagnosis, the trial court’s exclusion of the testimony was proper. Hence, the Superior Court properly affirmed. Order affirmed. . Suit was initially brought against the John F. Kennedy Memorial Hospital and the physicians responsible for appellant’s care, but the actions against the physicians were subsequently discontinued and the hospital was left as the sole defendant. . In contrast, certified registered nurse practitioners are authorized to perform certain acts of medical diagnoses and prescription of medical, therapeutic, diagnostic, or corrective measures. 63 P.S. § 422.15; 49 Pa.Code § 21.251 etseq.

OPINION NIGRO, Justice. In this land use case, the Pittsburgh Zoning Board of Adjustment granted Irwin Associates, Inc.’s request for variances to the local zoning ordinance. The trial court found substantial evidence supporting that Irwin Associates will suffer unnecessary hardship without the variances and affirmed. The Commonwealth Court reversed the trial court because Irwin Associates did not establish that its property was valueless without the variances. For the reasons set forth below, we reverse the Commonwealth Court’s decision. Irwin Associates bought a vacant lot in a multiple-family residential zone in 1985. The area where the property is located has residential, commercial and institutional uses. Irwin Associates intended to develop apartments on the property. After it learned that federal funding was unavailable for the project in 1992, Irwin Associates entered into contracts to sell the property in three parcels to the Urban Redevelopment Authority of Pittsburgh, Allegheny Restorations, Inc. and West Park Non-Elderly Housing, Inc. for the development of housing. The total purchase price was $431,500. The sales did not occur, however, after environmental testing showed that the site is contaminated with petroleum hydrocarbon and benzene. The contaminant levels exceed state and federal guidelines. While the Pennsylvania Department of Environmental Resources is not presently requiring remediation of the property, it has stated that it may in the future. Remediation costs include estimated capital costs of $2.5 to $3 million and annual monitoring costs of $10,000 to $20,000. Because of the potential health risks and the remediation costs, Irwin Associates sought approval from the Pittsburgh Zoning Board of Adjustment to use the property as an open air parking lot. It needed use and dimensional variances. The Allegheny West Civic Council opposed the parking lot because it would prefer residential development on the property. The Zoning Board heard testimony related to the variance requests at four hearings. During cross-examination of Irwin Associates’ president at one hearing, Allegheny West’s counsel handed the president a proposed contract of sale purporting to offer $200,000 for the property at issue. When the president testified that he was unable to evaluate such an offer while on the witness stand, Allegheny West sent the proposed agreement of sale to him by mail. At a later hearing, Irwin Associates’ president testified that he did not believe that the offer was made in good faith and rejected it. The Zoning Board concluded that Irwin Associates could not use the property for residential development because of the contamination. It found that Irwin Associates could use the contaminated land for residential purposes only after remediation at prohibitive costs. The Zoning Board determined that Irwin Associates did not create its hardship, that the variances are not detrimental to the neighborhood, and that the variances are the minimum variances that will afford relief. It thus granted the variances and Allegheny West appealed. The trial court held that the evidence established that the contaminated property cannot be used for any permitted purpose under the zoning ordinance or can only be used for a permitted purpose at a prohibitive expense. Because Irwin Associates showed unnecessary hardship, it affirmed the Zoning Board’s grant of the variances. The Commonwealth Court reversed. It held that the record did not support several of the Zoning Board’s findings given Allegheny West’s offer to buy the land for $200,000. The court stated that Irwin Associates failed to “meet its burden of proving that the property is practically valueless as zoned if [it] has not pursued an offer to purchase the property.” Commonwealth Ct. Opinion at 7. This Court granted allocatur because of an apparent conflict between the Commonwealth Court’s decision and other appellate decisions. Because no additional evidence has been presented since the Zoning Board’s decision, our standard of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law in granting the variances. Larsen v. Zoning Bd. of Adjustment, 543 Pa. 415, 421, 672 A.2d 286, 288-89 (1996). We may find an abuse of discretion if the Board’s findings are not supported by substantial evidence. Id. A variance applicant must show that unnecessary hardship will result if a variance is denied and that his proposed use will not be contrary to the public interest. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 640 (1983). At issue is whether Irwin Associates established that it will suffer unnecessary hardship without the variances. Unnecessary hardship is established by evidence that the physical features of the property are such that it cannot be used for a permitted purpose or that the property can be conformed for a permitted use only at a prohibitive expense. Snyder v. York City Zoning Hearing Bd., 115 Pa. Commw. 68, 72, 539 A.2d 915, 916 (1988); Logan Square Neighborhood Ass’n v. Zoning Bd. of Adjustment, 32 Pa. Commw. 277, 280, 379 A.2d 632, 634 (1977); see also O’Neill v. Philadelphia Zoning Bd. of Adjustment, 384 Pa. 379, 120 A.2d 901 (1956)(unnecessary hardship shown where it was financially, impracticable to convert property to a permitted use). Unnecessary hardship may also be established by evidence that the property has no value for any purpose permitted by the zoning ordinance. Davis v. Zoning Bd. of Adjustment, 78 Pa. Commw. 645, 648, 468 A.2d 1183, 1184-85 (1983); Logan Square, 32 Pa. Commw. at 279-80, 379 A.2d at 634. While showing that a property is valueless without a variance is one way to establish unnecessary hardship, this Court has expressly rejected requiring such a showing. In Valley View, a zoning board decided that a variance applicant established unnecessary hardship by showing that her property was surrounded by commercial uses and that it was impossible to use it for a residential purpose as zoned. Id. at 558, 462 A.2d at 641. The Commonwealth Court, however, held that the applicant did not suffer an unnecessary hardship “absent a showing that the property is rendered practically valueless as zoned.” Id. This Court rejected such a requirement and reversed. Id. at 558-59, 462 A.2d at 641-42. The Court found it unreasonable to force a property owner to try to sell his property as a prerequisite to receiving a variance. Id. Here, the Commonwealth Court has again required the showing of valuelessness that this Court explicitly rejected in Valley View. Just as it was unreasonable there to require a property owner to try to sell his property before he could get a variance, it is also unreasonable under these facts to force a property owner to pursue an offer that is less than half of the property’s initial value in lieu of a variance. See Searles v. Zoning Hearing Bd., 118 Pa. Commw. 453, 545 A.2d 476 (1988)(refusal to sell property is not a basis for denying a variance (citing Harper v. Zoning Hearing Bd., 21 Pa. Commw. 93, 343 A.2d 381 (1975))). As in Valley View, substantial evidence in this case supports the Board’s conclusion that unnecessary hardship was established. Irwin Associates’ environmental consultant testified that the contamination exceeded state and federal guidelines and that a building on the property may be a health hazard because vapors could accumulate inside. Its real estate financing expert testified that it was unlikely that a financial institution would lend money for a construction project on the property because it would expose itself to potential liability for remediation costs. Irwin Associates’ president testified that the relatively small size of the lot precluded other permitted uses not involving improvements. The environmental consultant estimated that the remediation capital cost would be $2.5 to $3 million and annual monitoring costs would be $10,000 to $20,000. There is thus substantial evidence that Irwin Associates cannot use the property for a permitted purpose or can only conform it for a permitted purpose at a prohibitive cost. Furthermore, notwithstanding Allegheny West’s offer to buy the lot, there is evidence that the property is now without value as zoned. The local property assessment board assigned the property a fair market value of zero. The Zoning Board did not abuse its discretion or commit an error of law in granting the variances. Because the Commonwealth Court erroneously concluded that Irwin Associates failed to establish unnecessary hardship, we reverse its decision and remand to the Commonwealth Court to decide the remaining issues raised on appeal. NEWMAN, J., did not participate in the consideration or decision of this case. . Allegheny West had sent the offer to Irwin Associates’ counsel before the hearing but its president had not reviewed it. . The Municipal Planning Code, 53 P.S. § 10910.2 (Supp.1995), specifically requires an applicant to show: (1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions; (2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property; (3) That unnecessary hardship has not been created by the applicant; (4) That the variance is not detrimental to the public welfare and (5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue. . While this evidence of no value supports the Board’s conclusion that unnecessary hardship was established, in accordance with our holding today, evidence of no value is not required to establish unnecessary hardship.

EAKIN, Judge: Nicholas and Betty Delpopolo appeal from the order entered following denial of their motion in limine seeking to preclude introduction of evidence regarding the limited tort waiver in their insurance policy. We affirm. On November 23,1992, Nicholas Delpopolo was injured in an automobile accident allegedly caused by appellee Gary Nemetz. Del-popolo and his wife filed suit against Nemetz May 6, 1994. Nemetz thereafter joined Mai Pham as an additional defendant to the action. On September 26, 1996 appellants filed a motion in limine to preclude Nemetz and Pham from introducing evidence regarding the limited tort waiver in appellants’ insurance policy. The trial court denied this motion January 7, 1997, finding appellants were bound by their election of the limited tort option and could not recover for non-economic loss unless they established a “serious injury” in accordance with the definitions in the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701 et seq. Appellants’ subsequent petition to reconsider this order was denied February 6,1997. On February 12,1997, appellants acknowledged the injuries sustained in the accident were not serious enough to overcome the limited tort threshold. Following this admission, judgment was accordingly entered in favor of appellees June 3, 1997. This appeal followed. Appellants contend they never effected a valid election of limited tort because, at the time of their application they were not provided with the tort waiver form mandated by 75 Pa.C.S. § 1705; they therefore claim entitlement to full tort coverage. Appellants alternatively argue that to the extent they were provided with appropriate forms, their election of limited tort was ineffective because it was made unknowingly. “A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.” Meridian Oil & Gas Enters., Inc. v. Penn Cent. Corp., 418 Pa.Super. 231, 239, 614 A.2d 246, 250 (1992), appeal denied, 534 Pa. 649, 627 A.2d 180 (1993). When reviewing rulings on motions in limine, we apply the scope of review appropriate to the particular evidentiary matter. Id. The admissibility of evidence is a matter addressed to the sound discretion of the trial court and should not be overturned absent an abuse of discretion. Whyte v. Robinson, 421 Pa.Super. 33, 38, 617 A.2d 380, 383 (1992). Pursuant to the MVFRL, an insured is to be given the opportunity to select either a “full tort” option or a “limited tort” option. Section 1791.1(b) states an insurer must, at the time of application for original coverage, provide to an insured notice of the availability of these two alternatives. This section provides, in pertinent part: § 1791.1. Disclosure of premium charges and tort options (b) Notice of tort options.—In addition to the invoice required under subsection (a), an insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the following notice of the availability of two alternatives of full tort insurance and limited tort insurance described' in § 1705(c) and (d) (relating to election of tort options): The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two tort options: A. “Limited Tort” Option—This form of insurance limits your right and the rights of the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury”, as set forth in the policy, or unless one of several other exceptions noted in the policy applies. B. “Full Tort” Option—This form of insurance allows you to maintain an unrestricted right for yourself and other members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery-for all medical and out-of-pocket expenses and may also seek financial compensation for pain and suffering or other nonmonetary damages as a result of injuries caused by other drivers. 75 Pa.C.S. § 1791.1(b) (emphasis added). While Section 1791.1(b) refers to original applications for new insurance, Section 1705 contains a heightened notice requirement and pertains to policies in existence with first renewals due on or before July 1, 1990. Section 1705 provides, in relevant part: § 1705 Election of tort options.— (a) Financial responsibility requirements.— (1) Each insurer, not less than 15 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsection (c) and (d) ... 75 Pa.C.S. § 1705(a)(1) (emphasis added). In our recent en banc decision in Donnelly v. Bauer, 453 Pa.Super. 396, 683 A.2d 1242 (1996), appeal granted, 548 Pa. 627, 693 A.2d 967 (1997), we were faced with the task of interpreting these two notice provisions. In so doing, we looked to the language of the applicable MVFRL provisions, examined the legislative history of the MVFRL, considered consumer protection arguments, and even reiterated sentiments of the Deputy Commissioner for the Office of Rate and Policy Regulation for the Insurance Department of Pennsylvania. Ultimately, we held that only existing policyholders and first renewals occurring on or after July 1, 1990, are entitled to receive a Section 1705 notice; original applicants for insurance after July 1,1990, on the other hand, need only receive a Section 1791.1 notice. In reaching this conclusion, we explained: As evidenced by the statutory scheme, the legislature envisioned two classes: existing policy holders and new policy applicants. The statutes, the code, and the legislative history suggest that existing policyholders, having a contract in place, required immediate information because their premiums would be altered; new policy applicants, on the other hand, required only notice of the tort options. The limited tort option description required for new applicants under section 1791.1 clearly explains the rights that are restricted, and the legal effect of each option. Id., at 409, 683 A.2d at 1249. The reason for this holding is clear: In essence, the existing policy holders who obtained their original application for insurance prior to the amendments would not be cognizant of the fact that the legislature had now given them the opportunity to choose between two different types of tort coverage, limited or full. They, therefore, would need notice of the two types of coverage in order to be fully informed consumers. By contrast, persons who were applying for insurance after the 1990 amendments would neither need nor be able to compare the difference between the various costs of insurance coverage, having no pre-existing policy cost with which to compare the premiums for the two new coverage options created by the amendments. Kelly v. Ziolko, 705 A.2d 868, 872 (Pa.Super.1997). Appellants applied for automobile insurance with Prudential Insurance Company on October 27,1992. Therefore, Prudential’s notice and tort selection form is measured against Section 1791.1. Our review of the record reveals the Prudential application forms contained not only the language specified and required by Section 1791.1 setting forth the availability of the full tort and limited tort alternatives, but also the cost comparisons required by Section 1705. An examination of these application forms indicate appellants plainly selected the limited tort option, evidenced by Betty Delpopolo’s signature. After their application, appellants received a declaration sheet, clearly setting forth their choice of the limited tort option. Under the statutory requirements and our decision in Donnelly, only the Section 1791.1 notice of tort options needed to be given appellants. Prudential supplied appellants with this proper notice; in fact Prudential did more, including cost comparative information between the limited and full tort options. This election by appellants of the limited tort alternative is valid and must be enforced. Contrary to appellants’ position, we cannot find that a limited tort selection is only valid and effective if it is chosen pursuant to a Section 1705(a) notice. This is in direct opposition with the plain wording of the relevant MVFRL provisions and our en banc decision in Donnelly. As such, the trial court properly denied appellants’ motion in limine seeking to preclude evidence regarding their election of the limited tort option. Appellants alternatively claim that if Section 1705 notice was not required, they should nevertheless be released from limited tort coverage because none of the actions taken by Betty Delpopolo were a knowing and intelligent waiver of their full tort rights. We do not agree. The record reveals three different documents, two of which had been signed by at least one of the appellants, which declared their intention to elect limited tort. These include the coverage invoice, the application for original coverage, and the initial declaration sheet. Further, the election of limited tort was made by Betty Delpopolo only after a face-to-face meeting with her insurance agent, who explained to her the limited and full tort options. To this extent, the case is on all fours with Donnelly in that, “[u]nlike existing policy holders, the applicant is shopping for insurance, dealing face-to-face with an agent, and exploring coverage options and prices. The agent provides premium quotes for any combination of coverages.”' Donnelly, at 409, 683 A.2d at 1249. This parley and its attendant documents complied with the applicable provisions of Section 1791.1, and appellants received the benefit of lower insurance premiums in exchange for their election. While appellants in hindsight may decide limited tort was not their best choice, they cannot now claim benefit of a choice they did not make. Id., at 411, 683 A.2d at 1249. We find no reason to disturb the trial court’s decision rulings. Order affirmed:

ORDER PER CURIAM: AND NOW, this 21st day of May, 1998, there having been filed with this Court by George Kedala Tita his verified Statement of Resignation dated April 16,1998, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa. R.D.E., it is ORDERED that the resignation of George Kedala Tita be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa. R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice Paxson delivered the opinion of the court, We are asked to quash this writ upon the ground that error does not lie to the refusal of the court below to allow a writ of quo warranto. It is settled law both in this country and in England that quo warranto is not a writ of right; it rests in the sound discretion of the judge whether he will allow the writ. The late Chief Justice Gibson has made this so plain in Com. v. Jones, 2 Jones, 365, that no room is left for doubt. The same rule is declared in Com. v. Reigart, 14 S. & R., 216; Com. v. Cluley, 6 P. F. S., 270, and in Com. v. McCarter, 2 Out., 607. It is equally well settled that a writ of error does not lie to the exercise 'of a sound discretion. It is sufficient to refer to White v. Leeds, 1 P. F. S., 187, and Gump’s Appeal, 15 Id., 476. Our attention was called to the fact that in the case cited from 2 Out., a writ of error under similar circumstances was heard and decided by this court. This is so, but in that case the question was not raised, nor was it called to our attention in any manner. The judgment was affirmed upon the merits ; had the point been made the writ would probably have been quashed. It is always well to remember that a case is authority only for what is decided. Section 15 of the Act of 14th June, 1826, P. L. 621, Purdon 1208, authorizes a writ of error to be sued out by any person aggrieved “by the judgment of any Court of Common Pleas upon any writ of quo warranto,” &e. This provision cannot, by the most liberal interpretation of the statute, be extended to allow a writ of error on the part of a person aggrieved by the action of the court upon a rule to show cause why the quo warranto should not issue. It might be a sufficient reason why a writ of error would not lie in such case, to say that the Act of Assembly does not give it. Writ quashed.

Mr. Justice Clark delivered the opinion of the court The testator, Lewis Wain, domiciled in the city of Philadelphia, died in the month of December, 1863, leaving neither wife nor child, father nor mother. By his last will and testament he provided, in substance as follows :— 1. That his debts should be paid from the proceeds of his estate, not specifically devised. 2. To his sister, Phoebe L. Wain, he devised his house and lot, No. 914 Walnut street, with the furniture, &c., except his books and paintings, otherwise specifically disposed of; directing, that all incumbrances thereon should, as soon as practicable, be discharged, “ so that,” as the testator himself says, “ my sister may hold the said estate in fee simple, free from all incumbrances, and free from any claim for interest, or taxes.” 3. To his brother William Wain, he gave Wain Grove, his country seat, with the adjoining grounds, comprising about fifteen acres, in the twenty-third ward, with the personal property therein, &c.; “provided nevertheless, that the property bequeathed shall be subject to sale in whole or in part, as the case may require, to enable the executors to carry out fully the. previous provisions of this will, it being my intention that each bequest shall be fully carried out, in the order in which it appears in this my last will and testament, as the funds derived from my estate may permit.” 4. After directing the sale of the remainder of his real estate in the Twenty-third ward, within two years after his death, he gives pecuniary legacies as follows: — $200 to each of his two colored servants, “ in consideration of their faithful services; ” $10,000 in trust for his niece Susan Israel, for life, &c.; $10,000 in trust for his two nieces, Phoebe and Mary, in equal shares, for life, &c.; $12,000 in trust for his two nieces, Rebecca and Julia, and a nephew, Francis, for life, in equal shares, &c.; $2000 to the son of his niece Mary; $2000 to the son of an old friend. The residue of his estate, real and personal, is given to his brother, the devisee of the country seat. The specific provisions in favor of liis sister Plioebe L. Wain and his brother William Wain, are unimpaired, and these, with the bequest of his books and paintings, have been “ fully carried out ” ; but to pay the general legacies, amounting in the aggregate to $88.400, there remains in the hands of the executor only $16,000. In view of this deficiency of assets the Pennsylvania Company &e., trustee for Susan Israel, contends, that this fund should be applied to each of the several pecuniary legacies, “in the order in which it appears,” in the will, and claims priority in right, over the legacies which are written in the will, after the legacy of Susan Israel. » In the distribution of a testator’s estate, the well known general rule of the common law is, that, in case the assets, after payment of debts, are insufficient to answer the specific but not the general legacies, the latter are subject to a proportional abatement; but if by the will the intent of the testator, clearly manifested, is to give one or more general,, legatees a priority to others, that intention will be carried into effect: Williams on Executors, 1467-71. The 48th section of our statute, of 24th February, 1834? Purd. Dig., 448 pi. 212, is, therefore, declaratory merely of the rule previously recognized. No such preference, however, can be presumed; it must clearly appear, either by the express words, or from fair construction of the will. It is founded in an apprehension of an actual deficiency of assets, not of any anticipated delay, in bringing them to distributable form; therefore, a distinction must, in each case, be made between what may be intended as a priority in payment merely, and wliat may import a priority in right. We think however, to whichever portion of the will they may be found to refer, there can be no doubt, that the words of the proviso are sufficient to indicate, that a preference in right was intended. We cannot mistake the meaning of the testator, when he says, that it is his intention “ that each bequest shall be fully carried out, in the order in which it appears,” in the will, as the funds of his estate nmy permit. It is quite clear, we think, that this was written, when the testator had in his mind the possibility of a deficiency of assets, and that his purpose was not merely to provide an order of payment. But the question which remains to be decided is, to what this preference applies. Was it intended to apply in the immediate connection in which it is expressed, only, or was it also intended to affect the relative rights of the general lega tees, of whom as yet the testator liad not spoken? The opinion of the learned court below is so full and clear upon the point indicated, that any further discussion or elaboration of it must necessarily involve a useless repetition. We will, therefore, refer but briefly to the considerations which, in our view, show the conclusions of the learned court to be correct. It is certainly clear that the first clause relates exclusively to the. antecedent portions of the will; that is its plain and precise expression — “ the property bequeathed shall be subject to sale, in whole or in part, as the case may require, to enable the executors to carry out fully the previous provisions of the will.” But it is contended, that the second clause is more general in expression, and was intended to apply to the provisions of the will throughout. It will be observed that the two clauses constitute but a single sentence; their grammatical construction seems to show that they were so intended. No mere punctuation could give to the second clause the form of an independent sentence; it is parenthetic, and is connected in sense with what immediately precedes it. The first clause, it is admitted, gave a preference to Phoebe L. Wain, oover her brother, William Wain, and the second, undoubted!]', gave them both a preference over all others; each clause, therefore, evidences a distinct purpose of the testator’s mind, and their force would in no degree be impaired, if the general legacies had, in fact, not been created. A bequest, it is true, is properly of personal estate, but the testator having spoken of the gift to his brother as the “ property bequeathed ” to him, we may believe, if the contexts favors it, that “ each bequest ” refers to the gifts previously made although consisting, in part, of realty; and especially so, as these were a't the moment, the subject of his particular consideration. The testator does not say that “ all the bequests ” are to be fully carried out in their order; his language is, “ each bequest ” and as, in the same sentence, he had particular reference to the two previous provisions it is fair to infer that these were intended. This view of the ease is greatly strengthened by the fact, that no motive is discovered for the preference of one of the legatees over the others; all stood in equal degree of kinship to the testator, and no fact or circumstance appears to explain his purpose, in the preference, alleged. We may however, readily assign the motive which would move the mind of a brother to exercise such a preference for the protection of a single sister. Whilst a preference in right is in all cases founded on an apprehension of a deficiency of assets, it is not established thereby, it must be expressed in the will. Equality is the highest equit]q and, in a distribution to legatees, will be enforced unless, as directed by the Act of 1834, “it shall be otherwise provided bv the will.” The burden is upon the appellants; if the will gives them a preference over others, they must point out the place where it may be found. The presumption is against it, and tliat presumption cannot be repelled by any ambiguous expression; the intent to the contrary must be clear. Nor will tbe testator’s design, in any event to uphold the specific gift to bis sister, dispense with the measure and quality of proof required, or sliow an intent to extend that preference to the general legatees in their order; unless the priority alleged clearly appear, they will be let in on equal terms : University’s Appeal, 1 Out., 187. We agree with the learned court below, that the reasonable construction of this will shows the testator’s purpose, that the provision for his sister should first be “ fully carried out,” even if tbe gift to his brother, “in full or in part,” be required for the purpose; but if the funds of the estate permit, that each of said “bequests” should be “fully carried out, in tbe order in which they appear in the will, and.that this was the only preference which the testator intended. It follows, that the $16,000, in the hands of the executor, must be distributed, pro rata, to the general legacies. The decree of the Orphans’ Court is therefore affirmed, and the appeal dismissed at the cost of the appellant.

OPINION OF THE COURT CASTILLE, Justice. The sole issue on appeal is whether a person who has selected the “limited tort” option for his automobile insurance policy pursuant to the Motor Vehicle Financial Responsibility Law (“MVFRL”) is precluded from recovering noneconomic damages (i.e., pain and suffering) under the uninsured motorist provisions of his insurance policy where the accident was caused by an uninsured motorist whose vehicle was registered in a state other than Pennsylvania. Because we find that the MVFRL precludes such a recovery, we affirm the order of the Superior Court. The facts for purposes of this appeal are not in dispute. Appellant was a designated insured under an automobile insurance policy issued by appellee, Aetna Casualty and Surety Company (“Aetna”). When purchasing this insurance policy, appellant selected the “limited tort” insurance option pursuant to the MVFRL, 75 Pa.C.S. § 1705. The purchase of the “limited tort” option allowed appellant to reduce his insurance premium. In return for this reduced premium, appellant was generally precluded from recovering for a noneconomic loss unless he sustained a “serious injury” from the accident. 75 Pa. C.S. § 1705(d). On April 18, 1991, appellant was involved in an automobile accident. The parties stipulated that the accident was caused by an uninsured driver who was operating a motor vehicle registered in the State of Minnesota. As a result of the accident, appellant filed a claim under the uninsured motorist provisions of his automobile insurance policy with Aetna for noneconomic damages. Aetna denied appellant’s claim on the grounds that appellant, as a limited tort claimant, was not eligible to recover noneconomic damages because he had not suffered a “serious injury” as defined by the MVFRL. Appellant responded to Aetna’s denial of his claim for uninsured benefits by filing a complaint requesting a declaratory judgment that he was not precluded from maintaining a claim under the uninsured motorist provisions of his automobile insurance policy with Aetna for noneconomic damages. Appellant’s complaint admitted that he did not suffer a “serious injury” from the accident. However, appellant claimed he was entitled to recover noneconomic damages because he fell within the following two exceptions set forth in the MVFRL: (d) Limited tort alternative—Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneco-nomic loss, except that: (1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault ... (ii) is operating a motor vehicle registered in another state ... or (iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage). 75 Pa.C.S. § 1705(d)(l)(ii) and (iv) (emphasis added). Thus, appellant claimed he was entitled to recover noneconomic damages pursuant to the uninsured motorist provisions of his policy with Aetna because the person at fault was uninsured and operating a vehicle registered in another state. Aetna responded to this claim by arguing that the “provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2)” language of 75 Pa.C.S. § 1705(d)(l)(iv) applies to all of the excep tions found in 75 Pa.C.S. § 1705(d)(1). Thus, Aetna asserted that the limitation of 75 Pa. C.S. § 1731(d)(2) applied to appellant and precluded him from recovering uninsured motorist benefits for noneconomic damages. The parties then filed cross-motions for summary judgment. On May 3, 1993, the trial court denied both motions on the basis that there remained genuine issues of material fact still to be determined. On May 24, 1995, the trial court reversed itself and granted summary judgment in favor of appellant. In making this decision, the trial court found that the “provided that” clause in 75 Pa.C.S. § 1705(d)(l)(iv), which refers to the limitation of 75 Pa.C.S. § 1731(d)(2), only applied to subparagraph (iv). Thus, the trial court concluded that appellant was entitled to uninsured motorist benefits for noneconomic damages pursuant to subparagraph (ii) of 75 Pa.C.S. § 1705(d)(1) (driver at fault was operating a motor vehicle registered in another state). On appeal, the Superior Court reversed the trial court. After applying principles of statutory construction, the Superior Court found that the “provided that” clause referred to all of paragraph (1) of 42 Pa.C.S. § 1705(d). Thus, the Superior Court concluded that the limitation of 75 Pa.C.S. § 1731(d)(2) controlled and that none of the exceptions found at 75 Pa.C.S. § 1705(d)(l)(i)-(iv) would allow appellant to recover noneconomic damages from the uninsured motorist provisions of his policy. This Court granted allocatur in order to determine whether the “provided that” language at 42 Pa.C.S. § 1705(d)(l)(iv) applies only to that particular subparagraph or to all the subparagraphs of paragraph (1) in 42 Pa.C.S. § 1705(d). Our determination of this issue centers on an analysis of the controlling statutory language. When determining the proper application of the “provided that” language, we are guided by the Statutory Construction Act. See 1 Pa.C.S. § 1501 et seq. The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). As this Court has noted, the repeal of the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, and the simultaneous enactment of the MVFRL, reflected a legislative “concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.” Paylor v. Hartford Ins. Co., 536 Pa. 583, 587, 640 A.2d 1234, 1235 (1994). This legislative concern over the increasing costs of automobile insurance is the public policy which is to be advanced when interpreting the statutory provisions of the MVFRL. Id. The interpretation of what provisions of 75 Pa.C.S. § 1705(d)(1) are affected by the “provided that” languages entails an understanding of how the Pennsylvania Consolidated Statutes are arranged. A section of an act like 75 Pa.C.S. § 1705 is subdivided into subsections, paragraphs, subparagraphs, and such other subdivisions as may be required for clarity of expression and uniformity of style. 1 Pa.C.S. § 301(c). The introduction to the Pennsylvania Consolidated Statutes contains the following remarks: To encourage uniformity of style, and to provide helpful suggestions relating to the step-by-step mechanics of drafting a codification bill, the Legislative Reference Bureau has published a detailed Style Manual for the Pennsylvania Consolidated Statutes. See 101 Pa.Code § 21.1 et seq. Pa.C.S. Introduction. This Style Manual, contained in the Pennsylvania Code, provides the following guidance as to how sections are organized in the Pennsylvania Consolidated Statutes: § 23.26 Internal Divisions of sections. Whenever internal divisions are necessary, subsections shall be identified by lower case letters, paragraphs by Arabic numerals, subparagraphs by lower case Roman numerals, clauses by capital letters and subclauses by capital Roman numerals, all contained within parentheses, as follows: Terminology Illustrative Symbol Subsection (a) Paragraph (1) Subparagraph (i) Clause (A) Subclause (I) 101 Pa.Code § 23.26. Since, as the parties admit, the legislative history of section 1705 is silent as to the proper scope of the “provided that” language, we are guided by the principles enunciated at 101 Pa.Code § 23.26. Based on these principles, it is clear that provision (1) of subsection 1705(d) (which provides qualifying language to the general rule set forth in subsection (d) that noneconomic damages are not available unless the party suffers a “serious injury”) is a paragraph since it is illustrated by an Arabic numeral. It is also clear that provisions (i) through (iv) of paragraph (1) (which provide specific exceptions to the general rule of subsection (d)) are subparagraphs because they are illustrated by a lower case Roman numeral. The language in dispute, which is contained in subparagraph (iv), states “provided that nothing in this paragraph shall affect the limitations of section 1731(d)(2).” Thus, the plain meaning of the language in dispute is that the “provided that” language applies to all of the provisions of paragraph (1). Therefore, since we must assume that the General Assembly knew what a paragraph meant in terms of constructing a statutory provision, we hold that the plain meaning of the “provided that” language is that the limitations of 75 Pa.C.S. § 1731(d)(2) apply to all the subparagraphs contained in paragraph (1) of subsection 1705(d). Accordingly, a driver who elects limited tort coverage is unable to collect noneconomic damages •from uninsured or underinsured motorist provisions of his insurance policy for any accidents set forth in paragraph 1 of 75 Pa.C.S. § 1705(d) because of the limitation at 75 Pa.C.S. § 1731(d)(2). This conclusion is consistent with the policy behind the enactment of the MVFRL, the concern over the spiraling costs of insurance to residents of Pennsylvania. In three of the four exceptions contained in paragraph (1) of 75 Pa.C.S. § 1705(d), the General Assembly must have concluded that the importance of limiting insurance costs were outweighed by the need to punish or deter tortfeasors who drove under the influence (subparagraph (i)), who intentionally injured others (subpara-graph (in)) and who operated an uninsured vehicle (subparagraph (iv)). In the fourth exception, the General Assembly obviously concluded that it needed to level the playing field between Pennsylvania limited tort insureds and the rights of out-of-state motorists since the MVFRL does not limit the ability of out-of-state motorists from recovering noneconomic damages from Pennsylvania tortfeasors and the allowance of this exception will not affect the insurance rates charged to Pennsylvania motorists. However, the limitation placed on these four exceptions by 75 Pa.C.S. § 1731(d)(2) reflects a legislative determination that allowing uninsured claims under the four exceptions would not deter or punish unacceptable conduct or level the playing field between parties. Instead, allowing such a recovery from the “limited tort” driver’s uninsured or underin-sured provisions of his policy would act to eliminate the cost savings associated with choosing the limited tort option because it would have an upward effect on insurance rates charged to Pennsylvania insureds. In reaching this conclusion, the Court recognizes that its interpretation of the “provided that” clause is inconsistent with a regulation promulgated by the Insurance Commissioner at 31 Pa.Code § 68.113, which provides: § 68.113 Scope of UM and UIM coverage available to a limited tort elector It is the Insurance Department’s position that a person who selects a limited tort option is not precluded from suing for non-economic loss or making a claim under his uninsured or underinsured motorist coverage when the conditions of 75 Pa.C.S. § 1705(d)(l)(i)-(üi) (relating to election of tort options) are met. When a person who selects a limited tort option has been injured by an uninsured motorist as described in 75 Pa.C.S. § 1705(d)(l)(iv), the injured person may maintain an action for noneconomic loss, but is precluded by 75 Pa.C.S. § 1731(d)(2) (relating to availabili ty, scope and amount of coverage) from making a claim under his uninsured or underinsured motorist coverage for pain and suffering unless at least one of the conditions of 75 Pa.C.S. § 1705(d)(l)(i), (ii), (iii) is satisfied. Courts traditionally accord an interpretation of a statutory provision by an administrative agency charged with administering that statute some deference. Terminate v. Pennsylvania Nat. Ins. Co., 538 Pa. 60, 71, 645 A.2d 1287, 1298 (1994). However, the interpretation of a statute is a question of law for the Court to resolve and when the Court is convinced that the interpretive regulation adopted by the administrative agency is clearly erroneous or is violative of legislative intent, the Court disregards the administrative agency’s regulation. Philadelphia Suburban Corp. v. Board of Finance and Revenue, 535 Pa. 298, 301-02, 635 A.2d 116, 118 (1993). As described above, the Insurance Commissioner’s interpretation of the relevant statute in the case sub judice disregards the clear manner in which statutes are arranged in the Pennsylvania Consolidated Statutes. Thus, this Court finds that the Insurance Commissioner’s interpretative regulation is erroneous and may be disregarded. It is for the legislature, not the courts or administrative agencies, to alter the construction which must be afforded to the statutory provisions in question. Based on the above, we hold that the “provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2)” language of subparagraph (iv) refers to the entirety of paragraph (1) of 75 Pa.C.S. § 1705(d). Thus, the limitation of 75 Pa.C.S. § 1731(d)(2) applies and precludes a person like appellant who has selected the “limited tort” option for his automobile insurance policy pursuant to the MVFRL from recovering noneconomic damages under the uninsured motorist provisions of his insurance policy even though the accident was caused by an uninsured motorist whose vehicle was registered in a state other than Pennsylvania. In making this ruling, we emphasize that this does not mean that appellant cannot seek noneconomic damages pursuant to 75 Pa.C.S. § 1705(d)(l)(ii) and (iv) in a liability action against the tortfea-sor. Instead, this ruling limits only appellant’s ability to seek noneconomic damages from the uninsured motorist provisions of his own automobile insurance policy with Aetna to instances where he suffers a “serious injury.” By limiting appellant’s ability to recover such damages, this Court is holding appellant to his voluntary choice of limiting his ability to recover such damages in return for a reduced insurance premium. Accordingly, since appellant has admittedly not suffered a “serious injury”, the order of the Superior Court reversing the trial court’s grant of summary judgment and declaration that appellant is entitled to recover uninsured motorist benefits for noneconomic damages pursuant to 75 Pa.C.S. § 1705(d)(l)(ii) is affirmed. NIGRO and CAPPY, JJ., concur in the result. . 75 Pa.C.S. § 1701, et seq. . MVFRL defines a noneconomic loss as “pain and suffering and other nonmonetary detriment.” 75 Pa.C.S. § 1702. . A "serious injury” is defined by the MVFRL as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702. .The other two exceptions to the general rule precluding a "limited tort” driver from recovering noneconomic damages are triggered where the person at fault was driving under the influence or was an intentional tortfeasor. 75 Pa.C.S. § 1705(d)(l)(i) and (iii). These two exceptions are not at issue in this case. . Section 1731(d)(2) provides: A person precluded from maintaining an action for noneconomic damages under section 1705(relatmg to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneco-nomic damages. 75 Pa.C.S. § 1731(d)(2).

KELLEY, Judge. The present case concerns the validity of the enactment of the Act of April 17, 1997, P.L. 6 (Act 3), which made substantial amendments to the Public Transportation Law and Vehicle Code. Common Cause/Pennsylvania, Citizens Against New Toll Roads, Community Environmental Legal Defense Fund, and Zero Population Growth, Inc. (collectively, Petitioners) filed a nine-count petition for review in the nature of a complaint in equity (petition for review) under this court’s original jurisdiction. In the petition for review, Petitioners challenge the constitutionality of the procedures followed by the General Assembly in enacting Act 3 and seek both injunctive and declaratory relief. Preliminary objections to the petition for review were filed by the Commonwealth of Pennsylvania, Governor Thomas J. Ridge, Secretary of Revenue Robert A Judge, Sr., and Secretary of Transportation Bradley L. Mallory (collectively, Respondents). Preliminary objections to the petition for review were also filed by Senator Robert C. Jubelirer and Representative Matthew J. Ryan (collectively, Intervenors). Those preliminary objections are now before this court for disposition. The parties in this case have not stipulated to facts relating to the enactment of Act 3. However, this court can take judicial notice of the Legislative Journals, as well as the various versions of House Bill 67 (HB 67), the bill ultimately enacted as Act 3 of 1997. I. FACTS Act 3 began as HB 67, Printer’s No. 76, and was introduced in the Pennsylvania House of Representatives as an act amending the Vehicle Code, providing for vehicle registration periods of less than one year. HB 67 was originally entitled as “AN ACT Amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, further providing for vehicle registration periods of less than one year.” HB 67 was referred to the House Committee on Transportation on January 28, 1997 and reported back to the full House of Representatives as committed on March 12,1997. After its first consideration, HB 67 was referred to the Committee on Appropriations and reported back to the full House of Representatives as committed on March 17,1997. On its third consideration, HB 67 was amended and then reported to the full House of Representative. HB 67, as amended, was approved by the full House of Representatives on March 18,1997. On March 19, 1997, HB 67, bearing Printer’s No. 1069, was referred by the President of the Senate' to the Senate Transportation Committee and reported to the full Senate as committed on April 2, 1997. On its third consideration, HB 67 was amended and then reported to the full Senate for passage. The Senate then approved HB 67, as amended, and bearing Printer’s No. 1415, on April 8, 1997. Following passage by the Senate, HB 67 was returned to the House of Representatives for concurrence in the amendments made by the Senate. HB 67 was referred to the House Committee on Rules on April 9, 1997. The House Committee on Rules amended HB 67 and changed its title as follows: AN ACT Amending Titles 74 (Transportation) and 75 (Vehicles) of the Pennsylvania Consolidated Statutes, further providing for annual appropriation and computation of subsidy and for distribution of funding; providing for distribution of supplemental funding; further providing for use of funds distributed; providing for public transportation grants management accountability, for competitive procurement and for the Public Transportation Assistance Fund; further providing for period of registration, for duties of agents, for registration and other fees, for requirements for periodic inspection of vehicles, for limits on number of towed vehicles, for operation of certain combinations on interstate and other highways, for width and length of vehicles; providing for liquid fuels and fuels permits and bond or deposit of securities, for imposition of liquid fuels and fuels tax, for taxpayer, for distributor’s report and payment of tax, for determination of tax, penalties and interest, for examination of records and equipment, for retention of records by distributors and dealers, for disposition and use of tax, for discontinuance or transfer of business, for suspension or revocation of permits, for lien of taxes, penalties and interest, for collection of unpaid taxes, for reports from common carriers, for violations and reward for detection of violations, for refunds, for diesel fuel importers and transporters, for prohibiting use of dyed diesel fuel, for disposition of fees, fines and forfeitures, for certified copies of records and for uncollectible checks; further providing for distribution of State highway maintenance funds and for standards and methodology for data collection; providing for dirt and gravel road maintenance; further providing for imposition of tax and additional tax; providing for tax on alternative fuels; further providing for disposition of tax revenue; making an appropriation; and making repeals. HB 67, as amended and designated Printer’s No. 1531, was then reported to the full House of Representatives on April 16, 1997. The House of Representatives passed HB 67 without changes on April 16, 1997, by a vote of 107-88. HB 67 was then returned to the Senate, where it was passed by the full Senate on April 16, 1997 by a vote of 26-23. HB 67 was signed in both the House of Representatives and the Senate on April 16, 1997. The next day; Governor Tom Ridge signed HB 67 into law as Act 3 of 1997. II. PETITION FOR REVIEW On September 9, 1997, Petitioners filed a petition for review in which they allege a series of constitutional violations in the enactment of Act 3. In the petition for review, Petitioners aver that the amendments made in the House of Representatives after the initial passage of HB 67 by the House of Representatives and Senate altered or amended the original purpose of the bill such that its subsequent passage, without referral to committee or consideration on three different days by the House of Representatives and Senate, violated Article III, section 1, 2, 3 and 4 of the Pennsylvania Constitution. Petitioners further allege that the House of Representatives or the House Committee on Rules violated Article III, Section 5 of the Pennsylvania Constitution when it amended HB 67 after its initial passage by the House of Representatives and Senate. Petitioners also aver that the House of Representatives and the House Rules Committee violated Article II, Section 1 and Article III, Section 4 of the Pennsylvania Constitution because the full House of Representatives and Senate were not afforded an opportunity to reject HB 67 as originally adopted by the House of Representatives and the Senate before voting on the proposed amendment to HB 67. Finally, Petitioners allege that the General Assembly violated Article III, Sections 1-5 of the Pennsylvania Constitution when it enacted Act 3 in light of Article VIII, Section 11 of the Pennsylvania Constitution and this court’s ruling in Common Cause v. Commonwealth, 668 A.2d 190 (Pa.Cmwlth.1995), aff'd 544 Pa. 512, 677 A.2d 1206 (1996). Petitioners request this court to declare that Act 3 was unconstitutionally enacted and to enjoin Respondents from performing the provisions of Act 3. III. PRELIMINARY OBJECTIONS In response to the petition for review, Respondents and Intervenors filed with this court preliminary objections. They allege that Petitioners’ petition for review should be dismissed because: (1) Petitioners lack standing; (2) Petitioners are seeking adjudication of a non-justiciable, political question; and (3) Petitioners have failed to state a cause of action upon which relief can be granted. Respondents and Intervenors further request this court to strike portions of Petitioners’ petition for review. Preliminarily, we note that preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263 (Pa.Cmwlth.1997). The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Id. In ruling upon preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded allegations of material fact and all inferences reasonably deducible therefrom. Pennsylvania School Boards Association, Inc. v. Commonwealth Association of School Administrators, Teamsters Local 502, 696 A.2d 859 (Pa.Cmwlth.1997). We shall begin our discussion by addressing Respondents’ request to strike portions of Petitioners’ petition for review. A. INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER Respondents and Intervenors aver that the six-page “Introductory Statement” of Petitioners’ petition for review is scandalous and impertinent and should be stricken pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2). We agree. Rule 1028(a)(2) provides that preliminary objections may be filed for failure of a pleading to conform to law or rule of court or “inclusion of scandalous or impertinent matter.” To be scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action. Department of Environmental Resources v. Peggs Run Coal Company, 55 Pa.Cmwlth. 312, 423 A.2d 765 (1980). In their introductory statement, Petitioners have provided us with an editorialized history of lawmaking in Pennsylvania. Rather than setting forth factual allegations relevant to the procedure by which HB 67 was considered and passed, Petitioners have chosen to include allegations regarding the procedures used by the Governor and the legislative leadership in enacting certain other pieces of legislation, not here before us. These allegations are immaterial to Petitioners’ cause of action. Petitioners’ introductory statement also contains statements which improperly cast a derogatory light on the legislative and executive branch leadership. Such scandalous statements have no place in a pleading. Accordingly, the Petitioner’s introductory statement is stricken in its entirety from the petition for review. B. STANDING Respondents and the Intervenors object to the petition for review on the grounds that Petitioners lack standing. The Intervenors assert that the petition for review does not contain any allegation that Petitioners, or any of its members, sustained a direct, immediate and substantial injury which was causally connected to the alleged constitutional violations by the General Assembly in the enactment of Act 3. We begin our analysis by pointing out that the parameters of taxpayer standing in this Commonwealth have been defined by our Supreme Court in the case of Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979). In that ease, our Supreme Court stated that the “purpose of the requirement of standing is to protect against improper plaintiffs.” Id. at 442-43, 409 A.2d at 851. In order to meet this requirement, a plaintiff must allege and prove an interest in the outcome of the suit which surpasses “the common interest of all citizens in procuring obedience to the law.” Id. quoting Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). To surpass the common interest of all citizens, the interest must be substantial, direct, and immediate. Id. Nevertheless, the Supreme Court recognized that certain cases exist in which the facts warrant the granting of standing to taxpayers where their interests arguably are not substantial, direct and immediate. Biester, 487 Pa. at 444, 409 A.2d at 852; Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 168, 507 A.2d 323, 328 (1986). The relaxing of those interest requirements in certain cases where there is little causal connection between the action complained of and the alleged injury is best explained by the basic policy considerations underlying taxpayer standing. Consumer Party, 510 Pa. at 168-69, 507 A.2d at 328. Our Supreme Court articulated these policy considerations in Biester as follows: “The ultimate basis for granting standing to taxpayers must ... be sought outside the normal language of the courts. Taxpayers’ litigation seems designed to enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement. Such litigation allows the courts, within the framework of traditional notions of ‘standing,’ to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts.” Biester, 487 Pa. at 443 n. 5, 409 A.2d at 851 n. 5, quoting Note, Taxpayers’ Suits: A Sur vey and Summary, 69 Yale L.J. 895, 904 (1960). In Consumer Party, the Supreme Court held that a taxpayer seeking standing to sue must allege a substantial, direct and immediate interest in the outcome of the suit unless the taxpayer can show: 1. the governmental action would otherwise go unchallenged; 2. those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action; 3. judicial relief is appropriate; 4. redress through other channels is unavailable; and 5. no other persons are better situated to assert the claim. Consumer Party, 510 Pa. at 170, 507 A.2d at 329. Based upon the above five factors, we conclude that the circumstances of the present case warrant the granting of standing to petitioners. We believe that the actions taken by the General Assembly in passing HB 67 would likely go unchallenged but for the present proceeding, because the very individuals who enacted such legislation are not going to be inclined to challenge the constitutionality of the process by which Act 3 was enacted. See League of Women Voters. We further believe that judicial relief may be appropriate since the ultimate function of the judiciary is to determine the constitutionality of an act. Zemprelli v. Daniels, 496 Pa. 247, 255-56, 436 A.2d 1165, 1169 (1981). Moreover, redress through other channels is unavailable as there is no administrative agency which can provide relief and the members of the General Assembly, themselves, are unlikely to provide a meaningful mechanism for redress. Finally, we believe that there are no other persons better situated to assert the constitutional claims which have been raised in the present ease than Petitioners. We, therefore, conclude that Petitioners have standing to raise the constitutional claims which they have set forth in their petition for review. Accordingly, Respondents’ and Intervenors’ preliminary objections to the petition for review on the grounds that Petitioners lack standing are overruled. C. JUSTICIABILITY Respondents and Intervenors further assert that the Petitioners’ claims are non-justiciable under the (1) Enrolled Bill Doctrine, (2) Political Question Doctrine, and the (3) Speech and Debate Clause. We disagree. 1. Enrolled Bill Doctrine We initially point out that acts of the General Assembly enjoy a strong presumption of constitutionality, and the party challenging an act has a heavy burden of persuasion. 1 Pa.C.S. § 1922(3); Pennsylvania Liquor Control Board v. Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984). Legislation will not be invalidated unless it clearly, palpably and plainly violates the Pennsylvania Constitution, and any doubts are to be resolved in favor of a finding of constitutionality. Spa Athletic Club, 506 Pa. at 370, 485 A2d at 735. To preserve the delicate balance which is critical to the proper functioning of a tripartite system of government, our Supreme Court has exercised judicial restraint to avoid an intrusion upon the prerogatives of a sister branch of government. Consumer Party, 510 Pa. at 176-77, 507 A.2d at 332. Pursuant to this principle, our Supreme Court has rejected challenges to the procedural regularity of the passage of legislation on the grounds that the matter is non-justiciable under the Enrolled Bill Doctrine. Id. at 177, 507 A2d at 332. As explained in Kilgore v. Magee, 85 Pa. 401, 412 (1877), the Enrolled Bill Doctrine provides that: [W]hen a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage.... The presumption in favor of regularity is essential to the peace and order of the state. While the Enrolled Bill Doctrine operates as an appropriate means of judicial restraint to avoid intrusion by the judiciary into the prerogatives of a co-equal branch of government, the legitimacy of such abstention is dependent upon the situation presented. Common Came, 668 A.2d at 195; Consumer Party, 510 Pa. at 177, 507 A.2d at 333. The countervailing concern is the judiciary’s mandate to insure that government functions within the bounds of constitutional prescription. Consumer Party, 510 Pa. at 177, 507 A.2d at 333. The judiciary may not abdicate this responsibility under the guise of its deference to a co-equal branch of government. Id. at 177-78, 507 A.2d at 333. Our Supreme Court has stated that “while it is appropriate to give due deference to a co-equal branch of government as long as it is functioning within constitutional constraints, it would be a serious dereliction on our part to deliberately ignore a clear constitutional violation.” Id. at 178, 507 A.2d at 333; Common Came, 668 A.2d at 195. Where the facts are agreed upon and the question presented is whether or not a violation of a mandatory constitutional provision has occurred, judicial intervention in the legislative process is warranted. Consumer Party. For purposes of ruling on the preliminary objections of Respondents and the Intervenors, this court must take as true all well-pleaded facts and inferences deducible therefrom. Dintzis v. Hayden, 146 Pa. Cmwlth. 618, 606 A.2d 660 (1992). In the present case, Petitioners have not alleged in their petitions for review a mere violation of an internal rule of the General Assembly which is not mandated by the Pennsylvania Constitution. See Pennsylvania AFL-CIO v. Commonwealth, 691 A.2d 1023 (Pa.Cmwlth.1997); League of Women Voters. Rather, in counts one through nine of their petition for review, Petitioners have alleged that mandatory provisions of the Pennsylvania Constitution were violated. Petitioners assert, inter alia, that Act 3 contained more than one subject and that its purpose was changed during the legislative process, both of which are allegations presenting questions of whether mandatory constitutional provisions have been violated. Id. Accordingly, the Enrolled Bill Doctrine does not bar this court’s analysis of the procedure used by the General Assembly in the passage of Act 3 to determine whether such procedure complied with the mandates of the Pennsylvania Constitution. 2. Political Question Doctrine Similarly, in order to preserve the balance, which is critical to the proper functioning of a tripartite system of government, judicial restraint has also been exercised pursuant to the Political Question Doctrine. AFL-CIO. The Political Question Doctrine, generally considered to derive from the principle of separation of powers, recognizes that the executive branch, the legislature and the judiciary are independent, coequal branches of government. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). Each of the three branches have powers and duties upon which neither of the other two branches may intrude. Id. Pursuant to this doctrine, the courts will not review the actions of another branch of government where the Constitution entrusts those actions to that other branch. Id. Ordinarily, the exercise of the judiciary’s power to review the constitutionality of legislative action does not offend the principle of separation of powers. Id. at 508, 375 A.2d at 705. However, where our Constitution confers a power exclusively upon the legislature, any challenge to the legislature’s exercise of that power presents a nonjusticiable political question. Id. But whether a power has been vested in another branch of government is an “exercise in constitutional interpretation.” Id. at 510, 375 A.2d at 706. The Pennsylvania Constitution commits certain matters involving each house of the General Assembly to that house. AFL-CIO, 691 A.2d at 1033. Article II, Section 1 of the Pennsylvania Constitution grants legislative power to the General Assembly, which shall consist of a Senate and a House of Representatives. Article II, Section 11 of the Pennsylvania Constitution states that “each House shall have power to determine the rules of its proceedings.” These sections of the Pennsylvania Constitution provide the basis for the contention by Respondents and the In-tervenors that the constitutional violations alleged by Petitioners in their petitions for review present non-justiciable political questions. Without doubt, the General Assembly has exclusive power over its internal affairs and proceedings. However, this power does not give , the General Assembly the right to usurp the judiciary’s function as ultimate interpreter of the Constitution. Baker v. Carr, 869 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962); Zemprelli, 496 Pa. at 255, 436 A.2d at 1169; AFL-CIO, 691 A.2d at 1033. In fact, it is the duty of the courts to invalidate legislative action that is repugnant to the Constitution. Zemprelli, 496 Pa. at 256, 436 A.2d at 1169; AFL-CIO, 691 A.2d at 1033. In the present case, Petitioners have alleged numerous constitutional violations in the legislative process by which the General Assembly enacted Act 3. As we have previously stated, we will not abdicate our responsibility to insure that government functions within the bounds of constitutional prescription under the guise of deference to a coequal branch of government. Accordingly, the Political Question Doctrine does not bar this court’s analysis of the procedure used by the General Assembly in the passage of Act 3 to determine whether such procedure complied with the mandates of the Pennsylvania Constitution. 3. Speech and Debate Clause Respondents and the Intervenors further assert that the Speech and Debate Clause of the Pennsylvania Constitution precludes judicial inquiry' into the constitutional violations alleged by Petitioners in their petitions for review. We disagree with this assertion. The Speech and Debate Clause of the Pennsylvania Constitution provides as follows: The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned , in any other place. Pa. Const, art. II, § 15. Our Supreme Court has observed that the text of the Speech and Debate Clause of the Pennsylvania Constitution is essentially the same as its federal counterpart, U.S. Const, art. I, § 6. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 382, 368 A.2d 675, 680 (1977). The legislative immunity created by the Speech and Debate Clause “insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation.” AFL-CIO, 691 A.2d at 1034, quoting Powell v. McCormack, 395 U.S. 486, 503, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969). The Speech and Debate Clause has been read broadly in order to effectuate its purpose. Sweeney, 473 Pa. at 505, 375 A.2d at 703; AFL-CIO at 1034. The Speech and Debate Clause prohibits inquiry into those things generally said or done in the House of Representatives or Senate in the performance of official duties and into the motivation for those acts. Powell, 395 U.S. at 502-03, 89 S.Ct. at 1953-55; AFL-CIO, 691 A.2d at 1034. Clearly, the very core of the Speech and Debate Clause is the protection of “the integrity of the legislative process by insuring the independence of individual legislators.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324, (1975), quoting United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). However, legislative immunity created by the Speech and Debate Clause does not, of course, bar all judicial review of legislative acts. Powell, 395 U.S. at 503, 89 S.Ct. at 1954-55, citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). As the United States Supreme Court stated in Powell: The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted or hindered in the performance of their legislative tasks by being called into court to defend their actions. 395 U.S. at 505, 89 S.Ct. at 1955. See also Sweeney, 473 Pa. at 506, 375 A.2d at 703-04. In the present case, Petitioners are seeking judicial review of legislative action as described in Powell. They have alleged that the General Assembly, as a whole, violated mandatory provisions of the Pennsylvania Constitution when it enacted Act 3. Based upon the pleadings in this case, we are not persuaded that judicial review of the legislative action taken by the General Assembly in this case is inappropriate. We, therefore, conclude that the claims by Petitioners are not barred by the Speech and Debate Clause of the Pennsylvania Constitution. Accordingly, Respondents’ and Interve-nors’ preliminary objections to the petition for review on the grounds that Petitioners’ claims are non-justiciable are overruled. We now turn to the Respondents’ and Interve-nors’ preliminary objections in the nature of a demurrer. D. DEMURRER FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Respondents and Intervenors contend that we should grant their preliminary objections in the nature of a demurrer to the extent that Petitioners have failed to state a claim upon which relief may be granted. In reviewing the legal sufficiency of Petitioners’ claims, we must accept as true all of the well-pleaded material facts set forth therein as well as all reasonable inferences that may be drawn from those facts. Pennsylvania School Boards Association, 696 A.2d at 869. Preliminary objections in the nature of a demurrer will be sustained only where the pleading is clearly insufficient to establish a right to relief, and any doubt must be resolved in favor of overruling the demurrer. Gaster v. Township of Nether Providence, 124 Pa.Cmwlth. 595, 556 A.2d 947 (1989). 1. Article III, Section 1 of the Pennsylvania Constitution Petitioners allege that the General Assembly violated Article III, Section 1 of the Pennsylvania Constitution by so amending HB 67 on its passage through the General Assembly as to change its original purpose. We disagree. Article III, Section 1 of the Pennsylvania Constitution provides that no bill shall be so altered on its passage through either house as to change its original purpose. In discussing Article III, Section 1 of the Pennsylvania Constitution, our Supreme Court has stated that the purpose of the constitutional requirements relating to the enactment of laws “was to put the members of the Assembly and others interested on notice so they might vote on it with circumspection.” Consumer Party, 510 Pa. at 179-80, 507 A.2d at 335. In Consumer Party, Senate Bill No. 270, as originally introduced, dealt with changes in laws relating to counties of the third through eighth classes. The bill was approved by the Senate and further approved by the House of Representatives with amendments. The House’s amended version of the bill bore the same title as the original version of the bill. Upon reconsideration, a Committee of Conference recommended substantial amendments to the bill, adding voluminous provisions relating to the salaries and compensation of certain public officials. Both the House of Representatives and the Senate adopted this amended version of Senate Bill No. 270 which was then signed into law. Several citizen-taxpayers challenged the enactment of the bill. Our Supreme Court affirmed this court’s determination that the passage of Senate Bill No. 270 did not violate Article III, Section 1 of the Pennsylvania Constitution. Consumer Party, 510 Pa. at 181, 507 A.2d at 335. In Consumer Party, the citizen-taxpayers’ position suggested that any material change in a piece of legislation during its passage would cause it to be constitutionally suspect. Id. Our Supreme Court concluded that such an interpretation would be incompatible with the traditional legislative procéss. Id. The Pennsylvania judiciary has further stated that it “is normally loathe to substitute its judgment for that of the legislative branch under the guise of determining whether the constitutional ‘purpose’ of a bill has changed during the course of its passage through the legislative process.” Common Cause, 668 A.2d at 198. As such, in order to effectuate the ends of the legislative process, the permissible scope of amendments to a bill has been broad. Consumer Party. Here, the original version of HB 67 began as a two-page bill effecting changes in the Vehicle Code, specifically the seasonal registration of certain vehicles. The House of Representatives and the Senate initially approved various versions of HB 67. Upon consideration of the Senate version of HB 67, Printer’s No. 1415, by the House Committee on Rules, substantial amendments were made to the bill. Voluminous provisions pertaining to vehicle registration fees, highway maintenance funding allocations, trucking regulations, and fuel taxes, as well as changes to the Public Transportation Law governing mass transit were added. Both the House of Representatives and the Senate adopted this amended version of HB 67, which was then signed into law. Although HB 67 was transformed into a 112-page law amending various provisions of the Vehicle Code and Public Transportation Law, the purpose of HB 67, throughout the enactment process, remained the same. The purpose of HB 67 at its inception and its conclusion was to effect changes in the laws governing Pennsylvania’s vehicular transportation system. Accordingly, we conclude that Petitioners will be unable to prove facts legally sufficient to establish that Act 3 was enacted in violation of Article III, Section 1 of the Pennsylvania Constitution. 2. Article III, Section 3 of the Pennsylvania Constitution Petitioners have alternatively argued that if the original purpose of HB 67 was not changed by the amendments, then its original purpose was not clearly expressed in its original title in violation of Article III, Section 3 of the Pennsylvania Constitution. We disagree. Article III, Section 3 of the Pennsylvania Constitution provides that no bill shall contain more than one subject, which shall be clearly expressed in the title of the bill. Our Supreme Court has stated that, pursuant to Article III, Section 3, a title is constitutional if it puts a reasonable person on notice of the general subject matter of the act. In re Department of Transportation, 511 Pa. 620, 626, 515 A.2d 899, 902 (1986). Article III, Section 3 of the Pennsylvania Constitution does not require a title to be an index or synopsis of an act’s contents. Id. at 627, 515 A2d at 902. One who seeks to declare a title unconstitutional under Article III, Section 3 must demonstrate either that: (1) the legislators and the public were actually deceived as to the act’s contents at the time of passage'; or (2) the title on its face was such that no reasonable person would have been on notice as to the act’s contents. Id. Here, Petitioners have not alleged that the legislators or the public were actually deceived as to the contents of HB 67 at the time of its passage. Rather, Petitioners have alleged that the subject of HB 67 was not clearly set forth in its title. As we have previously stated, the general subject matter of HB 67 has consistently related to vehicular transportation. It is our opinion that the original title of HB 67 has clearly expressed this subject and has provided sufficient information to put a reasonable person on notice as to the subject matter of HB 67. Accordingly, we conclude that Petitioners will be unable to prove facts legally sufficient to establish a violation of Article III, Section 3 of the Pennsylvania Constitution. 3. Article III, Sections 2&I of the Pennsylvania Constitution Petitioners further argue that HB 67 was not referred to committee in either house of General Assembly after its original purpose was changed in violation of Article III, Section 2 and Article III, Section 4 of the Pennsylvania Constitution. We disagree. Article III, Sections 2 and 4 require, respectively, that bills be referred to committee and considered on three different days in each house of the General Assembly. Pa. Const, art. Ill, § 2; Pa. Const, art. Ill, § 4. “[A]n amended bill need not be referred to committee and considered on three separate days if the amendments are germane to, and do not wholly change, the general subject of the bill.” AFL-CIO, 691 A.2d at 1037. Under the facts presented here, the alleged violations of these constitutional provisions would be dependent upon a finding of a violation of Article III, Section 1 or Section 3. See AFL-CIO, 691 A.2d at 1037. In light of our determination that the enactment of Act 3 did not violate either Article III, Section 1 or Article III, Section 3 of the Pennsylvania Constitution, we also conclude that the General Assembly did not violate Article III, Sections 2 and 4 of the Pennsylvania Constitution. The amendments that were made to HB 67 during the course of its passage through the legislative process were germane to, and did not wholly change, the general subject of the bill. Accordingly, we conclude that Petitioners will be unable to prove facts legally sufficient to establish that the procedure by which the General Assembly enacted Act 3 violated Article III, Sections 2 and 4 of the Pennsylvania Constitution. k. Article III, Section 5 of the Pennsylvania Constitution Petitioners further allege that the House of Representatives or the House Committee on Rules violated Article III, Section 5 of the Pennsylvania Constitution when it amended HB 67 after its initial passage by the House of Representatives and Senate in accordance with Article III, Section 4. Petitioners argue that section 5 prohibits the originating chamber from amending its own bill once it has been amended by the other chamber and returned. We disagree. Article III, Section 5 provides as follows: No amendment to bills by one House shall be concurred in by the other, except by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for and against recorded upon the journal thereof; and reports of committees of conference shall be adopted in either House only by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting recorded upon the journals. Contrary to Petitioners’ assertion, Article III, Section 5 does not prohibit one chamber of the General Assembly from amending a bill that is returned to it with amendments made by the other chamber. AFL-CIO, 691 A2d at 1038-39. Article III, Section 5 only requires that amendments made to a bill by one chamber be voted upon and approved by a constitutional majority of the members of the other chamber. Id. Here, the final version of HB 67, with the amendments made by the House Rules Committee, was voted upon and approved by a constitutional majority of the members of both houses in accordance with Article III, Section 5. HB 67 was passed by the House of Representatives by a vote of 107-88 and then by the Senate by a vote of 26-23. Accordingly, we conclude that Petitioners will be unable to prove facts legally sufficient to establish that the procedure by which the General Assembly enacted Act 3 violated Article III, Section 5 of the Pennsylvania Constitution. 5. Article II, Section 1 and Article III, Section U of the Pennsylvania Constitution Petitioners contend the House of Representatives and the House Rules Committee violated Article II, Section 1 and Article III, Section 4 of the Pennsylvania Constitution because the full House of Representatives and Senate were not afforded an opportunity to reject HB 67 as initially approved by the House of Representatives and the Senate before voting on the proposed amendments to HB 67 by the House Committee on Rules. We disagree. Article II, Section 1 provides that legislative power in this Commonwealth shall be vested in a General Assembly, consisting of a Senate and a House of Representatives. Our Supreme Court has stated that “legislative power” is the power to make, alter and repeal laws. Blackwell v. State Ethics Commission, 523 Pa. 347, 359, 567 A.2d 630, 636 (1989). The Legislature is constitutionally restrained from delegating their legislative power to any other branch of government or to any other body or authority. Id. at 359-60, 567 A.2d at 637. Article III, Section 4 of the Pennsylvania Constitution states impertinent part: Every bill shall be considered on three different days in each House.... No bill shall become a law, unless on its final passage the vote is taken by yeas and nays, the names of the persons voting for and against it are entered on the journal, and a majority of the members elected to each House is recorded thereon as voting in its favor. In the present case, although the amendments were made by the House Rules Committee, the decision to enact Act 3 was ultimately made by the full House of Representatives and the full Senate when they voted final passage of Act 3 by constitutional majority vote. The final decision making power did not rest with the House Committee on Rules as both chambers of the General Assembly had the power to return negative votes on the final version of HB 67 presented to them. Accordingly, we conclude that Petitioners will be unable to prove facts legally sufficient to establish a violation of Article II, Section 1 and Article III, Section 4 of the Pennsylvania Constitution. 6. Article VIII, section 11 of the Pennsylvania Constitution Petitioners further allege that the General Assembly violated Article III, sections 1-5 of the Pennsylvania Constitution when it enacted Act 3 because Article VIII, section 11 of the Pennsylvania Constitution delineates, specifies and identifies “proceeds from gasoline and other motor fuel excise taxes, motor vehicle registration fees and license taxes, operators’ license fees and other excise taxes imposed on products used in motor transportation” as a subject of legislation constitutionally distinct for purposes of Article III just as Article III, sections 3 and 11 so delineate, specify and identify “a general appropriation bill” as constitutionally distinct for purposes of Article III, Sections 1-5. We disagree: The Pennsylvania Constitution clearly distinguishes a general appropriations bill as constitutionally distinct for the purposes of Article III, Section 1 through 5, by imposing unique restrictions on the enactment of a general appropriation bill. Common Cause. Article III, Section 3 provides that “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.” Pa. Const, art. Ill, § 3 (emphasis added). Article III, section 11 further provides: The general appropriation act shall embrace nothing but appropriations for the executive, legislative and judicial departments of the Commonwealth, for the public debt and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject. Contrary to the assertions made by Petitioners, the Pennsylvania Constitution does not distinguish a transportation bill for the purposes of Article III: While Article VIII, section 11 of the Pennsylvania Constitution does pertain to transportation bills, specifically to the collection, use and disbursement of proceeds derived from taxes and fees involving motor vehicles, this section of the Constitution is substantive, not procedural. The Constitution is devoid of any procedural restrictions specifically relating to the enactment process for a transportation bill. Therefore, the enactment process for a transportation bill, unlike a general appropriation bill, is like .any other bill in the General Assembly. ; Here, the General Assembly through Act 3 allocated funds from the Motor License Fund to the Pennsylvania Department of Transportation and to the Turnpike Commission. Act 3 comports with the substantive limitations and restrictions prescribed by Article VIII, Section 11 because it allocated funds to state agencies solely for construction, reconstruction, maintenance and repair of public highways and bridges. As there is no special procedure for the passage of a transportation bill regulated by Article VIII, Section 11, we conclude that Petitioners have failed to state a claim under Article VIII, Section 11 and Article III Sections 1-5 of the Pennsylvania Constitution. Based upon the foregoing analysis, we conclude that Petitioners’ petition for review fails to state a claim upon which relief may be granted. Accordingly, the Respondents’ and Intervenors’ preliminary objections in the nature of a demurrer are sustained. IV. CONCLUSION Accordingly, the preliminary objections of Respondents and the Intervenors to Petitioners’ petition for review are overruled in part and are sustained in part in accordance with the foregoing opinion. Petitioners’ petition for review is dismissed with prejudice. ORDER AND NOW, this 31st day of March, 1998, it is hereby ordered: 1. The preliminary objections filed by Respondents to the petition for review in the nature of a complaint in equity filed by Petitioners are overruled in part and sustained in part in accordance with the foregoing opinion. 2. The preliminary objections filed by In-tervenors Jubelirer and Ryan to the petition for review in the nature of a complaint in equity filed by Petitioners are overruled in part and sustained in part in accordance with the foregoing opinion. 3. The petition for review in the nature of a complaint in equity filed by Petitioners is dismissed with prejudice. SMITH, J., concurs in the result only. FRIEDMAN, J., joins in part and dissents in part. She would overrule respondents’ demurrer to its Article III, §§ 1 and 3 claims. . 74 Pa.C.S. §§ 1101-1543. . 75 Pa.C.S.§§ 101-9821. .On September 25, 1997, Senator Jubelirer and Representative Ryan filed a petition for leave to intervene in this case. Senator Jubelirer is President Pro Tempore of the Senate of Pennsylvania. Representative Matthew J. Ryan is Speaker of the Pennsylvania House of Representatives. The Intervenors support the views of the named respondents, arguing in favor of the validity of Act 3. By order dated October 20, 1997, this court granted their petition to intervene. . On December 3, 1997, State Representatives Patricia Carone, Edward Krebs, Thomas Tan-gretti and Greg Vitali submitted a brief of amici curiae in opposition to the preliminary objections. . ■ In this opinion, we shall refer to the enacted act as "Act 3.” We shall refer to prior versions of the bill as it appeared during the course of its passage through the General Assembly as "HB 67.” .Article III, Section 1 of the Pennsylvania Constitution provides as follows: No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose. Article III, Section 2 of the Pennsylvania Constitution provides as follows: No bill shall be considered unless referred to a committee, printed for the use of the members and returned therefrom. Article III, Section 3 of the Pennsylvania Constitution provides as follows: No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof. Article III, Section 4 of the Pennsylvania Constitution provides as follows: Every bill shall be considered on three different days in each House'. All amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill and before the final vote is taken, upon written request addressed to the presiding officer of either House by at least twenty-five per cent of the members elected to that House, any bill shall be read at length in that House. No bill shall become a law, unless on its final passage the vote is taken by yeas and nays, the names of the persons voting for and against it are entered on the journal, and a majority of the members elected to each House is recorded thereon as voting in its favor. . Article III, Section 5 of the Pennsylvania Constitution provides as follows: No amendment to bills by one House shall be concurred in by the other, except by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for and against recorded upon the journal thereof, and reports of committees of conference shall be adopted in either House only by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting recorded upon the journals. . Article II, Section 1 of the Pennsylvania Constitution provides as follows: The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives. . Article VIII, section 11 provides: (a) All proceeds from gasoline and other motor fuel excise taxes, motor vehicle registration fees and license taxes, operators' license fees and other excise taxes imposed on products used in motor transportation after providing therefrom for (a) cost of administration and collection, (b) payment of obligations incurred in the construction and reconstruction of public highways and bridges shall be appropriated by the General Assembly to agencies of the State or political subdivisions thereof; and used solely for construction, reconstruction, maintenance and repair of and safety on public highways and bridges and costs and expenses incident thereto, and for the payment of obligations incurred for such purposes, and shall not be diverted by transfer or otherwise to any other purpose, except that loans may be made by the State from the proceeds of such taxes and fees for a single period not exceeding eight months, but no such loan shall be made within the period of one year from any preceding loan, and every loan made in any fiscal year shall be repayable within one month after the beginning of the next fiscal year. (b) All proceeds from aviation fuel excise taxes, after providing therefrom for the cost of administration and collection, shall be appropriated by the General Assembly to agencies of the State or political subdivisions thereof and used solely for: the purchase, construction, reconstruction, operation, and maintenance of airports and other air navigation facilities; aircraft accident investigation; the operation, maintenance and other costs of aircraft owned or leased by the Commonwealth; any other purpose reasonably related to air navigation including but not limited to the reimbursement of airport property owners for property tax expenditures; and costs and expenses incident thereto and for the payment of obligations incurred for such purposes, and shall not be diverted by transfer or otherwise to any other purpose. . We note that Respondents have not presented any argument with respect to this issue in their brief before this court despite having included it in their preliminary objections to the amended petition for review. Argument on the standing issue is, however, presented in the brief of the Intervenors. . An enrolled bill is a bill which has been certified by the Speaker of the House of Representatives and the presiding officer of the Senate as having passed the General Assembly, which has been signed by the Governor, and which has been filed with the Secretary of the Commonwealth. Pennsylvania AFL-CIO v. Commonwealth, 691 A.2d 1023, 1031 n. 12 (Pa.Cmwlth.1997). . Pa. Const, art. II, § 15.

ORDER PER CURIAM: AND NOW, this 18th day of June, 1998, there having been filed with this Court by Alexander Hamer, Jr., his verified Statement of Resignation dated May 14, 1998, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa. R.D.E., it is ORDERED that the resignation of Alexander Hamer, Jr., be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

ORDER PER CURIAM: AND NOW, this 29th day of May, 1998, the Petition for Allowance of Appeal is GRANTED, the Order of the Superior Court is REVERSED, and the matter is REMANDED to the Court of Common Pleas of Montgomery County consistent with this Court’s opinion in Jacobs v. Halloran, — Pa. -, 710 A.2d 1098 (1998), Marino v. Hackman, — Pa. -, 710 A.2d 1108 (1998) and Shope v. Eagle, — Pa. -, 710 A.2d 1104 (1998).

ORDER PER CURIAM: AND NOW, this 18TH day of MAY, 1998, the Petition for Allowance of Appeal is hereby GRANTED but LIMITED to the following: Did the trial court’s denial of the defendant’s pretrial motion in limine to preclude the testimony of certain proposed Commonwealth witnesses as to testimony involving alleged bad acts which never resulted in arrest or conviction and were so remote in time to the alleged crimes at issue at trial, deprive the defendant of his constitutional right to due process, to a fair trial, and in particular, to present character witnesses on his behalf?

Per Curiam, In this action against Emma Connor, wife of A. J. Connor, for goods alleged to have been sold and delivered to her, the defendant interposed the following defense : That she was not engaged in the grocery business when the goods were sold and never purchased any of them; that they were sold to her husband A. J. Comior and on his credit. Testimony, to which no exception appears to have been taken, was introduced by both parties, and questions of fact for the consideration of the jury were presented. Without any request for special instruction from either party the case was submitted to the jury and a verdict in favor of the plaintiffs was rendered. We fail to discover any error in that paragraph of the charge recited in the first assignment. The two remaining assignments are as far from being specific as they could well be made. One of them alleges error “ in charging the jury as follows; ” and, for specification thereof, it recites the entire charge of the court, bodily, including the paragraph complained of in the first assignment. The other charges error “ in submitting the case to the jury under the evidence.” A careful consideration of the record has failed to convince us that either of these assignments should be sustained. Neither of them involves any question that requires discussion. The only serious question in the case was one of fact and that was settled by the verdict. Judgment affirmed.

FRIEDMAN, Judge. Marcy Kula (Claimant) appeals from an order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision of the workers’ compensation judge (WCJ) to grant Herbert R. Weiman, Esquire’s (Employer) petition for modification or suspension of Claimant’s workers’ compensation benefits. We reverse. On September 25, 1990, Claimant sustained an injury described as “right carpal tunnel syndrome” while in the course of her employment as a secretary for Employer. (WCJ’s Findings of Fact, No. 1.) Pursuant to a notice of compensation payable, Claimant received weekly total disability benefits of $209.50 based upon an average weekly wage of $300.00. (WCJ’s Findings of Fact, No. 1.) In November 1992, Delaware Valley Rehabilitation Services, a job placement firm hired by Employer to perform job development services, contacted Claimant regarding vocational opportunities for sedentary work. Carolyn E. Rutherford (Rutherford) and Terence Walsh (Walsh), rehabilitation consultants for Delaware Valley Rehabilitation Services, subsequently notified Claimant of twelve job opportunities. (WCJ’s Findings of Fact, No. 6(k).) Of the job positions referred to Claimant, only a second referral to a telephone interviewer position at R.S.V.P. is at issue in this case. On November 1, 1993, Employer filed a petition for modification or suspension of workers’ compensation benefits, alleging that, as of December 18, 1992, Claimant failed to follow through in good faith on the job referrals. (WCJ’s Findings of Fact, No. 2.) Claimant filed a timely answer denying the allegations in Employer’s petition, and at a hearing before the WCJ, Employer and Claimant submitted depositions in support of their positions. After reviewing the evidence, the WCJ granted Employer’s petition. Based on her determination that Claimant failed to pursue both the second referral position at R.S.V.P. and a customer service representative position at Lif-Tex in good faith, the WCJ suspended Claimant’s benefits effective March 18, 1993. Claimant appealed to the WCAB which affirmed, but modified, the WCJ’s order suspending Claimant’s benefits. The WCAB determined that, although the record contains substantial evidence to support a conclusion that Claimant failed to pursue the position at R.S.V.P. in good faith, the record did not contain substantial evidence to sup port the WCJ’s determination that Claimant failed to pursue the position at Lif-Tex in good faith. Claimant appeals the WCAB’s order to this court. The Supreme Court of Pennsylvania, in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 582 A.2d 374 (1987), set forth the following procedure to govern the modification of benefits when an injured employee is able to return to work: 1. The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition. 2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc. 3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s). 4. If the referral fails to result in a job then claimant’s benefits should continue. Id. at 252, 532 A.2d at 380. To meet the second prong of Kachin-ski, an employer must establish various components of a job referral to show that the job was actually available to the claimant. Initially, Kachinski requires an employer to show that it referred the claimant to a job within the category for which the claimant received medical clearance. Young v. Workmen’s Compensation Appeal Bd. (Weiss Markets, Inc.), 113 Pa.Cmwlth. 533, 537 A.2d 393, appeal denied, 520 Pa. 622, 554 A.2d 513 (1988). Here, John S. Taras, M.D. approved the referred position at R.S.V.P. as being within Claimant’s physical capabilities; further, the WCJ found that the position at R.S.V.P. fell within Claimant’s physical capabilities as determined by Dr. Taras, Michael Mandarino, M.D. and Richard Kaplan, M.D. (WCJ’s Findings of Fact, Nos. 6(f), (1).) However, in addition to showing that an alternative position is within a claimant’s physical capabilities, Kachinski also requires an employer to prove that the claimant was advised of the job while it was still open. H.M. Stauffer & Sons, Inc. v. Workmen’s Compensation Appeal Bd. (Davis), 687 A.2d 869 (Pa.Cmwlth.1996). Here, Claimant asserts that the WCJ and WCAB erred in suspending Claimant’s benefits because the WCJ made no finding that the second job referral for a position at R.S.V.P. was open and, thus, actually available to Claimant. Contrary to Claimant’s assertion, the WCJ made a finding that a “telephone interview[er] [position] at RSVP [was] available [to Claimant] on ... April 13,1993.” (WCJ’s Findings of Fact, No. 6(m).) However, although the WCJ found that the R.S.V.P. position was available to Claimant on April 13, 1993, the record is devoid of substantial evidence to support that finding. To establish that the position at R.S.V.P. was open and, thus, available when Employer notified Claimant of the position, Employer offered the testimony of Rutherford and Walsh; Rutherford testified concerning the first referral to Claimant of the position at R.S.V.P. and Walsh testified concerning the second referral at issue in this case. Unlike Rutherford, who testified that the R.S.V.P. position was available to Claimant on December 18, 1992 when she initially notified Claimant of the position, (R.R. at 2a), Walsh testified only that he referred the position at R.S.V.P. to Claimant on April 13, 1993. (R.R. at 13a-14a.) Although the WCJ found Walsh’s testimony credible, that testimony alone is not sufficient to satisfy Employer’s burden of proving that the position was open and available to Claimant on that date. Because Employer failed to introduce evidence that the second referral of the position at R.S.V.P. was open and, thus, actually available to Claimant at the time Claimant was advised of the referral, Employer could not meet its burden of proof under the second prong of Kachinski Thus, the WCAB improperly granted Employer’s petition and we reverse. ORDER AND NOW, this 15th day of April, 1998, the order of the Workers’ Compensation Appeal Board, dated August 25,1997, is hereby reversed. . Rutherford conducted the initial vocational evaluation of Claimant and notified Claimant of four job opportunities. After Rutherford left the employment of Delaware Valley Rehabilitation Services, Walsh received Claimant’s vocational file for the purpose of assisting her to find employment and subsequently notified Claimant of eight job opportunities. . Rutherford first notified Claimant of a telephone interviewer position at R.S.V.P. by regular and certified mail on December 18, 1992; the WCJ determined that the job was available to Claimant on December 18, 1992. (WCJ’s Findings of Fact, No. 6(m).) Claimant applied and interviewed for this position but was not offered the job. On April 13, 1993, Walsh notified Claimant of another opening at R.S.V.P. for a telephone interviewer position; the WCJ found that the position was available to Claimant on April 13, 1993. (WCJ’s Findings of Fact, No. 6(m).) Claimant never applied for this position and never contacted R.S.V.P. about this position. (WCJ’s Findings of Fact, No. 6(n).) . On January 24, 1994, Claimant filed a claim petition for workers' compensation benefits, alleging that, in June of 1991, she sustained an injury in the form of left carpal tunnel syndrome and repetitive stress syndrome in the course and scope of her employment with Employer. Employer filed a timely answer denying Claimant’s allegations. (WCJ’s Findings of Fact, No. 3.) On November 14, 1994, Employer filed a petition to review compensation benefits, alleging that the notice of compensation payable should be withdrawn because Claimant did not sustain a work-related injury on September 25, 1990. (WCJ’s Findings of Fact, No. 4.) On November 15, 1994, Employer filed a petition for termination of benefits, alleging that, as of November 1, 1994, Claimant had fully recovered from her September 25, 1990 work injury. (WCJ’s Findings of Fact, No. 5.) Claimant filed timely answers denying the material allegations in Employer’s petitions. The claim petition, petition to review compensation benefits and petition for termination of benefits were consolidated for review with Employer’s petition for modification or suspension of benefits. The WCJ granted only Employer’s petition to modify or suspend benefits and dismissed the three other petitions. These three petitions are not presently at issue before this court. : The WCJ found that the position at Lif-Tex was available to Claimant as of March 18, 1993, at a salary of $360.00 per week. (WCJ’s Findings of Fact, No. 17.) . The WCAB modified the date of Claimant’s suspension of benefits from March 18, 1993 to April 13, 1993, the date that the second position at R.S.V.P. was referred to Claimant. . Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact are supported by substantial evidence. Brown v. Workmen’s Compensation Appeal Bd. (Cooper Jarrett, Inc.), 150 Pa.Cmwlth. 614, 616 A.2d 121 (1992), appeal denied, 533 Pa. 637, 621 A.2d 582 (1993). . There is no dispute in this case that Employer has satisfied the first prong of Kachinski by producing medical evidence of a change in Claimant's condition. The WCJ found that the testimony of Michael Mandarino, M.D., John S. Taras, M.D. and Richard Kaplan, M.D. established that Claimant was able to return to work in a modified position as of November 22, 1991. (WCJ’s Findings of Fact, No. 15.) . At her deposition, Claimant testified that she did not think that she could physically perform the telephone interviewer position at R.S.V.P. because it involved repetitious phone calling. (R.R. at 17a-19a.) The WCJ, however, rejected Claimant’s testimony in its entirety, (WCJ’s Findings of Fact, No. 11), and found that the position at R.S.V.P. was within Claimant’s physical capabilities. Claimant now argues to this court that, because her physical "condition could have deteriorated" in the four months between December 18, 1992, when she was first notified of the position at R.S.V.P., and April 13, 1993, when she was again notified of the position at R.S.V.P., medical clearance for the second R.S.V.P. position was needed but that there is no indication that she was given medical clearance for the second referral. However, Claimant’s argument must fail. Because Claimant failed to show that her condition deteriorated, the WCJ properly found that the April 13, 1993 R.S.V.P. position was within Claimant’s physical capabilities. (WCJ’s Findings of Fact, No. 6(m).) We note that " ‘[i]t [is] within the [WCJ’s] province as fact finder to assess ... and determine if Claimant could perform the jobs.’ ” H.M. Stauffer & Sons, Inc. v. Workmen's Compensation Appeal Bd. (Davis), 687 A.2d 869, 871 (Pa.Cmwlth.1996) (quoting Farkaly v. Workmen’s Compensation Appeal Bd. (Baltimore Life Insurance Co.), 516 Pa. 256, 260, 532 A.2d 382, 383 (1987)). . The WCJ found Rutherford’s testimony credible and accepted it in its entirety, concluding that the position was available to Claimant on December 18, 1992. (WCJ’s Findings of Fact, Nos. 6(m), 10.) . Employer contends that Claimant’s argument that the position at R.S.V.P. was not open is meritless because common sense dictates that an employer would not refer a position to a claimant unless the position was open. Employer’s "common sense’’ contention is not sufficient to satisfy Employer's burden. Employer must put forth evidence that the position was actually open to Claimant on April 13, 1993, and Employer failed to do that here. .Because Employer failed to meet its burden of proof as to job availability pursuant to the second prong of Kachinski, we need not address whether Claimant made a good faith effort to obtain the second referral position at R.S.V.P.

Per Curiam, The decree in this case is affirmed on the opinion of the learned court below.

The opinion of the court was filed Per Curiam. Advancement is a question of intention.. The evidence in this case to prove this was so intended is clearty sufficient. The father so declared his intention in writing, and subscribed his name to the declaration. He had an undoubted right to change a debt due from the appellant to. him, to an advancement, if it had not been so understood before. There was, however, evidence that the bodjr of the paper showing the advancement was copied from a writing previously made. This case must not be confounded with an attempt to change a gift into an advancement. Plere there had never been any gift. The written language used admits of one construction only. It establishes an intention to change the indebtedness to an advancement: Merkel’s Appeal, 8 Norris, 340. The declarations of the appellant show she understood that she had received the money as such. Decree affirmed and appeal dismissed at the costs of the appellants.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted. CAPPY, J., dissents.

OPINION OF THE COURT FLAHERTY, Chief Justice. The sole issue in this case is whether a person who unintentionally injures a third party bystander while using justifiable force in self-defense may be criminally liable for his injury to the bystander. For the reasons that follow, we hold that he may not be criminally liable. On December 12,1993 Fowlin was present in a nightclub in Easton, Pennsylvania. He was armed with a handgun. Three men, two of whom were also armed with handguns, accosted Fowlin in the club, and one of the three sprayed pepper gas in his eyes. At approximately the same time, a second man drew a handgun. Fearing that he was about to be killed, Fowlin drew his own handgun and fired repeatedly in the direction of the attackers. Although he was nearly blinded by the pepper spray, he killed the assailant who had drawn the gun and wounded one of the others. He also wounded a bystander. At the time of the shooting, approximately 200 people were present in the nightclub. Immediately aftér the shootings, Fowlin left the nightclub and subsequently turned himself in to Easton police. Fowlin was charged with various crimes associated with the incident, but the district attorney subsequently withdrew all charges with respect to his attackers on the grounds of justifiable self-defense. However, the district attorney did not dismiss charges of recklessly endangering another, 18 Pa.C.S. § 2705, and aggravated assault, 18 Pa.C.S. § 2702(a)(1) and (4) with respect to the bystander. Because the charges with respect to the bystander were not withdrawn, Fowlin filed a habeas corpus petition, which required the trial court to determine whether there was a prima facie case against him which would justify going to trial. The issue was whether a person who lawfully employs self defense could be criminally liable for unintentionally inflicting injury upon a bystander while employing self-defense. The trial court determined that there was no Pennsylvania case on point and that in cases from other jurisdictions the majority rule is that when one acts in justifiable self-defense, the inadvertent death or injury of a bystander does not result in criminal liability with respect to the actor. The court rejected this line of cases, holding that some limits on the employment of self-defense were required as a matter of public policy. Accordingly, the trial court held that in order to avoid criminal liability, the person defending himself must not only be properly engaged in defending himself, but he must not act reck lessly. The trial court then proceeded to determine that it was likely that on the facts of this case, a jury could find that Fowlin had acted recklessly, and therefore, denied the application for habeas corpus. The trial court then certified the question to the Superior Court pursuant to 42 Pa.C.S. § 702(b), because its order concerned a controlling question of law on which there was substantial ground for difference of opinion and an immediate appeal from the order could materially advance the ultimate termination of the case. The Superior Court granted Fowlin’s petition for permission to appeal an interlocutory order, and an evenly divided Superior Court affirmed the trial court’s denial of the habeas corpus petition. The members of the Superior Court in favor of affirmance relied on Section 3.09 of the Model Penal Code and on 18 Pa.C.S. § 505(b)(3), to reach the conclusion that a person who acts recklessly or negligently in exercising his right of self-defense may be held criminally liable for injuries suffered by a bystander. Section 3.09 of the Model Penal Code provides that a person who acts in justifiable self-defense but recklessly or negligently injures an innocent person may be found criminally liable, and 18 Pa.C.S. § 505(a) and § 505(b)(3) implicitly impose limits on the use of force for self-defense which are similar to the limits of the Model Penal Code, viz., that the actor conduct himself in a prudent and reasonable manner when using force in self-defense. Judge Cirillo, writing in support of reversal, points out that Section 3.09 of the Model Penal Code, upon which the opinion in support of affirmance relies, was not enacted into Pennsylvania law. He further points out that although one may be criminally hable for recklessness or even negligence in certain circumstances, see 18 Pa.C.S. § 503(b), this court has held that one may not be hable for crimes involving recklessness if the alleged recklessness occurs in the course of justifiable self-defense. Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). In Hilbert the defendant claimed that she had stabbed the victim to death in self-defense. This court stated: “A claim of self-defense, if beheved, would negate any element of ‘ill-will, wickedness of disposition, hardness of heart, cruelty or recklessness of consequences and a mind regardless of social duty necessary to constitute malice” 382 A.2d at 731. In another ease decided the same day, Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978), the defendant claimed that he shot the victim in self-defense after the victim grabbed him. This court stated that a jury instruction which implied that both malice and self-defense may be established in a murder prosecution was in error: in fact, malice and self-defense “are mutually exclusive.” 385 A.2d at 342. Although Hilbert and Heatherington do not involve cases in which the defendant who was exercising his right of self-defense injured a bystander, they are relevant to the issue in this case because they establish that the defender may not be simultaneously found to have justifiably acted in self-defense and be criminally liable for crimes involving recklessness or malice. In this case, the Commonwealth admits that Fowlin acted in justifiable self-defense. However, he was charged with aggravated assault and reckless endangerment. Aggravated assault is defined as follows: § 2702. Aggravated assault (a) Offense defined.—A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intention-aEy, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. § 2702. Reckless endangerment is defined as follows: § 2705. Recklessly endangering another person. A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S. § 2705. Because the crimes with which Fow-lin was charged require proof of recklessness, and because Hilbert holds that a claim of self-defense, if believed, negates any element of recklessness, Fowlin, a fortiori, cannot be found to have been reckless, for the Commonwealth admits that his actions were justified. If he cannot be held to have been reckless, he cannot be convicted of aggravated assault or reckless endangerment. It was error, therefore, to have denied Fowlin’s application for habeas corpus relief. Contrary to the lower courts, we believe that public policy is firmly in support of this result. In Pennsylvania, the use of force, even deadly force, is permitted under certain circumstances for self-protection: § 505. Use of force in self-protection (a) Use of force justifiable for protection of the person. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. (b) Limitations on justifying necessity for use of force. (1) The use of force is not justifiable under this section: (1) to resist an arrest.... (ii) to resist force used by the occupier or possessor of property.... (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that: (A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; (B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. (3) Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action. 18 Pa.C.S. § 505. In short, the law of Pennsylvania does not require one to stand by helplessly while he is injured or killed by an assailant. And as Judge Cirillo aptly points out, when one is the victim of an attack, the assailant, not the victim, picks the time, the place, the manner, and the circumstances of the attack. Leisurely assessment of the circumstances and the danger to others is almost never a feature of such an assault, and most often, the best the victim can do is to mount a defense which hopefully will preserve his life. In many cases, the victim has only seconds to act in order to avoid injury or death. In this case, Fowlin was accosted by three men who assaulted him with pepper spray and simultaneously drew a handgun. Fowlin assumed, with reason, that they intended to kill or seriously injure him. He acted instinctively and within our law in defending himself. Any victim of crime who justifiably exercises his right of self-preservation may inadvertently injure a bystander. Admittedly, this court could fashion a rule of law which holds the defender criminally liable, but in doing so, we would have furthered no policy of the criminal law. Instead, we would have punished a person who was acting within his instinct for self-preservation and, in an appropriate case, within the boundaries of our law. Additionally, we do not share the lower court’s concern that random wild self-defense shootings will injure large numbers of innocent people. First, we note that there is no other reported Pennsylvania case with similar facts. Second, the right of self-defense is not absolute, and it may not be used to absolve a person who acted without justification in a claimed self-defense shooting. As indicated above, if the victim acts outside of the parameters established by the law, then his act is not justified and he may be prosecuted for injury to bystanders or others which he may inflict. Under section 505 of the Crimes Code, as applied to this case, the defender may use deadly force only if he reasonably believes that such force is necessary to avoid death or serious bodily injury; he did not provoke the use of force against himself in the same incident; and finally, he could not retreat with complete safety. If any of these factors is negated; i.e., the defender did not reasonably believe deadly force was necessary; he provoked the incident, or he could retreat with safety, then his use of deadly force in self-defense was not justifiable and he may be prosecuted for injuries or death he inflicts on the assailants or on bystanders. If his use of deadly force was justifiable, he may not be prosecuted for either. The order of the Superior Court is reversed. The petition for habeas corpus is granted and the charges against Fowlin are dismissed. CASTILLE, J., files a concurring and dissenting opinion in which NEWMAN, J., joins. . The Commonwealth states that although it is unclear from the record how many times the gun was fired, it appears to have been more than seven times. . Section 503 provides, in pertinent part: § 503. Justification generally (a) General rule. Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if: (1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged: (2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (3)a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (b) Choice of evils. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. The Commonwealth does not claim that Fowlin was reckless or negligent in creating the situation or in appraising the need to react to it. . Section 501 defines “belief" as "reasonably believes” or "reasonable belief.” . No retreat is required in the victim’s dwelling or place of work unless he was the initial aggressor or is attacked by another who also works there. 18Pa.C.S. § 505(b)(2)(ii)(A), supra.

Opinion by Mr. Justice Mitchell, It is conceded that no fraud in fact was intended by the appellant. The learned judge charged the jury on that basis, saying in his instructions on the measure of damages, “ if it had been a case of actual fraud there would have been no difficulty about it, he (Yoder) would‘have had to pay the full value of this stock because he could have taken no benefit by it.” The question is therefore, was there evidence to support an inference of fraud in law. The circumstances as shown by all the testimony were these. The Gas Company had been prosperous, but had been got into difficulties by Hukill’s operations with the Water Company. As he was the owner of all the shares in the Water Company and all but four in the Gas Company, financial difficulty for him either personally or as representing the Water Company, of course meant like difficulty for the Gas Company. In fact every share that he owned in the latter had been pledged for loans to carry the former, and in September, 1893, he had in his own phrase come to the end of his string. The Water Company’s paper was out and could not be met. The creditors were threatening to sue. Hukill was indorser to the extent of $20,000, and as he says, the creditors seemed to think the Gas Company ought to father the debts of the Water Company, and made threats that they would pursue the Gas Company and his stock. As already said every share he owned was pledged for loans, and he was of opinion that if attached and his equity in it sold, “ the whole thing would become complicated, and waste would follow,” but that if it could all be held together until he had an opportunity to sell it as a whole, there would be enough realized to pay all the debts, both the company’s and his own. In this situation Hukill called upon appellant, stated the foregoing facts and “ told him that something would have to be done.” The significance of this last remark lies in the fact that appellant was a creditor of Hukill for $5,000, apparently unsecured, and was contingently liable for $10,000 more, as indorser on the notes of Hukill held by various banks. He had therefore a direct and considerable pecuniary interest in Hukill’s ability to meet his obligations. The latter’s view was as already said that if the stock could be held together until a sale of the whole plant could be made, enough money would be realized to pay all claims, and appellant first made an effort to induce the banks who held the stock as collateral to act in concert to carry out this plan. They however refused to come into it, and then appellant, with the assistance of Vandersaal whom he induced to join him, paid the amounts due the banks, took assignments of the stock, and held it as owners, for repayment and possible profit. This is the substance of the appellant’s action which plaintiff complains of, and on which the jury found their verdict. Two additional circumstances are relied upon to sustain the claim of legal fraud. Appellant at the end of the transaction was a creditor of Hukill for about $36,000, made up of his original claim, and the amount he had advanced to repay the banks. He then agreed with Hukill that in case the latter sold the Gas Company plant, he might have half the excess over $40,000, and it was urged that this was a fraudulent benefit to the debtor, which tainted the whole transaction. But the undisputed testimony is that this agreement was not made until after appellant had become the owner of the whole stock, and was looking around for means of realizing on it. Hukill says-distinctly that nothing was said of any money to come to him until Yoder had got control of all the stock, and elected a new board of directors. Then it was agreed he should have a commission in case he succeeded in selling. Of course it was previously understood that there was to be a sale. The whole plan hinged upon that, and the object of putting in more money to redeem the stock and hold it together, was to get the benefit of a sale of the plant as a whole. This is the closest point in the case and might justify an unfavorable view by the jury, if there were any doubt or conflict in the evidence as to the time this agreement was made, but there is not.. Appellant had become the owner of the property, not with the idea of running the company, but to get out of his liabilities in regard to it without loss. To do this he must sell, and there was no legal objection, under the circumstance, to his employing the previous owner' to make the sale, and paying him even a liberal commission. The other circumstance urged as sustaining the idea of fraud. is the excessive value of the stock, as compared with what appellant paid for it. A clear excess of value of property transferred, over the debt due and a reasonable margin for delay and expense in converting the property into money, is evidence of fraudulent intent. But it is conceded here that there was no actual fraud intended, and the excess of value is too uncertain and contingent to be a safe basis for an inference of law. Hukill says indeed that the value of the stock was “ assumed ” to he $20.00 a share, but this assumption was on the basis of a sale of the whole fifty-one hundred shares for $100,000, which the event proved could not be made. Before the difficulties of the Gas Company arose, or at least were known, the stock was pledged for loans running from $2.75 to $14.00 a share and the banks refused to loan- any further amounts on it. The small number of shares pledged at $14.00 were sold by the holders, Spang Chalfant & Co. and did not bring the amount of the loan for which they stood as collateral. And finally Vandersaal who seems to have been the first to make a careful businesslike examination of the Gas Company’s affairs, testifies that he “ didn’t think we could go out in the market and sell the plant for enough to pay its debts,” and he was willing to go out for the amount he had put in, and lose the interest. This evidence of the value at the time is not overcome by the fact that the company subsequently became profitable under the new management of Vandersaal, with closer attention, more economical administration and additional capital, for all of which the jury do not seem to have made any allowance at all. In this review we have taken the evidence of Hukill and Yoder, on which the case must rest, with every unfavorable inference that it will fairly support, and are of opinion that it is not sufficient to sustain the conclusion of fraud in law any more than in fact. If appellant had been a volunteer the result would have been different. But he was a bona fide creditor to a large amount, with still greater contingent liabilities in case Hukill failed to pay. He took a large property to secure himself, but to do so he was obliged to put in additional capital to double the amount of his first risk, and to take a property of uncertain and shifting value which might or might not reimburse him. The difference between the position of a volunteer who comes forward to assist a failing debtor to delay or hinder his creditors, and that of a bona fide holder of an existing debt, has been recently stated in Werner v. Zierfuss, 162 Pa. 860. Appellant stood in that position in regard to Huldll, and we see no sufficient evidence that in his action he exceeded his legal rights. The defendant’s first point should have been affirmed, and a verdict directed in his favor. Judgment reversed.

Opinion by Mr. Justice Fell, Tliree questions are presented by this appeal. The first relates to the sufficiency of the statement of claim, the second to the sufficiency of the affidavit of defense, and the third to the regularity of the proceedings after the entry of a rule on the plaintiff, a nonresident, for costs. It is averred in the statement that the defendants are indebted to the plaintiff in a sum named for goods sold and delivered upon an account which is attached, and which is a true and correct copy of the plaintiff’s book of original entry. This with the other averments makes a clear and concise statement of the cause of action. The copy of account filed shows a charge by plaintiff, manufacturer of mouldings, against the defendants, in which the date of sale, the special number and the amount of each item in feet and inches and the price per foot are set forth.. In the account special numbers are used to designate the articles sold. A number takes the place of a name and detailed description as to size, pattern, material and quality. The reason for this as a matter of business convenience is obvious, and is explained by the statement in the affidavit of defense that the orders were made from sample patterns. Such orders and charges are not unusual, and no point has been made that the entries are not intelligible and are not fully understood. Indeed, no objection to the statement is raised by the affidavit upon any ground. It is not alleged in the affidavit of defense that the goods for the price of which suit is brought were not ordered and received, nor that other goods sent without orders were not used without an offer to return them. The claim for set-off is founded upon the alleged breach of an agreement to fill orders. The statement as to its terms and as to the loss sustained is vague and uncertain in the extreme. The agreement set up is that the defendants were to be allowed a line of credit upon conditions named, but it is not stated that the conditions were complied with, nor that the orders which were not filled were not in excess of the credit to be given. There is no specification of items which go to make up the loss claimed, and nothing stated from which it can be computed. If all the averments were established by proof there would still be no means of ascertaining the amount. Under the rules of court the defendants were entitled to a rule for costs only upon filing a sufficient affidavit of defense. While the rule was entered as a rule of course, its validity, depended upon the affidavit. The judgment of non pros was entered while the rule for judgment for want of a sufficient affidavit of defense was pending. The latter rule questioned the sufficiency of the affidavit and challenged the right to costs. It would have been more regular as a matter of practice if tbe plaintiff bad first moved tbe court to take off tbe judgment by default, and both rules could have been heard together. This in effect is what was done, but without tbe formal entry of a rule. One branch of tbe case depended upon tbe other, and when tbe affidavit was held to be insufficient tbe foundation of the rule for costs was gone, and tbe judgment fell. No substantial right was denied tbe defendants, and tbe record presents no ground for reversal. Tbe judgment is affirmed.

Mr. Justice Clark delivered the opinion of the court, The writ of foreign attachment, out of which this contention arises, was issued from the District Court of Philadelphia, in the year 1837, at the suit of Jackson, Riddle & Co., against Warwick & Claggett of London, England ; the Bank of the United States, and the Girard Bank, being summoned as garnishees. Judgment, by default, was entered against the defendants on 3rd of March, 1838, and on 29th June following, the damages were, upon a writ of inquiry, assessed at $43,555,23. On the 23rd October, 1838, a scire facias .issued against the garnishees, who in the year 1845, entered a plea of nulla bona. The cause was afterwards so proceeded in, that on 14th December, 1849, judgment was entered against the Bank of the United States, one of the garnishees, for $74,086,13, but nothing appears to have been, at any time afterwards done towards the enforcement collection or revival of this judgment. No proceedings of any kind were taken against the Girard Bank, the other garnishee, from the date of the filing of the plea in 1845, until 18th March, 1879, a period of almost thirty-four years intervening,when the death of Jackson and of Riddle, two of the plaintiffs, were suggested, leaving Michael B. Mahoney, the surviving partner, as the plaintiff in the suit. Subsequently, Thomas A. Biddle, assignee in bankruptcy of Riddle and Mahoney, (under the Act of 1841) was substituted as plaintiff, and, on 23rd February, 1883, the cause came to trial as against the Girard Bank, now the Girard National Bank, as garnishee ; the verdict was for the plaintiff for $32,888,85, subject to certain questions of law, which were reserved by the court. A motion was afterwards made for a new trial, and upon due consideration thereof and of the questions reserved, the court on 5th January, 1884, entered judgment in the words and form following: — “The rule for a new trial is made absolute, and judgment is now entered upon the third reserved point, for the defendants.” This was, without doubt, a mere blunder, the learned court intended, of course to discharge the rule not to make it absolute. The entries are incongruous and inconsistent; if judgment was entered, the rule was of necessity discharged, and what the court intended, is very plain upon the opinion filed. This slip of tbe pen was certainly tbe subject of correction and amendment, and we will not do tbe learned court the injustice to reverse on that ground, but will treat the record as amended, in this respect. The real controversy which the record presents is, whether or not, on tbe facts stated in the questions reserved, the proceedings upon the scire facias against the Girard Bank, are presumed to have been abandoned, and tbe liability of the bank extinguished. But the foundation of the action against the garnishee is, that the plaintiff has an unsatisfied claim against the defendant. The plaintiff cannot subject the garnishee to liability for a debt which has been fully paid; he must, therefore, in order to avail himself of the fund in the garnishee’s hands, first obtain judgment, and fix the amount of the debt due from the defendant; if this be done, in a proper way, the garnishee may not perhaps gainsay the amount of that judgment, but it is entirely competent for him to show that the judgment has been paid. We are therefore, in the determination of this cause, in the first instance at least, remitted to the inquiry, whether the judgment, obtained by Jackson Riddle & Co., in 1887, remained in force and unsatisfied in 1883, or from lapse of time was then presumed to have been paid. If the judgment was presumptively paid, it cannot form the basis of a recovery against the garnishee, and it would follow, that the judgment for the garnishee, non obstante veredicto was rightly entered. The rule is well settled, in a long line of eases, that after a lapse of twenty years, a judgment is presumed to be satisfied, unless there are circumstances to account for the delay; Cope v. Humphreys, 14 S. &. R., 15; Foulk v. Brown, 2 Watts., 214. The presumption of satisfaction, from lapse of time, arises in the case of every species of security, for payment of money, whether bond, mortgage, judgment, or recognizance: Diemer v. Sechrist, 1 P. & W. 419 ; Ankeny v. Penrose, 6 Harr., 192; Pryor v. Wood, 7 Casey, 142; Reed v. Reed, 46 Penn. St., 239; Comm’th v. Snyder, 12 P. F. S., 157 ; Bentley’s Appeal, 3 Out., 500. We find no case in which the rule has been applied to a judgment obtained on a foreign attachment, but there is nothing in the nature of the action which precludes it; on the contrary, we think it must be conceded, that the peculiarities of this form of proceeding especially invites tbe application of the rule, when, under tbe proofs, it could reasonably apply in any case. It is argued, however, that the life and efficacy of the judgment could not in this case be impaired, by mere lapse of time, owing to the continued pendency of the suit upon the scire facias; and, that as neither party, during the intervening period of thirty jmars, took any active steps towards the prosecution of the suit, no presumption of payment can fairly arise. We are not inclined to favor this view of the case. A foreign attachment, although perhaps not a proceeding strictly in rem, is in the first instance, an action against the non-resident debtor’s property; it is a process to compel an appearance, and until an appearance is entered, is wholly ex parte : Insurance Co. v. Whitney, 20 P. F. S., 248. The judgment by default binds only the fund or goods attached; no execution lies against the defendant’s person or other property. Nor is the object or design of the proceeding to provide a lien for security of the debt; it is to furnish a means for its satisfaction-The property attached is, in most eases perhaps, personal, and in many of a perishable quality. The garnishee is a mere stakeholder, whose interest is in equilibrio; an involuntary litigant, sometimes, as here, so circumstanced with respect to the subject attached, as to be unable to rid himself of it. Nor is the proceeding a bar to another suit for the same debt; whether the thing attached prove commensurate to the plaintiff’s claim, or not, he may; if opportunity offer, at any time desert the attachment, in its ex parte form, and proeeed'by personal action, and, if the claim be realized in that form of procedure, or satisfaction be otherwise received, the attachment of course falls to the ground. In an action possessing these characteristics, and exhibiting some of the qualities of an execution, the plaintiff must be regarded as the actor, and it is his plain duty to prosecute the scire facias, with reasonable speed; if he suffer twenty years and upwards to elapse, without taking any steps towards enforcement of his claim under the scire facias, it may well be presumed that the debt has been discharged, that all disputed matters have been adjusted, and that the proceedings are abandoned. A garnishee, towards whom the court will exercise more liberality than to an ordinary litigant, is certainly entitled to the benefit of a presumption so reasonable and just; it is contrary to the teachings of our experience and to the usual course of events, that a creditor should so long be silent without having received satisfaction. In the case of Foulk v. Brown, 2 Watts., 209, this court said: “ The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by, whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new gen eration has appeared on the stage of life, unacquainted with the affairs of the past age, and often regardless of them. Papers which our predecessors have carefully preserved are often thrown aside or scattered as useless by their successors.” In no reported case, perhaps, is the wisdom of the public policy which gives origin to the rule, more manifest than in the case at bar. From the institution of the suit, to the time of the trial against the Girard National Bank, a period of forty-two years had elapsed; the parties were almost all, if not all, dead. The United States Bank had long ago become bankrupt and passed out of existence. The Girard Bank had passed through various vicissitudes of fortune; had once or twice failed; had been twice re-chartered, its capital reduced, from $5,000,000, to $1,000,000, and the number and par value of its shares greatly changed. It had, however, for many years before the trial, been organized under the National Bank Act, and its present prosperous condition, and the great value of its shares, were facts admitted. With a single exception every officer of the bank in 1837 had died ; Mr. Shaffer only survived, but as he was then the paying teller only, he had no knowledge of the matter; the books of the bank, with the exception of the dividend book, had been destroyed as being of no value. The distinguished counsel, whose names adorn the margin of the record, with one exception, had passed away, and the record file papers were all lost, so that we cannot now know what interests they severally represented, or how their names came to be there written. The parties, their counsel, the records, the books, and the witnesses were gone; a new generation had indeed appeared upon the stage of life, and everything connected with the case, was involved in the utmost uncertainty and obscurity. No explanation whatever was made, no excuse given, for this long delay. Under such circumstances and in such a ease, but one inference can be drawn. We cannot regard the mere prolonged pendency of the suit, upon the scire facias, where no steps have been taken for so long a period, by either party, as a continuous assertion of claim on part of the plaintiff. Huffrnans v. Stiger, 1 Pitts. Rep., 185, was an ejectment brought in 1824; the cause was put at issue in 1825, but nothing was done in the case from 1826 to 1853, when application was made to substitute the heirs of the deceased plaintiff. Chief Justice Black delivering the opinion of the court says: “ These facts raise the question, whether a suit of which no notice has been taken by either party for twenty-seven years, can be revived by one of them after that time. We are clear that it cannot, without violating all the analogies of the law. and giving to a false claim every advan tage, which it is the object of limitations and presumptions to take from it. An unjust demand, if prosecuted while it. is fresh, may. easily be defeated by counter-proof. But the witnesses may die, or the papers be lost, in a few years. When a generation passes away, the evidence which would establish the proof is almost sure to have disappeared......When neither party makes any move in the suit for a long time, there is a natural, and should be a legal, presumption that the dispute has been settled and adjusted to the satisfaction of both. What precise length of time is required to make this presumption full and complete, it is not now necessary to decide. Certainly it is less than twenty-seven years.” The cases of Morford v. Cook, 12 Harr., 92; Hemphill v. McClimans, 12 Harr., 367 ; and VanLoon v. Smith, 7 Out., 238 are in support of the same doctrine. The case last cited was a scire facias to revive and continue the lien of judgment, obtained in 1855. The writ issued 17th July, 1860, and the defendant, in the same month entered pleas of nul tiel record and payment. No further proceedings were had, until 11th January, 1882, when the cause was brought to trial. We there held, that the issuing of the scire facias, and the pendency of the suit thereon, after that lapse of time, did not affect the ordinary application of the rule : Ward v. Patterson, 46 Penn. St., 372; and Wilhelm’s Appeal, 79 Penn. St., 141, have no relevancy to the question here involved. The rule, invoked by the garnishee, is not founded in mere laches, although that may always appear; it is a rule of evidence, growing out of public policy and convenience, established for the peace and security of society, and hence serves a larger purpose than the mere punishment of laches. An examination of the remaining eases, cited by the plaintiff in error, English and American, does not convince us that they are seriously in conflict with the views here expressed. But this presumption has not the effect of a limitation; it may be rebutted or repelled by proof of such matters as tend to show non-payment of the debt, or account for the delay, and it is argued that such facts and circumstances are here shown, as required the court to submit the case to the jury. The fact that the process is against a specific fund, which ■ it is shown was not paid, is wholly ineffective for the purpose stated, as the creditor was not bound .to adhere to the remedy, or look to that fund for satisfaction. Nor is it of any consequence that the defendants were aliens, and actually resided in England ; the garnishees were entitled to protection, if it be assumed that the defendants were not. It is said however, .that the bank in the year 1841, made an assignment for creditors, and was . at other times seriously embarrassed, and that bad tbe suit been tried prior to 1860, there is no evidence to show that the judgment would have been paid, or could have been realized; it is sufficient to say, that the burden of proof was upon the plaintiff, and there is no evidence to show that it would not have been paid, or could not have been made, from the garnishee’s estate. It is true, that a plea of nulla bona was entered by the garnishees, but this plea cannot, even in the light of subsequent events, and of the verdict, be characterized justly, as supressio veri. The plea did not, necessarily, negative the custody of the fund; by that plea only, could the bank protect its interests against conflicting claims, if any conflict existed, and the lapse of forty years had made proof upon this point impossible. The appearance of Mr. Charles Ingersoll, however, for DeRothschild Fréres, and for Weston & Young, is a fact, now wholly inexplicable upon any theory, other than that a conflict was at least threatened. The ravages of time, by the plaintiff’s own default, have destroyed all direct evidence upon this point, record or otherwise, but it seems to us, that the intrusion of these strangers, into a suit in which they had no apparent concern, cannot now be otherwise explained. The burden is upon the plaintiff, and the mere entry of the plea is certainly insufficient to establish any fraudulent suppression of the truth, by the garnishees. The fund has been found in the garnishee’s hands; the entries upon the books of the bank show, that for thirty years and upward, the dividends were detained, but if the plaintiffs have no unsatisfied claim, upon whieh to rest their attachment, the fund is free, and they can have no farther claim upon it. The judgment, in favor of the garnishee, the Girard National Bank, non obstante veredicto, is therefore affirmed.

Per Curiam, We are not convinced that the learned' court erred in discharging plaintiffs’ rule for an issue, etc., or in making absolute the rule on plaintiffs to give security for the costs of audit in distribution of the fund in court. We find nothing in either of the assignments of error that requires discussion. They are both dismissed. Decree affirmed and appeal dismissed with costs to be paid by the plaintiffs.

Per Curiam, There was some testimony tending to prove an original undertaking by the defendant to pay for medical services rendered his mother at her request, and a subsequent course of dealing between plaintiff and defendant in pursuance thereof. That testimony presented a question of fact for the jury, and it was accordingly submitted to them by the learned trial judge in a clear and adequate charge, to which no just exception can be taken. The facts upon which the case hinged were established by the verdict; and, the court below having refused a new trial, litigation should have then and there ended. There is nothing in either of the specifications that requires further notice. Neither of them is sustained. Judgment affirmed.

OPINION ZAPPALA, Justice. This appeal raises significant issues regarding the standard applicable to the dismissal of a case for inactivity pursuant to a defendant’s motion for non pros. For the reasons set forth herein, we hold that the equitable principles underlying the entry of a judgment of non pros must be recognized and the presumption of prejudice first enunciated in Penn Piping, Inc., v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), must be abandoned. Appellant, Lisa Jacobs, was injured in an automobile collision involving a vehicle owned by Appellees, Harry and Patricia Halloran. When Appellant filed her complaint in August of 1987, she believed that the vehicle had been driven by Appellee, Lynda Fyffe-McFadden, with the permission of the Hallo-rans. On November 16, 1989, almost two years and three months after the complaint was filed, Fyffe-McFadden testified at a deposition that she was not driving the vehicle at the time of the accident. Instead, she stated that a friend was driving the Hallorans’ vehicle without their consent. This admission created a possible uninsured motorist claim against the insurer of the vehicle in which Appellant was a passenger at the time of the collision. In September of 1991, the docket reflected the withdrawal of Appellant’s counsel and the appearance of her new counsel. Entries were also made on the docket through October 3, 1991. No docket activity occurred thereafter until October 26, 1993, when the common pleas court issued a notice that it would terminate the ease for lack of activity. Appellant filed an active status certification on November 5,1993. On April 15,1994, Fyffe-McFadden filed a petition for entry of a judgment of non pros in which the Hallorans later joined. On or about June 23, 1994, Appellant provided Ap-pellees with an expert witness report on damages and requested them to sign a prae-cipe certifying the case as ready for trial. The court entered judgments of non pros for Appellees by orders dated September 26, 1994. These orders were subsequently vacated pending reconsideration and on January 17, 1995, the orders were reinstated. Appellant filed a motion for reconsideration wherein she requested that the court open the judgments. The court refused to open the judgments, holding that docket inactivity of two years and six months established a lack of due diligence in pursuing the claim; that the exchange of correspondence regarding the status of the uninsured motorist claim and the change of counsel did not constitute compelling reasons for the delay; and that prejudice to Appellees resulting from the delay is presumed. It rejected Appellant’s claim that Appellees suffered no actual prejudice because the case was ready for trial. The court further refused to consider an affidavit of Appellant’s prior counsel which alleged that the Hallorans’ counsel orally agreed to allow the case to be delayed while Appellant pursued the uninsured motorist claim. The court noted that the alleged oral agreement was not raised in the response to the petition for judgment of non pros, in the supplemental response or at oral argument. It further stated that Appellant failed to take discovery regarding the agreement. The Superior Court affirmed on the basis of the common pleas court opinion. Judge Kelly dissented, finding that the common pleas court abused its discretion in entering the judgments of non pros. He concluded that, considering the equitable principles underlying the entry of a judgment of non pros, Appellees should not benefit from any delay in prosecution which they, in part, created. The question of granting a non pros due to the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Gallagher v. Jewish Hospital Ass’n, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). The lower courts applied the standard for entering a judgment of non pros announced in Penn Piping. We began our analysis in Penn Piping by restating the three part test set forth in James Brothers Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). A Court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses. In Penn Piping, where six years had lapsed after the filing of the complaint, the lower courts had agreed that (1) there was an absence of due diligence in prosecuting the case and (2) there was no compelling reason for the delay. At issue, then, was the prejudice prong. Citing Shrum v. Pennsylvania Electric Co., 440 Pa. 383, 269 A.2d 502 (1970), our Court found that the delay was “presumptively prejudicial” and went on to hold that “in cases involving a delay of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket.” Id. at 356, 603 A.2d at 1009. We also discussed whether the presumption of prejudice was successfully rebutted. We concluded that because an unexplained delay of four years existed, which exceeded the two year period after which prejudice is presumed, the presumption was not rebutted. Appellant contends that our decision in Penn Piping was not meant to allow a defendant to enjoy the benefits of a judgment of non pros when the period of delay was chargeable to or caused by the defendant. She further argues that it is inherently unfair to dismiss the case when no actual prejudice was established since the case was ready for trial. These arguments essentially challenge the propriety of the concept of presumed prejudice. After an extensive review of the historical rationale underlying the entry of a judgment of non pros along with the current practical dilemmas which have resulted from application of the presumption, we conclude that the two year presumption of prejudice must be abandoned. The courts of Pennsylvania have long recognized the existence of the power of the court to enter a judgment of non pros in consequence of long delay of prosecution of a cause. Waring v. The Pennsylvania Rail road Company, 176 Pa. 172, 35 A. 106 (1896). This power originated in common law, prior to the passage of any statute. Id. The grant of non pros was traditionally based not upon a statute of limitations, but rather upon the equitable principle of laches which does not involve the passage of a specific amount of time. Manson v. First National Bank, 366 Pa. 211, 77 A.2d 399 (1951). “Laches arises when a defendant’s position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him.” Bach’s Estate, 426 Pa. 350, 359, 231 A.2d 125, 130 (1967), quoting, Grote Trust, 390 Pa. 261, 269-270, 135 A.2d 383, 387 (1957) (emphasis added). Consistent with this notion, early cases held that if delays in prosecution are to a great extent due to the defendant’s own procurement it would be an injustice to allow the defendant to impute laches. Wingert v. Anderson, 309 Pa. 402, 164 A. 333 (1932). More importantly, we also held that the plaintiff will not be penalized for laches if his delay has not resulted in injury to his adversary. Manson v. First National Bank, 366 Pa. at 215, 77 A.2d at 401-402 (1951), citing Montgomery Brothers, Inc., v. Montgomery, 269 Pa. 332, 112 A. 474 (1921); Selmer v. Smith, 285 Pa. 67, 70, 131 A. 663, 665 (1926); Quinn v. American Spiral Spring & Manufacturing Co., 293 Pa. 152, 160, 141 A. 855, 858 (1928); Potter Title & Trust Co., Administrator v. Frank, 298 Pa. 137, 141, 148 A. 50, 52 (1929); Schireson v. Shafer, 354 Pa. 458, 463, 47 A.2d 665, 668 (1946); Lutherland, Inc. v. Dahlen, 357 Pa. 143, 157, 53 A.2d 143, 150 (1947); Joseph Melnick Building & Loan Association v. Melnick, 361 Pa. 328, 339, 64 A.2d 773, 778 (1949). Considering these equitable principles that underlie the entry of a judgment of non pros, we find that our adoption of a presumption of prejudice in Penn Piping was erroneous. Simply put, the presumption is inconsistent with the well-established notion that the adversary must suffer harm before a case is dismissed for lack of prosecution. Such harm or prejudice to the adversary is the very basis upon which a claim of laches is founded. We recognize that defendants may be prejudiced by undue delays in litigation—memories fade, witnesses disappear and documents become lost or are destroyed. Additionally, pending lawsuits often cause undue stress and anxiety. However, the rules concerning the dismissal of cases for inactivity reflect policy concerns which implicate the interests of both plaintiffs and defendants. It is unnecessary to presume prejudice because the defendant is free to present evidence of actual prejudice. In cases where no activity has occurred for a period of two years, but the defendant has not lost his ability to adequately prepare a defense, it serves no equitable purpose to dismiss the plaintiff’s case solely due to the passage of time. There is no logical distinction between the harm caused to a defendant by the plaintiff’s delay of two years and the harm caused to a defendant by a delay of two years less one day. Moreover, as a result of defining a period after which prejudice is automatically presumed, the practical application of this equitable doctrine has become enigmatic. There has been a lack of consistency in the lower courts as to whether the presumption is re-buttable and, if so, what type of evidence is required. TMs indicates to us that the application of the presumption has proved to be unworkable. Furthermore, it would be unfortunate to see those matters which have been cleansed from the docket due to the entering of judgments of non pros reappear as attorney malpractice claims. The effect of our decision today is to return to the three part test of James Brothers. To dismiss a case for inactivity pursuant to a defendant’s motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant. As always, this determination is to be made by the trial court, whose decision will not be disturbed absent an abuse of discretion. In James Brothers, we noted that prejudice could be established by the death or absence of a material witness. The Superior Court has further defined prejudice as “any substantial diminution of a party’s ability to properly present its case at trial.” Metz Contracting, Inc., v. Riverwood Builders, Inc., 360 Pa.Super. 445, 451, 520 A.2d 891, 894 (1987), citing American Bank & Trust Company v. Ritter, Todd and Haayen, 274 Pa.Super. 285, 418 A.2d 408 (1980). As the court presumed prejudice in the instant case, we remand the matter for a determination of whether the Hallorans were actually prejudiced by the delay in prosecution. A remand is not necessary as to Fyffe-MeFadden, however, as we find that it is clear that she came before the court with unclean hands. A party who seeks the equitable relief provided by the entry of a judgment of non pros must do so with clean hands. Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995). The doctrine of unclean hands is far more than a mere banalty. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with ineq-uitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith_ Thus while ‘equity does not demand that its suitors shall have led blameless lives’ ... as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.... Shapiro v. Shapiro, 415 Pa. 503, 506-507, 204 A.2d 266, 268 (1964), quoting Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814-15, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945). Fyffe-McFadden’s dishonesty regarding the identity of the driver of the vehicle constitutes bad faith which is directly relevant to the delay in prosecution from which she seeks relief. To allow her to benefit from a delay which she in part created is inequitable and will not be permitted. Accordingly, the order of the Superior Court is vacated and the matter is remanded to the common pleas court for proceedings consistent with this opinion. . The two companion cases of Shope v. Eagle, — Pa. -, 710 A.2d 1104 (1998), and Marino v. Hackman, — Pa. -, 710 A.2d 1108 (1998), also decided today, involve the dismissal of actions for inactivity pursuant to local rules implementing Rule of Judicial Administration 1901. In Shope, we hold that the same standard is applicable to terminations pursuant to a defen dant’s motion for a judgment of non pros and the court’s dismissal pursuant to Rule 1901. In Marino, we hold that non-docket activity can be examined in determining whether a compelling reason exists for the delay in prosecution. . Apparently, the court measured the delay from the last docket entry of October 1, 1991, to the April 15, 1994 filing of the Hallorans’ petition for a judgment of non pros. . Specifically, the court held that the time spent deciding whether to bring the uninsured motorist claim constituted a legally sufficient explanation for some period of the delay. It reasoned, however, that such decision should have been made in a matter of days and should not have been reserved until the receiving of a formal denial of coverage. The court recognized that new counsel was retained only three weeks prior to the period of inactivity. The court found it reasonable to allow counsel three months to familiarize himself with the case, thus leaving an unexplained period of delay of two years and three months. .The court treated Appellant’s motion for reconsideration as a petition to open judgment of non pros as it contained all the elements necessary for such petition. We recognize that in order to remove a judgment of non pros, three elements must be met: (1) a petition to open must be promptly filed; (2) the delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. Pine Township Water Co., Inc. v. Felmont Oil Corp., 425 Pa.Super. 473, 625 A.2d 703 (1993), alloc. denied, 537 Pa. 665, 644 A.2d 1202 (1994). However, since Appellant’s underlying claim is that the court erred in entering the non pros, our opinion discusses the standard applicable to that issue. . In Gallagher, our Court used the term "manifest abuse of discretion” in describing the appropriate standard of review. Gallagher has been repeatedly cited for this proposition. See James Brothers Company v. Union Banking and Trust Company of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968); Penn Piping, 529 Pa. at 354, 603 A.2d at 1008. We have subsequently held, however, that there is no distinction between a gross abuse of discretion standard of review and an abuse of discretion standard. See Moore v. Moore, 535 Pa. 18, 28 n. 4, 634 A.2d 163, 168 n. 4 (1993). The term "gross” is merely surplusage which does not alter the standard of review. See also Commonwealth v. Brown, - Pa. -, 708 A.2d 81 (1998) (Opinion in Support of Affirmance). Likewise, we find the use of the term "manifest” in "manifest abuse of discretion” has no legal significance and is therefore unnecessary to describe the applicable standard. . Black’s Dictionary similarly provides that the doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as a bar in court of equity. Black’s Law Dictionary 875 (6th ed.1990) (emphasis added). . As noted in this author’s dissenting opinion in Penn Piping, the statement in Shmm providing that the seven year lapse of time was “presumptively prejudicial to all parties even without any specific showing of prejudice on the record,” id. at 386-87, 269 A.2d at 504, was merely dictum. We concluded in Shmm that no motions for non pros were filed and that the lower court did not decide the case on the ground of delay alone. Shmm therefore did not set a new standard for the entry of a judgment of non pros as our Court considered the appeal on its merits. .For example, in Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995), the Superior Court held that the presumption of prejudice was rebutted by the conduct of the defendant seeking a judgment of non pros. The court found that where the circumstances indicate that the party seeking non pros has come to the court of equity with unclean hands, the party is estopped from obtaining the equitable remedy of a judgment non pros. More recently, a different panel of the Superior Court held to the contraiy in State of the Art Medical Products v. Aries Medical, Inc., 456 Pa.Super. 148, 689 A.2d 957 (1997). The court there held that the Penn Piping presumption may be rebutted only to the extent that a plaintiff may demonstrate that the unexplained period of docket inactivity is less than two years. This interpretation precludes rebuttal of the presumption because if the plaintiff can establish that the period of delay is less than two years, the presumption would not apply. . This rule shall apply to all pending cases where the issue has been preserved. . We need not reach the issue of whether the trial court erred in refusing to consider the affidavit of Appellant’s prior counsel which stated that the Hallorans' counsel agreed to allow the prosecution of the case to be delayed while the uninsured motorist claim was pending. This affidavit was first presented in Appellant’s petition to open. As we find that the trial court employed the incorrect standard in initially entering the non pros judgment, any argument relating to the petition to open the judgment need not be discussed. . It is not apparent from the record whether the Hallorans also acted in bad faith. . It is undisputed that McFadden was aware of the uninsured motorist claim as the law firm representing her also represented the insurance carrier against whom the claim was made.

DEL SOLE, Judge: Timothy Smith (Defendant) was convicted of two counts of third degree murder, one count of aggravated assault, three counts of recklessly endangering another person and one firearms violation, all arising from the same incident. He was sentenced to an aggregate term of 25 to 50 fifty years imprisonment. We affirm. Both the Commonwealth and Defendant have appealed. The Commonwealth contends that the court should have sentenced Defendant to the mandatory life sentence set forth in 42 Pa.C.S.A. § 9715. Defendant raises four issues: (1) the court should have suppressed statements Defendant made to police; (2) the aggravated assault verdict is against the weight of the evidence; (3) the court erred in admitting statements Defendant made to a probation officer during a presentence interview; and (4) the court abused its discretion in sentencing. The charges arose after Defendant, who was selling $10 bags of marijuana on a street comer, became involved in a dispute with Richard Snell, Carlton Jones, Ondaryle Smith, DeRob Saunders, Josie Lyons, David Beard and Candace Bradley. Defendant pulled a .380 caliber revolver and shot five of the seven rounds, killing Carlton Jones and Richard Snell and injuring Ondaryle Smith. An unidentified person fired a .9 millimeter weapon and struck Defendant in the shoulder. Defendant initially pleaded guilty but the plea was withdrawn and Defendant went to trial before a jury. In its appeal, the Commonwealth contends the trial court erred in not applying the mandatory life imprisonment term pursuant to 42 Pa.C.SA § 9715. This statute provides for a mandatory term of life imprisonment for “any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter. ..” (emphasis added). The Commonwealth argues that, once the court sentenced Defendant on the first count of third degree murder, Defendant was then “previously convicted,” albeit by only seconds, and thus the mandatory sentence would apply. We disagree. When interpreting a statute, we are guided by several principles. Penal provisions must be strictly construed. 1 Pa.C.S A § 1928; Commonwealth v. Henderson, 444 Pa.Super. 170, 663 A.2d 728 (1995). Also, we construe words of a statute according to their plain and common meaning. 1 Pa.C.S.A § 1903; Grom v. Burgoon, 448 Pa.Super. 616, 672 A.2d 823 (1996). The meaning of the word “previously” is “existing or occurring prior to something else.” The American Heritage Dictionary 544 (office edition 1983), “existing before in time,” “earlier,” Webster’s Third New International Dictionary 1798 (unabridged 1981). Defendant was found guilty at the same time and by the same jury of two counts of third degree murder arising out of the same incident. We believe it strains the plain meaning of the statute to interpret “previously convicted” to encompass this situation. We note that when the legislature intended such a result, it said so in plain language, as in the death penalty statute. See 42 Pa.C.SA. § 9711(d)(10), (11), (12) (“the defendant has been convicted of another [offense] committed either before or at the time of the offense at issue.”) We find no error in the court’s refusal to apply the mandatory sentence in this case. Defendant first contends that the trial court erred in denying his suppression motion. He sought to suppress statements given to a detective while Defendant was in the hospital being treated for a gunshot wound to the shoulder. He contends that the wound impaired his judgment or his ability to make a free and voluntary statement. When reviewing the denial of a suppression motion, this court considers only the evidence of the Commonwealth’s witnesses and any evidence for the defense, as fairly read in the context of the record as a whole, that remains uncontradicted. Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986). The detective testified that he went to the hospital and asked if he could speak to Defendant whom he believed at the time was a victim. The emergency room doctors allowed him into the treatment room and he took Defendant’s statements. He testified that Defendant appeared to understand what was going on and he did not appear to be either intoxicated or under the influence of any drugs which would interfere with his judgment. Defendant did not present any evidence to the contrary. We cannot conclude that the injury itself was such as would impair his judgment or interfere with his ability to make statements freely and voluntarily. Defendant next contends that the guilty verdict of aggravated assault is against the weight of the evidence because the jury was required to speculate whether Ondaryle Smith was struck by Defendant’s weapon or by the weapon fired by the unidentified shooter. Because a motion for a new trial on this basis is addressed to the discretion of the trial court, appellate review is a review of the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994). Only if the evidence is so unreliable or contradictory as to make any verdict based thereon pure conjecture is appellant entitled to a new trial on this basis. Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). Defendant relies heavily on the fact that there was no ballistic evidence showing that Ondaryle Smith was struck by a bullet from Defendant’s gun. The lack of ballistic evidence is not fatal, however, because there was other testimony from which the jury could conclude that Ondaryle Smith was in fact shot by Defendant. Ondaryle Smith testified that he and several other people started walking up a hill behind Defendant. At one point, Defendant stopped and faced down the hill, arguing with a woman. Defendant then drew his gun and started shooting into the crowd. Ondaryle Smith was the first person hit. N.T. at 226-229. Josie Lyons testified that Defendant started firing first, N.T. at 269, and she didn’t hear the second round of shots, from the unidentified shooter, until after Ondaryle Smith and Richard Snell had been shot. N.T. at 273, 277, 292. This evidence amply supports the inference that Defendant shot Ondaryle Smith and the jury was not required to speculate to reach this conclusion. Defendant next contends that the court erred in allowing the Commonwealth to impeach him with statements he made to a presentence investigator before he withdrew his guilty plea. Defendant claims these statements “should not have been admitted for any purpose due to the confidential nature of the pre-sentence investigation and report as well as the fact that Defendant was required to participate in the interview.” Brief for Appellee-Cross-Appellant at 26. Initially, we note that, contrary to Defendant’s claim, a defendant is not required to make any statements regarding the incident during the presentence investigation. Moreover, a defendant has the right to tell the sentencing court anything at the sentencing hearing so it is not vital that a defendant give any statement to the presen-tence investigator. Thus, Defendant’s reliance on Commonwealth v. Jones, 375 Pa.Super. 194, 544 A.2d 54 (1988), is inapposite. In Jones, the Commonwealth impeached the defendant with statements made during a prior guilty plea colloquy. We held this to be a violation of the defendant’s Fifth Amendment right not to incriminate himself. The statements in question were required by the plea colloquy and Jones was therefore compelled to incriminate himself. Any statements a defendant makes to a presentence investigator are not compelled and therefore any use of them does not violate the Fifth Amendment. Defendant also contends that Pa.R.Crim.P. 1404,- which governs disclosure of presen-tence reports, precludes the use of statements made during a presentence investigation. Defendant claims that by removing this confidentiality, defendants will be reluctant to participate in the presentence investigation in an honest manner. Thus, we are faced with two competing policies: the defendant’s right to participate in the presentence process and the expectation that witnesses will tell the truth under oath in court. In Commonwealth v. Daniels, 537 Pa. 464, 644 A.2d 1175 (1994), our supreme court was faced with a similar situation. There, the Commonwealth had used information from the defendant’s bail interview to impeach him. This information is also subject to a confidentiality rule set forth in Pa.R.Crim.P. 4008(b). The court noted that technical violations of rules of criminal procedure do not automatically warrant suppression of the evidence. Rather, only violations which assume constitutional dimensions and/or substantially prejudice the accused may require the exclusion of evidence. Moreover, as the Daniels court noted, even if suppression were warranted, the information would only be excluded from the Commonwealth’s case in chief. Even voluntary statements suppressed because of constitutional violations, such as a lack of Miranda warnings, are admissible for purposes of impeachment. Pa. Const, art. I, § 9; Commonwealth v. Baxter, 367 Pa.Super. 342, 532 A.2d 1177 (1987). We conclude therefore that the fact that this testimony may have been in violation of the Rules of Criminal Procedure does not preclude its admission for impeachment purposes. Finally, Defendant claims the sentencing court erred when imposing sentence. An appeal from the discretionary aspects of sentence is not an appeal of right. Therefore, we must first decide whether to accept Appellant’s appeal. 42 Pa.C.S.A. § 9781. Appellant’s brief contains the requisite statement of reasons relied upon in support of appeal as required by Pa.R.AJP. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Therefore, we must determine if Appellant has raised a substantial question of whether the sentence imposed is appropriate under the Sentencing Code. Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988). Defendant contends that the sentencing court relied on his prior juvenile adjudication as justification for imposing a sentence within the aggravated range of the guidelines. Since Defendant’s prior adjudication was already taken into account in his prior record score, this claim raises a substantial question that the sentence is not appropriate under the sentencing code. Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991). On review of the record, however, we find no merit to this claim. Rather than relying solely on Defendant’s prior adjudication, the sentencing court noted the adjudication, that it was for carrying a firearm without a license, that the present crimes also involved a firearm, that Defendant was committed to and absconded from two different juvenile facilities and that Defendant was AWOL from the second facility at the time this crime was committed. These reasons are sufficient to support the sentence imposed. Judgment of sentence affirmed. . We find Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368 (1992) inapposite. The issue there was whether Gonzales could be sentenced to the mandatory sentence when the commission of the second murder preceded the conviction for the first murder. The two murders were, unlike the present case, two separate incidents. . Because trial counsel did not object to the use of these statements on cross-examination. Defendant raises this issue in the context of trial counsel’s ineffectiveness. . Under the rule, the prosecutor is entitled to inspect and/or copy the report. . It is important to note that the issue here is only whether the statements were admissible to impeach Defendant and that is the extent of our holding.

Mr. Justice Paxson delivered the opinion of the court This record presents the single question whether where an election is held for seven directors of a private corporation created under the Act of 1871, at which the cumulative plan of voting is employed, and five only, composing a legal quorum, of the candidates receive a plurality of votes, is such ■election valid as to the five so chosen ? It is not denied that the election was regularly and legally ■held on the day appointed by the charter; nor that the votes were properly counted. When, however, the result was made •known, the stockholders’ meeting had been adjourned,' and it was found that in consequence of a tie vote for three of the .candidates five only had received a plurality. There was no attempt to complete the number by a second ballot as the stockholders, not anticipating such a result, had left for their homes, mor was a subsequent special meeting called for that purpose. 'The .five .directors receiving a majority proceeded to organize the new board, and the vacancies have not been filled in any manner. The old board claim to hold over upon the ground that the board must be elected as an entirety, and that the election of. a portion only of the number is a nullity. The election was for seven directors. That they are called a board has no significance. There were seven places to be filled. When the polls closed the five persons who received a plurality of all the votes cast were either elected or they were not. Did the failure to elect the other two • directors at the annual meeting render the election invalid as to the five? If so, we have a principle which is wholly at variance with our entire theory of elections, public and private, political, municipal and corporate. No doubt exists that if the stockholders had not adjourned and had proceeded to another ballot, the result,would have been legal.' Nor is there more room to doubt that had they adjourned the election to a subsequent day, an election for two more directors on that day would have been valid. It is said however, that inasmuch as there was no such ballot and no adjournment, and the Act of 1874 does not provide for filling up the board under such circumstances, the two vacancies cannot be filled at all; and that the five directors who were elected cannot act, and the old board holds over. This conclusion is reached by confusing two distinct questions, — the validity of the election of the five directors, and the filling the vacancies caused by the failure to elect the remaining two. The first question is legitimately before us and must be decided ; the second is not. The five directors having received a majority of votes were elected; their right to their seats does not depend upon the failure of the corporation to fill the vacancies any more than it would had the vacancies occurred from any other cause. The power of a board is never suspended by vacancies unless the number be reduced below a quorum. Here a quorum were elected ; their power to act is not impaired by the neglect of the corporation to fill up the board. It is begging the. question to say that the Act of 1874 does not provide for such a contingency. If the mode of doing so had been prescribed by the Act or by the charter of the corporation, tlie mode thus designated must be followed. See Gowen’s Appeal, 10 W. N. G., 85. But where the Act is silent, and there is no prohibition, the power inheres in the corporation to hold an election. It is a necessity of its corporate existence, and is among the implied powers granted. This is familiar law : Dillon on Corporations, vol. 2, page 768; Angell & Ames on Corporations, § 124 ; People v. Runkel, 9 John., 157. But the mere power to fill vacancies, or the manner by which it shall be done, has no relation to the power of the other directors, or the validity of their election. Non constat that such vacancy will be filled at all. A stockholder may perhaps by appropriate proceedings compel the corporation to proceed to fill vacancies in the board of directors, but no one has ever supposed that a neglect to fill up the -board would prevent the directors from acting as a board so long as there was a quorum. I have not been able to find a single authority which sustains the position of the plaintiffs in error, while the eases of the Union Insurance Company, 22 Wend., 591; People v. Joues, 17 Id., 81; the Excelsior Ins. Co., 38 Barb., 297, are entirely iu accord with the views I have expressed. The question of the effect of cumulative voting is entirely outside this controversy. When the votes under such a system are east and counted, the validity of the election must be determined precisely as in all othhr cases. Whether the stockholders can cumulate again to fill the vacancies is a matter that must be determined when the case arises. We cannot settle it in advance and therefore will express no opinion. The complications suggested in the argument of the learned counsel for the plaintiffs may not, and 'probably will not ever arise. If they should we will endeavor to grapple with them when they are brought before us. Judgment affirmed.

Chief Justice Mercur delivered the opinion of the court, This suit was by a landlord against his tenant, to recover one month’s rent of a building and premises, let at the annual rental of ?*900. Judgment having been taken for want of a sufficient affidavit of defence, all the facts therein averred must be considered as true for present purposes. The question then is, do they constitute a defence which should have been submitted to the jury ? The lease is in writing. It stipulates the lessee shall not use the premises otherwise than as a dwelling house. It therefore fairly represents and declares the house to be in all respects fit and suitable for that purpose. Tlie rule that fraud in the making of a written agreement may be sliown by parol evidence, to change its legal effect, is too well established to need any citation of authorities to susit. The evidence however must be clear, precise and indubitable. Are tlie facts alleged sufficient, and are they properly averred in the present case, to constitute any defence if true'? In substance the plaintiff in error avers in bis affidavit that be was not willing to lease the premises unless he was satisfied that the plumbing and drainage were in first-class order ; that he so stated to the lessor, and expressed a determination to send a plumber to examine the same ; but the lessor assured him that tlie well into which the house was drained had been lately dug, that lie had a plumber to thoroughly overhaul everything, and he would guarantee that the sanitary eondition of the house was good, and that tlie drainage and plumbing were as near perfect as they could be, and that anything wrong with either would be remedied by him at once, and in consideration of these assurances and guaranty the lessee signed the lease and moved into the house. He further avers that soon thereafter he discovered the drainage to be defective, that tlie soil-pipe which drained the water-closet in tbo house also drained the water from tbe bath-room and the kitchen, and in fact, all the wastage and nuisance of the house was drained through one small soil-pipe ; that it drained into a covered well which had no ventilation or means of ventilation, and which had not been cleaned, as be was informed, for eight years ; that the soil-pipe was so old and rotten that tlie roots of trees had worked their way through defective joints, and had so filled the pipe for thirty feet as to render it impossible for the contents of the water-closet and kitchen sink to pass through it into the well, but the same flowed back into the sink in the kitchen and stationary wash-basins; the well was filled nearly to the top, and in consequence thereof and of the other causes stated the smell through the house was unbearable; the lessor was notified of these defects and requested to have them remedied, but he refused so to do; that thereupon the lessee employed practical, plumbers to remedy the same, which they did at an expense of $53.84, .which sum he had paid, and he had also^ paid the further sum of $53 for cleaning the well. The plaintiff in error further swears that lie is informed, believes and expects to prove that the premises in question were well known by the lessor and everybody in the neighborhood to have defective drainage, and by reason thereof they had been unoccupied for a long time, all of which facts he believed to be true and expected to be able to prove on the trial of the cause. Thus the building was let to be occupied as a dwelling house only. If the facts averred be proved on the trial, a jury would be justified in finding it wholly unfit for that purpose. In view of the stench and increasing nuisance caused by its occupation they might perhaps conclude it to be better adapted for a pig-sty than for the habitation of human beings. The rental agreed to be paid was sufficient to reasonably produce a residence exempt from the nuisances stated. It is averred that this defective drainage was well known to the lessor; that when interrogated in regard to it he not only declared he had caused it to be thoroughly overhauled, but the drainage, plumbing and sanitary condition of the house were as perfect as they could be made. If at the time of the execution of the lease the lessor had knowledge of the bad condition of the premises, and not only denied it but falsely represented that the well had been lately dug; that he had had a plumber to put the drainage and plumbing in perfect order, and that the sanitary condition of the house was good, and thereby deterred the lessee from employing a plumber to examine the same, parol evidence of these facts clearly proved should be submitted to the jury, from which they may find intentional fraud on the part of .the defendant in error. J udgment reversed and a procedendo awarded.

Mr. Justice Clark delivered the opinion of the court, It is clear that William Wilson, under his agreement to purchase the property of Elias Kirk, was entitled to the possession before or at the time of the payment of the instalment of $4,000, on the 1st April, 1883; and, unless that right was in some way waived by Wilson, lie could stand upon it as a condition of bis contract. It is equally clear that the existence of a valid and unconditional lease to Van Winkle for one year from the 1st April, 1883. the day upon which possession was to have been given by Kirk to Wilson, was an incumbrance or a defect, reducing the value of the land to the vendee : Dech’s Appeal, 7 P. F. S., 467; Cross v. Noble, 17 Id., 74. The learned court below was of opinion, however, that under the law the defendant’s right was waived by the acceptance of the deed and the payment of the instalment in advance of the day designated in the contract for that purpose and for delivery of possession. We cannot see how the case can be affected by the mere fact of a payment of the purchase money and an acceptance of the deed in advance. If the contract had been for the payment of the money and delivery of the deed on the 26th March, 1883, and for possession on the 1st April following, the case presented would not, in our opinion, be in any respect different in principle. The defendant.alleges that he had no knowledge of an absolute lease at the. time of the acceptance of the deed; that Kirk had'told him the lease to Van Winkle was conditional, and was to be inoperative in case of a sale of the property; that although Van Winkle and others told him the lease was absolute in form and effect, Kirk assured him it was not, and that there would be no difficulty about the possession. The evidence on this subject is certainly very conflicting, but if the defendant’s version of the matter is the correct one, he has some cause of complaint. Kirk was the party with whom Wilson contracted ; it was Kirk’s duty to deliver the possession, and whether he had put that possession out of his power was a fact peculiarly within his knowledge. Wilson was not only justified in believing, but he was bound to believe Kirk’s statement as to this; and Kirk is in no situation now to say that Wilson should have discarded his statements as false, to accept any other. Assuming that Van Winkle’s claim put Wilson upon inquiry, yet inquiry of Kirk, where inquiry was most proper to be made, only proved Van Winkle’s claim to be worthless. The deed which was delivered has not been printed; whether it contains any covenant of warranty, general or special, does not appear, and in our view of the ease this is perhaps not important. A vendee may defend on the ground of the existence of an incumbrance unknown to him when he accepted a deed, though it contain a general warranty: Steinhauer v. Witman, 1 S. & R., 438; Roland v. Miller, 3 W. & S., 390. In the case last cited Mr. Justice Kennedy states the rule as follows: “The doctrine of Steinhauer v. Witman is, that if the consideration money has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk of the title, may defend himself in an action for the purchase money, by showing that the title was defective, either in whole or in part, whether there was a covenant of general warranty or of right to convey or quiet enjoyment by the vendor or not; and whether the vendor has executed a deed of conveyance for the premises or not: ” Lloyd v. Farrell, 12 Wright, 73; Weakland v. Hoffman, 14 Id., 513; Herrod v. Blackburn, 6 P. F. S., 103; Dankel v. Hunter, 11 Id., 382. So a grantee, with warranty, may defend an action for purchase money on the ground of an outstanding lease, of which he had no notice: Cross v. Noble, 67 Pa. St., 74. The defence set up here is an equitable one, arising out of the same contract and transaction upon which the plaintiff’s judgment was obtained; if sustained by the proof it affects the consideration of the bond, and is competent to defeat it; for, if the consideration fail, in whole or in part, the plaintiffs right to recover must also fail pro tanto: Patterson v. Hulings, 10 Barr, 506; Blessing v. Miller, 6 Out., 45. If, however, the facts are not as contended by the defendant, if he was not only notified by Van Winkle, but by Kirk himself, that the property had been leased to Van Winkle absolutely for another year, and if, with this knowledge he accepted the deed, a different rule would apply. For if a vendee, with knowledge of the existence of an incumbrance or of a defect in the title, accept a deed with a: warranty against it, and gives his bond for the purchase money,, the continued existence of such incumbrance or defect is no defence to an action on the bond: Fuhrman v. Loudon, 13 S. & R., 386; Wilson v. Cochran, 48 Pa. St., 107. Or, if a vendee purchase with knowledge of a defect of title, and take no* covenant against it, he cannot set it up as a defence in an action for the purchase money: Cadwalader v. Tryon, 37 Pa. St., 318. In the one case the vendee chooses to rest upon his covenant, and in the other he agrees to run the risk of the title. The case wholly depends, therefore, upon the proper determination of the question of fact, whether or not the deed was accepted upon the faith of Kirk’s statement, that the lease was conditional only, and that it was to have no effect in the event of a sale. If it plainly appeared that Wilson knew of the absolute character of the lease to Van Winkle, and accepted the deed without objection on that ground, he would be presumed to have waived the delivery of the possession, as stipulated in tlie agreement. Upon tins question of fact the testimony is contradictory and conflicting. The learned court below did not pass rmon it, and we do not desire to dis- enss it; it would perhaps be improper for us to do so. We think the cause should have been submitted to the jury. The decree of the Common Pleas is therefore reversed; the rule is made absolute ; the judgment opened and the defendant let into a defence; the appellee to pay the costs of this appeal.

Opinion by Mr. Justice Green, The defendant, being examined as a witness upon cross-examination, testified that Guggenheimer was her agent for the purchase of goods for her establishment, and Guggenheimer who was also examined testified to the same fact. The latter testified that he bought the goods in question for the defendant and that he had authority to buy either for cash or on credit, whichever he saw fit to do. The goods were therefore actually purchased for the defendant by her agent, they were delivered to her and nearly all of them were found in her possession at the time the writ of replevin was issued and served. The plaintiff testified that at the time of the purchase certain representations were made to him by Guggenheimer as to the financial responsibility of the defendant, and that he stated certain reasons why she could not pay immediate cash for the goods, but that the money would be paid the following week. If these representations were made as stated by the plaintiff, the subsequent events which occurred very quickly after the sale, tended strongly to prove that they were false. The goods were sold on May 29, 1894, and on June 16th following, the defendant made a voluntary assignment for the benefit of creditors. The question of the making of the representations and of their truth or falsity, was as a matter of course, exclusively for the jury. The witness denied making them but the plaintiff testified positively, and with emphasis, giving precise details, that they were made, and that it was only upon the faith of the representations that he opened the account and shipped the goods. That the defendant was responsible for the acts and declarations of her agent under whose contract of purchase she received the goods is too plain for argument, and is not at all disputed. Whether the agent had authority to make the representations in question or not, is quite immaterial. The test of liability is that the goods were received by the defendant under the contract made by the agent. In Wheeler & Wilson v. Aughey, 144 Pa. 398, we held that, “ If an agent obtains possession of the property of another by making a stipulation or condition wMch he was not authorized to make, the principal must either return the property, or if he receives it, he must be subject to the condition upon which it was parted with by the former owner.” In Jones v. National Building Association, 94 Pa. 215 we said, Paxson, J., “ The contention on the part of the association plaintiff is, that the secretary had no authority to make the'representations by which said Jones was induced to sign the note as surely; that it was therefore a fraud and not binding on said association; that is, the latter could repudiate the fraud and yet hold on to its fruits. This cannot be done. Common honesty and the law of the land alike forbid it. Whether the association was incorporated or unincorporated, whether the secretary was or was not authorized to make the representations to Jones, it is clear that the association cannot have the benefit of the security and at the same time repudiate the contract by means of which they obtained it. No principle of law is better settled than that a man cannot reap the fruits of his agent’s fraud: Musser v. Hyde, 2 W. & S. 314; Hunt v. Moore, 2 Barr 105; Mundorff v. Wickersham, 13 P. F. Smith, 87; Keough v. Leslie, 11 Norris, 424. The association took this security cum onere, and the maxim qui sentit commodum sen-tire debet et onus applies.” In Sunbury Fire Ins. Co. v. Humble, 100 Pa. 495, we said, “ In this connection, it is proper to say that it matters little what were the powers of the agent who made the fraudulent representations by means of which the defendant was induced to take his policy, nor whether the agent himself believed them to be true. The company having accepted the policy, is affected with any fraud upon the part of the person obtaining it. In other words it cannot .repudiate the fraud and yet retain the benefits of the contract. It takes cum onere.’-’ In view of the foregoing authorities, and the undoubted state of the law upon this subject we think it was not competent for the learned court below to direct a verdict for the defendant. The whole case should have gone to the jury with instructions that if they believed that the goods in question were obtained by means of false representations made by Guggenheimer the verdict should be in favor of the plaintiff. We think the other assignments of error are also sustained. The case was one of fraud in obtaining the goods and any facts which tended to support the plaintiff’s allegations in that regard should have been received and heard. We think all the matters offered to be proved in the first four assignments of error should have been admitted in evidence, as, if the testimony supported tbe offers it might have a material effect in determining tbequestion of fraud and the defendant’s participation therein.. Upon the first five assignments of error the judgment is reversed.. Judgment reversed and new venire awarded.

Mr. Justice Clark delivered the opinion of the court The Susquehanna Boom Company is a corporation, originally created and existing by virtue of an Act of Assembly, approved 26th March, 1846. Its franchise originally éxtended up the Susquehanna river from the western boundary of the city of Williamsport, a distance of seven miles; but its limits were afterwards extended by Act of Assembly, approved 28th •April, 1864, fifteen miles further up the stream. The Loyal-sock Boom Company was created by Act of Assembly, approved 11th April, 1848, and its franchise extended from the western boundary of the city, down the river, a distance of sixteen miles, to the Muncy darn. By the Act of 21st April, 1858, the companies were consolidated under the name of the Susquehanna Boom Co., “ with all the rights, privileges, and immunities, and subject to all the restrictions,” contained in their respective charters. The powers conferred and duties imposed upon the respective companies, as set forth in their respective charters, were, “ to erect and maintain on the west branch of the river Susquehanna, between the borough of Williamsport and the mouth of Quineshoque creek, such boom or booms with piers, as may be necessary for the purpose of stopping and securing logs, masts, spars, and other lumber, floating upon said river, and erect such piers, side, branch or sheer booms, as may be necessary for that purpose.” “And the said corporation shall construct, and at all times keep and maintain, their piers and booms sufficiently strong to secure all the lumber contained therein ; but no person shall bo allowed at any time to encumber said booms with rafts, either of logs or other lumber.” The plaintiffs were the owners of an extensive saw mill property in the city of Williamsport. In the year 1867, and also in 1868, largo quantities of their logs, which they had driven down the river into the Susquehanna boom, to stock their mills, escaped, and were wholly lost; and this action was brought to recover damages for the injuries thus sustained. On the 29th September, 1880, the parties, by agreement in writing, waived a trial by jury and submitted the decision of the case to the court, under the Act of 22d April, 1874, the questions now presented for our consideration arise, upon exceptions filed to the decision of the court, under the provision of that Act. There was some dispute as to the precise manner In which these several losses occurred, but the facts are found and particularly stated by the court as follows: — “If the logs come into the boom on such low water that they will not pack but remain on tlie surface of the water, the boom will not bold one half as many logs, and will soon fill up to its head. If, then, there should be a slight rise in tlie river, or if for any other cause this vast body of logs should surge down, as they will do, some logs may be forced on top of tlie boom platforms and cause them to sink under the water, thus making an outlet whereby the great pressure is relieved. The boom platform being thus sunken, the logs are forced out of the boom at this point, soon a channel is thus made and a large quantity of logs will surely escape. This is called a ‘spew’ of logs. It is impossible to prevent this accident. No man can tell when or where it will occur, and the strength or weakness of the boom structure has no tiling to do with its occurence. No part of the boom structure is broken by this accident. This is tlie kind of accident which occurred when the plaintiffs’ logs were lost in 1867, for which they bring their action.” “If the logs come into the boom on such low water that they will not pack but remain on the surface of the water, the boom will not bold one half as many logs and will soon fill up to its head. If then no rise in the water or other thing occurs to cause the logs to surge down in the boom, it is certain and inevitable that all logs coming down after the boom is full must go by the boom and be lost. This is called an ‘overflow’ of logs. This was tlie situation immediately before the accident happened when the plaintiffs logs were lost in 1868.” The plaintiffs contend, in the first place, that the Susque hanna Boom Co. is liable to them for the value of the logs lost in 1867 and 1868, without any proof of negligence; that by the express terms of the charter the company was held “to construct its piers and booms sufficiently strong to secure all the lumber contained therein,” and that as the powers and privileges conferred were in derogation of common right, were exclusive, and for personal profit, the liability for losses must be according to the strictest import of the statute. They therefore treat the words of the statute as imposing upon the company a responsibility which is absolute and unlimited— the responsibility of an insurer against all risks of whatsoever kind or character. It will be seen, however, that the responsibility of the company is not expressed in the statute; the liability for losses is but an implication of law from the failure to perform, after the acceptance of the charter, what the charter requires. In the ascertainment of the extent of that liability, therefore, we are remitted to the consideration of what is really required. What, therefore, under a fair construction of the charter, was the company bound to do ? It is doubtless true that such charters are to be construed most beneficially for the public, and more strictly against the company, but the construction must be a reasonable one. The charters of-most private corporations are for purposes of private gain and many of them grant exclusive privileges in abridgement of individual right, but as they are intended also to sub-serve great public interests they should be so construed as not to defeat the purpose of their creation. The Susquehanna Boom Company was not onty intended to serve the private interest of the corporators, but also that of the public, and especially of those who with rafts, logs, or lumber should navigate the stream; it proposed to do for them what they could in no way do for themselves. Whilst, therefore, the words of the charter should be construed with some degree of strictness for the public protection, it should not be construed to require the performance of what, in the nature of the case, cannot be performed. By the words of the charter the company was required to “construct its piers and booms sufficiently strong to secure all the lumber contained therein.” If this is to be understood in any absolute sense, it required the performance of an admitted impossibility; it was impossible, of course, to construct a boom which, at all times and under all circum stances, would hold all the lumber contained therein. We are informed, by the finding of the court, that if the logs come into the boom, on very high water as in the flood of 1865, no boom structure will hold them; and if they come in on a low water “spews” and “overflows” are inevitable accidents, which it is impossible at times to prevent. Did the legisla tore, in the passage of this Act, intend to do an absurd and unreasonable thing? It was certainly not supposed that the corporators could overcome the power of Nature, or build a boom which would stand sufficient and secure against all the casualties that might occur; the language of the charter must be taken in a sense, restricted by reason and common ex-[lerience. Such a construction of the statute does not, we think, involve any interpolation of words into it; it accords with the general understanding of the language actually employed. A vessel sufficiently strong to secure its cargo may in a moment be daslied to pieces in a storm; a house built upon the solid rock sufficient and secure, may be utterly demolished, even in a slight tremor of the earth, and a boom, in all respects sufficiently strong to secure all the lumber contained therein, may be swept away by1' the inevitable power of the flood. 0 JBut the defendants are held to the exercise of more than ordinary diligence and care in the discharge of the obligations imposed. They may not, perhaps be held to do what, in the very nature of the case, cannot be done, but they may certainly obligate themselves to do what can be done; tills is the exact measure of duty which the company assumed by acceptance of the charter. They are therefore liable for all losses which may have occurred from any insufficiency of their boom, whether from negligence or not, unless that insufficiency arose from the unavoidable dangers of the river, or from inevitable accident. The ease does not present a question of negligence, but a question of performance. The defendants are not merely bailees for hire, and bound under the rule of the common law to ordinary care only; they are bound to do what it was their self-imposed duty to do, unless by the act of God they were prevented. We agree with the plaintiffs, therefore, first, that the degree of care which the company was bound to exercise to secure the logs in their boom is fixed by the charter; and, second, that in the event of a loss, the company is liable, under the charter, without proof of negligence. This is the precise doctrine declared in Pemia. & Ohio Canal Co. v. Graham, 13 P. F. S., 290, where the authorities are fully collected, and carefully considered, by the late J ustice Shabswood : In that case, a canal company, by its charter, was required to build, and keep in repair, bridges at all points where tlie canal crossed a public road. A traveller was passing over one of these bridges, when it gave way, and lie was precipitated with his wagon into tbe canal; in an action for damages, for the injuries sustained, it was held that the charter is a law imposing on the company the burden of performing a duty to the public, and if that duty be not performed the company is responsible to those who thereby suffer special injury; and, further, that a corporation, bound in consideration of its franchise, to keep a road or bridge in repair, is liable for injury from want of repair, whether the defect be patent or latent, unless the part]1- injured be himself in default, or the defect was from inevitable accident, tempest or lightning, or the wrongful act of a third person, of which the corporation had no notice; and this, although ordinary care was used in the erection or repair, and the work was done by competent workmen under contract. At this point, however, we are confronted with the following clear, comprehensive and conclusive findings of the learned court below:— “I find that the plaintiffs’ logs, for the loss of which they bring this suit, were lost directly by the ‘unavoidable dangers of the river’ or ‘inevitable accidente incident to the booming of logs in the West Branch of the Susquehanna river under the defendant’s charter.” “I find that in respect to the plaintiffs’ logs, for the loss of which this suit is brought, the defendants were not guilty of any fault, negligence or want of care either before, at the time of, or after the accidents happened whereby the losses occurred.” These findings, in our opinion, are fatal to the plaintiff’s recovery in this case. It is well settled, by the decisions of this court, that in a case tried by the court, under the Act of 1874, a writ of error only brings up questions of law. This court cannot go behind the findings of fact, as they appear in the record. The judge, in such cases, exercises the double function of court and jury, and we are to dispose of the case here, precisely as if the facts had been found by a jury; if there was evidence of the fact, the finding cannot be impeached. It is useless, therefore, to assign for error mere matters of fact, unless the assignment is such as could be heard and determined, if the trial had been according to the course of the common law. The parties, by agreement, designated the tribunal for the determination of these disputed questions of fact, and they cannot now complain if the adjudication is adverse to their interests: Jamison v. Collins, 2 Norris, 359; Lee v. Keys, 7 Norris, 175; Brown v. Dempsey, 14 Norris, 243; Bradlee v. Whitney, 12 Out., 362. If the losses resulted from the unavoidable dangers of the river, or from inevitable accident, incident to the business, and we are bound to assume that they did; if the defendants were not guilty of any fault, negligence, or want of care, either before, at the time, or after the accident happened, whereby the losses occurred, and this we are also bound to assume, then it matters not whether the defendants be treated as bailees for hire, as common carriers, or, as bound by the special provisions of their charter ; in any case, they are relieved from responsibility for the injuries sustained. It has been urged very strongly in the argument that it was the duty of the Susquehanna Boom Company, under their charter, to have their lower boom, the Loyalsock, hung, and in proper condition, to stop and hold the logs, at the time of the losses in 1867 and 1868. In the 16th point submitted by the plaintiffs, the court was requested to find as follows: — ■ “That if the lower boom had been properly and in due time hung with its sheer, and had been guarded and cared for with due diligence, before and at the time of the breaking of the upper boom in 1867, as hereinbefore stated, it would have been sufficient to catch and secure all the logs which escaped through the breach of the upper boom at that time, and have prevented the loss of which the plaintiffs complain.” The 17th point was to the same effect, excepting that it related to the loss of 1868. The court found that neither of these points was sustained by the evidence. Now, whatever may have been the defendants’ duty, if the Loyalsock boom had been found to have been available and sufficient, to prevent the loss, it must be admitted, that in view of this finding, the question is one of little importance. For of what avail would it be to oblige the performance of that which could serve no useful purpose? If the hanging of the sheer and the guarding of the Loyalsock boom would not have secured the logs, upon what principle of law or of common sense would the defendants have been obliged to undertake that work? But, assuming the sufficiency of the Loyalsock boom to save the loss, was it the duty of the company to hang the sheer and guard that boom to save logs consigned to, but escaping from, the Susquehanna boom, by unavoidable and inevitable accident? The Loyalsock was not a mere appendage or appurtenance of the Susquehanna boom, nor was it designed or used to take logs escaping from that boom; it was erected and maintained as a separate and distinct boom, to take and secure logs consigned to it, as a supply to the mills below. Mills are so located, with reference to the boom, that the logs, when rafted out, may be floated with the current. The plaintiffs’ logs were destined for, and were actually driven into, the Susquehanna boom, which was a mile or more above their mills, whilst the Loyalsock was a mile or more below. The plaintiffs bad no desire to have their logs in the Loyalsock ; if they had desired them to pass the Susquehanna boom, it was their duty to give notice as required by the seventh section of their charter; they preferred, however, perhaps, that they might he caught there, rather than lost. If there had been no consolidation there could be no question. But the effect of the consolidation was to unite the companies only, not the booms; the consolidated company controlled each of them separately, “under the rights, privileges and immunities,” and “subject to the restrictions, contained in the respective charters,” some provisions of which were not common to both. In Gould v. Langdon, 7 Wright, 365, the effect of the consolidation was considered by this court, and it was held that these separate statutes “ must be interpreted separately, although both become the property of one company, and an Act consolidating the two boom companies will not change the liability of either, under its Act of incorporation, to deliver logs at its own boom, the boom in which they were caught.” The duty of the defendants is discharged, if their booms are sufficiently strong, as required by the statute. They are bound to secure the logs destined for and driven into their respective booms, and for their failure so to do they are to be held rigidly responsible ; but they are not bound when the structure is destroyed by the act of God, to pursue and capture the lumber upon the flood, under penalty of being held responsible for the loss of what might possibly have been recovered in the pursuit. The judgment is affirmed. Mr. Justice Gordon dissented. January 11th, 1886. Per Curiam. Motion for a re-argument refused.

Mr. Justice Trunkey delivered the opinion of the court, It is not denied that the holder of negotiable paper, who obtained it in good faith, before its maturity, for value, has a good title. In the absence of rebutting proof, the law presumes that he is a bona fide holder for a consideration, without notice, and it is incumbent ,on the defendant to establish the contrary by satisfactory proof, thereby overcoming the prima facie title of the plaintiff, before the latter need do anything more to establish his case than to adduce the bill or note. To support an action by the indorsee of negotiable paper, against the maker, in the first instance it is only necessary for the plaintiff to put the paper in evidence. Then, if the defendant proves that the paper was put in circulation by fraud or undue means his defence will prevail, unless the plaintiff establishes that he acted fairly and paid value. This was decided more than seventy years ago in Holme v. Karsper, 5 Binn., 469, and has continued an accepted rule. In Phelan v. Moss, 67 Pa. St., 59, in an elaborate collation of cases respecting the rights of holders of negotiable paper, resulting in an advance in their favor, the doctrine of Holme v. Karsper was recognized thus: “ It has been held in several cases, and is undoubted law, that the indorsee in a suit by him against the maker of a promissory note, cannot be called on to prove consideration, until the defendant has shown it was obtained or put into circulation by fraud or undue means : Knight v. Pugh, 4 W. & S., 445; Brown v. Street, 6 Id., 221; Hutchinson v. Boggs, 4 Casey, 294; Gray’s Adm’rs v. Bank of Kentucky, 5 Casey, 365.” The latest decisions have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity : Moorehead v. Gilmore, 77 Pa. St., 118. But either with respect to this principle, or to the earlier principle “ that if an indorsee takes a note heedlessly, and under circumstances which ought to have excited the suspicions of a prudent and careful man, the maker or indorser may he let into his defence,” the rule remains unshaken that if the defendant proves that the note was obtained or put into circulation by fraud or undue means, the plaintiff will be put to proof that he obtained it before maturity, in good faith, and for value. “ A man who has lost, or been robbed, or defrauded, is to be considered in the light of an unfortunate rather than an imprudent man, and therefore has a claim to protection against mala fide holders. These are the grounds upon which the rule is placed.” Facts that overcome the plaintiff’s prima facie title, and which are sufficient to put him upon rebutting proof, when properly averred hr an affidavit of defence, entitle the defendant to a trial by jury. Where the affidavit set out that the bill in suit was drawn by one partner in the name of the firm and taken by the drawee for his individual debt, and accepted by the same partner, residing at St. Louis, in the name of the firm located at Philadelphia, on which it was drawn, it was held that the indorsee was not entitled to judgment for want of a sufficient affidavit of defence; he must at least prove that be gave value: Dickson v. Primrose, 2 Miles, 366. An affidavit which set forth facts showing that the payee of the note obtained it by false pretences, but omitting averments as to when or how the holder procured it, was held sufficient “to call upon the plaintiff to show that he is the holder of the note by purchase, for value, before maturity, without notice of the fraud:” Hutchinson v. Boggs & Kirk, 28 Pa. St., 294. The same principle was reiterated in other cases, among which are Hoffman v. Foster, 43 Id., 138, and Smith v. Popular B. & L. Association, 93 Id., 19. If anything can be settled by a long and unbroken current of decisions, it is settled that an affidavit of defence setting forth that the note or bill in suit was obtained or put into circulation by fraud or undue means, is sufficient. The defendant in error has cited numerous authorities proving that it is equally well settled that mere want or failure of consideration, or a fraudulent misappropriation of the proceeds of the paper, where the paper was untainted by fraud at its inception and issue, will not be sufficient to put the holder of negotiable paper to proof that he obtained it in good faith, before maturity, for value; nor will an affidavit of defence, merely setting forth such matter, be sufficient: Knight v. Pugh, 4 W. & S., 445; Brown v. Street, 6 Id., 221; Gray’s Adm’rs v. The Bank, 29 Pa. St., .365; Sloan v. Union Banking Co., 67 Id., 470. In the latter case the distinction between paper tainted with fraud at its inception, and paper where there was a fraudulent misappropriation of the proceeds, or a want or failure of consideration, was shown by Sharswood, J., with his usual clearness. Bardsley v. Delp, 88 Id., 420, is ruled on an affidavit which showed that the plaintiff was the holder for value of an accommodation note given by the defendant to the payee who promised to use it for a certain purpose, and violated his promise by using it for another. The case of Potter and Jones v. Price, 3 Pitts., 136, was between the makers and payee of the note — Jones as partner could give the note for money borrowed for the firm, and it was not averred that the lender knew the money was for Jones’ individual use — the affidavit was insufficient. That case followed the rule that the affidavit must set forth every fact necessary to constitute a defence. The statute which authorizes the organization of limited partnerships, makes it unlawful for any such association to loan its credit to any person or association without the consent in writing of a majority in number and value of interest. This affidavit sets forth that the note in suit was not made and delivered in the course of business of the Lerch Hardware Company, Limited, nor for any purpose for which said company was organized, and that the making thereof was unauthorized ; that said note was delivered to the payee by D. D. Lerch, without the knowledge and consent of any of the other members of the company, for the purpose of loaning the credit of -the company to said payee. It is clear that proof of such facts would prevent recovery, were the pajme plaintiff in the action, because of the fraud upon the company. This action is by the indorsee, and proof of the facts at the trial would overcome the plaintiff’s prima facie title, and prevent recovery, unless the plaintiff establish that he purchased the note in good faith, before maturity; for the fraud was perpetrated at the instant the note was put into circulation. Judgment reversed, and procedendo awarded.

Chief Justice Mercur delivered the opinion of the court, The merits of the original judgment cannot be inquired into in a scire facias on that judgment: Pitts. Cin. & St. L. Railway Co. v. Marshall, 4 Norris, 187. As a general rule no defence can be made to a scire facias on a judgment except one arising subsequent to the judgment: Seymour v. Hubert, 11 Norris, 499. The only defence in the trial of a scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction in law or equity or a discharge thereof: Dowling v. McGregor,10 Id., 410. When a judgment is opened it is not subject to set-off generally. The defendant may attack the validity of the claim on which the judgment is founded; the good faith of the transaction connected with the consideration ; subsequent payment of the debt or equitable discharge therefrom. The defence must be one which must, either at law or in equity, have attached to the judgment or to the consideration on which it rests : Beaty v. Bordwell, 10 Id., 438. The practice of opening judgments to establish a defence which has originated since the rendition of the judgment is improper. Such a defence does not impair the original validity of the judgment. An issue should be formed to try the facts which are alleged to have so attached to the judgment as to constitute a payment or release thereof. It follows there was no error in the court’s discharging the rule and in refusing to open the judgment for the reasons shown. Decree affirmed and appeal dismissed at the costs of the appellant.

The opinion of the court was filed Per Curiam. It is well settled law that we cannot review such cases as this upon their merits. The decision of the court below is final and conclusive as regards the merits involved. The statute does not give either appeal or a writ of error to bring the case before us. We can review the action of the court on certiorari only. On this writ we are restricted to an examination of the regularity of the proceedings. Questions of fact arising or passed upon by the court we will not review. All reasonable conclusions of facts will be presumed to have been correctly found by the court. When no mention is made of any improvements by the viewers, we will not presume that any existed. Much must rest in the sound discretion of the court. While crossing of a railroad track at grade, should be avoided whenever it can reasonably be done, yet in this case, with all the facts before it, the court found it could not be so avoided. We cannot say that it erred therein. There is nothing in the whole case to justify us in reviewing this exercise of discretion. Judgment affirmed.

Opinion by Mb. Justice Mitchell, The affidavit of defence sets out nothing more than a representation by plaintiff’s agent of what would be done by plaintiff in regard to other premises than those leased, and a failure of plaintiff to do it. It is not said that the representation was false, nor is any fraud alleged either in the'making of it or the failure to perform. Even if the representation had been a covenant of the lease, it would have been merely collateral, and would not have suspended or discharged the rent. Prescott v. Otterstatter, 79 Pa. 462; Allegaert v. Smart, 11 W. N. 177. But in the present case it was not a covenant at all, but a mere representation as to future action, dehors the instrument, contrary to its terms, and not averred to be either false or fraudulent. It was therefore no defence to the claim for rent, and was not averred with such allegation of damages, as would make it even ground for a reduction. J udgment affirmed.

KELLY, Judge. In this opinion, we are called upon to determine whether a police officer may lawfully stop a motor vehicle for a violation of 75 Pa.C.S.A. § 4524(c) (windshield obstructions and wipers; other obstruction) where no evidence exists to show that the object hanging from the rear-view mirror of appellant’s motor vehicle appeared to materially obstruct, obscure, or impair the driver’s vision, or appear' to constitute a safety hazard. We hold that the facts, as found by the suppression court, do not support the conclusion that the police possessed reasonable and articulable grounds to stop appellant’s car. Accordingly, we reverse the judgment of sentence entered by the trial court, and remand for proceedings consistent with this opinion. This appeal involves a challenge to the suppression court’s order denying appellant’s motion to suppress evidence seized by police during a warrantless stop of appellant’s car for an alleged Motor Vehicle Code violation. The relevant facts and procedural history of this appeal are as follows. On February 6, 1994, at approximately 1:30 a.m., Officers Carr and Anderson of the Reading Police Department approached the appellant’s car in the 400 block of Miltimore Street in Reading. The appellant, Donald L. Felty, and two passengers were inside the car. The appellant’s car had no lights on and blocked a one-way street. The officers, in a marked patrol car, flashed their lights (both dome and headlights) signaling the car to move. The passengers looked back and then the ear proceeded down the street and turned onto another street. The officers requested a license plate check and followed the car for four to five blocks. The plate checked out and the officers observed no violations of the Motor Vehicle Code. During this period, the occupants of the car made some movements in the car and looked back at the patrol car. Officer Carr then observed an object hanging from the rear-view mirror and, pursuant to 75 Pa.C.S.A. §§ 4524(e) and 6308(b), pulled the car over. After pulling the car over, the two officers approached the car and, after asking for the appellant’s drivers license and registration, noticed several bottles of beer (opened and unopened) inside the car and blood on the wrist of the front-seat passenger. The officers then asked for and received valid identifications from the passengers. At this time, the officers discovered several syringes on the car floor near the feet of the front-seat passenger. Officer Can' then asked the appellant if he had any drugs on him to which he responded “No”. Officer Carr then asked to search the appellant. The appellant consented and the officer found an empty shoulder holster, a speed loader with gun shells, several loose gun shells, two wooden boxes containing marijuana and hashish respectively, and $3,500.00 cash on the appellant’s person. The officers then searched the other passengers and the car. The officers discovered two loaded handguns in the car and several bullets and cartridges on one passenger’s person. Also, more syringes were found. The guns had been reported stolen in January, 1994. Appellant was then placed under arrest and charged with possession of a controlled substance, receiving stolen property and conspiracy. On June 2, 1994, the appellant filed an Omnibus Pretrial Motion requesting suppression of evidence seized and dismissal of the charges pursuant to a Writ of Habeas Corpus. On July 13, 1994, the appellant’s pretrial motions were denied. On September 9, 1994, the appellant waived his right to a jury trial and was adjudged guilty of possession of a controlled substance and receiving stolen property, and found not guilty of criminal conspiracy. The appellant was sentenced to nine (9) to twenty-three (23) months on the receiving stolen property conviction, to be followed by thirty (30) days probation on the possession of controlled substance conviction. The appellant filed a timely appeal claiming that the trial court erred in refusing to suppress the evidence. On appeal, the appellant raises the following issues for our review: 1. AFTER SUCCESSFULLY SIGNALING A DOUBLE PARKED VEHICLE TO MOVE ON, AND AFTER FOLLOWING THE VEHICLE FOR FOUR TO FIVE BLOCKS DURING WHICH THERE IS NO OBSERVATION OF A VEHICLE CODE VIOLATION AND THE POLICE OFFICER HAS OBTAINED INFORMATION VIA RADIO THAT THE LICENSE AND REGISTRATION OF THE VEHICLE ARE VALID AND THAT THE CAR HAS NOT BEEN REPORTED STOLEN, DOES THE OFFICER’S CLAIM TO HAVE NOTICED SOMETHING HANGING FROM THE REAR VIEW MIRROR OF THE VEHICLE, WITHOUT MORE, CONSTITUTE A PRETEX-TUAL STOP? 2. AFTER SUCCESSFULLY SIGNALING A DOUBLE PARKED VEHICLE TO MOVE ON, DOES A POLICE OFFICER HAVE SUFFICIENT ARTICULABLE AND REASONABLE GROUNDS TO SUSPECT A VIOLATION WHEN, AFTER FOLLOWING THE VEHICLE FOR FOUR TO FIVE BLOCKS HE OBSERVES NO VEHICLE CODE VIOLATIONS, HE HAS OBTAINED INFORMATION VIA RADIO THAT THE LICENSE AND REGISTRATION OF THE VEHICLE ARE CORRECT AND THAT THE CAR HAS NOT BEEN REPORTED STOLEN, BUT MOVEMENT IS NOTED AMONG THE CAR’S PASSENGERS AND THEY ARE SEEN TURNING AND LOOKING AT THE SQUAD CAR? Appellant’s Brief at 5. Our review of an order entered by the suppression court is governed by the following standards. We must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). In reviewing the denial of a motion to suppress evidence, “we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). When the evidence suppoi’ts the suppression court’s findings of fact on a motion to suppress, this Court may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291 (1993) (en banc). However, we are bound by the trial court’s findings of fact only to the extent that they are supported by the record. Common wealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991). Commonwealth v. Wilson, 440 Pa.Super. 269, 274, 655 A.2d 557, 560 (1995). The threshold question involved is whether Officer Carr, pursuant to 75 Pa.C.S.A. § 6308(b), possessed reasonable and articulable grounds to believe that the object hanging on the rear-view mirror of the appellant’s car violated 75 Pa.C.S.A. § 4524(e), thus, permitting him to stop the car for a Motor Vehicle Code violation. The appellant argues that there were no valid grounds for the officer to stop his car. Specifically, the appellant contends that the initial stop of his car constituted a pretextual stop. Moreover, the appellant contends that neither the object hanging from his car’s rear-view mirror nor the behavior of the passengers in his car provided the officers with reasonable and articulable grounds to stop his car. The trial court held that the stop of appellant’s car was entirely permissible under the Motor Vehicle Code. (Trial Court Opinion at 8). Specifically, the trial court noted that Officer Carr, upon seeing the object hanging from the rear-view mirror, had articulable and reasonable grounds to suspect a violation of 75 Pa.C.S.A. § 4524(c). Id. at 5. Furthermore, the trial court determined that because the initial stop of the appellant’s car was proper, then the subsequent detention and search of the passenger’s and the ear was valid because the officer ascertained facts which would reasonably lead him to believe that criminal activity was afoot. Id. at 8. We disagree. Generally, irregular behavior is insufficient to justify a warrantless stop of an individual. Commonwealth v. Wilson, supra at 279, 655 A.2d at 563. This Court has held that “articulable and reasonable grounds to suspect” is the appropriate standard for determining whether a traffic stop was supported by a reasonable belief that the Motor Vehicle Code has been violated. Commonwealth v. McElroy, 428 Pa.Super. 69, 74, 630 A.2d 35, 38 (1993) (en banc); 75 Pa.C.S.A. § 6308(b). Applying this standard, this Court recently held that a police officer does not possess reasonable and articulable grounds to believe that an air freshener hanging on the defendant’s car’s rear-view mirror violated 75 Pa.C.S.A. § 4524(c). Commonwealth v. Benton, 440 Pa.Super. 441, 449, 655 A.2d 1030, 1034 (1995). The panel in Commonwealth v. Benton, supra, also concluded that § 4524(c) does not prohibit the hanging of an object from a car’s rear-view mirror, but rather, “prohibits the hanging only where such object serves to materially obstruct, obscure or impair the visibility of the driver or constitutes a safety hazard.” Id. at 445, 655 A.2d at 1032. Accordingly, this Court held in Commonwealth v. Benton, supra that a traffic stop will be deemed illegal when there is “no testimony whatsoever by the police officer that an object materially obstructed, obscured or impaired the driver’s vision, or appeared to do so, or how an object constituted or appeared to constitute a safety hazard.” Id. at 448, 655 A.2d at 1034. In the instant case, Officer Can-lacked the necessary reasonable and articula-ble grounds to warrant a stop of appellant’s car. Officer Carr was unable to articulate a clear description of the object after several visits back and forth between the two cars. (N.T. Suppression Hearing June 29, 1994 at 21, 76-79.) Rather, Officer Carr only described the object in murky and vague language. Additionally, Officer Can failed to include any mention or description of the object in his police report. Id. at 78. Most significantly, Officer Carr never testified that, pursuant to 75 Pa.C.S.A. § 4524(c), the object materially obstructed, obscured or impaired the driver’s vision, or constituted a safety hazard. See Commonwealth v. Benton, supra. Thus, the suppression court erred in denying the appellant’s motion to suppress because the record does not support the finding that Officer Carr possessed sufficient reasonable and articulable grounds warranting a stop of appellant’s car. Consequently, because the suppression court’s finding is not supported by the evidence, its legal conclusion based on that finding, namely, that the stop was lawful, was erroneous. We hold that the stop was unreasonable and illegal, thus, tainting the evidence obtained subsequent to the stop. Accordingly, we reverse the judgment of sentence entered by the trial court and remand for a new trial, at which the illegally seized evidence may not be used. Judgment of sentence reversed. Jurisdiction relinquished. . 75 Pa.C.S.A. § 4524(c) provides as follows: "No person shall drive any motor vehicle with any object or material hung from the inside rear-view mirror or otherwise hung, placed or attached in such a position as to materially obstruct, obscure or impair the driver’s vision through the front windshield or any manner as to constitute a safety hazard.” . 75 Pa.C.S.A. § 6308(b) provides as follows: "Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number for the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” . The arresting officer, Officer Felix Carr, testified that he initially stopped the car to warn the driver of the object hanging from the rear-view mirror. (N.T. June 29, 1994 at 75). However, it is unclear from the officer's testimony whether he ever actually warned the driver about the object. Also, Officer Carr, after several trips between his patrol car and the appellant’s car, failed to ascertain a clear description of the object and only determined that it was “some kind of large object." (N.T. June 29, 1994 at 78). Additionally, neither Officer Anderson, Officer Carr’s partner, nor Officer Santana, who arrived at the scene as a backup, testified at the suppression hearing. . 35 Pa.S.A. § 780-113(a)(31). . 18 Pa.C.S.A. § 3925(a). . 18 Pa.C.S.A. § 903(a). . At the suppression hearing, for example, Officer Carr described the item on the appellant’s rear-view mirror as "some kind of large object.” (Suppression Hearing, June 29, 1994, at 21). At the preliminary hearing, Officer Carr described the item as "a bandanna or chain or some kind of item hanging from the rear-view mirror.” (Preliminary Hearing, May 3, 1994, at 24). Later at the preliminary hearing, Officer Carr described the object as a "bandanna, choker chain, or necklace.” Id. at 26. We note that at trial, both parties referred to the notes of testimony from the preliminary hearing dated May 3, 1994. Additionally, the docket entries indicate that the transcript was filed. The notes, however, were not included in the certified record transmitted to this Court. It is appellant’s responsibility to ensure the presence of the transcript in the record prior to its certification for appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 597 A.2d 130 (1991). Normally, we are constrained to refuse consideration of documents not included in the certified record transmitted to this Court. Id. See Pa.R.A.P. 1921. However, in the interest of justice and the given fact that neither party disputes the veracity of the notes of testimony from the preliminary hearing, we will disregard this defect because the omission does not affect our ability to engage in effective and meaningful review of the appeal. See Pa.R.A.P. 105(a).

Opinion by Mb. Justice Gbeen, When the plaintiff received his injury his employment was simply that of cleaning some wooden boxes of sediment which had gathered in them, and emptying the contents on a cinder pile. He carried the sediment in buckets to an elevator on the same floor,'and thence descended by the elevator to the cellar, where he emptied the buckets on the cinder pile. He was not engaged in the working or handling of any machinery, and he therefore did not require any instructions for that class of work. He was originally engaged as a sweeper, afterwards at cutting corks in' the blocking room, and incidentally at cleaning the .steam boxes of sediment. It was in this last work that the plaintiff was injured. He testified that he received instructions as to the work and how to use the elevator for the purpose •of canying the sediment of the steam boxes to the cellar. He described the manner of his injury by saying that he went to the elevator and rattled the rod and pulled the elevator up but some one below pulled it back again. This was done a second time. Then he said: “ The next time I rattled they answered and I got on the doors and wanted to’ see who was using it. Just as I was on the doors the elevator started to come up: I was just stooping to open the door when the elevator raised up. I had one foot on each door. Then I grabbed a-hold of the rope and slid down on the elevator on to this iron arch that opens the doors. My left hand slid right down that way and went into the little pulleys that keep it straight; and I hollered and Mr. Compton came over and stopped the elevator and left it run down and my hand came out and I got off at the blocking room floor. . . . The rope was right at my hands as the elevator came up and I grabbed just a-bold of the rope till my feet got off the elevator doors. I left myself slide down on to the elevator on that iron arch though I got on that cross beam with my feet. My hand slid down the iron arch and was crushed.” It will be seen that the injury was the result of the manner in which he attempted to use the elevator. The open space in the floor through which the elevator ascended was closed by two movable doors on a level with the floor, and these doors were raised by the elevator as it ascended, and were closed as it descended. He had cleaned the steam boxes about a month before and testified that he then descended and ascended the elevator about fifty or sixty times. On the day of the injury he had done the same thing about twenty-five times before the accident occurred. On cross-examination he was asked: “ Q. Did you understand the operations of the elevator, how it should be worked? A. Yes, sir. Q. Had you ever been on any other ele.vator ? A. No, sir. Q. This elevator was in constant use, was it, everyday? A. Yes, sir. Q. People going up and down all the time ? A. The elevator boys bringing cork wood up every day.” Having seen so much of the working of the elevator, and having used it so much himself, and understanding, as he said he did, the operations of the elevator, it is' difficult to understand how it can be said that he was insufficiently informed as to its use. And in reality that contention is not made, for in another part of his testimony he said he was fully instructed as to the use of the elevator. He was asked: “ Q. Please state everything he (Mr. Rote) said to you about how you were to use the elevator, and what he said to you about it, or any danger connected with' it, or anything else ? A. He told me that whenever I wanted to use the elevator, and it was not on that floor, I should rattle the rod. If nobody is using it they won’t answer. If they did not answer I should just pull it up. If they answered I should wait till they were through, and they would let me know by knocking on the rod when they were through. That day they were using it down below and did not answer and I pulled it up.” It is perfectly plain that if he had not stood astride the doors, with one foot on each, the accident could not have happened. Knowing well that the elevator was likely to come up at any moment his position on both doors was an act of negligence which, if he had been an adult, would have debarred him from any recovery. Being less than.fourteen years of age he is not. chargeable with contributory negligence. But even with children of tender years there can be no recovery except upon proof of negligence on the part of the defendant. In this case there was no proof of negligence in any of the structures, appliances or devices which were used by the plaintiff. There was also no proof that he was required to work with hazardous machinery as to which he was not instructed. In point of fact he did no work with aüy such machinery. The only manner in which it was sought to make out a charge of negligence was by an allegation that Rote, the foreman, had told him that in a certain contingency he should get on the door and open it, and that it was while he was doing this that he was injured. This is the way in which he states-it. He was asked by his counsel: “ Q. What about opening the door ? A. If they would answer, he told me to get on the door to find out who was using it, and what they were doing with it so long. Q. What did he say to you about opening the door ? A. We should open it if nobody answered on the rod; if we pulled it up and they pulled it down again, we should get on the door and find out what they were using it for. Q. What about opening the door? A. Get on it or reach around the other way; if we could not w.e would have to get on and open it.” On this subject there was no other testimony than that of the plaintiff. He was entirely uncorroborated and unsupported by the testimony of any other witness. But this was not all; he was positively contradicted by the testimony of Rote, who testified not only that he never gave him any such directions, but that on the contrary he gave him most positive instructions to keep away from the elevator doors at all times. He said he instructed him as follows: “ Keep on the floor, off the elevator doors, and stay away from the elevator entirely, unless he was ordered to go there by me. ... Q. You instructed him to go to the elevator ? A. Go to the elevator and wait on the wood boys till they came up. 'When they came up and was ready to go down he was to go down with them on the elevator and empty his bucket and come up with them again when they came up. . . . Q. What instructions if any in regard to being careful on the elevator? A. Keep away from the doors at all times. When you get on the elevator, get on the platform properly; get in on the platform far enough that the floor cannot catch you. That is all the danger there is around an elevator that I know of.” In addition to the foregoing the plaintiff was contradicted by Lemuel-Peters, who, after saying that he had heard Rote tell the plaintiff he should not get on the doors, being asked to repeat the words, said : “ He said, don’t get on those doors. You don’t need to sweep on there at all. Dangerous if you get on there.” Another witness, Edward Ditzler, testified that he told the plaintiff once he should not get on the elevator doors, and it was before the accident. Benjamin Eckman, after saying that he had warned the plaintiff not to go on the doors, was asked : “ Q. Tell us what you told him when you say you warned him. A. I says, I just called him aside and told him he should not dare to go on the door, and says, if the elevator came up he might get hurt. Q. What answer did he make? A. He told me he would not.” All of this testimony was in contradiction of the testimony of the plaintiff,' and if it was believed the boy had no case and the jury should have been instructed in that event to return a verdict for the defendant. The boy was, of course, deeply interested in the event of the case, and all of these opposing witnesses were entirely disinterested, and the real issue before the jury was the truthfulness of the boy’s testimony. This much has been rendered necessary in order that we may consider intelligently the answers to the defendant’s points. The second point of the defendant was in these words : “A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the employer is not responsible for those injuries to which the employee voluntarily subjects himself.” To this the learned court below made a long answer admitting that it was true as to adults but not as to persons of tender years, and then was added a long comment to the effect that a child is hot to be judged by the same rule as an adult, that he would not even be bound by the terms of any contract made between him and his employer, and that unless the jury found from the whole evidence that he was properly instructed as to danger, “ and that by reason of his age, knowledge, intelligence and physical strength, he had sufficient capacity, ability and understanding, to fully appreciate and be fully sensible of any danger attaching to his employment and the power to avoid it, there can be no negligence imputed to him contributory of ■otherwise so as to prevent a recovery for injury if the defendants were negligent.” The whole of this answer was inappropriate to the point and was uncalled for by anything contained in it. No question of contributory negligence was raised by the point either as to boys or adults. No instruction upon that subject was requested. The point as stated was exactly true .and should have been affirmed without qualification. Even as to boys “ the employer is not responsible for those injuries to which the employee voluntarily subjects himself.” There is a ■duty of instruction by the employer to young boys, as to hazards in the handling of, or working with dangerous machinery, but that subject was not embraced within any aspect of the point, and the statement of the rule in such cases, contained in the answer, is not sanctioned by any decision of this court or ■any other that we have been referred to. Moreover, the subject of instruction as to danger in the use of machinery was not germane to the point or to the case. The boy was not required to use any machinery, dangerous or ■otherwise, in prosecuting his work of sweeping or of cleaning the boxes containing the sediment, and the rule was therefore inapplicable to the facts of the case. As to the elevator the boy not only admitted that he was fully instructed by Rote, but also that he understood its operations and had actually used it himself sixty or seventy times before the accident. The injury resulted entirely from a most negligent act of the boy in going upon the doors when he was momentarily expecting the elevator to ascend, and knew from frequent observation precisely what the elevator would do when it did ascend. While it is perfectly true that he could not be charged with the consequences of contributory negligence, it is equally true that the defendants would not be liable because of the boy’s negligence. Nor would it be true that they would be liable for a mere omission, to give him a specific instruction that he must not stand astride the doors when he was endeavoring to have the elevator come up. As well might they be- held culpably negligent for not warning him that he must not jump down the open hatchway when the elevator was not there. There is but a single feature in the case which could possibly carry it to the jury, and that is whether the boy told the truth when he said that Rote told him he should stand on the door and open it, or try to open it, in order to find out who was using it. Even as to that his testimony was self-contradictory. He first says, “ If they would answer, he told us to get on the doors to find out who was using it,” and in the very next sentence he testified that Rote said, “We should open if nobody answered on the rod; if we pulled it up and they pulled it down again we should get on the door and find out what they were using it for.” It is a most improbable statement at the best, and as it was most' positively contradicted by Rote, and as he was flatly contradicted as to this very subject by three other disinterested witnesses, the only question in the case was whether he was to be believed. Upon that subject the. jury should have been most carefully instructed, as in all similar cases. They should have been told that the only evidence in support of the allegation was the greatly interested testimony-of the plaintiff himself, entirely uncorroborated and unsupported by any other testimony, while on the other hand he was flatly and positively contradicted by the evidence of four disinterested and unimpeached witnesses. Instead of repeating to the jury several times over, in the general charge and in the answers to the several points of the defendant, the rule as to the duty of instruction in regard to the using of dangerous machinery, and in the most extreme and exacting terms, a rule which had no application in the facts of this case, the jury should have been told that the only question for them was whether the story told by the boy as to the instructions to go on the doors given him, as he said, by Rote, was true, and that if-they believed the four disinterested witnesses there could be no recovery. These remarks are all applicable to the answers made by the court to the fourth, fifth, sixth and seventh points of the defendant, only in a much stronger degree. This is especially the case with the fifth and seventh points. The fifth was: “ If the jury believe from all the evidence that the plaintiff in getting on the door of the elevator, acted in violation of his in-. structions to keep away from-the door of the elevator and that his injury was caused by his so doing, the verdict should be for the defendant.” Of course this was exactly true and should have been affirmed just as.it stood. For if the boy had received such instructions the defendants had performed their duty in that regard and were hot negligent, and in that event there could be no recovery. Yet the court answered by repeating the same rule of duty as to instruction which they gave in answer to the second point. In tjie strictest technicality this answer could not be true because if the defendants warned him that he must not go on the doors, they did sufficiently instruct him as to the very danger which caused his injury. For the reasons stated, we sustain the fifth, sixth, seventh, eighth and ninth assignments of error. We sustain the tenth because that part of the charge belittled the effect of the contradictory evidence, which we regard as of the greatest importance in the case, and also because ittakes away all the effect of the orders given by Rote to the boy by saying that, even if the jury believed that the orders were given, yet if he did not properly instruct the boy, there would be such negligence as would entitle the plaintiff to recover. We cannot possibly assent to such a proposition for the reasons already stated. The charge on the subject of damages was exceedingly meagre, yet we cannot say it was error. The other assignments Ave do not think material and they are not sustained. Judgment reversed and new venire awarded.

Opinion by Mb.. Justice McCollum, The Mantua Hall and Market Company entered into a contract with John Brooks on the 8th of February, 1892, in which he agreed within ninety days from the date thereof to pay off' and cancel $25,000 of bonds secured by a mortgage on property which the company conveyed to him, “and have said mortgage satisfied of record.” He also agreed therein to in demnify the company and the stockholders thereof, against “ all claims and demands of the holders of said bonds and mortgage.” He did not pay off and cancel the bonds and have the mortgage satisfied, nor indemnify the company and its stockholders against the claims and demands of the holders of its bonds and mortgage. In consequence of his default, the trustees named in the mortgage brought suit upon it and recovered a judgment against the company on which the property covered by the mortgage was sold. A further consequence of his default was that a holder of $10,000 of the bonds brought suit thereon and.obtained a judgment against the company on which it was compelled to pay $2,299.68. This action was then brought to recover the money so paid, together with the reasonable expenses incurred in defending the suit upon the mortgage and the suit upon the bonds. In the statement of claim, the contract, the breaches of it and the loss resulting therefrom, were clearly and concisely set forth. A11 affidavit of defence was filed which was adjudged insufficient, and judgment was entei’ed for the amount of the claim. The contention of the appellant is twofold. It is (1) that the contract is executory and therefore, in an action for a breach of it, an affidavit of defence is not required, and (2) if an affidavit is deemed necessary he filed a sufficient one. The first contention is not sound. Prior to the act of 1887 in relation to procedure it was held that executory agreements were within the affidavit of defence law: Vulcanite Paving Co. v. City of Philadelphia, 115 Pa. 288, and cases cited therein. In Barr v. McGary et al., 131 Pa. 401, our brother Williams, speaking for this court, said:, “The act of 1887 was intended to shorten the road to judgment or issue by requiring the plaintiff, in all forms of action ex contractu, to state his cause of action, and the amounts which he believes to be due him, in a clear and concise form, and permitting him to move for judgment, unless the defendant shall, with like clearness and definiteness, state the nature and character of his defence under oath.” The Market Company, in the case at bar, complied with the act of 1887 by filing a clear, precise and specific statement of its claim. It was therefore entitled to judgment for the amount of the claim unless the defendant filed a definite answer to it. Did he file such an answer? We think not. In his affidavit of defence there was no denial of any material averment of fact made by the company. As he did not deny, he must be considered as admitting, that the contract, the breaches of it and the consequences of his default were correctly set forth in the statement. On the same principle he must be considered as admitting that the company notified him of the suits brought against it and requested him to defend them, and further, that the expenses it incurred in defending them, on his failure to intervene, were reasonable. These admissions appear to cover the entire ground on which the company based its claim, and to justif3r the judgment entered in the court below. We are unable to discover anj1- defence to this action, arising from or founded upon the agreement of December 15, 1891. By that agreement George W. Hancock on behalf of certain bondholders undertook to deliver the bonds mentioned therein to the defendant and J. M. Pullinger on their paying to him “ 75 per cent of the par value and interest thereon, on or before the 2nd day of January, 1892.” It is not pretended that the defendant or his associate ever paid or tendered to Hancock or any bondholder represented by him 75 per cent of the par value of one of the twentj'-five bonds which the defendant claims were included in the agreement. The allegation that the owners of the bonds and the owners of the stock of the Market Company “ are practically the same ” and that the judgments against the company were obtained through collusion between them, is too indefinite and vague to require special consideration. It is clearly not a sufficient answer to the compan3r’s claim. The specifications of error are overruled and the judgment is affirmed.

PELLEGRINI, Judge. John A. and Sharyn Cornell (Corrells), as parents of Chad M. Cornell as well as assignees of any claims of the Danville Area School District (Danville), appeal from an Order of the Columbia County Court of Common Pleas, granting Millville Area School District’s (Millville) motion for summary judgment and dismissing the Corrells’ action for payment of Chad Correll’s tuition at Dan-ville. Chad Cornell, an about-to-be high school freshman residing in the Millville school district, wanted to take a specific program in Vocational Agriculture Production (Vo-Ag). While Columbia-Montour Vocational School, a vocational school serving the Millville district, offered a Vocational Horticulture program that was similar to Vo-Ag and had many of the same courses, it did not offer a Vo-Ag program. However, Danville, an adjacent district, offered a Vo-Ag program through Danville Area High School. In May of 1989, the Corrells wrote to Millville’s superintendent and requested that Millville pay Chad’s tuition at Danville for the Vo-Ag program, but that request was denied. Pursuant to the Corrells’ request that Mill-ville pay Chad’s tuition at Danville, Millville’s legal counsel advised the Millville superintendent that the district may pay Chad’s tuition at Danville, but was under no obligation to do so. The Millville superintendent inquired as to Danville’s Vo-Ag Program and Danville’s superintendent wrote to Millville on June 6, 1989, explaining that Danville’s Vo-Ag program was offered at Danville Area High School — not at a separate vocational school. On June 16, 1989, Millville wrote to Danville, requesting Danville to notify them as to Chad’s status, specifically whether Chad was admitted to Danville pursuant to § 1809 of the Public School Code. Danville, by letter dated June 26, 1989, informed Millville that, as of that date, Danville had received no formal request for Chad’s admission. The Corrells wrote to the Director of the State Board of Education, Mr. Robert Feir, regarding the vocational education available to Chad. Mr. Feir responded to the Corrells by a letter in October of 1989, advising them that they had no right to a § 1809 appeal because appeals to the State Board of Vocational Education pursuant to § 1809 of the Public School Code were available only to students denied admission by the non-resident school. Since Chad had been admitted to Danville, in Mr. Fern’s opinion, the issue was moot. The Corrells then made a request of the Danville School Board that Chad be admitted to Danville for the 1989-90 school year as a ninth grader on a “tuition basis” to enroll in the “Vocational Agriculture course in addition to the College Prep program.” Nothing in the Corrells’ request to Danville mentioned that Chad’s admission was pursuant to § 1809 or that admission was being requested because Millville did not offer a Vo-Ag program. The Danville school board voted to accept Chad as a tuition student and Chad began high school at Danville in the fall of 1989. At the conclusion of each of the three subsequent school years, the Corrells wrote to the Danville school board, requesting continued admission for Chad at Danville. The Danville school board approved Chad’s admission as a “tuition student” each of the three subsequent years. The Corrells also wrote annually to Mill-ville, requesting that they pay Chad’s tuition at Danville, which requests Millville annually rejected. The Corrells paid Chad’s tuition in full to Danville, until the 1992-1993 school year, when they were advised by Danville’s solicitor to put the tuition money in a special account, pending the determination of whether Millville had any obligation to pay Chad’s tuition. In January of 1993 Danville assigned to the Corrells all rights in contract for tuition reimbursement against Millville pursuant to § 1809(c) of the Public School Code. In February of 1993, the Corrells filed a complaint against Millville, both on then own behalf and as assignees of Danville, alleging that Millville owed them reimbursement for tuition pursuant to § 1809 of the Public School Code. The complaint also contained a claim based on unjust enrichment/quasi-contract. Millville answered, alleging that Chad Cornell was accepted at Danville as a tuition paying student, not pursuant to § 1809 of the Public School Code; Danville never notified Millville of Chad’s acceptance as a § 1809 student, nor did Danville ever submit tuition bills to Millville. Both Millville and the Corrells made motions for summary judgment. Denying the Corrells’ motion for summary judgment, and granting Millville’s motion for summary judgment, the trial court found that Chad’s application for admission to Danville was as a tuition paying student. The trial court also held that any claim of a § 1809 admission had been waived by Chad’s admission to Danville as a “tuition student” and by the inaction of the Corrells to prove otherwise. Finally, the trial court held that, by failing to file an appeal with the State Board of Vocational Education, the Corrells failed to exhaust them administrative remedies. The Corrells then took this appeal. Though both the Corrells and Millville present several compounded issues in their briefs, the central issue presented for our consideration is whether Chad’s admission to Danville falls within § 1809 of the Public School Code, thus subjecting Millville to liability for tuition reimbursement. The Corrells maintain that everyone in the process was fully aware of the fact that Millville did not have a Vo-Ag program and that their requests for tuition payment were under § 1809. Moreover, they argue, by writing-letters to Millville annually in which they requested payment of Chad’s tuition at Dan-ville, they have clearly demonstrated their intent that Millville be responsible for Chad’s tuition under § 1809(c) and never waived or abandoned that position. The admission of a student to a non-resident public school district can only be made pursuant to one of two sections of the Public School Code — § 1809 or § 1608. Section 1809 allows a student to go to another district where there exists no approved vocational program in the resident district, or where a student desires to enroll in a particular vocational program not offered within the resident district. Under this provision, the student makes application to the admitting school district and it is the admitting school that determines whether § 1809 admission should be granted. Once the admitting school grants § 1809 admission, § 1809(c) requires that the resident district pay the student’s tuition at the admitting school. The other method by which a student can gain admission to a public school outside of his resident district is as a tuition paying student. Section 1608 of the Public School Code states as follows: Pupils wishing to attend a high school in a distinct other than the district in which they reside shall obtain the consent of the board of school directors of the district or joint school of the area in which such high school is located before attending the same. Pupils desirous of having their tuition paid in a high school in another district shall secure written approval from the school board in the district or joint board in the district or joint board of the area of which they are residents. The board of school directors of the district in which any such student resides may enter into a written agreement with the receiving district for the attendance and tuition of the pupil. 24 P.S. § 16-1608. According to this section, a student wishing to attend a non-resident high school may apply for admission to the non-resident school board. A student admitted under this section may request that his resident district pay his tuition at the non-resident school, but payment under this section is at the discretion of the resident school board and is not required. Under § 1809 of the Public School Code, Danville was required to make a determination of Chad’s eligibility. It was Danville who had the obligation to make admission pursuant to § 1809 in order to secure a right to receive tuition payment from the resident school district. Danville made no § 1809 eligibility determination, no § 1809 admission, and at no time attempted to pursue reimbursement from Millville under § 1809(c). Without these determinations being made, Millville is under no obligation to reimburse Danville for Chad’s tuition. In Bethlehem Area Vo-Tech v. Palisades School District, 156 Pa.Commonwealth Ct. 120, 124, 625 A.2d 1330 (1993), we considered the application of § 1809 of the School Code where a group of students attended a nonresident vocational school without approval from their resident district, and the nonresident district sought tuition and transportation reimbursement. We held that, unless the determination was made by the admitting school district that the non-resident student had fulfilled the eligibility requirements of § 1809, that district could not claim reimbursement from the home district. Id. at 124. Because Danville, the admitting school in the instant matter, never made a determination as to whether Chad was eligible under § 1809 for admission, there is no obligation on the part of Millville to reimburse Danville for Chad’s tuition. Contrary to the Corrells’ contentions, nothing they did gave any notice to Danville that they were seeking to admit Chad under § 1809. The Corrells, in no request, mentioned that Chad’s application was pursuant to § 1809, nor did they request that Danville seek tuition reimbursement from Millville. To the contrary, the Cornells specifically requested Chad be admitted to Danville on a “tuition basis.” The Cornells agreed to be solely responsible for the payment of Chad’s tuition at Danville, they were billed for such tuition, and they paid accordingly without objection. The facts support the trial court’s conclusion that Danville admitted Chad on a “tuition basis” pursuant to § 1608 of the Public School Code. The Cornells also contend that Mill-ville was unjustly enriched because it received the benefit of their tuition payment to Danville. The payment of Chad’s tuition at Danville by the Corrells does not satisfy the elements of unjust enrichment because it confers no benefit upon Millville. Millville had no obligation to pay Chad’s tuition and because it had no obligation, no benefit could be conferred upon it simply because the Cor-rells paid the tuition. Moreover, the trial court’s finding that Chad was a tuition paying student makes the concept inapplicable. Accordingly, the trial court’s grant of summary judgment to Millville, that it had no obligation to reimburse Danville or the Cor-rells for Chad’s tuition, is affirmed. ORDER AND NOW, this 20th day of July, 1995, the order of the Court of Common Pleas of Columbia County, No. 296 of 1993, is affirmed. . The vocational program in Agricultural Production (Code 01.0301) is defined as an instructional program that prepares individuals to apply scientific knowledge and methods in the planning related to an economical use of facilities, land, water, machinery, chemicals, finance, and labor in the production of plant and animal products. Activities include classroom instruction, agricultural mechanics instruction, and laboratory experiences in and out of school, including farms, agribusinesses, and other agriculturally related establishments. The vocational program in Horticulture (Code 01.0601) is defined as organized subject matter and practical experiences concerned with the instructional program that prepares individuals to produce, process, and market plants, shrubs, and trees used principally for ornamental or aesthetic purposes. Instruction emphasizes knowledge and understanding important to establishing, maintaining, and managing horticultural enterprises such as aboricul-ture, floriculture, greenhouse operation and management, landscaping, nursery operation and management, and turf management. . Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-[ XXX-XX-XXXX ]. Section 1809 of the Public School Code states as follows: (a) Any resident of any school district which does not maintain an approved ... vocational agricultural ... education day, part-time, or evening class, school or department, offering the type of training which he desires, may make application to the board of school directors of any other district for admission to such school or department maintained by said board. If the board refuses him admission, he may apply to the State Board for Vocational Education for admission to such school or department. The State Board for Vocational Education may approve or disapprove such application. In making such decision the State Board for Vocational Education shall take into consideration the opportunities for free vocational training in the community in which the applicant resides, the financial status of the community, the age, preparation, aptitude, and previous record of the applicant, and all other relevant circumstances. The decision of the State Board for Vocational Education shall be final. (c) The school district in which the person resides, who has been admitted, as above provided, to an approved ... vocational agricultural ... school or department maintained by another school district, shall pay the high school charge provided for by this act. If any school district neglects or refuses to pay for such tuition, it shall be liable therefor, in an action of contract, to the school district or school districts maintaining the school which the pupil, with the approval of the board, attended. 24 P.S. § 18-1809(a), (c). .The Corrells had previously telephoned the Department of Education in June of 1989, concerning Millville's obligation to pay Chad's tuition at Danville. Responding by letter dated July 11, 1989, the Chief of Vocational Field Services, Mr. Lane Kemler, noted that, under § 1809 of the Public School Code, a student could pursue a vocational program not offered within the home school district at a non-resident school district, and that the home school district would be responsible for tuition. He also informed the Cor-rells that they possessed the right to appeal to the State Board of Vocational Education (Board) and advised them of his belief that the Board would recommend that Chad pursue the vocational horticulture program offered within Mill-ville’s district. . The Corrells repeated the same process through letters in the summers of 1990, 1991 and 1992. In their letter dated August 9, 1990, the Corrells requested Chad's continued admission as a “tuition student.” By letter dated June 26, 1991, the Corrells requested Chad's continued admission as a "non-resident in the Vocational Agriculture Program.” And, by letter dated July 29, 1992, the Corrells requested that Chad be permitted to continue to "attend the Vocational Agriculture Program." Nothing in any of these letter requests that Chad's continued admission be pursuant to § 1809 of the Public School Code, nor is there any reference to the fact that the Vo-Ag program was not offered at Millville. In February of 1990, the Corrells wrote to Danville, requesting that they waive Chad’s tuition for the 1990 school year as a professional courtesy to Mrs. Correll because she was employed at Dan-ville as a guidance counselor. This is the only letter to Danville in which the Corrells state that Millville offered no suitable Vo-Ag program within its district. This request was denied. . By letter dated April 2, 1990, the Corrells wrote to Millville, requesting they pay tuition and transportation costs for Chad's attendance at Danville, citing Millville's lack of a Vocational Agriculture program as their basis for Chad's attendance out of the district. By letter dated April 22, 1991, the Corrells wrote to Millville requesting that Millville pay tuition for Chad to attend the Vocational Agriculture program at Danville, and if denied, requesting that Chad be re-enrolled in Millville so that the district could receive reimbursement, as neither district was currently receiving compensation. On August 31, 1992, the Corrells wrote to Millville, again requesting Chad's tuition and transportation be paid to Danville. This is the only letter to Mill-ville in which the Corrells specifically requested payment of Chad's tuition pursuant to § 1809 of the Public School Code, and informed Millville that they intended to take action to receive reimbursement for Chad's 9th, 10th, and 11th grade tuition as well. . Our scope of review of the grant of a summary judgment is limited to a determination of whether an error of law has been committed or an abuse of discretion has occurred. Rankin v. SEPTA, 146 Pa.Commonwealth Ct. 429, 606 A.2d 536 (1992). Summary judgment should be granted only where the movant's right to relief is clear and free from doubt, as shown through the pleadings, answers to interrogatories, depositions, affidavits, and admissions. Pa.R.C.P. No. 1035(a); Id. at 433, 606 A.2d 536. . The Corrells allege that the trial court erred as a matter of law because it lacked substantial evidence upon which to base its findings that: (1) the Corrells waived or abandoned their rights under 24 P.S. § 18-1809, (2) the Corrells did not exhaust their appeal rights to the State Board of Vocational Education, (3) Chad's admission as a "tuition paying student" precluded the application of § 18-1809, (4) the same factual scenario was repeated yearly by all parties involved, (5) appellants paid Chad’s tuition for the 1992-1993 school year, and (6) the defenses of Millville were viable. The Corrells further allege that they exhausted the appeal available to them under § 1809(a) by writing to Mr. Robert Feir, director of the State Board of Vocational Education. Finally, the Corrells assert that the trial court erred as a matter of law in failing to grant their own motion for summary judgment because the undisputed material facts of record establish that there exists a quasi-contractual relationship between themselves and Millville. .As before this court, Millville also contended that (1) they have no tuition reimbursement obligation under § 1809 because that section is unconstitutional as it denies the resident district procedural due process (2) the Corrells assert rights under an invalid assignment that is an ultra vires act with no legal effect, and (3) even if the assignment were valid, the Corrells' claim must fail because Millville received no legal benefit under the unjust enrichmenl/quasi-contract theory of recovery. Even had there been a valid assignment, Millville argues, the Corrells arc subject to the rights and defenses available to Danville, who is owed nothing since the tuition has been paid by the Corrells. Finally, Millville contends that the Corrells did not exhaust their administrative appeal available under § 1809(a) by merely writing to Mr. Robert Feir, Director of the State Board of Vocational Education. Because of the way we resolved this case, we need not reach any of those issues. . In order to establish that a party has been unjustly enriched, three elements must he fulfilled. (1) A benefit must be conferred upon the defendant by the plaintiff, (2) the defendant must appreciate or have knowledge of the benefit, and (3) the acceptance or retention of the benefit by the defendant must be under such circumstances to make its retention inequitable. Styer v. Hugo, 422 Pa. Superior Ct. 262, 619 A.2d 347 (1993), appeal granted, 535 Pa. 638, 631 A.2d 1009 (1993), affirmed, 535 Pa. 610, 637 A.2d 276 (1994).

KELLEY, Judge. David W. Hughes (claimant) appeals an order of the Public School Employes’ Retirement Board (Board) which (1) denied claimant’s appeal regarding his request that his retirement annuity be calculated using 30 years of credited service; and (2) ordered that the Public School Employes’ Retirement System (PSERS) provide for the collection of any amounts overpaid to claimant as a result of the miscalculation of his credited service. We affirm. Claimant worked as a substitute teacher for part of the 1961-62 school year and for all of the 1962-63 school year in the Chester Public School System (System). He first became a member of PSERS in September 1963, by virtue of his employment with the System. With the exception of the 1964-65 school year, claimant served as a teacher with the System until he terminated his service in June 1991. During the 1964-65 school year, claimant ceased his membership in PSERS, and he withdrew his contributions made during the 1963-64 school year. Claimant returned to the System for the 1965-66 school year. He had another interruption in service during that school year. As the result of an automobile accident and his inability to work, claimant did not receive credited service from March 1966, when his sick leave ran out, until September 1966, when he resumed teaching. Consequently, claimant received only .80 years of credited service for the 1965-66 school year. In May 1974, claimant purchased credit for his previously credited but withdrawn contributions made during the 1963-64 school year. Claimant also tried to purchase credit for his previously uncredited service during the 1961-62 and 1962-63 school years. However, claimant’s cheek as payment for this purchase was returned to him for insufficient funds. Nonetheless, in January 1975, PSERS improperly credited claimant’s account with 1.6 years of service despite claimant’s returned check. Claimant submitted a second check, received by PSERS on February 21, 1975, which PSERS processed without a problem. PSERS then erroneously credited claimant’s account with another 1.6 years of service, in addition to the 1.6 years that had not been removed after claimant’s first cheek was returned to him for insufficient funds. PSERS failed to remove the erroneously credited 1.6 years of service until after claimant had retired in June 1991. Each of the annual statements sent by PSERS to claimant from 1975 through 1990 erroneously credited claimant with 1.6 years of service more than that to which he was entitled. Prior to his retirement, claimant requested and received a letter from PSERS confirming that claimant would have 30 years of credited service after he had completed the 1990-91 school year. When claimant retired in June 1991 and began receiving a monthly annuity, PSERS records showed that claimant had 30 years of credited service. In January 1992, PSERS discovered that 1.6 years of credited sendee had been erro neously posted to claimant’s account. By letter dated January 21, 1992, PSERS notified claimant that his monthly annuity would be reduced from $1719.90 to $1081.71. The letter also stated that claimant had been overpaid by $4722.00 and that he had to repay that amount within 30 days or have his monthly annuity further reduced. Claimant appealed the reduction in his monthly annuity. By letter dated July 1, 1992, the PSERS Appeals Committee denied claimant’s appeal. On May 12, 1993, an administrative hearing on the matter was held before a hearing examiner. At the hearing, claimant asserted that (1) PSERS should be equitably estopped from adjusting his retirement benefits because, in making his retirement decision, he had relied, to his detriment, upon PSERS’s mistake; (2) PSERS’s failure to correct the error in claimant’s account for seventeen years was a violation of PSERS’s statutory duty to correct errors upon their discovery; and (3) PSERS’s adjustment of his retirement benefits was an unconstitutional “taking” of claimant’s property because it violated his procedural and substantive due process rights. Claimant refused to testify on his own behalf at the hearing, invoking his Fifth Amendment right against self-incrimination. Claimant asserted that answering any questions would expose him to a criminal prosecution under section 8534(a) of the Retirement Code. On January 11, 1994, the hearing examiner issued an opinion recommending that the Board dismiss claimant’s appeal as to the issue of equitable estoppel and deny claimant’s appeal as to all other issues. Claimant filed with the Board exceptions to the hearing examiner’s opinion. PSERS filed a request that the Board make additional findings of fact and conclusions of law concerning the overpayment of claimant’s account which were not addressed in the hearing examiner’s opinion. The Board accepted the opinion of the hearing examiner and denied claimant’s appeal requesting that his annuity be calculated using 30 years of credited service. The Board further ordered that PSERS provide for the collection of any amounts overpaid to claimant as a result of the miscalculation of claimant’s credited service. The Board found that, because claimant had received only a partial year of credit for the 1961-62 and 1965-66 school years, and because he was not a member of PSERS during the 1964-65 school year, claimant knew or should have known that he did not have 30 years of credited service for his 30 years of employment with the System. Since claimant was a teacher for exactly 30 years, he would have had to have received full credit for each of those years in order to have attained 30 years of credited service by 1991. The Board concluded that claimant had failed to sustain his burden of showing, by clear and convincing evidence, that he justifiably relied on information overstating his credited years of service by 1.6 years. The Board further concluded that the Retirement Code requires PSERS to correct errors on a member’s account when those errors affect the amount of retirement benefits a member is receiving. The Board stated that, even if claimant had demonstrated that he had justifiably relied on PSERS misinformation, this court’s ruling in Finnegan v. Public School Em ployes’ Retirement Board, 126 Pa.Commonwealth Ct. 584, 560 A.2d 848 (1989), aff'd per curiam, 527 Pa. 362, 591 A.2d 1053 (1991), would prohibit PSERS from granting claimant’s requested relief. The Board concluded that correcting an error in claimant’s account and reducing claimant’s monthly annuity was not an unconstitutional “taking” because claimant did not have a property interest in retirement benefits to which he was not legally entitled. Finally, the Board stated that the Retirement Code required PSERS to collect from claimant any overpayments which had resulted from the mistaken calculation of his years of credited service. See 24 Pa.C.S. § 8534(b). Claimant now brings this appeal. In his appeal, claimant raises the following issues: (1) whether he satisfied his burden of proving, by clear and convincing evidence, that he justifiably relied on PSERS statements and, thus, proved all of the elements of equitable estoppel; (2) whether Finnegan applies to the facts of this case; (3) whether the Board’s recalculation of claimant’s benefits was an unconstitutional taking; (4) whether claimant’s invocation of his Fifth Amendment right against self-incrimination was improperly held against him by the Board; and (5) whether the Board acted against public policy and fairness when it recalculated claimant’s annuity based on an error which PSERS failed to correct when it was first discovered. Claimant first argues that he showed, by clear and convincing evidence, that he justifiably relied on PSERS misstatements and that the Board’s determination was not based on substantial evidence. We disagree. The essential elements of equitable estoppel are: (1) an inducement of a party to believe that certain facts exist; (2) an act of justifiable reliance upon that belief; and (3) a detriment to the actor. Finnegan. The elements of estoppel must be proven by clear and convincing evidence, with the critical elements being misrepresentation and justifiable reliance. Police Pension Fund Association Board v. Hess, 127 Pa.Commonwealth Ct. 498, 562 A.2d 391, petition for allowance of appeal denied, 524 Pa. 614, 569 A.2d 1371 (1989). It is well established that the pai*ty who maintains the existence of certain facts bears the burden of proving those facts. Wingert v. State Employes’ Retirement Board, 138 Pa.Commonwealth Ct. 43, 589 A.2d 269 (1991). In this case, claimant bears the burden of proving that he was misled by PSERS and that he justifiably relied on the PSERS misrepresentation. It is clear from the record that a clerical error was made in claimant’s account by PSERS in 1975 and that the error was not corrected until after claimant had retried in 1991. This clerical error gave the appearance that claimant had 30 years of credited service at the end of the 1991 school year. However, the record also demonstrates that claimant knew or should have known that he did not have 30 years of credited service based upon his employment with the System. As such, there could have been no justifiable reliance. Only if claimant had received full credit for the 30 school years from September 1961 through June 1991 would he have had enough service to qualify for special early retirement. Since claimant only had partial credit for the 1961-62 and 1965-66 school years, since he had not rendered any school service during the 1964-65 school year, and since he could calculate that there were exactly 30 school years between 1961 and 1991, claimant could not have justifiably relied upon representations and estimates from PSERS concerning his eligibility for special early retirement. Claimant’s awareness of the gaps in his service was evidenced by his efforts to purchase credit for the 1961-62, 1962-63 and 1963-64 school years. Claimant, however, was unable to purchase enough credits to eliminate the gaps in his service and to obtain a complete 30 years of service. By letter dated August 10, 1977, M. Andrew Sheffler, Acting Secretary of PSERS, informed claimant that he could not purchase credit for the time when he had not worked during the 1965-66 school year and that he could not purchase credit for service in the Pennsylvania National Guard because credit could only be purchased for active military service. (Original Record, Claimant’s Exhibit 18). Claimant offered no evidence that he responded to Sheffler’s instructions to advise PSERS if he had any active military service. Based upon our review of the entire record, we conclude that claimant knew or should have known that he did not have 30 years of credited service with the System. As such, the Board did not err in concluding that claimant failed to sustain his burden of proving, by clear and convincing evidence, that he justifiably relied on PSERS misstatements regarding his credited years of service. Claimant next asserts that the Board’s recalculation of his retirement benefits was an unconstitutional taking because the reduction in his benefits was so far below the percentage of his contributions. He argues that he has a constitutionally protected interest in at least 95% of his maximum annuity benefit since that was what he had contributed. We disagree. PSERS is bound to follow the intent of the General Assembly in administering the provisions of the Retirement Code. 1 Pa. C.S. § 1921(a). This court has stated that in the PSERS, an employee has only those rights created by the Retirement Code, and none beyond it. Bittenbender v. State Employees’ Retirement Board, 154 Pa.Commonwealth Ct. 11, 622 A.2d 403 (1992). If a beneficiary of the PSERS is receiving mistaken benefits, the Board is duty bound, under the Retirement Code, to correct the mistake. Id.; 24 Pa.C.S. § 8534(b). In this case, the error in claimant’s account was not discovered until after his account had been audited and recalculated following his retirement. Once the error was discovered, claimant’s monthly annuity was properly adjusted in accordance with the Retirement Code. Claimant is now receiving the retirement benefit to which he is entitled. Claimant’s property interest in his retirement benefits only extends to those retirement benefits to which he is legally entitled under the Retirement Code. Claimant was never entitled to a benefit based on an error in his retirement records. Accordingly, the Board did not err in concluding that the correction which was made to claimant’s account was not an unconstitutional taking of claimant’s property. Claimant next argues that the invocation of his Fifth Amendment right against self-incrimination was improperly held against him by the Board. We disagree. This court has stated that when a party claims the privilege against self-incrimination in a civil proceeding, an adverse inference may be drawn from that fact. Frompovicz v. Workmen’s Compensation Appeal Board (Palsgrove), 164 Pa.Commonwealth Ct. 307, 642 A.2d 638 (1994). While a party may choose to invoke the privilege against self-incrimination, it does not immunize the party from the potentially negative consequences of that choice in a civil proceeding. Id. In its determination, the Board stated that it did not need to address the issue of the scope of claimant’s Fifth Amendment rights at an administrative hearing. The hearing record alone, without claimant’s testimony, was sufficient for the Board to reach its decision. The evidence suggested that claimant knew or should have known that he had less than 30 years of credited service. Even if, in rendering its decision, the Board had considered claimant’s invocation of his Fifth Amendment privilege, the Board had the right to draw an adverse inference from claimant’s failure to testify at the hearing. As such, the Board could decline to accept claimant’s contention that he innocently and justifiably relied upon the alleged misrepresentations made by PSERS. Finally, claimant asserts that the Board acted against public policy and fairness when it failed to fashion some equitable remedy for claimant after PSERS failed to correct its own errors upon their discovery. Claimant argues that correcting mistakes after members have retried penalizes members for their reliance on PSERS estimates and discourages PSERS from correcting mistakes. We recognize that because PSERS does not audit a member’s account and certify his creditable service until after the member has retired, a retiring member can be put in a difficult situation. However, PSERS must comply with the provisions of the Retirement Code. Section 8534(b) of the Retirement Code is a legislative directive to the Board to correct errors in its records, regardless of their intentional or unintentional nature, once they are discovered. We note that it is the province of our Legislature, and not this court, to address and correct unfairness which may result from PSERS actions. The annual statements sent to each member provide the member with the information necessary for the member to review the accuracy of PSERS records. The burden is upon the member to be certain that PSERS records are accurate before the member retries. In this particular case, claimant should have known that PSERS records could not have been accurate given his lack of continuous service for 30 years and his inability to purchase enough credits to close all of the gaps in his service. Accordingly, the order of the Board is affirmed. ORDER NOW, this 21st day of July, 1995, the order of the Public School Employes’ Retirement Board, dated November 10, 1994, is affirmed. . After PSERS returned claimant's check, it sent him a letter, dated February 10, 1975, stating: This is in further reference to your check received in this office December 30, 1974, in the amount of $730.34, for the purchase of your 1.60 years of uncredited service. Please be advised we deposited your check to your account and the bank returned it to this office marked insufficient funds. Therefore, we are taking credit for this uncredited service and if in the future you wish to make payment for this service we will have to receive either a certified check or money order for the amount due. . The letter stated that claimant would qualify for the "30 and out” retirement incentive. This incentive, set forth in section 8312 of the Public School Employees' Retirement Code (Retirement Code), 24 Pa.C.S. § 8312, allows a member with at least 30 years of credited service to retire with an annuity unreduced by the fact that the member has not reached normal retirement age. . 24 Pa.C.S. § 8534(a). Section 8534(a) sets forth as follows: (a) Penalty for fraud. — Any person who shall knowingly make any false statement or shall falsify or permit to be falsified any record or records of this system in any attempt to defraud the system as a result of such act shall be guilty of a misdemeanor of the second degree. . Section 8534(b) of the Retirement Code provides as follows: (b) Adjustment of errors. — Should any change or mistake in records result in any member, beneficiary, or survivor annuitant receiving from the system more or less than he would have been entitled to receive had the records been correct, then regardless of the intentional or unintentional nature of the error and upon the discovery of such error, the board shall correct the error and so far as practicable shall adjust the payments which may be made for and to such person in such a manner that the actuarial equivalent of the benefit to which he was correctly entitled shall be paid. 24 Pa.C.S. § 8534(b). . In Finnegan, a teacher appealed from a decision of the Board which refused to adopt a hearing officer’s recommendation that she be permitted to purchase 15 additional years of credit which she needed in order to qualify for early retirement. The teacher sought the benefit of early retirement on the basis of estoppel, even though section 8304(c) of the Retirement Code, 24 Pa.C.S. § 8304(c), prohibited her from purchasing more than 12 years of service. This court stated that a review of the record and testimony indicated that all factual requisites for a showing of estoppel had been met by the teacher. The teacher had been told by PSERS employees that she could purchase the 15 additional years of credit which she needed for early retirement, even though the Retirement Code prohibited the purchase of more than 12 years. However, this court went on to say that, under Pennsylvania law, while the doctrine of equitable estoppel is applicable to governmental agencies, there are limited situations in which estoppel cannot be invoked against the Commonwealth or its instrumentalities and subdivisions. More specifically, the government cannot be subject to the acts of its agents and employees if those acts are outside the agent's powers, in violation of positive law, or acts that require legislative or executive action. In Finnegan, this court held that, as a matter of law, the Board could not be estopped from asserting a statutory provision as set forth in the Retirement Code. To decide otherwise would be tantamount to giving employee errors the effect of amending the substance of a statute. . This court’s scope of review of an order of the Board is limited to determining whether the Board committed an error of law, whether constitutional rights were violated or whether necessary factual findings are supported by substantial evidence. Laurito v. Public School Employes’ Retirement Board, 146 Pa.Commonwealth Ct. 514, 606 A.2d 609 (1992). . Since we have concluded that claimant failed to meet all of the factual requisites for a showing of estoppel, we need not address the second issue raised by claimant on appeal as to whether the doctrine of equitable estoppel can be invoked against PSERS. . We note that PSERS did not have a duty to audit claimant's account and certify his creditable service until after he had retired and final salary and service information had been received from claimant’s employer. 24 Pa.C.S. § 8505(g).

HOFFMAN, Judge: This is an appeal from several orders granting summary judgment in favor of ap-pellees, the John F. Kennedy Community Mental Health and Mental Retardation Center, [“Center”] and its mental health-care providers. Appellants, Martin and Elizabeth Heil, husband and wife, present the following issues for our review: A. DID THE COURT BELOW APPLY LAW INAPPLICABLE TO THE FORESEEABLE POLICE RESCUE OF [AP-PELLEES’] NEGLECTED AND DANGEROUSLY PSYCHOTIC PATIENT? B. DID THE COURT BELOW IGNORE THE GENUINE ISSUES OF MATERIAL FACT PRESENTED BY OFFICER MARTIN HEIL’S STATUS AS AN ON DUTY POLICE OFFICER CHARGED WITH THE RESPONSIBILITY OF RESCUING THE DANGEROUS PSYCHOTIC PATIENT NEGLECTED BY [APPELLEES]? C. DID THE COURT BELOW IGNORE APPLICABLE PROCEDURAL AND CONTROLLING SUBSTANTIVE LAW? Appellants’ Brief at 3. For the following reasons, we affirm. In 1981, Mr. Edward Holden began treatment for mental illness at the Center on a voluntary outpatient basis. During the course of his treatment, Mr. Holden went to the Center for therapy on November 16, 1987, at which time the symptoms of his mental illness had worsened. He was given a week supply of thorazine and told to return in one week so that he could be monitored. When Mr. Holden returned to the hospital on November 23, 1987, his treating physician was unable to see him and no other psychiatrists were available. Instead, Mr. Holden was seen by his social worker, Maxine Weiner, who drafted a treatment plan and told Mr. Holden to return during regular hours to see a psychiatrist. Although he appeared very agitated and was becoming increasingly paranoid, no steps were taken to initiate emergency hospitalization. The next day Mr. Holden, while experiencing a psychotic episode, drove his car into a police van, driven by appellant-husband, who was on duty as a Philadelphia police officer. As a result of the accident, Officer Heil was severely injured. Appellants filed a complaint on March 21, 1989, against the Center and Ms. Weiner alleging that appellant-husband’s injuries were caused by appellees failure to properly medicate, treat, monitor, and hospitalize Mr. Holden. The hospital and Ms. Weiner joined Mr. Holden as a defendant. Appellant filed a second complaint on July 26, 1990, against Dr. Idee Brown, Dr. Lydia Schut, M.D., Dr. Santiago Hernandez, Ph.D., and Dr. David Springer, M.D. On April 11,1991, the actions were consolidated. Motions for summary judgment were filed and on June 14, 1994, the trial court adopted the recommendation of Judge Pro Tem Rut-ter and granted summary judgment in favor of all defendants, except Mr. Holden. Preliminarily, we note that a motion for summary judgment may properly be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party and must resolve all doubts against the moving party. Fletcher v. Raymond Corp., 424 Pa.Super. 605, 609, 623 A.2d 845, 847 (1993). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). The primary issue raised by appellants is whether the trial court erred in granting summary judgment and holding that mental health professionals do not owe a duty to protect third parties. Specifically, appellants argue that appellees breached their professional duty by failing to initiate the required emergency hospitalization and appellant’s injuries were a foreseeable result. We will assume, for purposes of this appeal, that appellees’ treatment of Mr. Holden fell below the applicable standard of care. Goryeb v. Department of Public Welfare, 525 Pa. 70, 75, 575 A.2d 545, 547 (1990) (in summary judgment context, all doubts must be resolved in favor of the non-moving party). The legal obstacle to [finding liability] is that there is no relationship between [ap-pellees] and [appellant] which creates any legal obligation, [a duty], from [appellees] to [this appellant]. As explained by Justice Cardozo, negligence is a matter of relation between parties, and must be founded upon the foreseeability of harm to the person in fact injured. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 at 101 (1928). Brady v. Hopper, 570 F.Supp. 1333 (D.Colo.1983) (no duty on part of psychiatrist to protect plaintiffs injured in patient’s attempt to assassinate President), affirmed, 751 F.2d 329 (10th Cir.1984). In Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991) (POPOVICH, J. author, DEL SOLE, J. and BROSKY, J. concurring) pedestrians, who were injured by auto operated by diabetic who lost consciousness at the wheel, sued the diabetic’s physician. Our Court, in dicta, stated that even if the physician had a duty to notify the Department of Transportation of the diabetic’s condition, that duty did not give rise to a duty of care to the pedestrians, as they were not foreseeable victims of the physician’s action or inaction. Crosby, 405 Pa.Super. at 543, 592 A.2d at 1345. Here, as in Crosby, “to discount the important element of foreseeability [would] effectively overrule well-established and precedential tort law, [and would] extend liability ... to treating physicians vis-a-vis third party victims.” Crosby, supra. Accordingly, for the above reasons, we affirm the trial court’s granting of summary judgment. Affirmed. . Elizabeth Heil sought damages for loss of her husband’s assistance, services, and companionship. . Although trial court opinion states that summary judgment was granted in favor of all defendants, the opinion did not address the claims against Mr. Holden. . Appellants also assert that the “rescue doctrine” as a basis for liability. However, we find the duty to rescue is inapplicable in this case. 57A Am.Jur.2d § 693 (under the " 'professional rescuer doctrine,’ ” a paid professional rescuer, who has sustained injury while attempting to rescue persons or property, cannot recover from one whose negligence has created the hazard ...). Although this Commonwealth has previously declined to adopt the “fireman’s rule” in a land owner's duty context, we find no prohibition to its application here. Holpp v. Fez, Inc., 440 Pa.Super. 512, 656 A.2d 147 (1995) (No. 01493 PGH 1994); Mull v. Kerstetter, 373 Pa.Super. 228, 540 A.2d 951 (1988), appeal denied, 520 Pa. 606, 553 A.2d 968 (1988). Cf. Bell v. Trace, 422 Pa.Super. 298, 304, 619 A.2d 365, 368 (1993) (rescue doctrine is a narrow exception used only in very special cases). . We note that Dunkle v. Food Service East, Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990) and Leonard v. Latrobe Area Hospital, 425 Pa.Super. 540, 625 A.2d 1228 (1993), cases cited by the trial court, are not controlling. Dunkle and Leonard both held that a therapist owes no duty to warn third parties of the violent propensities of his or her patient, where the victim is not specifically identified. The Dunkle and Leonard plaintiffs relied on a failure to warn theory and consequently issues arose relating to the confidential nature of the communications between patient and therapist. Here, appellant did not proceed under a failure to warn theory, but rather a negligence theory.

McEWEN, Judge. This appeal, taken from an order which dismissed the petitions to open a judgment for money as well as a judgment for possession, both confessed against appellant Thomas Sgrenei by appellee Homart Development Co., pursuant to the terms of a commercial lease, requires that we decide whether the trial court erred in concluding that appellant had not presented sufficient evidence to create a jury question as to whether the terms of the lease had been breached by appellee. Appellee, however, contends that, even if we find that sufficient credible evidence was produced to create a jury question, appellant is not entitled to any relief as his signature on the tenant estoppel certificate precludes any relief based upon conduct occurring prior to December of 1990. Our study compels the conclusion that both the money judgment entered for all future rents due under the ten-year lease and the judgment for possession of the leased premises must be opened so as to enable litigation of the issue of which party breached the lease, as well as a determination of the amount of damages resulting therefrom. We, therefore, reverse and remand. Appellant became a commercial tenant of the Neshaminy Mall in December of 1985 pursuant to an assignment of a ten-year lease entered into in July of 1983 between Donuts Galore and the owner of the Neshaminy Mall. Thereafter, in 1989, appellant, who operated a donut shop in the 945 sq. ft. leased space, was approached by the management of the mall, and asked to consider becoming a part of a planned “Food Court”. Negotiations between the parties resulted in appellant terminating his prior lease and entering into a new 10-year lease on March 16, 1989, which provided, inter alia: ARTICLE 1. BASIC LEASE PROVISIONS AND CERTAIN DEFINED TERMS 1.1 Date of Lease: March 16, 1989 1.2 “Landlord”: U.S. 1 AND BRISTOL ROAD ASSOCIATES 1.3 Address of Landlord: c/o Strouse, Greenberg & Co., Inc. 1626 Locust Street Philadelphia, Pennsylvania 29204 1.4 “Tenant”: THOMAS SGRENCI 1.6 Tenant’s Trade Name: “TG’S DELI” 1.7 “Demised Premises”: Food court space FC-9, consisting of approximately 730 square feet. A delicatessen for the retail sale of the following items in prepared form for on and off premises consumption (i) the following sandwiches: corned beef; pastrami; beef brisket; roast beef, turkey; ham; swiss; tuna salad; chicken salad; egg salad; American cheese, seafood salad and Reuben; (ii) hoagies; (iii) the following cold platters: tuna salad; fruit and cottage cheese; (iv) the following hot platters: beef brisket; turkey breast; corned beef; hot pastrami; hot ham; and macaroni and cheese; (v) soups; and as incidental thereto the sale of the following in prepared form for on and off premises consumption: (a) the following side dishes: potato pancakes; cheese blintzes; cole slaw; potato salad; macaroni salad; french fries; onion rings; pasta salad; orange juice; sauerkraut and “vegetable of the day”; (b) the following breakfast items: muffins, bagels, danish and hard roll with butter or cheese; (c) the following non-alcoholic beverages: coffee; tea; lemonade; hot chocolate and plain carbonated sodas; and (3) the following desserts: cheesecake; donuts; danish; brownies; cookies; fudge and chocolate. Except for the items specifically set forth above, Tenant shall not sell any other foods or beverages. Without enlarging upon what Tenant may sell it is specifically understood that Tenant shall not sell: any form of hot dog except that Tenant may sell Kosher hot dogs only; sausage; chili; ice cream; yogurt; oriental food; pizza; Italian food; cinnamon buns; hamburgers; fried chicken; and fruit drinks other than lemonade; orange juice and soda such as grape or cherry soda, [emphasis supplied] Landlord agrees that so long as Tenant remains in good standing pursuant to the terms of this Lease and as long as the Food Court (as defined in Rider Section #4) shall not be altered substantially in size or configuration, that it shall not lease any space in the Food Court to a “Delicatessen” or “Delicatessen Operation”. As used in the immediately preceding sentence, the terms “Delicatessen” or “Delicatessen Operation” shall be construed to mean an operation that specializes in the preparation and sale of cooked meats, salads and sandwiches which are typically offered in Jewish, Italian and other European type delicatessens. ARTICLE 26. REMEDIES 26.1 A. B. Tenant agrees and it is hereby made a condition of this Lease that if Tenant shall fail or omit to pay rent, additional rent, or charges herein reserved as rent, on the days and at the place where the same are made payable (after written notice as hereinbefore provided), or if Tenant shall fail in the performance and/or observance of any of the other covenants, conditions, terms and agreements of this Lease, after written notice (for such defaults as require notice as hereinbefore provided); or if any other default shall occur... (1) This Lease shall at the option of the Landlord cease and determine, without any right on the part of Tenant to save the forfeiture by payment of the rent due or other performance of the conditions, terms, or covenants thus violated, and Landlord shall at once become entitled to receive from Tenant damages which shall be equal to the difference between the aggregate rentals reserved under the terms of this Lease for the balance of the term, less an adjustment for interest at the legal rate, and the fair rental value of the demised premises for that period determined as of the date of such termination. (2) Without terminating the Lease, Landlord may re-enter and repossess the Demised Premised, breaking open locked doors, if necessary, and may use as much force as necessary to effect entrance without being liable to any action or prosecution for such entry or the manner thereof, nor shall Landlord be liable for the loss of any property upon the premises. Landlord may thereupon lease the Demised Premises to any other person upon such terms as Landlord shall deem reasonable entirely at Landlord’s discretion and for a term within or beyond the term of this Lease and Tenant shall remain liable for any loss in rent for the balance of the then current term together with any expenses or costs incurred by Landlord in re-renting the premises, such as the payment of commissions, the making of alterations, or otherwise. 26.6 On the occurrence of any of the foregoing acts of default (and after notice as hereinbefore provided) Tenant agrees that the whole rent for the balance of the term and all other sums payable hereunder as rent for the balance of the term, or any part thereof at the option of the Landlord, shall immediately without act or further notice become due and payable as if by the terms of this Lease the same were payable in advance, and Landlord may immediately proceed to distrain, collect, or bring action for the said whole rent or such part thereof as aforesaid, as rent being in arrears, or may enter judgment therefor in an amicable action as herein elsewhere provided for in case of rent in arrears, or may file a proof of claim in any bankruptcy or insolvency proceedings for such rent, or Landlord may institute any other proceedings whether similar to the foregoing or not, to enforce payment thereof. 26.7 For the purpose hereof, the rent for the balance of the term as used herein shall be deemed to be the aggregate of the fixed annual minimum rent payable at the time of such default or breach by Tenant, plus the annual average of the percentage rent theretofore paid or payable by Tenant for the three (3) years last preceding such breach or default, or if three (3) years of the term hereof have not then elapsed, then the average of the annual percentage rent theretofore paid or payable by the Tenant. 26.8 In the event of any default by Tenant either in the payments of rent or any other charge herein reserved, or in the performance of any of the terms, conditions, promises and covenants herein set forth, either during the original term of this Lease, or any extension thereof, Tenant hereby empowers any Prothonotary or attorney of any Court of Record to appear for Tenant in any and all actions which may be brought for rent or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by Tenant and/or to sign for Tenant an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the rent specified in this Lease and then unpaid including, at Landlord’s option, the rent for the entire unexpired balance of the term of this Lease, computed as aforesaid, and other charges, payments, cost and expense reserved as rent or agreed to be paid by Tenant, and for interest and costs together with an attorney’s commission of five (5) per cent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any of said rent or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during any extension or renewal of this Lease and after the expiration thereof at any time. 26.10 In any amicable action of ejectment or for rent in arrears, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Lease be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary notwithstanding. 26.12 All of the remedies hereinbefore given to Landlord and all rights and remedies given to Landlord by law, shall be cumulative and concurrent. No determination of this Lease or the taking or recovering of the Demised Premises shall deprive Landlord of any of its remedies or actions against Tenant for rent due at the time or which, under the terms hereof, would in the future become due as if there had been no determination, or for sums due at the time or which, under the terms hereof, would in the future become due as if there had been no determination, nor shall the bringing of any action for rent or breach of covenant, or the resort to any other remedy herein provided for the recovery of rent be construed as a waiver of the right to obtain possession of the premises. ARTICLE 27. NO WAIVER 27.1 Failure of the Landlord to insist upon the strict performance of any provision or to exercise any option or any rules and regulations shall not be construed as a waiver for the future of any such provision, rule or option. The receipt by Landlord of rent with knowledge of the breach of any provision of this lease shall not be deemed a waiver of such breach. No provision of this lease shall be deemed to have been waived unless such waiver be in wilting signed by the Landlord.... Appellee on August 31, 1992, confessed judgment against appellant in the amount of $261,822.90 which it computed as follows: $ 14,455.14 Base rent and $2,538.35 in “other charges” for the period March 1, 1991, through July 1, 1992, although the “other charges”, as admitted in the answer of appellee to paragraph 5(J) of the petition to open judgment filed by appellant, had been paid. $ 18,900.00 Accelerated rent from August 1, 1992, to March 31, 1993 at the rate of $2,362.50 per month. $216,000.00 Accelerated rent from April 1, 1993, to March 31, 1999 at the rate of $3,000.00 per month. $ 12,467.76 Attorneys fees. Appellee also confessed judgment for possession of the premises. Appellant in his petitions to open the judgments argued that he had not breached the lease but rather that appellee had breached the lease and rendered appellant’s performance impossible, by leasing an adjacent area of the food court to a vendor with an almost identical menu, Bagel Builders, in violation of the express terms of the lease and the understanding of the parties. Appellant alleged, inter alia* in his petition to open that: Appellee had been properly notified of its breach of the terms of the lease; Appellee had overcharged appellant on the “other charges” reserved as rent and had refused to provide an accounting of those charges; The confessed judgment improperly included amounts already paid by appellant; and Rents had been “wrongfully accelerated through the end of the lease term”. The trial court found that appellee had not breached the lease agreement since “although certain tenants may be selling a few of the same items that appear on defendant’s menu, plaintiff has not leased any space to a delicatessen or a delicatessen operation. Nowhere in the ‘Permitted Use’ clause is [appellant] given the exclusive right to sell all the items enumerated. [Appellee] therefore has not breached the lease agreement.” (emphasis supplied). Since we find sufficient evidence to support a finding by a jury that appellant was granted the exclusive right to sell the enumerated delicatessen style food items and find that there was sufficient evidence to raise a jury question as to whether Bagel Builders was specializing in the sale of foods typically sold by a delicatessen, we must reverse and remand. A petition to open a confessed judgment is an appeal to the equitable powers of the court. It is well settled that in order to obtain relief, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); Pa.R.Civ.P. 2959. Although at one time it was further required that a party establish equitable considerations sufficient to impress the court with the need for relief, it is now held that equitable considerations are no longer relevant unless related to a particular asserted defense. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., supra; Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977). West Chester Plaza Assoc. v. The Chester Engineers, 319 Pa.Super. 196, 199, 465 A.2d 1297, 1298 (1983). This court has made it clear on prior occasions that, in addition to the petition to open, it is proper to also consider depositions, Ecumenical Enterprises, Inc. v. NADCO Construction Company, 253 Pa.Super. 386 fn. 4, 385 A.2d 392 fn. 4 (1978); Kilgallen v. Kutna, 226 Pa.Super. 323, 310 A.2d 396 (1973), additional testimony, B.C.Y. Inc., Equipment Leasing v. Bukovich, 257 Pa.Super. 121, 390 A.2d 276 (1978), as well as supplemental memorandae, Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974), in assessing a meritorious defense. West Chester Plaza Assoc. v. The Chester Engineers, supra at 202, 465 A.2d at 1300, quoting Shainline v. Alberti Builders Inc., 266 Pa.Super. 129, 134 n. 1, 403 A.2d 577, 579 n. 1 (1979). Appellant introduced substantial evidence in support of his assertion that he had been granted the exclusive right to sell the food items specifically enumerated in his lease and that appellee had breached those provisions of the lease by permitting Bagel Builders to offer identical sandwich selections for sale in direct competition with appellant. We are mindful that [i]n construing a contract “each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 491, 544 A.2d 1025, 1027 (1988). In order to ascertain the intention of the parties, “the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.” International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, 497 Pa. 102, 109, 439 A.2d 621, 624 (1981) (quoting Foulke v. Miller, 381 Pa. 587, 593, 112 A.2d 124, 127 (1955)). The court will adopt an interpretation that is'most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement. Metzger v. Clifford Realty Corporation, 327 Pa.Super. 377, 385, 476 A.2d 1, 5 (1984). Wrenfield Homeowners Association v. DeYoung, 410 Pa.Super. 621, 627, 600 A.2d 960, 963 (1991). The express terms of the lease at issue prohibit appellant from selling any food item not specifically listed, and appellant produced evidence to establish that when he introduced a salad bar to combat the competition from Bagel Builders, he was informed by appellee that salad could be sold only by the yogurt shop. Appellant testified that he had been approached in 1988 by an agent of Strouse Greenberg, the manager of the Mall, who asked appellant to consider terminating the lease which he had obtained by assignment in 1983 and becoming an operator of a food service in the proposed food court. Appellant testified that he was told that he could select the food service that he desired and choose a delicatessen. Appellant, in support of this testimony, produced a letter, dated September 15, 1988, written in response to the proposed menu he had been required to submit, which provided inter alia: By and large this menu looks fine. I would like to reserve judgment however until we have fine tuned some of the other lessees’ menus so that we minimize the possibility of overlap. The only areas that I could see we might have to modify at this time would be the dessert items as it is possible we would have a tenant specializing in the cooking and sale of brownies and cookies. I will keep you posted on this. I look forward to hearing from you in the near future. Appellant also produced the following letter from the Strouse Greenberg agent, Ted DeSwart, dated February 8, 1989: Dear Gene and Tommy: Further to our discussion on the possibility of our giving you some protection under the terms of your lease against another delicatessen operator coming into the mall, I would be prepared to propose to the owners that they consider a language along the following lines. “Landlord agrees that so long as Tenant remains in good standing under the terms of this lease and so long as the Food Court is not altered substantially in size or configuration, that it will not lease to another Delicatessen or Delicatessen-type operation in this Food Court. For the purposes of this clause the term ‘Delicatessen Operations’ shall be construed to mean an operation specializing in the preparation and sale of cooked meats, salads and sandwiches as typically offered in Jewish, Italian or other European type Delicatessens.” Please adjust this language to make yourselves feel comfortable and let me know what you think. I look forward to hearing from you. Mr. DeSwart conceded in his deposition testimony that it had been necessary to induce appellant to participate in the proposed food court since: ... Mr. Sgrenci’s location where the donut shop was a key location in as much [as] it was on a corner which was critical to the layout of the food court.... He was one of the first people we approached with the concept, and as such gave him his choice of operation. R.R. at 256a. Although appellee argues that the lease only permits appellant to sell the enumerated food items and does not provide an exclusive ñght to sell those items, we believe that the language of the lease, especially when viewed in conjunction with the evidence of the response of appellee to the sale of salad by appellant, provides a sufficient basis to require submission of the issues to a jury. Thus, the petitions to open should have been granted. Appellee, however, argues that even if there was sufficient evidence produced by appellant to require submission of the issues to a jury, the petitions to open should be dismissed since appellant is estopped from asserting the breach of the lease as a result of his execution of a tenant estoppel certificate in November of 1990. The doctrine of equitable estoppel prevents one party from acting differently than the manner in which it induced another party to reasonably expect. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 434-436, 457 A.2d 502, 503 (1983). The doctrine may be applied where the party asserting estoppel establishes by clear, precise and unequivocal evidence (1) that the party against whom the doctrine is sought to be asserted intentionally or negligently misrepresented a material fact, knowing or with reason to know that the other party would justifiably rely on the misrepresentation, (2) that the other party acted to his or her detriment by justifiably relying on the misrepresentation, and (3) that there was no duty of inquiry on the party seeking to assert estoppel. Foster v. Westmoreland Casualty Co., 145 Pa.Cmwlth. 638, 643-645, 604 A.2d 1131, 1134 (1992); Arasi v. Neema Medical Services, 407 Pa.Super. 398, 400-401, 595 A.2d 1205, 1209 (1991), allo. denied, 529 Pa. 655, 604 A.2d 247 (1992). Mere argument or doubtful inference is insufficient to establish the critical element of changing one’s position to his or her detriment. Whiteco Metrocom v. Department of Transportation, 151 Pa.Cmwlth. 154, 616 A.2d 193 (1992), appeal denied, 533 Pa. 647, 622 A.2d 1379 (1993); Pennsylvania Liquor Control Board v. Venesky, 101 Pa.Cmwlth. 456, 516 A.2d 445 (1986), appeal denied, 515 Pa. 590, 527 A.2d 549 (1987). Moreover, equitable es-toppel “is [a doctrine] of fundamental fairness, and whether it is applicable is dependent upon the particular facts of each case.” Central Dauphin Sch. Dist. v. Department of Education, 63 Pa.Cmwlth. 48, 55, 437 A.2d 527, 530 (1981). Quinn v. Commonwealth, 168 Pa.Cmwlth. 447, 452, 650 A.2d 1182, 1184-1185 (1994). Appellant testified that he did not understand the effect of the tenant estoppel certificate and signed it only as an accommodation to the Mall management which he believed was working to resolve his “menu overlap” problems in the fall of 1990, when he executed the certificate. Appellee has not alleged that it was unaware of the negotiations between Strouse Greenberg and appellant regarding menu overlap or that its lack of knowledge prejudiced it in any way. The issue of the effect of the certificate must, therefore, be resolved by the factfinder. In light of our remand for proceedings on the respective claims of the parties, we find it necessary to address the existence of an independent basis requiring that appellant be granted relief from the money judgment confessed against him by appellee for accelerated rental payments. It is a basic tenet of our system of civil justice that a plaintiff may not obtain a double recovery for a single wrong and yet that is precisely what the appellee proceeded to obtain via the two judgments entered by confession in this case. This Court, more than 60 years ago, in Greco v. Woodlawn Furniture Co., 99 Pa.Super. 290 (1930), condemned the precise practice which appellee followed in the instant case. The Greco Court held that a petition to open a judgment confessed upon a commercial lease containing an acceleration clause for calculation of damages was properly granted where the landlord had also confessed judgment for possession of the leased premises: This case was rightly decided in the court below. It is ruled by Grakelow v. Kidder, 95 Pa.Super. 250. We there decided that where a landlord elects to terminate a lease and recover possession by writ of habere facias, following confession of judgment in an amicable action of ejectment, he cannot also enter judgment against the tenant for the rent for the balance of the term which accrued after the judgment in ejectment, but became sooner payable under an acceleration clause in the lease for default in payment of prior installments of rent. He cannot forfeit the lease, for default by the tenant, and recover possession, on the allegation that the lease is then and there ended, and at the same time enter judgment against the tenant for the rent accruing after the eviction as if the lease were in full force and effect to the end of the term. He cannot eject the tenant and yet hold him responsible for rent accruing under the lease after the tenant has been evicted. This ruling is in accord with earlier decisions of this court, (Pusey v. Sipps, 56 Pa.Super. 121; Hochman v. Kuebler, 53 Pa.Super. 481); and of the Supreme Court, (Stevenson v. Dersam, 275 Pa. 412 [119 A. 491]). The landlord may cumulate remedies provided in the lease (Purvis v. Dempsey, 238 Pa. 173 [85 A. 1091]; Murphy v. Marshell, 179 Pa. 516 [36 A. 294]), but he may not avail himself of double remedies insofar as they are conflicting or antagonistic. He can eject the tenant and at the same time enter judgment for the rent accrued when the tenant was evicted; Murphy v. Marshell, supra; but he cannot recover both the possession and the rent for the balance of the term: Grakelow v. Kidder, supra p. 256. If the defendant had abandoned the premises a month or two previous, as is urged upon us by the appellant in this case, and the latter desired to hold it responsible for the rent accruing to the end of the term, she should not have declared the lease forfeited and terminated the tenant’s right of possession by judgment in ejectment and eviction under habere facias, but could have resumed possession in the interest of the tenant for the protection of the property, as pointed out in Hochman v. Kuebler, supra; Auer v. Penn, 99 Pa. 370; Ralph v. Deiley, 293 Pa. 90 [141 A. 640], and kindred cases; but any rent received by her thereafter on a re-letting would have been in relief of her claim against the tenant and for its benefit. The distinction must always be made “between possession of vacated premises taken by the landlord merely to protect the property or minimize the damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction”: Hochman v. Kuebler, supra, p. 487. Greco v. Woodlawn Furniture Co., supra at 291-293 (emphasis supplied). Six years later, this Court reiterated the principle that a landlord can confess a judgment for future rent accruing under the acceleration clause, or a judgment in ejectment, but not both. Under the election he has made in this case, he can collect only the rent of $60 for the month of February, 1935. Matovich v. Gradich, 123 Pa.Super. 355, 363, 187 A. 65, 69 (1936) (emphasis supplied). Similarly, in Grakelow v. Kidder, 95 Pa.Super. 250 (1929), and Pierce v. Hoffstot, 211 Pa.Super. 380, 236 A.2d 828 (1967), this Court held that a landlord may not confess judgment for possession and confess judgment under an acceleration clause for all future rents which would have become due between the default and the end of the rental term. In Grakelow, supra, the Court explained: Clearly, it would be unjust to permit the lessor to eject the lessee under the eighth clause and confess a judgment for future rent under the acceleration clause, if the apartment was rented to another tenant during all or any part of the eleven months in question. He cannot have both the possession and the rent of the apartment at the same time. Under all the circumstances we are satisfied that the money judgment was irregular and invalid and that the court below was justified in striking it off. Grakelow, supra at 256. The principle for which these cases stand is not complex — a landlord must elect whether to confess judgment for possession and for all monies then due, or to confess judgment for all monies due for the entire term. When the judgment is entered for possession, the landlord is, of course, entitled to recover, as damages in a civil action, those losses which he suffers in attempting to relet the premises for the term of the lease. The lease in the instant case sets forth the proper calculation of those damages at Paragraph 26.1(B)(1). The landlord, however, cannot, as it did in the instant case, enter judgment for possession and for all moneys which would otherwise be due as rents through the end of the term. Where a judgment is entered for items “clearly [authoi’ized by] the judgment note, but excessive in amount, the court will modify the judgment and cause a proper judgment to be entered. If the judgment was entered for an amount which was grossly excessive, the judgment must be stricken in its entirety”. Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 552, 637 A.2d 309, 314 (1994). Accord: Roche v. Rankin, 406 Pa. 92, 97-99, 176 A.2d 668, 672 (1962); Housing Mortgage Corp. v. Tower Development and Investment Corp., 402 Pa. 388, 389-390, 167 A.2d 146, 147 (1961). The money judgment entered in the instant case was excessive as containing amounts allegedly due for “other charges” in the amount of $2538.35 which appellee admitted it had received. This error should have been corrected by the court in response to the petition to open. The judgment, however, also contained $234,900.00 in accelerated rental payments for the period of August of 1992 through March 31, 1999. The money judgment was, therefore, “entered for an amount which was grossly excessive”, in light of the entry of the judgment for possession, and is subject to a motion to strike. Appellant, however, did not file a motion to strike and, thus, has waived his right to this relief. See: Pa.R.Civ.P. 2959. The judgment should, however, have been opened, in response to the petition to open filed by appellant, so as to resolve the issue of the amount of the money judgment, where appellee had also confessed judgment for possession, even if the trial court believed that there was not sufficient evidence of a breach of the lease by appellee to warrant submission of that issue to a jury. Orders reversed. Case remanded. Jurisdiction relinquished. . The issues, as framed in the brief submitted by appellant, are: a. Did Homart breach the lease because it violated Sgrenci’s exclusive right to sell delicatessen food items? b. Did Homart breach the lease because other vendors in the food court were operating "delicatessens” in violation of the lease? c. Were Sgrenci's defenses based on principles of estoppel and waiver meritorious so as to require that judgment be opened? c. Would the parol evidence rule bar the introduction of Sgrenci's meritorious defenses? . The record suggests that appellee is currently in possession of the leased premises pursuant to the confessed judgment for possession. . Appellant alleged in his answer to the complaint in confession of judgment that the following dealings occurred between the parties during 1988 and 1989: 7. In or about 1988, plaintiff's predecessor in title desired to alter the configuration of the stores within its shopping center so as to create a centralized "Food Court”. 8. Plaintiffs' predecessor in title approached defendant for the purpose of terminating the lease between plaintiff and defendant and incorporating defendant's business in the Food Court. 9. During the course of negotiations between plaintiff and defendant, plaintiff created certain revenue projections for defendant and based the defendant’s proposed monthly rental upon those projections. 10. On March 16, 1989, defendant agreed to terminate his lease with landlord in exchange for certain considerations including the granting to plaintiff of the first option on "choice of location” within the newly created Food Court as well as first option of “menu” to be granted exclusively to defendant, all of which was incorporated into the lease executed on that same date. 11. Defendant expended large sums of money in an effort to prepare the newly demised premises for its opening on June 9, 1989. 12. Upon opening in June, 1989, defendant did meet or exceed his gross revenue projections for approximately three (3) months. 13. In or about the fall of 1989, landlord began leasing other space within the newly created Food Court to entities serving menus in direct competition with defendant and in violation of the lease with defendant. 14. As a result of the breach of the lease with defendant as aforesaid, defendant’s monthly revenues and receipts declined substantially. Between approximately September 1989 and March 1991, defendant continued to pay monthly rental payments in accordance with the lease agreement. 15. Defendant believes and therefore avers that in November of 1991, plaintiff's predecessor transferred its interest in the shopping center known as the Neshaminy Mall to plaintiff. 16. Plaintiff Homart Development Co. notified defendant of the restructuring and transfer and requested an estoppel certificate from defendant. 17. In or about December 1991, defendant notified plaintiff of the breaches to the lease agreement as occasioned by plaintiff's predecessor. Defendant refused to execute the es-toppel certificate as requested by plaintiff. 18. In March of 1991, with the agreement and acquiescence of plaintiff, defendant continued making lease payments to plaintiff at the rate of 6% of defendant’s gross monthly receipts. 19. Defendant is in compliance with the covenants and conditions of the lease agreement with plaintiff. 20. Plaintiff is not in compliance with the covenants and conditions of the lease agreement and has breached the lease agreement for the reasons aforesaid. . Appellee’s answer provided: "It is admitted that some or all of those items listed as additional rent and charges other than minimum rent may have been paid in part or in full at the time that the complaint in confession of judgment was recorded on August 31, 1992.” . “Except for the items specifically set forth above tenant shall not sell any other foods or beverages.” . We will assume for purposes of ruling upon the motion that the yogurt shop was operating under a lease similar to that of appellant since appellee has not suggested otherwise. . The tenant estoppel certificate provided: The undersigned, Thomas Sgrenci (Tenant), is the tenant under that certain Lease dated as of March 16, 1989 (the "Lease”) by and between Tenant and U.S. 1 and Bristol Road Associates (“Landlord”) with respect to property located at Neshaminy Mall, Bensalem, Pennsylvania (the "Shopping Center”). Tenant hereby ratifies the Lease and certifies to Buyer, as purchaser of a portion of the Shopping Center of which the premises ... is a part ... as follows: i. The term of the Lease has commenced and Tenant has unconditionally accepted the Premises. ii. Tenant hereby attorns to Buyer as its lessor, to be effective and self-operative without execution of any further instrument upon the conveyance of the Premises from its owner to Buyer, and at such time, will be bound to Buyer under all of the terms, covenants and conditions of the Lease for the balance of the term thereof and any extensions or renewals with the same force and effect as if Buyer were the Landlord under the Lease. iii. The current monthly installment of minimum rent under the lease is $2,362.50, the payment of which has commenced. No advance rental or other payment has been made in connection with the Lease. iv. A security deposit of $0 is being held by Landlord in connection with the Lease. v. The Lease is a valid Lease, is in full force and effect, and represents the entire agreement between the parties. There is no existing default on the part of Landlord or Tenant in any of the terms and conditions thereof and no event has occurred which, with the passing of time or giving of notice, or both, would constitute an event of default. Tenant has no offsets or credits against rent due or payable under the Lease. The Lease has not been amended, modified, supplemented, extended, renewed or assigned except as follows: None. Tenant has received no notice of any assignment of the Lease by Landlord. Tenant has received no rent concessions or other inducements to execute the Lease other than as set forth in the Lease. The current term of the Lease expires on March 31, 1999. The Lease contains no options to extend or renew the term thereof, or to expand the Premises, except as follows: None. Tenant does not have any option or preferential right to purchase all or any portion of the Premises or the Shopping Center. Landlord has not rebated, reduced or waived any amounts due from Tenant under the Lease, either orally or in writing. There are no actions, voluntary or involuntary, pending against Tenant under the bankruptcy laws of the United States or any state thereof and, to Tenant's knowledge, none are contemplated. Tenant does not, has not and will not use or dispose of hazardous materials at the Shopping Center in violation of any environmental law, rule, regulation or ordinance at anytime applicable to the Shopping Center. Tenant understands that Buyer and its lenders, partners and assigns may and will rely upon this Estoppel Certificate with respect to the matters set forth herein in determining whether to proceed with its contemplated acquisition of a portion of the Shopping Center.

Opinion by Mb,. Chief Justice Stebbett, It is of the first importance, in proceedings such as this, that proper public notice of the time, place and purpose of the commissioners’ meeting, etc., be so given that it will be likely to reach every person who is or may be interested therein. Anything short of this, is sure to be unjust to individuals and detrimental to the public interest. True, the act is silent on the subject of notice, but, as was .well said in Brown v. Fowzer, 114 Pa. 446, 451, “ proper notice of the proceedings should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order. The report should certify specially what notice was given, so that it may appear on the face of the proceedings that the order of court has been complied with. The powers conferred by the act are of a public and important character, and all parties interested ought to have an opportunity to be heard, and such opportunity can best be obtained by an adequate notice so given as to reach most effectively the various parties.” It is elementary law that those interested in or affected by a judicial proceeding should have proper and timely notice thereof; and if the kind of notice to be given, etc., is not prescribed by statute, it is clearly the duty of the court in which the proceeding is inaugurated to direct either by standing rule or special order the kind of notice, etc., that shall be given. In this case, on presentation of the petition, commissioners were appointed without any order or provision whatever as to notice. The order issued to them is not only silent as to the character of the notice to be given by them of the time, place and purpose of their meeting, but it directs that “ if thej>- or any two of them shall be of opinion that such division is necessary for the convenience of the inhabitants thereof, they shall make a plot or draft of ■ the proposed new election district or districts, if the same cannot be fully designated by natural lines or boundaries,” etc.- This substitution of “ election districts ” for “ new wards ” doubtless occurred, as has been suggested, by using the wrong blank form; but that is a very unsatisfactory excuse for the careless and erroneous practice which has characterized this proceeding. As appears by their report, the commissioners, prompted perhaps by their own conviction of the necessity for notice of some sort, caused small handbills to be posted in ten or twelve of the hotels, saloons, etc., of the borough. So far as appears, no other attempt was made to notify the people of the proceeding in which they were all more or less interested. It is needless to say, that for á borough of about twelve thousand inhabitants, with daily and weekly newspapers circulating in their midst, such notice as was given was wholly insufficient. Such irregular and erroneous proceedings cannot be sustained. Petition dismissed and all proceedings thereunder reversed and set aside.

Opinion by Mb. Justice McCollum, The learned auditor thought and so held that he was not at liberty to set aside or qualify the order of the court of common pleas fixing the compensation of counsel for services rendered in the interest of the estate and authorizing the payment of the same by the trustee. He also held that no sufficient reason appeared for relieving the creditors, whose action made necessary the litigation in which the services were rendered, from paying their proportion of the-allowance. In these rulings he was sustained by the learned court below and the question on this appeal is whether he erred in making them. It seems to us that the proposition that, an auditor may review and disregard the judgments and decrees of the court that appointed him is somewhat novel and we are not therefore surprised that the learned counsel for the appellants have failed to bring to our notice any authority for it. They have referred us to article 5 of the amendments to the constitution of the United States and to section 3 of article 1 of the constitution' of Pennsylvania, but these do not throw light upon or define the powers of the auditor in the case before us. His powers were derived from and measured by his appointment, and we think he evinced a proper understanding and appreciation of them in declining to receive evidence offered for the purpose of modifying or setting aside the decree under which the accountant made the payment excepted to. The services for which the allowance was made were rendered in a litigation instituted by the general or unsecured creditors to set aside a certain conveyance made and certain judgments confessed by the trustee for the purpose of giving a preference to certain other creditors of the estate. When the attempt was made to prefer some creditors to. the exclusion of others having equal rights and equities, the estate and the trustee were insolvent. The creditors for whose benefit the transaction was intended, having knowledge of the purpose of it, accepted the conveyance and judgments and stubbornly resisted the efforts of the unsecured or excluded creditors to have them annulled. For more specific information in regard to the nature and details of the transaction and the circumstances surrounding it, we refer to Woddrop v. Weed and Young v. Weed et al., 154 Pa., pages 307 and 316. It will there be seen that the litigation resulted in a victory for the unsecured creditors which restored to the estate a large amount of property, to be used and applied in accordance with the trust for the benefit of all the creditors! Why should not the expenses incurred in achieving this result be paid out of the common fund without discrimination between the parties entitled to it? What equity have the parties, who were baffled in their effort to obtain more than their share of the estate, to demand discrimination in their favor? We have failed to discover any. It was their greed for more than they were entitled to under the trqst that made the expenses necessary, and it seems to us that under the circumstances they ought not to complain that the burden of paying them is laid on the common fund. It is argued,' however, that they were losers by the litigation and therefore they are not within the rule recognized and enforced in Trustee v. Greenough, 105 U. S. 527, and kindred cases. But in what sense were they losers ? In the same that he is a loser who fails to acquire what he has no right to, or who, having unlawfully obtained possession of the property of another, is compelled to restore it to the owners. The equity which the wrongdoer has in consequence of such a loss is not easily discoverable. If the allowance in this case was for services in a suit to recover the trust property from a stranger who had unlawfully taken it into his possession, there could-be no doubt that equity would require that it should be paid from the trust fund. The fact that the wrongdoers were creditors of the estate ought not to shift the burden from the trust fund to that portion of it which the creditors were entitled to receive on a pro rata distribution of it. In either case the services were for the benefit of the estate and it should pay for them. The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellants.

Opinion by Mr. Justice Williams, This casé depends upon the construction of a codicil to the last will and testament of Nicholas Seidel. A clause in the same will, containing a devise practically identical in character with that now before us, was interpreted by the court below in 1890. The same learned judge who decided this case delivered the opinion of the court below in that case. He then held that the devise gave a life estate to the first taker, and an estate in fee simple to “ her issue; ” and that the words “ her issue ” were used in the devise as words of purchase and not as words of limitation. The result was that neither by virtue of her deed to bar the entail, nor under the'provisions of the act of 1855, was her estate enlarged or that of her issue, diminished. That case came into this court upon appeal, and in Shalters v. Ladd, 141 Pa. 349, we affirmed the judgment of the court below. The reasons for our action as stated in the opinion of our late brother Clark: are conclusive upon this case, and we could not add to their strength by restating them. The learned judge of the court below seems to have been led into error by confining his attention to this particular codicil as though it stood absolutely alone. He should have treated it, as it really is, as part and parcel of the will of Nicholas Seidel: and brought to his aid in its construction all the light that the. general scheme of the will, and the separate devises to each of his children would have thrown upon it. If he had done this, he would necessarily have followed Shalters v. Ladd, supra. • In this case, as in that, the words “ lawful issue ” are by the consideration of the will as a whole shown to be words of purchase. The issue take, not from their mother, but from the testator; and her estate is made a life estate as clearly as though the words “for her natural life” had been incorporated into the codicil. The judgment is reversed, and a venire facias de novo awarded.

Opinion by Mb. Justice McCollum, At the instance of the attorney of the estate, the Woods claim against it was purchased by the nephews of the executrix for the sum of one thousand dollars, and ’ in an action upon the claim in their names as trustees, she, acting under his advice, confessed a judgment against the estate for $15,525, and costs. The claim was purchased Feb. 9, 1881, and the judgment was entered Nov. 26,1886. The negotiations for the purchase were conducted by the attorney who recommended it; the assignment of the claim was delivered to him by the sellers, who received his check in payment of the sum for which they sold it, and he immediately made a memorandum on the back of the assignment showing how it was acquired and under what instructions he held'it. These instructions were to collect the claim, account to the purchasers for the money they invested in it, with interest thereon, and to pay the balance to the executrix. When the creditors of the estate attacked the judgment entered on the claim and succeeded in the lower court in setting it aside, he advised the surviving plaintiff and trustee therein to appeal to this court, but the latter declined to do so until indemnity was furnished against all costs and expenses of such appeal. It seems from this that he was anxious to maintain the judgment against the estate. A singular fact in connection with the transaction is that he carefully concealed it from the executrix for whose benefit it was made. For ten years or more the trust feature of it was known only to him and the purchasers of the claim. The silence of the parties to the transaction in reference to the trust created by it is suggestive of a consciousness, or, at least, an apprehension on their part that the law would not enforce the. trust against the creditors of the estate. We think the evidence in'the case fairly establishes the existence of the facts recited, and that it fully justifies the conclusion that the nephews of the executrix were persuaded by the attorney of the estate to purchase the Woods claim “ with the understanding, intention and instructions ” that he should collect it and pay to her whatever was realized upon it above the cost of acquiring it. Such is the conclusion reached by the learned judge of the court below upon a careful consideration of all the testimony, and we see no reason to doubt the correctness of it. The controlling question arising from and founded upon it is whether the trust in favor of the executrix is enforceable against the creditors of the insolvent estate. The issue is in fact, though not in forpi, between them. The purchasers of the claim are not now demanding, and they have never demanded, anything from the estate on account of it beyond the amount they paid for it, together with interest thereon. The transaction evidenced by the assignment from one of them to Geo. W. Irwin was made to gratify the desire of the attorney of the estate to sustain the judgment, and it does not affect in any degree the rights of the real litigants, nor was it intended to do so. The law does not countenance speculation in claims against an estate by a person charged with the duty of administering it. He is not allowed to purchase such claims for his own profit. If he buys them for less than their face value he can only recover from the estate the amount he paid for them. If, in this case, the executrix had bought the Woods claim with' her own money for one thousand dollars, that would be all she could recover from the estate on account of it. The same rule applies to her attorney, who was her legal adviser in the administration of the estate, and who did most of the work pertaining to it. If she had induced her nephews to buy the claim, as they did, for her benefit, would she have been entitled to the profits, if any, derived from the purchase ? If so, she would have acquired by it an interest in the claim adverse to the. estate she represented, and accomplished by indirection what she could not do directly, and what, the law does not tolerate. The creation of the' trust in her favor was due to the efforts of her counsel, and the parties to the transaction did not inform her that she was the beneficiary in it. But we think these facts do not give additional force to her contention or place her on better ground in this litigation than she would have occupied if she had done for herself what her counsel did for her. To this point the language- of the learned judge of the court below is so pertinent that we quote it. He said: “.It must not be forgotten that this whole business was managed by the counsel for Mrs. Irwin and the estate. It was his duty to protect the estate as much as it was the duty of the executrix, and his knowledge .was her knowledge. As he could acquire no interest for himself antagonistic to the estate, neither could he do so for his client, the executrix. She could not intrust him with the whole management of the estate and thus allow him to secure for herself an advantage which she was not permitted to do herself.” Without further elaboration of the subject we conclude that there is no error in the rulings, instructions or decree complained of. The latter is in conformity with well established principles recognized in the textbooks and enforced in the cases cited in the opinion of the court below, and in the briefs of the appellees. The specifications of error are overruled. Judgment affirmed, and appeal dismissed at the cost of the appellant.

Opinion by Mb. Justice Fell, The only exceptions that require notice relate to the sufficiency of the indictment, which was drawn under the' act of May 9, 1889, P. L. 145. The act provides that any banker who-sball receive money from a depositor with the knowledge that he, the banker, is at the time insolvent, shall be guilty of embezzlement. The indictment charges that the defendant, being a banker and knowing that he was insolvent, received money from a depositor. The averment in the indictment follows the language of the act, and is in substantial compliance with the rules of criminal pleading. The offence clearly and distinctly defined is the fraudulent receipt of the money of a depositor. The act is not to be nullified because this is called embezzlement and by a construction which reads into its provisions the definition of that offence. The word was not well chosen, but the intention is clear. The case was carefully tried and properly submitted. The judgment is affirmed.

Per Curiam, This proceeding by quo warranto challenges the right of the defendants or either of them to construct and operate a street railway on York street from Fourth street to Twentieth street in the city of Philadelphia. To the joint and several answers of the defendants, a general replication was filed by the commonwealth ; and the parties having agreed to dispense with trial by jury under the provisions of the act of 1874, the learned court received the evidence, found the facts and drew therefrom the following conclusions of law : (1) That the act of November 22,1873, authorizes the Union Passenger Railway Company, subject to the .consent of councils, to lay and operate railway tracks on Yotk street between Fourth street and Twentieth street in said city; and (2) That judgment should be entered, in favor of the defendants. The facts so found, together with a full consideration of the questions involved and leading up to these conclusions, are all clearly and concisely stated in the opinion of the learned judge of the court below. As will be seen therein, the defendants base their right, to construct and operate the railway in question, upon said act of November 23, 1873, and the ordinance approved October 28, 1890. In addition to the powers theretofore granted to said Union Passenger Railway Co., the first section of said act authorizes it to extend its routes on certain specified streets in said city, “ and such other street or streets south of Christian street west of Twentieth street north of Columbia avenue and east of Third street as the councils .... may'from time to time permit or authorize to be used by said company with single or double tracks.” Two of said streets,—Christian in the southerly and Columbia avenue in the northerly section of the city,—run nearly east and west, and both are crossed at right angles by the other two,—Third and Twentieth streets—while York street, the lo-. cus quo, is north of and parallel with Columbia avenue. The commonwealth’s contention is that the clause above quoted was not intended to embrace any street other than those streets and parts of streets within the lines of the. southwesterly angle formed by the intersection and extension of the lines of Christian and Twentieth streets, and also those within the lines of the northeasterly angle formed by the intersection and extension of the lines of Third street and Columbia avenue. If the clause had been so worded as to read “ South of Christian street and west of Twentieth street, north of Columbia avenue and east of Third street,” there would be some ground for holding that streets and parts of streets, not within the lines of one or the other of said angles, were intended to be excluded; but there is nothing in the act itself or in its title, or dehors both, to justify any other construction than that given by- the court below. Everything that is necessary to be said on the subject will be found in the clear, concise and exhaustive opinion of its learned president; and on it we affirm the judgment. Judgment affirmed.

Pee Curiam, We find nothing in this record that would justify us in sustaining either of the assignments of error; nor, do we think that any of the questions therein presented require special notice. The case was carefully tried and fairly submitted to the jury, and their verdict in favor of the plaintiffs should not be disturbed. Judgment affirmed.

Opinion by Me. Justice Williams, The defendant company was incorporated by a special act of assembly approved on the 6th day of April, 1859. There was at that time no system of general laws regulating the creation and defining the duties and obligations of such corporations. We must look therefore to the legislative action by which the new corporation was created for a statement of its powers and privileges, and for the extent to which it was subjected to municipal burdens in excess of those that fall upon all taxpayers alike. Turning to this act we find that the company was required to obtain the consent of councils to the use of the bridge on Bridge street, which was in the line of its prospective railway; -to conform to the established grade of the streets it should occupy; to keep the said streets in “perpetual good repair ” at its own expense; and to be subject to such ordinances as" councils might from -time to time adopt for the establishment of regulations “ in regard to paving, repaving, grading, culverting of, and laying gas and water pipes in and along said streets, and to prevent obstructions thereon.” It was not subjected to existing ordinances regulating the terms upon which the street railways were permitted to occupy the streets of the city, but the legislature laid out its route, named the streets to be occupied, and by virtue of its paramount authority gave to its creature permission to enter upon these streets and construct its line of railway upon terms named by it in the act of incorporation. The city seeks to recover for the cost of repaving portions of certain streets which the defendant was required to keep in good repair. The defendant denies its liability for new paving, while admitting its obligation to repair. The question thus raised depends upon the proper construction of the act of 1859 creating and defining the powers and duties of the defendant company. We are referred by the city in sup port of its position to that clause of the act subjecting the company to such regulations as might be made by city councils in-regard to paving, repaving, grading, culverting and laying gas and water pipes in the streets over which the tracks of the company might extend as affording the authority for charging the cost of repairing to the defendant. But this provision does not mean that the railway company may be required to pave, to repave, or grade, or lay water or gas pipe along all the streets it traverses with its railway, but that it shall not get in the way of'the city, and obstruct it in the prosecution of municipal improvements upon the city streets. It requires the railway company to conform to all regulations made by the city council having for their object the protection and facilitation of the work of the city in improving its streets, extending its system of water supply, or improving its system of drainage. When in any such direction the control of the city over its streets conflicts with the exercise of the franchise of the railway company on and over the same streets the latter must give way. The superior right of the city over its streets, as between it and any person or corporation doing business upon them, is thus recognized, and the corporation created by the act is by express words made subject to it: This precaution may not have been necessary, but it was wise. In 1859 the relations of the municipality and the street railway were not as well settled as they now are, and without this provision there was at least room for controversy over the right of the city to interrupt the exercise of a corporate franchise in its streets without liability to a claim for compensation. This provision removes all doubt; the street railway, like the drayman, occupies the street subject to municipal control so far as this may become necessary for the public safety, or the prosecution of municipal improvements. The other ground on which a recovery is sought is that the railway was required by the law incorporating it to keep the streets occupied by it in good repair; the phrase to keep the streets in good repair, means to uphold, to maintain or preserve them in good condition ; it presupposes that they are in some fair degree of repair when the obligation to keep them so begins to operate. In this connection it should be noted that the requirement is not that the defendant shall put the streets in good repair but that it shall “ keep them ” in good repair. Whatever the style of paving might be at the time, the mode of repair must conform to it, and under the recent case of Phila. v. Ridge Ave. Pass. Ry. Co., 143 Pa. 444, it may be said that when the city repaves a street with a new and improved pavement the duty to repair relates to the pavement so put in place and requires that the repairs shall be adapted to the style of pavement which the city has placed, or caused to be placed, upon the particular street upon Avhich repairs are necessary. The duty to repair is a continuous one: It is for all time. It is not intended to perpetuate in each street of the city the style of pavement in use upon it when the railway company entered upon it with its trades: On the contrary the general supervisory control of the city over its streets is recognized, and its right to make such regulations in regard to paving, repaving, grading, culverting, and laying gas and water pipes along them, as may be desirable to facilitate its work, and to require obedience thereto by passenger railway companies as well as the cartman and footman, is clearly written into the charter of this company. The right of the city is to determine what pavement shall be used, and when it shall go down upon a given street; the duty to repair is upon the company wherever its tracks extend. A covenant to repair in a lease makes it the duty of the lessee to keep the buildings to which it relates in substantial repair, having regard to their age and condition at the time the covenant became operative. It may sometimes require the restoration of an inclosure or other structure taken down or removed by the maker of the covenant, but in every case it refers to a previously existing condition, the restoration or preservation of which is the purpose of the covenant. This was substantially said as early as McClenahan v. Curwin, 3 Yeates, 362. It is the doctrine of all our cases. What' is now asserted is that the duty to repair includes the duty to replace with a new, an improved and more expensive stjde of pavement whenever the city shall so direct, and Phila. v. Ridge Ave. Ry. Co., 143 Pa. 444, and Phila. v. Thirteenth & Fifteenth Streets Ry. Co., 169 Pa. 269, are cited in support of this proposition. In neither of these cases was the question involved. In the latter case the company was subject to the ordinance of 1857 which expressly required it “ to be at the cost and expense of maintaining, paving and repairing,” the streets occupied by it. The same is true of the former, or Ridge Ave. Case; The Girard College Pass. Ry. Co. was by the act of April 15, 1858, made subject to the ordinance of 1857. It was merged into the Ridge Ave. Co. and this provision became a part of the law of the consolidated company, and was held to be binding upon it. The question was presented in Norristown v. Norristown Pass. Ry. Co., 148 Pa. 87, and decided in favor of the position of the appellant, by the affirmance of the judgment appealed from, in a short per curiam. The error of the learned judge of the court below in this case was in holding that the duty to repair was imposed by the provision in the defendants’ charter that recognized the right of the city to establish regulations in regard to paving, repaving, grading, culverting, and laying gas and water pipe in the streets. In so doing he followed what he believed to be the fair effect of the Ridge Ave. and Thirteenth & Fifteenth Streets cases above referred to, but in this he was mistaken. The first assignment of error is sustained. For the same reason the answer made to the first, second and third points of the defendant was erroneous. The law of this case is fairly stated in defendant’s fourth point. The extent of the liability of the defendant under its charter of incorporation is for the cost of repairs, properly made, to such style of pavement as may have been upon the several streets along which its railways ran when the notice to repair was given. The duty to repave was not imposed by the act of 1859. The judgment is reversed and a venire facias de novo awarded.

Opinion by Mr. Justice McCollum, All the specifications of error relate to the charge, and the contention based upon them is that it was inadequate and misleading. In order to determine whether this contention is well founded we must consider in connection with the charge the issues of fact made by the conflicting claims, and the evidence submitted in support of and against them. The plaintiff claimed that under an oral agreement with the defendants he sold for them, and at their risk, pianos and organs for a commission of fifteen per cent on his sales of pianos, and a commission of twenty per cent on his sales of organs, while the defendants claimed that he guaranteed the sales and that their liability for commissions was measured by the amounts received on account of them. The defendants also claimed that they had a settlement with the plaintiff on the 23d of August, 1890, of all accounts between them to that date, which settlement disclosed a balance in his favor of $179 that was promptly satisfied by a sale to him of three organs for $170, a cash payment of $3.00 and a discount of $6.00. It was further claimed by the defendants that the settlement was made by the parties with a correctly itemized statement before them, of the accounts as they appeared on the defendants’ books ; that these accounts were kept in accordance with the agreement between the parties, and that they were so kept was recognized and admitted by the plaintiff. The plaintiff conceded that he had a settlement with the defendants at the time mentioned by them, but he characterized it as a “ preliminary settlement,” and his testimony explanative of it was vague and unsatisfactory. He said, however, that he did not remember of seeing the itemized statement referred to as before and examined by tbe parties when they made the settlement, and that he never agreed that any portion of the commissions with which he was credited should be charged back to him. The defendants’ claim respecting the settlement was supported by their own testimony and that of their bookkeeper, while the plaintiff’s qualified denial of it had no support except in his own uncorroborated evidence. This claim was important because if established it would have eliminated from the case every item of the plaintiff’s account which antedated the settlement. It was consistent with, and the evidence supporting it was corroborative of, the claim of the defendants respecting the agreement under which the sales were made. The only direct support of the last mentioned claim was in the testimony of the defendants and this was opposed by the testimony of the plaintiff. It was said by the court in the charge that the latter was corroborated by Rockwell, that as he remembered the agreement “the sales were to be at the risk of the defendants.” It should have been stated in this connection that Rockwell when questioned about the agreement between the parties said: “ All that I can remember very positively was that he (the plaintiff) was at work for them (the defendants) on the road, he was to pay his own expenses, that he was not to have a regular salary, but was to receive commissions; the commissions were to be fifteen per cent on pianos and twenty per cent on organs,” and when further questioned respecting it he said “ there was nothing said about anything in my hearing except that he was to have fifteen and twenty per cent.” It was also said in the charge that “ the plaintiff alleges one agreement of employment, and the defendants, or one of the defendants positively denies that agreement.” The charge upon this branch of the case was inadequate because while it called the attention of the jury to Rockwell’s testimony it did not allude to the contradictions in it, or to that portion of it in which he conceded that the agreement claimed by the plaintiff was not in accordance with the custom of the trade; and it was misleading because the jury might have reasonably concluded from it that the defendants’ version of the agreement rested upon the uncorroborated testimony of one of them. The usage of the trade as explained by Rockwell was to allow the agent to retain one half the amount paid on the instrument until the amounts so retained equaled the commission lie was to have for selling it. If bis commission was twenty per cent on an instrument sold for $100 payable in monthly installments of $5.00, tbe payment of eight installments divided as above stated would satisfy it. If, however, after tbe payment of two installments tbe instrument was surrendered to tbe dealer on account of tbe purchaser’s inability to pay for it tbe agent would receive but $5.00. In other words tbe agent looked for bis commission to tbe payments made by tbe purchaser. An agreement which ignored the usual custom of the trade, which gave the plaintiff liberal commissions and allowed him, to sell to whom he pleased at the risk of the defendants, and which required them to pay the full commission when the amount realized from a sale was not equal to one fourth of it was an anomaly. A majority of the so-called sales on which commissions were claimed and recovered were leases of instruments which were returned to the defendants. These instruments were valued at $8,680, the whole amount paid upon them before they were returned was $609.75 and the plaintiff’s commissions were $583.49. The payments made on nine of these instruments amounted to $162, and the commissions to $383.77. These figures show a loss to the defendants on nine instruments of $221.77, and to this may be added the cost of delivery and tire difference in market value between new and secondhand instruments. Tbe figures are based on a statement in the appellant’s printed argument which is not denied by the appellee. The lease of an instrument is not a sale of it. It is true that the lease gave to the lessee an option to purchase at a price stated therein but it did not make him the owner of the instrument. There is a broad and plain distinction between a sale of property and a lease of it, and strictly speaking an agreement for a commission on the former would not include or apply to the latter. But as the parties made no distinction between them, and the business of the defendants included leases as well as sales we may fairly infer that the commission was the same in each case. We think that the court, having referred in its charge to a part of the evidence affecting the issue concerning the agreement, should have directed the attention of the jury to all the evidence and circumstances affecting it, and that its failure to do so was prejudicial to the defendants’ cause. We have already mentioned some of the omitted matters and to these we may add the obvious inadequacy of the reference in the charge to the testimony of Miss Mills. The fifth specification of error is sustained. Judgment reversed and venire facias de novo awarded.

Opinion by Mb,. Chief Justice Sterrett, By agreement of the parties, trial by jury was waived and the decision of this case was submitted to the learned president of the common pleas, who upon the facts found by him directed judgment in favor of the plaintiff for $1,467.15. His findings of fact together with his conclusions of law are set forth in the record and need not be repeated here. The policy in suit provides, among other things, that it “ shall be void if the interest of the insured be not truly stated therein .... or if the interest of the insured be otherwise than unconditional and sole ownership.” The learned judge was asked to hold, as matter of law, that there had been such violation of these provisions of the policy that there could be no recovery thereon. This he refused to do ; and, in view of the facts, and for reasons suggested by him in support of his judgment we are not prepared to say there is any substantial error therein. We find nothing in the record that requires a reversal. Plaintiff’s intestate, David Caldwell, acquired title to the property insured by sheriff’s deed in December, 1884. In January following he signed a paper recognizing the fact that George A. Port and three others had contributed to the purchase money of the property at the sheriff’s sale and agreeing that, when the property is sold or disposed of by him, he will distribute and pay to said contributors each Iris pro rata share of the proceeds. This declaration left the property in the hands of Caldwell, the sheriff’s vendee, with full power to sell or dispose of the same, as he might deem best, and account to the parties above referred to for their respective portions of the proceeds. In that way he held the legal title to the property and controlled the same until his death in April, 1893. In January, 1891, when he applied to Mr. D’Armitt, defendant’s agent at Huntingdon where the property was located and where both the insured and the agent resided, for insurance on the buildings, said agent asked Caldwell “ who the title was in,” to which the latter replied: “ the title is in me, I have the deed.” D’Armitt further testified, in substance, that the rea son he asked this question was because he had information of a “ mixed ownership ” of the property. He did not say from whom he derived that information. If he knew, as he testified he did, that more than one person was interested in the property or the proceeds thereof, and desired to ascertain who they were, etc., he should have prosecuted his inquiry further by asking Caldwell who, if any one, other than himself, was interested in the property or the proceeds thereof; but, he did not do so. On receiving Caldwell’s answer which was directly responsive to his question, he appears to have been satisfied with the information thus communicated, viz: that the legal title to the property was in Caldwell and that he had the deed therefor; and thereupon, as he says, he wrote the policy in Caldwell’s name, individually delivered it to him and received the premium. In the circumstances attending the writing and delivery of the first policy, Caldwell doubtless believed, and was warranted in assuming, that everything was satisfactory to the company. In January, 1892, and again in 1893, the annual premiums were paid by plaintiff’s intestate, and the insurance was renewed in his name alone, as before, without any further information or inquiry by either party. The company, through its agent, previously knew that more than one person was interested in the property or the proceeds thereof, and nothing was ever said or done by the insured to indicate anything to the contrary. As was rightly found by the court below, the insured acted in entire good faith. Whatever mistake, or worse than mistake, was made in writing the policy in the name of the holder of the legal title alone, it is clearly chargeable, not to the insured, but to the company’s agent, and should be imputed to the company itself. Where, at the time of issuing an insurance policy, the company knows that one of the conditions thereof is inconsistent with the facts, and the insured has been guilty of no fraud, the company is estopped from setting up the breach of said condition. The same rule prevails when the insurance company ought to have known the facts constituting the alleged breach: Wood on Ins. sect. 497; Peoples Ins. Co. v. Spencer, 53 Pa. 353. Judgment affirmed.

Opinion by Judge Palladino, John H. Kane (Petitioner) appeals from an order of the Workmens Compensation Appeal Board (Board) which affirmed a referees order awarding compensation for the period July 12, 1983 to February 4, 1984. Petitioner filed a claim petition alleging that he sustained a compensable psychological injury as a result of harassment in the course of his employment with Williamsport Automotive (Employer). Petitioner alleged that as of July 12, 1983 he was totally disabled from his job as an office manager. Several hearings before a referee were held. The referee found that Petitioner suffered from pre-existing psychological problems which were aggravated by unusual and objective stressful events at Petitioners job with Employer. However, the referee also concluded that the Employer established that any disability of Petitioner after February 4, 1984 was not due to a work-related injury but was due to his pre-existing mental condition. Petitioner appealed to the Board which affirmed the decision of the referee. On appeal to this court, Petitioner asserts that the Board erred in affirming the referee because substantial evidence does not exist to support the conclusion that Petitioners disability was no longer work-related as of February 4, 1984. To establish entitlement to benefits for a mental illness the claimant must establish that it arose in the course of employment and is related thereto. See Thomas v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 449, 423 A.2d 784 (1980). However, the claimant must show more than a subjective reaction to being at work and being exposed to normal working conditions to sustain the burden of proving a compensable injury under the Law. Moonblatt v. Workmen's Compensation Appeal Board (City of Philadelphia), 85 Pa. Commonwealth Ct. 128, 481 A.2d 374 (1984). In order for a claimant with a pre-existing mental illness to prove a compensable injury, the work situation must have exacerbated the pre-existing mental illness thereby rendering the claimant disabled. Hirschberg v. Workmen's Compensation Appeal Board (Department of Transportation), 81 Pa. Commonwealth Ct. 579, 474 A.2d 82 (1984). In the case at bar, the referee concluded that Petitioner met his burden of proving a compensable psychic injury: In this case I found the testimony of the claimant and his witnesses convincing that the work situation was unusual such that it caused disability. I felt Dr. Peterson was convincing that the claimant was disabled due to a condition precipitated by work. I thought that the youthful age of the new boss, a new computer and a change of duties were significiant [sic] objective stressful events which triggered disability. The claimant had pre-existing conditions. In fact his present disability was described by him as very similar to one he suffered in 1975. I felt the claimant met the burden of showing he suffered an injury which resulted in disability, namely an aggravation of a pre-existing condition. However, the referee also concluded that as of February 4, 1984, Petitioners disability was no longer work related: I found the testimony of Dr. Hume very persuasive. In my view Dr. Hume was persuasive as to the diagnosis and to the fact that the claimants disability when he saw him was due to a manifestation of his long term problems and not due to work. Therefore I thought the defendant did establish that the claimants disability from February 4, 1984 was due to the pre-existing condition and no longer due to a work problem. While I felt that the work problems were objective enough to meet the Hirschberg test, I did not think they were so unusual as to cause a continuing disability and felt Dr. Humes opinion was persuasive in that regard. Petitioner contends that there is no substantial evidence to support the conclusion that his disability as of February 4, 1984, was no longer work-related. Our review of the record reveals that Dr. Hume examined Petitioner on February 4, 1984 and testified as to the result of that examination: Q. Doctor, based upon your review of the records and your review of the testimony, along with your interview with the Claimant, did you reach an opinion as to whether or not the Claimant was disabled? A. Yes, I did. Q. What was that? A. Certainly at the time I saw him I would find Mr. Kane was disabled. Q. Do you have an opinion within a reasonable degree of medical certainty whether the work that he performed and the situtation [sic] he was involved in at work in any way caused his disability? A. Yes, I do. Q. What is that? A. My opinion is that the work situation is not responsible for the disability. There is a problem with his subjective perception of the work situation ... To respond to that by becom ing disabled or unable to work certainly is not a usual or normal response, but is a reflection of his pre-existing personality disorder and a combination of some of the other problems, the difficulties in his marriages, the loss of the grandchild by being burned up in a fire, and the chronic use of alcohol and medication which were being used right straight along in order to control his level of anxiety. (N.T. at 42-45.) Questions of credibility and choice between conflicting testimony are for the referee. Hirschberg. The referee has broad discretionary powers, and may accept or reject the testimony of any witness in whole or in part. Matlack v. Workmen's Compensation Appeal Board (Zwald), 90 Pa. Commonwealth Ct. 196, 494 A.2d 510 (1985). Here, the referee chose to accept the testimony of Dr. Hume who opined that Petitioners disability was not work-related. The aforementioned testimony of Dr. Hume supports the referees conclusion that as of February 4, 1984, Petitioners disability was not work-related and therefore no longer compensable. Accordingly, the order of the Board is affirmed. Order And Now, July 14, 1987, the order on the above-captioned matter of the Workmens Compensation Appeal Board is affirmed. The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1603.

Opinion by Judge Doyle, Merlin D. Kuehner and Suzanne M. Kuehner (Appellants) appeal from an order of the Court of Common Pleas of Carbon County granting summary judgment in favor of the Township of Lower Towamensing (Township) and its former sewage enforcement officer, John W. Parsons. We affirm. In the summer of 1983, Appellants sought to purchase an undeveloped lot in the Township for placement of a mobile home. Before buying the lot, they were told by their real estate agent and by Parsons, the Townships sewage enforcement officer at the time, that a standard on-lot septic system would be allowed and that Parsons would issue a permit, if one was applied for. Parsons’ representations were based on percolation tests he conducted on the property in 1976. No permit, however, was requested by Appellants at this time, and none was issued. On July 11, 1983, Parsons resigned as sewage enforcement officer for health reasons. Thereafter, in late August 1983, Appellants entered into an agreement of sale for the property, and closed on the property at the end of September. Appellants then sought a septic permit from the Township. The new sewage enforcement officer, however, told Appellants that the property would have to be retested. When this was completed, the only permit he would issue to Appellants was for a more costly pressurized sand mound system. Appellants brought suit against the Township, Parsons, the real estate agent and his agency, alleging breach of warranty, negligence, fraud and willful misconduct. The trial court granted summary judgment in favor of the Township and Parsons on all counts because of governmental immunity and because Parsons’ conduct as a matter of law did not amount to actual fraud and willful misconduct. Appellants appeal to this Court. In reviewing a grant of summary judgment, our scope of review is limited to determining whether the trial court committed an error of law or abused its discretion. Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986). Summary judgment is only proper when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party clearly establishes that it is entitled to judgment as a matter of law. Ohio Casualty Group of Insurance Cos. v. Argonaut Insurance Co., 92 Pa. Commonwealth Ct. 560, 500 A.2d 191 (1985). Appellants contend that Parsons’ representations here amounted to actual fraud and willful misconduct, or at least created an issue of material feet. Actual fraud has five elements: there must be (1) a misrepresentation of material fact; (2) scienter; (3) intention by the maker to induce the recipient to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Superior Ct. 90, 464 A.2d 1243 (1983). We will affirm the trial courts order as to appellee Parsons because, on the basis of the record before us, we fail to see how Appellants could satisfy the first element of actual fraud, i.e., misrepresentation of a material fact. Appellants allege that Parsons made the following representations: 1) that, based on percolation tests conducted by him in 1976, the property was suitable for a standard septic system; and 2) that, if Appellants applied for a permit for such system, Parsons, acting in his capacity as sewage enforcement officer, would issue it. These representations by Parsons, viewed in the light most favorable to Appellants, simply do not amount to misrepresentations. The issuance of a sewer permit obviously is an act involving some discretion on the part of the sewage enforcement officer. Parsons’ representations as to the suitability of Appellants’ property for a standard septic system, and his willingness to issue a permit for the system when and if applied for, were acts within his discretion and judgment. Appellants adduced no evidence to support their contention that the property at the time of the representations was not suitable for a standard septic system, or that Parsons would not exercise his discretion to grant a permit. Bald allegations that representations were false or misleading, without more, are insufficient to create an issue of material fact so as to preclude summary judgment. Cf. Estate of Gallagher, 485 Pa. 62, 400 A.2d 1312 (1979). Accordingly, the trial court properly granted summary judgment in favor of Parsons. As to the Township, it is clear that it is immune from liability even if Parsons committed actual fraud and willful misconduct. Townships cannot be held liable for the tortious conduct of their employees unless the conduct falls within one of the eight exceptions enumerated in 42 Pa. C. S.§8542(b). Faiella v. Bartoles, 102 Pa. Commonwealth Ct. 258, 517 A.2d 1019 (1986). Here, Appellants allege actual fraud and willful misconduct on the part of Parsons. The statute, however, clearly states that fraud and willful misconduct are excluded from the exceptions to immunity. 42 Pa. C. S. §8542(a)(2). Therefore, the Township itself could not be held liable, regardless of whether Parsons’ representations equalled actual fraud and willful misconduct. See Acker v. Spangler, 92 Pa. Commonwealth Ct. 616, 500 A.2d 206 (1985) (no exception to general immunity of local agencies exists for willful tortious acts of employees). Accordingly, the trial court correctly granted summary judgment in favor of the Township. Affirmed. Order Now, June 22, 1987, the order of the Court of Common Pleas of Carbon County, No. 84-0911 dated June 17, 1986, is affirmed. The agent, Jack Wolfe, and the Bill Rehrig Real Estate Agency were not included in the order granting summary judgment and, therefore, are not parties involved in this appeal. Appellants’ only allegation of willful misconduct on the part of Parsons is that he committed actual fraud. Therefore, for purposes of this appeal, we will treat the two as the same. Although appealing from the whole of the trial court’s order, Appellants only brief and argue the issue of whether Parsons com mitted actual fraud or willful'misconduct in making his representations to Appellants. Therefore, appellants have waived review of the other parts of the trial courts order, see Pa. R.A.P. 2116(a), 2119, and thus we will confine our opinion to whether summary judgment on the issue of actual fraud and willful misconduct was correct.

Opinion by Senior Judge Barbieri, Henry Rauser, Petitioner, has filed a petition for review in the nature of a mandamus action invoking our original jurisdiction under Section 761 of the Judicial Code, 42 Pa. C. S. §761, against the Pennsylvania Board of Probation and Parole (Board). In his action, he seeks a writ of mandamus to compel the Board to vacate its recommitment of him as a technical parole violator and recompute his parole backtime and service of subsequent sentences to run concurrently, rather than consecutively as the Board has done. The Board has filed preliminary objections in the nature of a demurrer to Rausers petition that are presently before this Court. The Board argues that Rausers petition fails to state a claim upon which relief can be granted. A demurrer will be sustained only where it appears clear from the face of the pleading that the law will not permit the recovery being sought. Zemprelli v. Thornburgh, 73 Pa. Commonwealth Ct. 101, 457 A.2d 1326 (1983). Any doubts must be resolved in favor of overruling the demurrer. International Association of Firefighters, Local 2493 v. Loftus, 80 Pa. Commonwealth Ct. 329, 471 A.2d 605 (1984). Also, a demurrer admits every well-pleaded material fact set forth in the pleadings as well as all inferences that may be reasonably deducible therefrom. Wolcott v. Athens Area School District, 62 Pa. Commonwealth Ct. 491, 437 A.2d 98 (1981). Thus viewed, we glean the following facts from Rausers petition. Rauser was paroled by the Board effective November, 1980, from two sentences, the longest of which was a two to five year sentence imposed by the Court of Common Pleas of Lebanon County. He was arrested on September 27, 1981, in Tampa, Florida, on charges that he committed three burglaries in Lancaster County, Pennsylvania. After holding a parole Violation Hearing, the Board ordered Rauser recommitted as a technical parole violator, when available, to serve twelve months on backtime based upon his arrest on the new burglary charges. Following his conviction on the new criminal charges, the Board provided him with a parole Revocation Hearing and thereafter ordered him recommitted as a convicted parole violator to serve twenty-four months on backtime, for a total of thirty-six months on backtime. Since Rauser had only two years, eleven months, and twelve days, remaining on his Lebanon County sentence, the Board recommitted him for the balance of his unexpired term. In his petition for review, Rauser contends (1) that the Board improperly recommitted him as a technical parole violator and a convicted parole violator as a result of his arrest and conviction of the Lancaster County burglary charges; and (2) that the Board erred by mandating that his parole backtime run consecutive with his new sentences where the sentencing judge implied that the new sentences would run concurrently. We shall address these issues in the order stated, noting that in order to make out a valid claim in mandamus, a petitioner must establish: 1. A clear legal right in the plaintiff to the relief sought; 2. A clear corresponding duty in the defendant to provide the relief sought; and 3. The want of any other adequate and appropriate remedy. Jamieson v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 318, 322, 495 A.2d 623, 625 (1985); St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 566, 493 A.2d 146, 151 (1985). Rauser bases his first claim upon the Pennsylvania Supreme Court’s decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), where the Supreme Court interpreted Section 21.1 of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. §331.21a, as withholding from the Board the power to recommit parolees as technical parole violators for conduct that also constituted a new crime of which the parolee is subsequently convicted. See also Wile, Probation and Parole, 57 Pa.B. A.Q. 152, 154-155 (1986). Here, Rauser alleges his technical parole violations were based upon his arrest on burglary charges, while he does not specifically identify the pa role condition the Board asserted he violated. Since his arrest led to his conviction on the burglary charges, Rauser argues that the Board was precluded under Rivenbark from basing a technical parole violation upon that arrest. We respectfully disagree. In Rivenbark the Pennsylvania Supreme Court held that the Board may not recommit a parolee as a technical parole violator for the same act that constituted a new crime of which the parolee is convicted. 509 Pa. at 255, 501 A.2d at 1114. Here, the Board, according to Rausers pleadings, based its technical parole violation upon his arrest for burglary charges and presumably not reporting that arrest within the required time. That is an act that is separate and distinct from Rausers act that constituted the crime of burglary of which he was subsequently convicted. Therefore, the Board had the authority to recommit him as a technical parole violator based upon his arrest despite his subsequent conviction of the offense that he was arrested for. Cf. Bennett v. Pennsylvania Board of Probation and Parole, 95 Pa. Commonwealth Ct. 373, 505 A.2d 1050 (1986) (parolees conviction of indecent exposure and open lewdness did not prevent his recommitment for violating a special parole condition prohibiting his consumption of alcohol); Keough v. Pennsylvania Board of Probation and Parole, 95 Pa. Commonwealth Ct. 252, 505 A.2d 378 (1986) (parolees conviction of driving under the influence did not prevent his recommitment as a technical parole violator for violating a special condition of parole prohibiting his consumption of alcohol). Therefore, Rauser has failed to show a clear right to the relief he seeks under Rivenbark. Rausers second contention is that the Board erred when it mandated that his parole backtime and new sentences must be served consecutively. This claim is clearly frivolous. In Commonwealth v. Dorian, 503 Pa. 116, 468 A.2d 1091 (1983), the Pennsylvania Supreme Court held in clear and unequivocal terms that under Section 21.1(a) of the Parole Act, 61 PS. §331.21a(a), parole backtime and new sentences must be served consecutively. In so holding, the Supreme Court expressly disapproved of the Superior Courts holding that Section 9761 of the Sentencing Code, 42 Pa. C. S. §9761, permitted a sentencing judge to order parole backtime to be served concurrently with a new sentence. 503 Pa. at 117, 468 A.2d at 1092. See also Commonwealth v. Zuber, 466 Pa. 453, 457, 353 A.2d 441, 443 (1976). Thus, under Dorian and Zuber, Rauser has no right to have his parole backtime run concurrently with any new sentences that he may have received as a result of his new burglary convictions. To the contrary, the well-established law in Pennsylvania is that parole backtime and new sentences must be served consecutively and a sentencing judge has no power or authority to order otherwise. Dorian; Zuber. We also note, with respect to Rauser’s claim concerning the concurrent versus consecutive service of his parole backtime and new sentences, that he had an adequate remedy at law. In St. Clair we held that the Board’s administrative appeal process embodied in 37 Pa. Code §71.5(h) provides parolees with an adequate and meaningful remedy that must be exhausted prior to seeking judicial review of a Board parole revocation order. 89 Pa. Commonwealth Ct. at 569, 493 A.2d at 152. An appeal from the Board’s decision in the administrative appeal process is then available to this Court. See Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981); Section 763 of the Judicial Code, 42 Pa. C. S. §763. Thus, insofar as his service of sentence claim is concerned, Rauser has an adequate remedy at law and the fact that he failed to avail himself of that remedy or was unsuccessfully in appealing the Boards parole revocation order does not give him a right to bring an action in mandamus based on the same claim. We note that he also had an adequate remedy at law as to his Rivenbark claim. Although Rivenbark was decided by the Pennsylvania Supreme Court on December 10, 1985, well after the expiration of the thirty day appeal period of the Boards parole revocation order, he could have sought reconsideration by the Board in light of the Rivenbark decision. In Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986), we held that the Board could properly consider a parolees request for reconsideration of his parole revocation order after the thirty day appeal period of 37 Pa. Code §71.5(h) had expired where the change in law effected by Rivenbark was not announced until the applicable appeal period had expired. Like the parolee in Threats, Rauser could have asked the Board to reconsider its prior revocation order in light of Rivenbark. However, having found that Rauser has not established facts that show that he has a clear legal right to the relief he seeks and that he had an adequate remedy at law insofar as his service of sentence claim is concerned, he has not set forth a valid claim in mandamus. Accordingly, we shall sustain the Boards demurrer and dismiss the petition for review. Order Now, July 2, 1987, upon consideration of the Preliminary Objections of the Pennsylvania Board of Probation and Parole, and the briefs filed in support and in opposition thereto, said Preliminary Objections are sustained and the Petition for Review filed by Henry Rauser is hereby dismissed for the failure to state a claim upon which relief can be granted.

Opinion by Senior Judge Narick, The Beaver Cemetery (Cemetery) has appealed from the decision and order of the Pennsylvania Human Relations Commission (Commission) which adopted the recommendation of the Hearing Examiner who found that the Cemetery had discriminated against Kathryn Berardi (Berardi) on the basis of her sex by demoting her from the position of manager and replacing her with a male, in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955. We must decide three issues: whether the complaint should have been dismissed on the grounds of laches, whether the Hearing Examiner committed an error of law in her allocation of the burden of proof and whether her findings are supported by substantial evidence. The Cemetery is a non-profit, non-sectarian cemetery located in Beaver, Pennsylvania. It is directed by a Board of Managers, which appoints a manager to handle the day-to-day operations. In 1968, the Board appointed Mr. Albaugh as manager. Berardi had been Albaughs secretary at his previous position, and she accepted his offer to become the Cemetery’s secretary. She served in this capacity from 1968 until Albaughs death in 1970. From 1970 to 1973, the Board of Managers took no action to replace Albaugh. His tasks were assumed by Berardi, however, and in 1973, the Board officially appointed her as manager, and increased her salary. In October of 1977, Berardi was replaced by Mr. Cornell as manager of the Cemetery. Although her salary was not decreased, Cornell’s salary was higher. Berardi filed a complaint with the Pennsylvania Human Relations Commission on November 17, 1977. Hearings were held in June 1985 before a Hearing Examiner, who determined that there was a violation of the Act. The Hearing Examiner’s findings were adopted by the Commission, which entered its final order on March 26, 1986. It is from that order which the Cemetery has appealed. First, the Cemetery contends that Berardi’s complaint should have been dismissed on the grounds of the equitable doctrine of laches. The complaint was filed in November of 1977 and not heard until June 1985. In the interim, one of the Cemetery’s witnesses, Mr. Prothero, died. The Cemetery argues that the loss of this testimony was prejudicial to its case, and that the Commission ignored the evidence it presented in the form of a letter written by Prothero. Initially, we note that it is unsettled whether the doctrine of laches may be applied in this type of administrative proceeding. While similar arguments have been considered by this Court in some cases, see, e.g., Farrell Area School District v. Deiger, 88 Pa. Commonwealth Ct. 431, 490 A.2d 474 (1985) (a human relations case under the Act), the applicability of the doctrine to these types of administrative actions has been questioned. Churchill Area School District Appeal, 30 Pa. Commonwealth Ct. 413, 374 A.2d 1000 (1977) (a case arising under Section 1505 of the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, as amended, 43 P.S. §1101.1505); Department of Transportation v. Pennsylvania Human Relations Commission, 84 Pa. Commonwealth Ct. 98, 480 A.2d 342 (1984) rev'd on other grounds, 510 Pa. 401, 508 A.2d 1187 (1986) (another case under the Act). Given that the purpose of the doctrine is to bar relief “when 'the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice,’ ” Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977) (citations omitted; emphasis added), and that, in assumpsit actions, statutes of limitations serve that purpose, see Pennsylvania Railroad Co. v. Brownstein, 182 Pa. Superior Ct. 65, 125 A.2d 618 (1956), it seems that a similar rationale ought to apply here, where the Act specifically provides that complaints must be filed within ninety days after the alleged act of discrimination. 43 P. S. §959(g). The Cemetery conceded that the complaint in this case was filed within the applicable time period, and has not raised timely filing as an issue before this Court. Rather, it contends that the eight years which elapsed between the filing of the complaint and the hearing is an unreasonable amount of time as a matter of law, and that it has been prejudiced by the inordinate delay. While we agree that an eight-year hiatus is deplorable, we do not believe that the delay is fairly attributable to Berardi. It would be inequitable under these facts to allow the invocation of an equitable doctrine against a complainant who has acted with all due diligence in filing within the relatively short limitations period. Under these circumstances, the complainant has as much to lose as the employer by reason of the delay, in terms of fading memories and loss of witnesses, both for direct and cross-examination purposes. Because this is not an equity case, and the Act contains a limitations period, eliminating the need for a device to protect employers from stale claims, we feel it appropriate to decline to consider the defense of laches. The Cemetery’s next argument is that the Commission erred in its allocation of the parties’ respective burdens of proof. Because we are of the opinion that the Commission followed the applicable legal precedent, we reject this argument. Citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 291, 365 A.2d 649 (1976), the Commission outlined the respective burdens of proof as follows. First, the complainant bears the burden of making out a prima facie case. Secondly, should she do so, the employer generally must rebut the inference of discrimination thus created by setting forth, through the introduction of admissible evidence, the legitimate, nondiscriminatory reasons for its conduct. Finally, the complainant, in order to prevail, is then required to show by a preponderance of the evidence that the proffered reasons were pretextual and that she was, therefore, the victim of intentional discrimination. Under the cases cited, we find this to be a correct statement of the law, and one this Court has consistently followed, as we are bound to do. See e.g., Smith v. B & O Railroad Co., 90 Pa. Commonwealth Ct. 186, 494 A.2d 1161 (1985); Harrisburg School District v. Pennsylvania Human Relations Commission, 77 Pa. Commonwealth Ct. 594, 466 A.2d 760 (1983); Board of Trustees, Luzerne County Community College v. Pennsylvania Human Relations Commission, 33 Pa. Commonwealth Ct. 121, 381 A.2d 201 (1977). The Cemetery has not disputed, as found by the Commission, that Berardi fulfilled her initial burden of establishing a prima facie case. The Commission determined that Berardi proved: 1) that she was a member of a protected class; 2) that she was performing duties which she was qualified to perform; 3) that she was removed from the managers position; and 4) that the employer sought a replacement with similar qualifications or replaced her with an employee not in her protected class. The next level of inquiry then became whether the Cemetery had a legitimate, non-discriminatory reason for replacing Berardi with Cornell. This included a showing that Berardi was not best qualified for the position. Harrisburg School District. While the Cemetery objects to imposition of this greater burden, it is clear that the Pennsylvania Supreme Court has construed Section 5(a) of the Act to include such a burden. General Electric; Winn v. Trans World Airlines, Inc., 506 Pa. 138, 484 A.2d 392 (1984). That such a demonstration is required, however, does not mean, as the Ceme tery seems to believe, that the Commission altered the Cemetery’s ultimate burden, which is one of production of evidence. General Electric; Winn; Elarrisburg School District. Once such evidence is presented, the burden again shifts to the complainant for an opportunity to demonstrate pretext. Of course, the ultimate burden of persuasion always rests with the complainant. Id. A careful reading of the Commission’s entire opinion indicates that it followed this procedure. It evaluated the evidence and found that the Cemetery had not demonstrated that Berardi was not the best able and most competent to serve as manager. Further, in light of Berardi’s testimony, it found that the reasons the Cemetery offered for her demotion were pretexts. It based that conclusion on the following testimony: Mr. Wall-over, a Board member and the Cemetery’s prime witness, testified that Berardi did not adequately solve problems and that she complained to him of feeling “burdened” by the responsibilities of her job. However, he admitted that he had never taken any disciplinary action against her, believed, but was not sure, that either he or Mr. Prothero, another Board member, had discussed Berardi’s deficiencies as manager with her, and that the Board had given Berardi a raise every year that the Board had a raise to give. Regarding the circumstances surrounding the appointment of Mr. Cornell as manager, Wallover testified that the Cemetery was run by employees and owners of the Cook-Anderson Company, many of whom served on the Board. Cornell was a Board member, a Cook-Anderson employee and a relative of Mr. Cook who Wallover described as Mr. Cook’s “boy.” Following Cook-Anderson’s bankruptcy, he went to work for a hardware store but developed back problems which were aggravated by that job. Giving up the job would leave him and his wife with no visible means of support and the Commission found this to be a motivating factor in appointing him as Cemetery manager. Further, the extent of his familiarity with Cemetery operations arose from attending four Board meetings a year, and from having been involved with supplying items the Cemetery ordered through Cook-Anderson. These admissions, coupled with Berardis clear and more credible testimony to the effect that she derived satisfaction from her job, did not feel burdened by it, and had never received any complaints from the Board, led the Commission to conclude that her demotion amounted to impermissible sex discrimination. The final argument raised by the Cemetery is that the Commission erred in rejecting certain evidence it offered to prove that its decision to demote Berardi was free of a discriminatory motive. Wallover described a situtation in which he received frequent complaint calls at his home regarding matters he felt should have stopped at Berardis desk. The Commission discounted this testimony in light of several factors. It found that no Board members had complained to Berardi that her performance of her duties as manager was less than acceptable during her tenure, and Berardi received regular salary increases. In addition, she did not receive the same level of support as previous and subsequent male managers, in that she did not have a full-time secretary as they did, but was expected to do both jobs. The Board undermined her authority with respect to problems with a difficult employee, Mr. Chevoits, yet clearly supported the authority of Cornell when similar problems recurred while he was manager. The Commission found further, that Cornell was offered the position of manager one year before he accepted it, and it was unlikely that the Board would have allowed the deteriorating situation Wallover described to continue for that long a time. The Cemetery’s argument overlooks the Hearing Examiner’s role as factfinder. The Commission adopted the Hearing Examiner’s opinion, after having determined that substantial competent evidence supported her findings. Our scope of review is similarly limited. We may not disturb an order of the Commission unless its adjudication is in violation of complainant’s constitutional rights, is not in accordance with the law or if necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Caterpillar Tractor Co. v. Pennsylvania Human Relations Commission, 78 Pa. Commonwealth Ct. 86, 466 A.2d 1129 (1983). We have previously held that an administrative decision is supported by substantial evidence when, from an examination of an entire record and the inferences therefrom, a reasonable person might have reached the same decision. Board of Trustees at 125, 381 A.2d at 203. From our thorough review of the entire record, we find that each of the Commissions detailed factual findings is amply supported by substantial, competent evidence. The Cemetery complains that certain evidence was disregarded by the Commission. However, the Commission expressly found that much of that evidence was not credible. It is solely within the province of the factfinder to determine the weight and credibility of the evidence and when, as here, its findings are supported by substantial evidence, we are without power to disturb those findings on appeal. Caterpillar Tractor Co. Accordingly, having detected no error in the proceedings before the Commission, we affirm its order. Order And Now, this 30th day of June, 1987, we affirm the order of the Pennsylvania Human Relations Commission dated March 26, 1986. This court has held that the doctrine is applicable to administrative disciplinary actions. See e.g., Harrington v. Department of State, 58 Pa. Commonwealth Ct. 137, 427 A.2d 719 (1981). We use the term “greater burden” as did the Commission, which compared an employers burden under Section 5(a) of the Act with the “lesser burden” of Burdine, which does not require an employer to present evidence with respect to a complainants qualifications. As this Court noted in Harrisburg School District at 599, 466 A.2d at 763, “the U.S. Supreme Courts construction of Title VII does not require our court to construe the Pennsylvania Human Relations Act in the same fashion,” citing Anderson v. Upper Bucks County Area Vocational Technical School, 30 Pa. Commonwealth Ct. 103, 373 A.2d 126, 129 (1977). In pertinent part, that section provides: It shall be an unlawful discriminatory practice, ... (a) For any employer because of the . . . sex ... of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.

Opinion by Judge Blatt, Carl L. Maenak and his wife, Sarah S. Maenak (the Maenaks) and the Wallace Township Municipal Authority (Authority) have filed separate petitions for review from the order of the Agricultural Lands Condemnation Approval Board (Board). We have consolidated these petitions for review by a prior order and will address and dispose of the issues raised therein in this opinion. The relevant factual background of this matter is essentially undisputed by the parties. The Maenaks own approximately fifty-two acres of land (the property) in the village of Glenmoore, Wallace Township, Chester County against which the Authority instituted condemnation proceedings. The Authority proposes to use the property for a spray irrigation waste disposal project (project). After the Authority had obtained a writ of possession for the property, the Maenaks filed preliminary objections nunc pro tunc in the common pleas court, contending that the Authority had failed to seek approval of the Board pursuant to Section 306 of The Administrative Code of 1929 (Code). The Authority then agreed to request a Board hearing, which was subsequently requested and held. The Board, at the hearing, with all of the parties in attendance, received testimony and argument from the parties, and thereafter issued the following order: AND NOW, this 1st day of April, 1986, the Board having received a request on February 10, 1986 from the Wallace Township Municipal Authority pursuant to 71 Pa. Statutes §106 asking that the Board determine that there is no reasonable and prudent alternative to the utilization of approximately fifty-two (52) acres of land for a proposed waste water spray irrigation project, and Further, a hearing on this matter was held before the Board on March 14, 1986, and Further, the Board met in open session on April 1, 1986 to decide this matter and the result was that three members determined that there was a feasible and prudent alternative to the condemnation and three members determined that there was not a feasible and prudent alternative to the condemnation, and Therefore, since this Board is unable to act in this matter, it is hereby Ordered that Wallace Township Municipal Authority may proceed to condemn land owned by Carl and Sally Maenak. For the Agricultural Lands Approval Board. (S) Kirk Wilson, Chairman On review, the Maenaks contend that the Board, in allowing the condemnation to proceed, erroneously interpreted the legal effect of its evenly-divided vote. They argue that the correct interpretation of this vote is to prohibit further implementation of the project. The Authority and the Board, of course, argue to the contrary. They claim that the evenly-divided vote prevented the Board from being able “to act” within the meaning of Section 306(c). There is no definition of the term “to act” within Section 306, so we must construe this phrase according to its common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972 (S.C.A.), 1 Pa. C. S. § 1903(a); Conference of Pennsylvania Liquor Con trol Board Lodges v. Pennsylvania Labor Relations Board, 71 Pa. Commonwealth Ct. 316, 454 A.2d 686 (1983). Webster’s Third New International Dictionary 20 (1966) pertinently defines the verb “act” as meaning “to move to action”; “to carry out into action” and “to give a decision or award (as by vote of a deliberative body or by judicial decree).” Using these definitions, we believe that, inasmuch as the Board, in response to the Authority’s request, scheduled and held a hearing at which it received testimony and legal argument after which it conducted a vote among its members, the Board must be said to have acted in this matter. We believe that the Authority and the Board construed the term too narrowly and that such an interpretation, if allowed to stand, would produce a result which is absurd or unreasonable, a result which we must presume the legislature did not intend. Section 1922(1) of the S.C.A., 1 Pa. C. S. §1922(1); Unionville-Chadds Ford School District v. Rotteveel, 87 Pa. Commonwealth Ct. 334, 487 A.2d 109 (1985). Moreover, the appellate courts of the Commonwealth have clearly held that an evenly-divided administrative vote has the effect of denying the action requested of it, which here would be a determination as to whether or not there was a feasible and prudent alternative to the condemnation of the property. Giant Food Stores, Inc. v. Zoning Hearing Board of Whitehall Township, 93 Pa. Commonwealth Ct. 437, 501 A.2d 353 (1985); Pennsylvania Publications, Inc. v. Pennsylvania Public Utility Commission, 152 Pa. Superior Ct. 279, 32 A.2d 40 (1943), rev'd on other grounds, 349 Pa. 184, 36 A.2d 777 (1944). We must conclude, therefore, that the Board erred in interpreting its evenly-divided vote as an inability to act and as permission for the condemnation to proceed. This does not end our inquiry, however. The Authority, under its petition for review at No. 1406 C. D. 1986, contends that the Board was without jurisdiction to consider this case because the Board made no finding that the property had been classified as agricultural land by the Agricultural Soil Conservation Service of the United States Department of Agriculture. The Authority also argues that the Board lacked jurisdiction because most of the property will continue to be used in agriculture as part of the project and because Section 306 was not intended to apply to such circumstances. In regard to the Authority’s first contention, we find ourselves in agreement with the argument of the Maenaks that the Authority, the party which requested the Board to exercise its review, is considered to have thereby agreed to the existence of jurisdictional facts and is, thereafter, precluded from disputing such facts at a later stage of the proceedings to the prejudice of the other party. See Dock v. Cauldwell, 19 Pa. Superior Ct. 51 (1902); see also Montgomery v. Kennedy, 651 S.W. 2d 814 (1983), rev’d on other grounds, 669 S.W. 2d 309 (1984). We believe, therefore, that, having submitted this request for a ruling to the Board, the Authority necessarily admitted to the existence of the requisite jurisdictional feet, i.e., the agricultural lands classification. The remaining jurisdictional point raised by the Authority is, we believe, without merit. The Authority would have us read into Section 306 a legislative intent to bar the Board from jurisdiction over land which, as will the bulk of the acreage proposed for the project, will remain in agricultural use. Unfortunately, for the authority, we are precluded from so doing because the unambiguous language of Section 306 granted to the Board no power, express or implied, to consider any factors beyond the classification of the land at the time such a request is before the Board and whether or not a feasible and prudent alternative exists to the condemnation of the subject land for either highway purposes or for purposes of solid or liquid waste disposal. And where, as here, the words of a statute are clear and free from all ambiguity, we may not indulge in statutory construction. Section 1921(b) of the S.C. A., 1 Pa. C. S. § 1921(b); see In Re Private Detective License of Keibler, 279 Pa. Superior Ct. 276, 420 A.2d 1331 (1980) (court does not have power to create additional authority in a statute if the words therein are clear and free from all ambiguity). We must, therefore, reject the jurisdictional challenges raised by the Authority. Accordingly, we will reverse the order of the Board. Order And Now, this 10th day of July, 1987, the order of the Agricultural Lands Condemnation Approval Board in the above-captioned matter is reversed. The Maenaks’ petition for review is docketed at No. 1257 C. D. 1986 and the Authority’s petition is docketed at No. 1406 C. D. 1986. As is indicated by the record in this case, a spray irrigation waste disposal project utilizes two collection lagoons wherein waste water is treated and from which the waste water is dispersed over a specified parcel of land. Agricultural use of this land is then required because whatever crops are planted on the land extract the nutrients from the soil which have been deposited by the spraying, thereby completing the disposal cycle. Section 306 of the Code, Act of April 9, 1929, P.L. 177, added by Section 1 of the Act of December 7, 1979, P.L. 478, 71 P.S. §106, is the statute which created the Board and establishes the' Boards duties and powers as follows: (a) The Agricultural Lands Condemnation Approval Board is hereby created as an independent administrative board and shall be made up of six (6) members, consisting of the Director of the Office of Policy and Planning, or his designee, the Secretary of Agricultural, or his designee, the Secretary of Environmental Resources, or his designee, the Secretary of Transportation, or his designee, and two active formers appointed by the Governor, with the advice and consent of a majority of the Senate, for a term of four (4) years. The Secretary of Agriculture shall be chairman of such committee and shall convene the committee from time to time as needed to carry out its duties. The farm members of the committee shall be reimbursed for actual expenses incurred in the performance of their duties. Such expenses and any others incurred by the committee shall be paid for from appropriations made to the Office of State Planning and Development. (b) Before condemning for any of the purposes set forth in subsection (d) any agricultural lands, as classified by the Agricultural Soil Conservation Service of the United States Department of Agriculture, which lands are being used for productive agricultural purposes, but not including the growing of timber, the Commonwealth of Pennsylvania and any of its political subdivisions, agencies or authorities shall request the Agricultural Lands Condemnation Approval Board to determine that there is no reasonable and prudent alternative to the utilization of such lands for the project. (c) The board shall have sixty (60) days in which to determine whether there is a feasible and prudent alternative to the condemnation. If the board determines that there is no feasible and prudent alternative, or if the board foils to act within sixty (60) days of receipt of the request, the requesting body may proceed to condemn, otherwise, the condemnation shall not be effected. (d) The Board shall have jurisdiction over condemnation for the following purposes: (1) Highway purposes, but not including activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curbs or reconstruction. (2) Disposal of solid or liquid waste material, but not including underground pipes used to transport waste. This holding, of course, in no way detracts from the axiomatic rule that jurisdiction may not be conferred by the parties where none exists. See Roberts v. Martorano, 427 Pa. 581, 235 A.2d 602 (1967).

Opinion by Judge MacPhail, Allegheny Valley School District (District) has appealed from an order of the Court of Common Pleas of Allegheny County which affirmed an arbitrators decision that Francis Moxie (Grievant) was entitled to use accumulated sick leave during an extended absence for a work-related injury. We affirm. Grievant, who had thirty-two years of service with the District as a professional employee, suffered a work-related injury on May 8, 1984 while acting as a tennis coach for the District. As a result, Grievant was unable to work from the date of his injury until March 14, 1985. During his absence the District paid Grievant his full salary without loss of accumulated sick leave and Grievant endorsed over to the District the workmens compensation benefits he received. During his tenure with the District prior to the date of injury, Grievant had accumulated 245Vz days of sick leave. Grievant sought, and was denied by the District, the right to use this leave during his period of disability. The sole issue on appeal is whether the District could properly prevent Grievant from using his accumulated sick leave during his absence for a work-related injury and, instead, pay him full salary in relief of his disability The legal and economic ramifications of this issue are illustrated by two leading cases in this area of the law. In Creighton v. Continental Roll & Steel Foundry Co., 155 Pa. Superior Ct. 165, 173, 38 A.2d 337, 341 (1944), it was held that when an employer pays a disabled employee regularly stated amounts “not as wages or salary for work performed, but in relief of the employees incapacity to labor,” then the employer is entitled to a credit against workmens compensation benefits paid to the employee. In Temple v. Pennsylvania Department of Highways, 445 Pa. 539, 285 A.2d 137 (1971), however, it was recognized that accrued sick leave is an incident or benefit of ones employment and, thus, constitutes an entitlement akin to wages for work performed. As such, when an employee expends accumulated sick leave and also receives workmens compensation benefits, the employer is entitled to no credit against those benefits. Applying these principles to the instant case, it becomes clear that if Grievant is entitled to utilize his accrued sick leave as concluded by the arbitrator, then, under Temple, the District is not entitled to a credit against the workmens compensation benefits which he received. On the other hand, if the District is correct in arguing that it had the option of paying Grievant his full salary without use of sick leave, then under Creighton, the District is entitled to a credit for workmens compensation benefits. Before reviewing the legal issue presented, we observe that our scope of review of an arbitrators decision is highly circumscribed. The award must be affirmed so long as it draws its essence from the collective bargaining agreement. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981). An arbitrators interpretation of the labor agreement must be upheld if it can be rationally derived from the agreement, viewed in light of its context, language and any other indicia of the parties’ intent. 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). As noted by the arbitrator, Section 7-A of the subject collective bargaining agreement provides that “Sick leave shall be granted as provided in the School Code.” The pertinent statutory provision, Section 1154(a) of the Public School Code of 1949 (Code),* ** 24 P.S. §ll-1154(a), provides as follows: In any school year whenever a professional or temporary professional employe is prevented by illness or accidental injury from following his or her occupation, the school district shall pay to said employe for each day of absence the full salary to which the employe may be entitled as if said employe were actually engaged in the performance of duty for a period of ten days. Any such unused leave shall be cumulative from year to year in the school district of current employment or it predecessors without limitation. All or any part of such accumulated unused leave may be taken with full pay in any one or more school years. No employes salary shall be paid if the accidental injury is incurred while the employe is engaged in remunerative work unrelated to school duties. (Emphasis added.) Since it is undisputed that Grievant was prevented from working by an accidental injury incurred in the course of his employment, it would appear that Grievant could properly use his accumulated sick leave during his work absence. The District cites no provision in the agreement which would prevent such use of sick leave during a period of work-related disability, but rather, points to the following provisions of the Code as granting it the option of paying full salary in lieu of sick leave: Whenever a teacher is prevented by sickness or some other unavoidable circumstance from following his or her occupation, the school district may, at the discretion of the directors, make such payments of compensation during the period of absence from duty as the exigencies of the case may seem to warrant. Section 1153 of the Code, 24 P.S. §11-1153. Any board of school directors may adopt rules or regulations pertaining to the payment of salaries of employes when absent from duty, extending the period of leave with or without pay in excess of that herein provided, or authorizing leaves with pay for other purposes. Section 1154(e) of the Code, 24 P.S. §ll-1154(e). The District contends that it would be absurd and contrary to the public interest to construe these provisions as allowing an employee to receive both sick leave salary and workmens compensation benefits. Regarding Section 1153, it appears that while the District may make compensation payments during a period of absence “as the exigencies of the case may seem to warrant,” nothing in the language of that provision authorizes a school district to thereby prevent a professional employee from using sick leave to which he has become entitled as an incident of his employment under Section 1154(a) of the Code. Thus, we agree with the arbitrator that the discretion granted to a school district, through its directors, to pay compensation under Section 1153 may not be used to compel an employee to accept such compensation when that employee wishes to use accrued sick leave. The other provision relied upon by the District, Section 1154(e), relates to the adoption of rules and regulations by a school district authorizing the extension of sick leave. The District contends that it has adopted a policy with regard to work-related injuries of paying full salary and taking a credit for workmens compensation benefits. The District contends that the payment of salary without expending sick leave effectively acts to extend such sick leave. However, as noted by the arbitrator and conceded by the District, the collective bargaining agreement contains no provision restricting an employees use of sick leave during a work-related disability period. Absent such a provision in the collective bargaining agreement or evidence of an existing rule or regulation, we do not believe that Section 1154(e) lends support to the Districts position. With respect to the District’s argument that the Legislature did not intend to create a “windfall” for school district employees who suffer a work-related injury, we again note that sick leave is a benefit of employment which is earned by the employee by his service. Temple. As such, we do not think it is accurately characterized as a “windfall.” Moreover, Section 1154(a) of the Code does specify that sick leave may not be applied where an employee incurs a work-related injury with another employer. Thus, the Legislature was clearly cognizant of the possibility that an employee might seek to use sick leave during a work-related disability period. Having specifically precluded an employee from us ing sick leave during a period of disability which results from other employment, we think the Legislature intended to leave open the possibility that an employee who is injured while working for a school district may receive sick leave in addition to workmens compensation. See Section 1924 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1924 (exceptions in a statute shall be construed to exclude all others). In sum, we agree with the arbitrators conclusion that the District violated Grievants statutory and contractual rights to utilize his accumulated sick leave in the instant case. The arbitrators decision draws its essence from the collective bargaining agreement and constitutes a reasonable interpretation of pertinent Code provisions. Order affirmed. Order The order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed. We observe that the parties to this appeal have filed an agreed statement of record pursuant to Pa. R. A.P. 1924 which also constitutes the reproduced record in this matter. Thus, the factual and procedural history of this matter has been gleaned from the agreed statement. The District also paid Grievant $4,480.00 as compensation for wages which he would have received from a second job as a security guard had he not be temporarily disabled. The District was granted a credit for $4,480.00 against the arbitrators award. Grievant has not cross-appealed from this portion of the award. The Supreme Court has also noted that the scope of review set forth in Section 11(d) of the Arbitration Act of 1927, Act of April 25, 1927, P.L. 381, 5 P.S. §171(d) is consistent with the essence test. Community College of Beaver County. Section 11(d) has since been superseded by Section 7302(d)(2), of the Uniform Arbitration Act, 42 Pa. C. S. §7302(d)(2), but our Supreme Court has recognized “that the standard of review of an arbitration award under the Public Employee Relations Act [Act of July 23, 1970, P. L. 563, as amended, 43 P.S. §§1101.101-1101.2301] is the same regardless of which arbitration act applies.” Pennsylvania State Education Ass’n v. Appalachia Intermediate Unit 08, 505 Pa. 1, 6, 476 A.2d 360, 363 (1984). Section 7302(d)(2) of the Uniform Arbitration Act provides as follows: [A] court in reviewing an arbitration award . . . shall . . . modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict. Thus, in reviewing the arbitrators award under the essence test we must be satisfied that the award is not contrary to law. See Scranton Federation of Teachers v. Scranton School District, 498 Pa. 58, 444 A.2d 1144 (1982); Pennsylvania Social Services Union v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 461, 508 A.2d 360 (1986). Act of March 10, 1949, P.L. 30, as amended. The arbitrator also observed that “[s]ignificantly, in its Agreement with support personnel the District there did negotiate a provision requiring employes to accept salary payments without use of sick leave and turn over Workers Compensation checks to the District. Here, no such provision exists and the Superintendent admitted that there was no discussion of these matters in negotiations.” Adjudication at 9, Reproduced Record at 23a.

Opinion by Judge Colins, Ragland Biggs (petitioner) appeals an order of the Board of Probation and Parole (Board) which recommitted him to serve a total of 54 months backtime, 42 months as a convicted parole violator and 12 months as a technical parole violator. While on parole, the petitioner was arrested, and subsequently convicted, inter alia, of robbery. He thereafter received a full Board hearing to determine whether or not he should be recommitted as a technical parole violator for violating technical parole condition 5B, which proscribes the possession of a firearm or other deadly weapon. At the hearing, the Board heard testimony of the robbery victim that petitioner had robbed her at gunpoint, and, accordingly, found that petitioner had violated the technical condition. The petitioner contends here that his recommitment as a technical parole violator contravenes our Supreme Courts holding in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), which construed the requirements concerning recommitment of convicted as well as technical parole violators set forth in Section 21 of the Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. §331.21. Rivenbark states, in pertinent part, that “a parolee may not be recommitted as a technical violator based upon an act constituting a new crime of which he is convicted.” Id. at 255, 501 A.2d at 1114. Applying Rivenbark, this Court has held that the same conduct may not be used as the basis of recommitment as a convicted and a technical parole violator where, for example, a parolees use of a weapon was part of the conduct for which he was convicted. Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986). The Board maintains that its decision does not violate Rivenbark, asserting that possession of a firearm is not an element of robbery. We note that, in Brewer, the Board determined that a parolee who subsequently pleaded guilty to charges of making terroristic threats had violated parole condition 5B because he had possessed a rifle when he made the threats. We held, however, that recommitment under such circumstances violated Rivenbark because the possession of the weapon was part of the conduct for which petitioner had been convicted and subsequently recommitted as a convicted parole violator. Brewer. The facts in the matter sub judice compel a similar result, inasmuch as the petitioners use of a gun was plainly implicated in the robbery for which he was subsequently convicted. Accordingly, the use or possession of a weapon was part of the conduct for which the petitioner was found guilty, and consequently may not be used to establish the basis of a separate technical parole violation. We will, therefore, reverse that portion of the Boards order recommitting the petitioner as a technical parole violator. Order And Now, this 30th day of June, 1987, the order of the Board of Probation and Parole in the above-captioned matter is reversed insofar as it directs the recommitment of the petitioner as a technical parole violator. The petitioners recommitment as a convicted parole violator is affirmed.

DOYLE, President Judge. The Department of Transportation, Bureau of Driver Licensing (Department), appeals an order of the Court of Common Pleas of Lancaster County, which sustained Ricky C. Tindal’s appeal from a one-year suspension of his driving privileges imposed by the Department. By notice dated June 10, 1997, the Department informed Tindal as follows: Section 1581 of the Vehicle Code requires the Department to treat certain out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the Department receiving notification from MARYLAND of your conviction on 05/02/1997 of an offense which occurred on 01/23/1997, which is equivalent to a violation of Section 3731 of the Pa. Vehicle Code, DRIVING UNDER THE INFLUENCE, your driving privilege is being SUSPENDED for a period of 1 YEAR(S), as amended by Section 1532B of the Vehicle Code.[ ] (Footnote added.) Maryland’s driving under the influence (DUI) statute, Md.Code, Transp. § 21-902(b), provides that “[a] person may not drive or attempt to drive any vehicle while under the influence of alcohol.” By comparison, Pennsylvania’s DUI statute, 75 Pa.C.S. § 3731(a)(1), provides that “[a] person shall not drive, operate or be in actual physical control of the movement of a vehicle ... [wjhile under the influence of alcohol to a degree which renders the person incapable of safe driving [.]” (Emphasis added.) After a hearing, the Common Pleas Court sustained Tindal’s appeal, holding that Maryland’s DUI statute § 21-902(b), was not substantially similar to Pennsylvania’s DUI offense, 75 Pa.C.S. § 3731(a), for purposes of Article IV of the Driver License Compact of 1961. On appeal, the Department contends that the Common Pleas Court erred in sustaining Tindal’s appeal, because Maryland’s DUI statute, § 21-902(b), is substantially similar to Pennsylvania’s DUI provisions. We cannot agree, since the Department’s argument was rejected by our Supreme Court in Petrovick v. Department of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999). In Petrovick, the Supreme Court articulated a new analysis for resolving the issue of the substantial similarity of statutes under the Compact. Rejecting the approach of comparing directly Pennsylvania’s DUI statute to the relevant out-of-state statute, the Supreme Court concluded that the proper inquiry is whether each state’s DUI provisions are substantially similar to Article IV(a)(2) of the Compact: [T]he Compact requires a two-pronged test. First, we must evaluate whether there is a Pennsylvania offense which is ‘of a substantially similar nature’ to the provisions of Article IV(a)(2). Second, we must evaluate whether there is a Maryland or New York offense which is ‘of a substantially similar nature’ to Article IV(a)(2). Both prongs must be satisfied before PennDOT can sanction a Pennsylvania citizen for an out-of-state conviction. Petrovick, 559 Pa. at 619-620, 741 A.2d at 1266-1267. (Footnote omitted.) Hence, under Petrovick, each state’s DUI statute must be compared to the following language in Article IV(a)(2) of the Compact: (a) The licensing authority in the home state ... shall give the same effect to the conduct reported ... as it would if such conduct had occurred in the home state in the case of convictions for: (2) driving a motor vehicle while under the influence of intoxicating liquor ... to a degree which renders the driver incapable of safely driving a motor vehicle [.] 75 Pa.C.S. § 1581 (emphasis added). Regarding the first prong of the Petro-vick analysis, the Supreme Court specifically held in Petrovick that Pennsylvania’s DUI statute, 75 Pa.C.S. § 3731(a)(1), is substantially similar to Article IV(a)(2) of the Compact. However, as to the second prong of the test, the issue of whether Maryland’s DUI statute is substantially similar to Article IV(a)(2) of the Compact, the Petrovick Court explained: Even though § 21-902(b) omits the phrase ‘to a degree which renders the person incapable of safe driving,’ Penn-DOT contends that the two statutes are substantially similar. Applying the appropriate analysis, we find that the difference in the language of the Maryland statute and Article IV(a)(2) is not the salient distinction. Rather ... it is the effect of the language in defining the scope of the offense which determines whether or not the out-of-state statute is of a substantially similar nature to Article IV(a)(2). The Maryland statute fails to specify the degree to which a person must be under the influence of alcohol, and therefore permits a much lower threshold for culpability; in contrast, Article IV(a) (2) requires that the person be impaired to a degree that he or she is incapable of safely driving. Petrovick, 559 Pa. at 627, 741 A.2d at 1271 (emphasis added). For the preceding rea sons, the Supreme Court affirmed our decision in Eck (see footnote 6 supra), holding that Maryland’s DUI statute, § 21-902(b), is not substantially similar to Pennsylvania’s DUI provisions. Following Petrovich, and Eck, we hold that Maryland’s DUI statute is not substantially similar to Article IV(a)(2) of the Compact, and, therefore, that the Common Pleas Court correctly sustained Tindal’s statutory appeal. Accordingly, the order of the Common Pleas Court is affirmed. ORDER NOW, July 28, 2000, the February 5, 1998 order of the Court of Common Pleas of Lancaster County, Civil Division, at No. CI-97-07619, is hereby affirmed. . This case was reassigned to the author on September 10, 1999. . Section 1581 of the Vehicle Code (Code), 75 Pa.C.S. § 1581, sets forth the Driver’s License Compact of 1961. Section 1532(b)(3) of the Code, 75 Pa.C.S. § 1532(b)(3), provides that the Department shall suspend a driver’s operating privilege for one year upon receiving a certified record of that driver’s conviction of Section 3731 of the Code, 75 Pa.C.S. § 3731 (driving under influence of alcohol or controlled substance (DUI)). . Although the Department’s notice did not specify which section of the Maryland statute Tindal had violated, both parties agree that Maryland Statute § 21-902(b) is the controlling section. . Under Article IV(a)(2) of the Compact, the party state for purposes of suspension or revocation of a motor vehicle operator license, is required to treat out of state convictions as it would had the conduct occurred in the home state in the case of convictions for "driving a motor vehicle while under the influence of intoxicating liquor ... to a degree which renders the driver incapable of safely driving a motor vehicle [.]" 75 Pa.C.S. § 1581 (emphasis added). Further, Article IV(c) of the Compact provides: "If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this article, such party state shall construe the denominations and descriptions appearing in subdivision (a) of this article as being applicable to and identifying those offenses or violations of a substantially similar nature and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article.” 75 Pa.C.S. § 1581 (emphasis added). .Our review is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the court committed an error of law or abuse of discretion in reaching its decision. Depart- merit of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). . The Supreme Court consolidated Petrovick with the appeal from this Court's order in Eck v. Department of Transportation, Bureau of Driver Licensing, 713 A.2d 744 (Pa.Cmwlth. 1998); both appeals were affirmed by the same opinion and order. In Eck, this Court examined Maryland's and Pennsylvania’s DUI statutes in light of Article IV(a)(2) of the Compact, and we held as follows: In Maryland, the use of any amount of alcohol will support a conviction of driving under the influence of alcohol (DUI) ... and Pennsylvania has no essentially similar offense.... Because Maryland did not report that Eck had driven while under the influence of alcohol to a degree that he was incapable of driving safely, [the Department] cannot suspend his operating privilege under Article IV(a)(2) of the Compact ... [as] Eck's conduct would have no consequences under Pennsylvania law. Id.., 713 A.2d at 745.

HUDOCK, J.: ¶ 1 This is an appeal from the judgment of sentence imposed upon Appellant after a jury convicted him of involuntary deviate sexual intercourse (IDSI), statutory sexual assault, indecent assault and corruption of minors as a result of his conduct toward his eight-year-old stepdaughter. He was sentenced to an aggregate term of twelve and one-half to twenty-five years of imprisonment. This direct appeal followed. We affirm. ¶ 2 In his issues, Appellant challenges the propriety of several of the trial court’s pretrial rulings, asserts trial court error, challenges both the sufficiency and weight of the evidence supporting his convictions, as well as the assertion of several sentencing claims. Before addressing the merits of these claims, however, we must first determine whether they are properly before us. On April 28, 1999, the trial court directed Appellant to file a statement of matters complained of on appeal in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Included in this directive was the statement that “[a] failure to comply with this direction may be considered by the Appellate Court as a waiver of all objections to the Order, ruling or other matter complained of.” The docket entries reflect that notice of this order was served on the parties that same day. ¶ 3 On May 24,1999, the trial court filed the following Rule 1925(a) statement: On April 28, 1999, the Trial Court directed [Appellant] to file a Statement of Matters Complained Of on Appeal. Pennsylvania Rule of Appellate Procedure 1925(b) requires such statements to be filed “no later than 14 days after entry of such order” and a failure to comply may be considered as a waiver of all objections to the order, ruling or other matter complained of. See [Pa. R.A.P.] 1925(b) and Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Based upon the foregoing, and the Court’s further review of our Order and determinations of March 31, 1999, we are satisfied that justice was achieved and thereby affirm said Order. Trial Court Opinion, 5/24/99, at 1-2. Two days later, Appellant’s Rule 1925(b) statement was filed. Within this statement, Appellant raised the issues referenced above. ¶4 In Commonwealth v. Overby, 744 A.2d 797 (Pa.Super.2000), the trial court, by order docketed on December 11, 1998, directed the filing of a Rule 1925(b) statement within fourteen days. In a two sentence memorandum opinion docketed March 25, 1999, the trial court observed that, to date, no Rule 1925(b) statement had been filed by counsel and that counsel had not otherwise contacted the court. Thus, the trial court determined that it was without a basis to render an opinion, but suggested dismissal of the appeal as the record was free from error. A panel of this Court found that the appellant’s “failure to file a timely 1925(b) statement render[ed] no issue preserved for appellate review.” Overby, 744 A.2d at 797. ¶ 5 In reaching this conclusion, the Over-by panel reasoned: In [Commonwealth ] v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the supreme court held that from October 28, 1998, forward, in order to preserve claims for appellate review, an appellant must comply whenever the trial court orders the filing of a statement of matters complained of on appeal pursuant to Pa. R.A.P.1925. “Any issues not raised in a 1925(b) statement will be deemed waived.” Id. 553 Pa. at 420, 719 A.2d at 309. Counsel failed to file a 1925(b) statement within 14 days, or, indeed, prior to the lower court’s memorandum opinion on March 25, 1999. The requested statement was filed with the lower court on April 16, 1999, and transmitted to this court on the same day. The trial court never had the opportunity to address the issues raised on appeal since it did not have the benefit of the statement. In Lord, the supreme court noted the importance of Rule 1925 in the appellate process. It is intended as an aid to trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Id. 553 Pa. at 419, 719 A.2d at 308. By the late filing of the statement, only after the lower court had transmitted its opinion and the rest of the record to this court, appellant has ignored the crucial role of Rule 1925 in the appellate process. We conclude, therefore, that no issues have been preserved for appellate review. Overby, 744 A.2d at 798. ¶ 6 Unlike the facts of Overby, in the present case we note that Appellant’s Rule 1925(b) statement was docketed just two days following the entry and service of the trial court’s Rule 1925(a) statement. Nevertheless, Appellant’s failure to file the statement in a timely manner deprived the trial court of any basis upon which to prepare an opinion. In fact, had the trial court stated its belief as to which issues would be appealed, and addressed them, we would still find waiver. See Commonwealth v. Steadley, 748 A.2d 707, 709 (Pa.Super.2000) (finding that the appellant waived his claim because she neglected to file a Rule 1925(b) statement even though the trial court, in anticipation of what the appellant might raise, addressed a suppression issue; [i]f we allow review of cases where a trial judge determined which issues an appellant could raise and how to frame those issues, that appellant would potentially lose a variety of protected constitutional rights); compare Commonwealth v. Ortiz, 745 A.2d 662, 668 n. 3 (Pa.Super.2000) (concluding meaningful appellate review could proceed under the Lord rationale because the appellant did file a Rule 1925(b) statement, albeit late, before the trial court drafted its opinion). ¶ 7 Judgment of sentence affirmed. . Appellant's Rule 1925(b) statement reads, "AND NOW, this 17th day of May, 1999, comes the above defendant by his attorney ... and delineates the matters complained of on appeal[.]” We note that even were we to consider this date as the date of filing. Appellant’s statement remains untimely.

LEADBETTER, Judge. On October 4, 1998, Daniel Carl Ester was cited for violating N.C. GemStat. § 20-138.1(a)(2) North Carolina’s drunk driving statute. On February 11, 1999, Ester pled guilty to the offense. North Carolina and Pennsylvania are both members of the Drivers’ License Compact of 1961 so North Carolina reported the conviction to Pennsylvania, as required by Article III of the Compact. Pursuant to Article IV of the Compact, 75 Pa.C.S. § 1581, the Pennsylvania Department of Transportation treated the out-of-state conviction as if Ester had been convicted under 75 Pa.C.S. § 3731, Pennsylvania’s statute prohibiting driving under the influence. Ester appealed the suspension to the Common Pleas Court of Erie County. President Judge Michael Palmisano of Erie County heard the appeal de novo, and reversed the suspension. Judge Palmisa-no found that Ester was convicted under a North Carolina statute that required a blood alcohol content of 0.08% or higher, while Pennsylvania’s comparable statute, 75 Pa.C.S. § 3731, requires a blood alcohol level of at least 0.10%. He concluded that “the twenty percent (20%) difference in blood alcohol concentration necessary for a conviction under the North Carolina statute is substantially different so as to nullify the suspension.” Department of Transportation, Bureau of Driver Licensing, v. Ester, slip op. at 2 (citation omitted). Judge Palmisano noted the existence of 75 Pa.C.S. § 1586 in his opinion, but did not consider it relevant to his conclusion. The statute states, in relevant part: 75 Pa.C.S. § 1586. The statute is exactly on point. Ester argues, however, that “The term ‘different degree of impairment’ relates to the descriptive violation of various drunk driving statutes, not the per se violation of drunk driving statutes for a specific blood alcohol level.” Appellee’s brief, at 8. This argument is not convincing. First, different blood alcohol levels are clearly different degrees of impairment. Second, the Court’s duty is not to compare North Carolina’s statute to Pennsylvania, but, as noted above, to compare North Carolina’s statute to Article IV(a)(2) of the compact, which does not use a specific blood alcohol level in its description. Thus, the correct comparison is never between blood alcohol levels, but between Article IV’s description and the state law. The fact that the offense reported to the department by a party state may require a different degree of impairment of a person’s ability to operate, drive or control a vehicle than that required to support a conviction for a violation of section 3731 shall not be a basis for determining that the party state’s offense is not substantially similar to section 3731 for purposes of Article IV of the compact. Our court has previously held in Golinsky v. Department of Transportation, Bureau of Driver Licensing, 724 A.2d 1006 (Pa.Cmwlth.1999) that a North Carolina conviction under N.C. Gen.Stat. § 20-138.1 is a proper basis for a license suspension in Pennsylvania under Article IV. The recently enacted 75 Pa.C.S. § 1586 reinforces this conclusion. Therefore, we hold that N.C. Gen.Stat. § 20.138.1(a)(2) is substantially similar to Article IV(a)(2) of the Driver’s License Compact. The order of the Court of Common Pleas of Erie County is reversed, and the suspension of Ester’s operating privileges is reinstated. ORDER AND NOW, this 26th day of April, 2000, the order of the Court of Common Pleas of Erie County in the above captioned matter is reversed, and the suspension of Ester’s operating privileges is reinstated. . "20-138.1 Impaired driving (a) Offense. — A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance; or (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.” . "The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee_” 75 Pa.C.S. § 1581, Article III. ."The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for ... (2) driving a motor vehicle while under the influence of intoxication li quor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;” 75 Pa.C.S. § 1581(a)(2), Article IV. .As the Supreme Court observed in Petrovick v. Department of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), the "substantial similarity” envisioned by the Compact as enacted "does not call for a direct comparison of Pennsylvania's statute to the out-of-state statute,” but rather whether the two state statutes are " 'of a substantially similar nature' to Article IV(a)(2).” Petrovick, 559 Pa. at 618-19, 741 A.2d at 1266. The Supreme Court has already completed half of this task by determining that Pennsylvania’s 75 Pa.C.S. § 3731(a)(1) is substantially similar to Article IV(a)(2) of the Compact. Id. at 559 Pa. 621-23, 741 A.2d at 1268. Our task is then to determine whether North Carolina's statute is substantially similar to Article IV(a)(2) of the Compact. . This provision is applicable because Ester's conviction, North Carolina's report and the suspension hearing occurred after its effective date (12/21/98). See Petrovick, 741 A.2d at 1269. . See footnote 4, supra . The Department also formulates an eviden-tiary argument. However, based upon our interpretation of 75 Pa.C.S. § 1586, we need not address this issue.

OPINION NIGRO, Justice. At issue in the instant appeal is whether the Commonwealth Court erred in affirming the decision of the Court of Common Pleas denying the City of Easton’s petition to vacate an arbitration award which reinstated Joseph Daiello to his position of employment at the City of Easton’s water treatment facility. For the reasons that follow, we reverse. On May 30, 1996, Joseph Daiello, a member of the American Federation of State, County and Municipal Employees, AFL-CIO, Local 447 (the Union) was fired from his job at the City of Easton’s (the City’s) water treatment facility for: requesting and receiving pay for hours not actually worked; falsifying records by recording data that implied that he had treated the drinking water supply with purification chemicals on occasions when he had not; and neglecting his duties by failing to treat the public water supply with the proper chemicals. Sideletter A to the collective bargaining agreement in force between the City and the Union at the time of Daiello’s termination set forth the following disciplinary policy and procedures, pursuant to which the City terminated Daiello’s employment: DISCIPLINARY POLICY Employees shall not be disciplined or discharged without just cause. If an employee engages in willful misconduct or neglect of duty that results in serious adverse consequences to the Contractor or to the City, including] but not limited to costs of operation, fines, penalties or violations of any safety, health or permit policies, regulations or requirements, the employee may be immediately dismissed by the Project Manager. For offenses that do not rise to the level of willful misconduct or do not result in adverse consequences set forth above, disciplinary action shall be as follows: First Offense: Verbal Second Offense: Written Warning Third Offense: Written notification of suspension without pay for a two (2) day period Fourth Offense: Written notification of suspension without pay for a one (1) week period Following his termination, Daiello filed a written grievance requesting reinstatement. A three-member board of arbitrators (the Board) held hearings on Daiello’s written grievance on August 2 and August 19, 1996. To support its claim that Daiello committed willful misconduct by requesting and receiving pay for hours not worked in November of 1995, the City presented documentary evidence at the hearings consisting of its own daily time records, several weekly time sheets that Daiello himself filled out and signed, and time records from the Coley Security Agency, which employed Daiello on a part time basis in 1995. The City’s daily time record for November 17, 1995 and Daiello’s corresponding weekly time sheet indicated that Daiello worked a shift at the City’s water treatment facility from 7:00 a.m. to 11:30 p.m. on that day. In addition, the City presented documentary evidence at the hearing consisting of time records from the Coley Security Agency. One of those time records, which was ostensibly filled out by Daiello while he was patrolling various businesses and buildings on behalf of the Coley Security Agency, indicated that he was working for the Coley Security Agency from 9:00 p.m. on November 17, 1995 to 4:00 a.m. on November 18, 1995. The City of Easton also presented documents and testimony from City employees which established that Daiello repeatedly failed to add the proper amount of chemicals to a chemical feed bin, failed to properly fill out chemical feed reports and failed to obtain permission before leaving the water treatment facility while on duty. Following the conclusion of the hearings, a divided Board issued a decision awarding Daiello reinstatement to his former position at the City’s water treatment facility with back pay. Although the two-member majority of the Board found as a matter of fact that Daiello had stolen time from either the City or from the Coley Security Agency on November 17,1995, it nevertheless found that the City had failed to prove that Daiello’s misconduct provided just cause for his immediate termination because the evidence presented failed to establish whether Daiello had stolen time from the City of Easton or from the Coley Security Agency. The majority of the Board further concluded that although Daiello had neglected his duties on several occasions by failing to fill a chemical feed bin with the proper amount of chemicals, failing to properly complete chemical feed reports, and leaving the plant without permission, his repeated neglect of his job duties did not constitute just cause for his termination because the City of Easton was not adversely affected by it. The City of Easton filed a petition in the Court of Common Pleas of Northampton County seeking to vacate the Board’s award on the basis that it was manifestly unreasonable. On February 27, 1998, the Court of Common Pleas entered an order denying the petition. The City of Easton then proceeded to appeal to the Commonwealth Court, arguing that the Board misinterpreted the terms of the collective bargaining agreement and that its determination that the City had failed to prove that Daiello had committed “willful misconduct” warranting his immediate termination was not supported by its finding of fact that Daiello had indeed stolen time from one of his two employers in 1995. A divided Commonwealth Court subsequently issued a published decision affirming the order of the Court of Common Pleas at City of Easton v. AFSCME, AFL-CIO, Local 447, 722 A.2d 1111 (Pa. Commw.1998). In short, the two-member majority of the Commonwealth Court panel found that the Board’s decision reinstating Daiello was reasonable and drew its essence from the terms of the collective bargaining agreement because it rested on the Board’s unfettered interpretation of the term “willful misconduct.” Id. at 1113. Judge Leadbetter, however, authored a dissenting opinion in which she reasoned that, under the facts of this case, the question of which employer Daiello was stealing from when he filled out concurrent time sheets for both of his jobs (with the City of Easton and with the Coley Security Agency) was immaterial to the question of whether he committed “willful misconduct” while he was working for the City of Easton. Id. at 1115 (Lead-better, J., dissenting). Judge Leadbetter added that “[ajverring entitlement to two salaries for working in two places at the same time is dishonesty directed to both employers, and I believe either or both can fire him for willful misconduct.” Id. Our standard of review in cases such as the instant one is the highly circumscribed “essence test.” See, e.g., State Sys. of Higher Educ. (Cheyney Univ.) v. State College Univ. Prof'l Ass’n (PSEA-NEA), 560 Pa. 135, 743 A.2d 405, 413 (1999). Pursuant to the essence test, our review of the Board’s decision ordering that Daiello be reinstated is limited to a determination of whether the issue, as properly defined, is encompassed within the terms of the collective bargaining agreement. Id. Assuming that it is, then the Board’s decision on the issue must be upheld if it could be rationally derived from the collective bargaining agreement. Id.; see also Community College of Beaver County v. Community College, Soc’y of the Faculty (PSEA/NEA), 473 Pa. 576, 594, 375 A.2d 1267, 1275 (1977). However, if the Board’s decision could not be rationally derived from the collective bargaining agreement, then it can be reversed. See State Correctional Inst, at Graterford, Dep’t of Corrections v. State Civil Serv. Comm’n, 718 A.2d 403, 409 (Pa.Cmwlth.1998) (citing Pennsylvania Liquor Control Bd. v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989) and County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988)). Initially, we note that the issue of whether Daiello committed “willful misconduct” providing just cause for his immediate termination by stealing time from one of his two employers on November 17, 1995 is within the terms of the collective bargaining agreement, since the Disciplinary Policy contained within Sideletter A to the agreement clearly encompasses the issue in question. Therefore, the question before this Court becomes whether the Board’s award reinstating Daiello can in any rational way be derived from the disciplinary policy contained in Sideletter A to the collective bargaining agreement. If it can, then our inquiry ceases and the Commonwealth Court must be affirmed. If it cannot, then an opposite result attains. On appeal to this Court, the City of Easton first argues that the Board of Arbitrators’ determination that the City failed to prove that Daiello committed “willful misconduct” is not rationally derived from the collective bargaining agreement because the Board improperly assumed that the collective bargaining agreement between the City of Easton and the Union permitted the immediate termination of an employee who committed “willful misconduct” only if the employee’s misconduct adversely affected the City in a significant way. The City’s argument in this regard is based on the language contained in the disciplinary policy section of the collective bargaining agreement, which provides that any employee engaging in “willful misconduct or neglect of duty that results in significant adverse consequences to ... the City ... may be immediately dismissed .... ” The City contends that the Board misinterpreted this language to mean that an employee’s “willful misconduct” would only constitute just cause for his immediate dismissal if the misconduct adversely affected the City in a significant way. This contention was properly put to rest by the Commonwealth Court, which correctly determined that the Board of Arbitrators never concluded that “willful misconduct” on Daiello’s part would constitute grounds for his termination only if his misconduct adversely affected the City in a significant way. City of Easton, 722 A.2d at 1113. Rather, the Board.found that the City had failed to prove that Daiello had committed “willful misconduct” providing just cause for his termination because it failed to establish that it was the employer whom Daiello actually stole time from, regardless of whether or not his theft of time had a significant adverse effect on the City. Next, the City argues that the Board’s determination that it had failed to prove that Daiello committed “willful misconduct” is not rationally derived from the collective bargaining agreement because it is not supported by the Board’s finding of fact that he stole time from either the City or the Coley Security Agency while he was on the clock at the City’s water treatment facility. While the City’s argument in this regard is somewhat awkwardly phrased, we nevertheless find it to have merit. As noted above, the Board specifically commented in its findings of fact that: “Clearly, there was a theft of time from one of the employers, however, the evidence presented was not conclusive as to whom. While the city alleged this theft occurred at the expense of the city, Coley Security could just as easily have been the victim of this theft.” Adopting the reasoning of Judge Leadbetter’s dissent, the City contends that the question of which employer Daiello was stealing time from is immaterial to a determination of whether he committed willful misconduct by claiming that he was working for both employers at the same time. In essence, the City argues that once it established that Daiello committed a theft while he was supposed to be working at the City’s water treatment facility, the Board should have found that he committed “willful misconduct” justifying his termination. In support of its argument, the City cites to several cases where this Court overturned arbitrators’ awards of reinstatement based on the notion that governmental entities/agencies do not have the freedom to bargain away those powers that are essential to the proper discharge of their functions. See, e.g., Pennsylvania Liquor Control Bd., 520 Pa. 266, 553 A.2d 948; Musser, 519 Pa. 380, 548 A.2d 1194 (1988); Philadelphia Housing Auth. v. Union of Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983). The above cases cited by the City in support of its argument do indeed illustrate the error of the essential holding of the majority of the Commonwealth Court, which was that it lacked the authority to overturn the arbitration award because the Board’s interpretation of the term “willful misconduct” in the disciplinary policy section of Sideletter A to the collective bargaining agreement was beyond the purview of judicial review under the essence test. In rendering its decision on the merits of Daiello’s grievance, the Board did not, as the majority of the Commonwealth Court improperly assumed, have absolutely unfettered authority to interpret the term “willful misconduct” as it saw fit. Rather, the Board’s construction of the term “willful misconduct” should have, but did not, take into account the fact that the City, by entering into the collective bargaining agreement at issue, did not and could not relinquish those powers which were essential to its ability to properly discharge its various functions, including the power to terminate those employees who steal from the City itself, or steal from others while working for the City. See, e.g., Pennsylvania Liquor Control Bd., 520 Pa. at 277-78, 553 A.2d at 953-54 (recognizing the principle that governmental agencies do not have the freedom to relinquish those powers that are essential to the proper discharge of their functions, including, but not limited to, their power to terminate proven thieves). In light of the Board’s failure to take into account the fact that the City did not and could not bargain away its right to terminate a proven thief such as Daiello, and for the reasons that follow, it simply cannot be said that the Board’s decision awarding Daiello reinstatement was rationally derived from the collective bargaining agreement between the Union and the City. As noted above, in order to conclude that Daiello’s theft of time while he was supposed to be working for the City on November 17, 1995 did not constitute “willful misconduct” under the terms of the collective bargaining agreement, the majority of the Board must have found, by necessary implication, that the City had bargained away its right to terminate an employee who had been proven to have committed a theft against either the City itself or a third party while he was working for the City. However, governmental entities do not have the freedom to relinquish their right to terminate an employee who is proven to have stolen property from them. See id.; Musser, 519 Pa. at 395-96, 548 A.2d at 1201-202; Philadelphia Housing Auth., 500 Pa. at 216, 455 A.2d at 627. Along those same lines, the City, as a governmental entity, did not and does not have the freedom to relinquish its absolute right to terminate an employee such as Daiello who, at best, stole from a third party while he was working in the employ of the City. In addition, we wish to emphasize that the relevant portion of the collective bargaining agreement at issue (i.e., the disciplinary policy section contained in Sidelet-ter A to the agreement) does not contain any language even remotely suggesting that an employee’s willful misconduct on the job will only provide just cause for his immediate termination if it can first be established that the City is the direct and intended victim of the employee’s misconduct. To the contrary, the relevant portion of the agreement provides that willful misconduct on the part of an employee, standing alone, will provide just cause for his termination. It is also telling that there is no mention made by the majority of the Board or either of the courts below of any other evidence indicating an intention on the part of the City to relinquish its right to terminate employees who commit willful misconduct while on the job, so long as the misconduct was, or could have been, specifically directed against a third party. As would be expected, the record before this Court does not include any evidence whatsoever indicating such an intention on the part of the City. Given these facts, we do not hesitate to conclude that the arbitration award in the instant case is not rationally derived from the collective bargaining agreement at issue. In its brief to this Court, the City asks whether it must continue to risk the potential of becoming a victim of an employee who it knows has perpetrated a fraud while he was supposed to be working for the City. For the reasons set forth above, we hold that it does not and therefore reverse the order of the Commonwealth Court and vacate the Board’s decision awarding Daiello reinstatement to his position at the City’s water treatment facility with back pay. Justice CAPPY files a dissenting opinion in which Justices ZAPPALA and SAYLOR join. . The City also presented documentary evidence which established that on October 20, 1995, Daiello worked for the City from 7:00 a.m. to 11:00 a.m., then took sick time for the remaining portion of his shift, which was scheduled to end at 3:00 p.m. Later that same day, Daiello went to work for the Coley Security Agency, beginning his shift at 9:00 p.m. and ending at 4:00 a.m. on October 21, 1995. In addition, the City presented testimony that sometime previous to March 8, 1996, Daiello injured his back on the job while shoveling mud. As a result, Daiello reported that he was unable to work on March 8, 1996, and the City paid him for eight hours of sick time for that day. Despite the fact that Daiello reported that he was unable to work, and collected a full day’s sick-pay from the City on March 8, 1996, he nevertheless went to work for the Coley Security Agency for a seven hour shift that same evening. . Board member Alvin F. Fairchild, Jr., authored a dissenting opinion in which he stated that: [t]he testimony presented at the arbitration hearing by the City certainly confirmed the City’s position that Mr. Daiello was working for Coley Security Agency while he was being paid by the City and was expected to be working at the Water Plant. This "double dipping” certainly was willful misconduct which could have placed the citizens of Easton in a serious situation. The citizens must be assured that their drinking water is safe and healthy to use. Mr. Daiel-lo’s blatant disregard for his duties could have jeopardized the City’s water supply and placed our citizens at risk. . We note that the majority of the Commonwealth Court misinterpreted the holdings of our decisions in these three cases, concluding that they were limited to only those situations where an employee’s proven misconduct is criminal as to his employer. City of Easton, 722 A.2d at 1114. Nothing in the language of the cited cases, however, so limits their holdings and we reject any judicial interpretation so limiting them. . Pursuant to the Board’s findings of fact, at worst Daiello left his job post at the City’s water treatment facility without informing anyone that he was leaving, went to work for the Coley Security Agency, then applied for and collected pay from the City for those hours when he was supposed to be at the water treatment facility, but was actually working for Coley. At best, Daiello stole time from the Coley Security Agency by applying for and collecting pay for hours when he was actually working at the City's water treatment facility on November 17, 1995. . In its brief to this Court, the Union argues that the decision of the Board satisfies the essence test because the Board simply found that the City failed to prove that Daiello committed the specific infraction of which he was accused — stealing time from the City while he was actually working for the Coley Security Agency. We disagree with the Union's myopic view of the proceedings below. Before the Board, the City was required to prove that it had just cause under the terms of the collective bargaining agreement for terminating Daiello. During the course of the hearings before the Board, the City proved the crux of its charge that Daiello committed willful misconduct justifying his termination by presenting evidence which clearly established that he filled out time sheets and collected pay from both the City and the Coley Security Agency for the same hours on the same day. In so doing, the City affirmatively established that Daiello either: (1) applied for and eventually collected pay from the City for hours when he was actually working for and being paid by the Coley Security Agency; or (2) applied for and eventually collected pay from the Coley Security Agency for hours when he was actually working for and being paid by the City. In either instance, Daiello committed a theft while he was supposed to be working at the City's water treatment facility. Therefore, we find no merit to the Union’s argument that the City failed to establish that Daiello's misconduct bore a close relation to his employment at the water treatment facility. To the contrary, as noted by Judge Leadbetter in her dissenting opinion below, Daiello’s successful attempt to claim entitlement to two salaries for working in two places at the same time constituted an act of dishonesty directed at both the City and the Coley Securily Agency, regardless of which employer he actually stole from. . The dissent states that we are vacating the arbitration award reinstating Daiello based on our own, unbargained-for interpretation of the collective bargaining agreement at issue, rather than on a strict application of the essence test. The dissent then goes on to assail our reliance on Pennsylvania Liquor Control Bd., Musser, and Philadelphia Housing Auth., questioning their continuing precedential authority in light of the fact that they use the term "manifestly unreasonable" to describe the arbitration awards at issue therein. Finally, the dissent attempts to distinguish those decisions, arguing that a theft committed by an employee of a governmental agency while he was supposed to be working for the governmental agency is somehow not inextricably linked to his on-the-job conduct and the proper functioning of the governmental agency for which he works. The dissent is incorrect on all three counts. First, our decision in the instant case is based on a straightforward application of the essence test, not our own un-bargained for interpretation of the collective bargaining agreement at issue. Next, the dissent ignores the fact that the standard of review expressly employed by this Court in Pennsylvania Liquor Control Bd. and Musser was, in fact, the essence test. See Pennsylvania Liquor Control Bd., 520 Pa. at 272-74, 553 A.2d at 951-52; Musser, 519 Pa. at 390, 548 A.2d at 1198. By holding as it did in those cases, the Court concluded that the arbitration awards could not have been rationally derived from their underlying collective bargaining agreements. That the Court chose to use the term “manifestly unreasonable" to describe the arbitration awards at issue in those cases in addition to "not rationally derived from the collective bargaining agreement” does not magically transform the standard of review applied by the Court into a "manifest unreasonableness” standard. Nevertheless, the dissent fails to explain how the standard of review employed by this Court affects the continuing validity of the rule of law repeatedly set forth by this Court that governmental entities do not have the freedom of private enterprises to relinquish powers inherently essential to the proper discharge of their functions. Finally, we fail to see how any governmental agency could ensure the proper discharge of its official functions if it lacked the power to discharge employees (like Daiello) who were proven to have committed a theft either from the governmental agency itself or from a third party while they were working for the governmental agency.

FRIEDMAN, Judge. Occidental Chemical Company (Employer) petitions this court for review of that portion of an order of the Workers’ Compensation Appeal Board (WCAB) reversing the decision of the workers’ compensation judge (WCJ) that granted Employer a credit for Supplemental Unemployment Benefit (SUB) payments made to William Knight (Claimant). We affirm. In 1992, Claimant filed a Claim Petition alleging that he sustained a work-related injury to his left knee and leg in mid to late January of 1992. (R.R. at 40R.) Employer filed an answer denying the aver-ments in Claimant’s Claim Petition. While Claimant was on layoff status, Employer made SUB payments to Claimant. Following hearings, the WCJ granted Claimant’s Claim Petition, awarding Claimant on-going benefits and retroactive benefits for past disability. (WCJ’s Dec. 27, 1994, Conclusions of Law, No. 2.) Employer appealed the WCJ’s decision to the WCAB. Although posing no challenge to the award of benefits, Employer argued that the WCJ did not rule on Employer’s request for a credit for SUB payments made to Claimant. The WCAB concluded that additional findings of fact were necessary and remanded the case to the WCJ for further findings of fact concerning the SUB pay and for a determination of whether Employer was entitled to a credit for SUB payments. (WCAB op., June 5,1996, at 6.) At the hearing on remand before the WCJ, Employer presented the credible testimony of Cynthia Alex Paladino (Pala-dino), Employer’s human resources supervisor. Paladino testified that SUB pay is a benefit, funded solely by Employer, which Employer provides to its hourly employees pursuant to the Supplementary Unemployment Benefits Agreement, a negotiated collective bargaining agreement (Agree ment). (WCJ’s Sept. 17, 1997, Findings of Fact, No. 1; R.R. at 159R.) Paladino explained that employees accrue half a credit unit for each work week, including weeks they are not working, so long as they are receiving pay from Employer. (WCJ’s Sept. 17, 1997, Findings of Fact, Nos. 2, 8; R.R. at 160R, 273R.) Paladino stated that Claimant was accruing credits while receiving benefits and had accrued the maximum of 209 credit units, of which Claimant had used ninety-six credit units. (WCJ’s Sept. 17, 1997, Findings of Fact, Nos. 7, 8; R.R. at 273R.) Paladino stated that an employee who is not working is considered to be in one of the following three categories: (i) layoff, (ii) on workers’ compensation or (iii) out sick for non-work-related reasons. (WCJ’s Sept. 17, 1997, Findings of Fact, No. 3; R.R. at 161R.) Paladino explained that Employer makes SUB payments only to those employees who are on layoff status as defined in the Agreement; if an employee is receiving workers’ compensation benefits or sickness and accident benefits, SUB pay does not apply. (WCJ’s Sept. 17, 1997, Findings of Fact, No. 3; R.R. at 161R-62R, 274R.) Therefore, Paladino testified that, if Employer had paid Claimant workers’ compensation benefits immediately, Employer would not have made SUB payments to Claimant. (WCJ’s Sept. 17, 1997, Findings of Fact, No. 4.) However, because Claimant was originally laid off from work and, later, was awarded workers’ compensation benefits retroactively, Employer paid Claimant a total of $37,927.96 in SUB pay from March 1993 through January 22, 1995. (WCJ’s Sept. 17,1997, Findings of Fact, Nos. 4-5.) Based on the Agreement, the WCJ concluded that Claimant was not entitled to receive both SUB pay and workers’ compensation benefits. The WCJ stated that to conclude otherwise would allow Claimant to receive a double recovery, which the Agreement did not intend. Accordingly, the WCJ credited Employer for the SUB payments made to Claimant during the period that Claimant was entitled to receive workers’ compensation benefits. Claimant appealed the WCJ’s decision to the WCAB. On appeal, the WCAB reversed that portion of the WCJ’s decision granting Employer a credit for the SUB payments. The WCAB determined that the SUB payments were payments in the nature of wages earned and not in lieu of compensation, and, thus, Claimant would have been entitled to the SUB payments regardless of whether he had a compensable injury. On appeal, Employer argues that it is entitled to a credit for SUB payments made to Claimant prior to the award of workers’ compensation benefits and that the WCAB erred in ruling otherwise. We disagree. In determining whether Employer is entitled to a credit for the SUB payments made, this court must decide if the payments are in the nature of wages or if the payments are in lieu of compensation. See Bethlehem Steel Corp. v. Workers’ Compensation Appeal Board (Gounaris), 714 A.2d 550 (Pa.Cmwlth.), appeal denied, 557 Pa. 641, 732 A.2d 1211 (1998); see also Toborkey v. Workmen’s Compensation Appeal Board (H.J.Heinz), 655 A.2d 636 (Pa.Cmwlth.), appeal denied, 541 Pa. 655, 664 A.2d 544 (1995), Peoples Natural Gas Co. v. Workmen’s Compensation Appeal Board, 65 Pa.Cmwlth. 119, 441 A.2d 1364 (1982). If the SUB pay is an accrued entitlement which has been built up as a result of Claimant’s services for Employer, Employer is not entitled to a credit for those payments. See Toborkey (quoting Hildebrand v. Workmen’s Compensation Appeal Board (Fire Department/City of Reading), 111 Pa.Cmwlth. 24, 532 A.2d 1287 (1987)). If, on the other hand, the SUB payments were made in relief of Claimant’s inability to labor, Employer will be entitled to a credit. See id. After reviewing the facts of this case, we conclude that SUB payments are not in lieu of compensation and are in the nature of wages. First, we note that “ ‘in lieu of compensation’ does not mean ‘by way of compensation’ ” but “means ‘in place of or ‘instead of.” Creighton v. Continental Roll and Steel Foundry Co., 155 Pa.Super. 165, 38 A.2d 337 (1944). Here, Employer’s SUB plan states that the purpose of the plan is to “supplement State System Benefits and not to replace or duplicate them.” (R.R. at 90R.) From this language, we discern that the SUB payments are not intended to be in place of, or in lieu of, compensation. See WbbsteR’s Third New International DictionaRY 1925 (1986) (defining replace as “to put in place of’). In addition, Paladino testified that only those nonworking employees on layoff status, such as Claimant, are eligible for SUB pay. Here, Claimant was medically restricted and awaiting suitable employment and, thus, was laid off. Clearly, that does not mean that Claimant was unable to labor. Therefore, because the SUB payments were not intended to be in place of compensation and because they were not paid based on Claimant’s inability to labor, Employer is not entitled to a credit. See Toborkey. Further, we conclude that, as a benefit which Claimant had accrued based on work performed for Employer, Employer’s SUB payments are in the nature of wages. Specifically, Paladino testified that each hourly employee accrues half a credit unit for each work week and that Claimant had accrued the maximum benefit of 209 credit units. Accordingly, Employer is not entitled to a credit. See id. Employer, however, argues that it should receive a credit because the credit units are not an exhaustible source or fund due to the fact that the credits cannot be redeemed or exchanged into a “cash benefit.” We disagree that Claimant’s inability to redeem credit units for cash entitles Employer to a credit. The fact remains that, here, Claimant, whose absence relates to a compensable injury, was forced to deplete ninety-six credit units of an exhaustible benefit which would otherwise have remained available to him in the event of a future lay-off. See Workmen’s Compensation Appeal Board v. Olivetti Corporation of America, 26 Pa.Cmwlth. 464, 364 A.2d 735 (1976). In such an instance, the employer is not entitled to a credit. Id. To award Employer a credit for the period during which Claimant depleted accrued benefits would make Claimant bear the cost of that period of his work-related disability. See Toborkey. Such a result is contrary to the purposes of the Act. See id. Accordingly, we affirm the order of the WCAB. ORDER AND NOW, this 18th day of July, 2000, the order of the Workers’ Compensation Appeal Board, dated December 80, 1999, at No. A97-4311, is hereby affirmed. President Judge DOYLE dissents. . We note that some of the documents filed in this case refer to the employer as Occidental Chemical Corp. . Claimant was medically restricted and awaiting suitable employment. (See R.R. at 86R.) Pursuant to the Supplementary Unem-ploymenl Benefits Agreement, a negotiated collective bargaining agreement, ‘‘[m]edically restricted [e]mployees awaiting suitable placement will be considered on layoff occurring in a reduction in force." (R.R. at 88R.) . Employer determines the amount to invest for each employee by multiplying the number of payroll hours by the accrual rate. (WCJ's Findings of Fact, No. 1; R.R. at 160R.) . Our scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, Toborkey v. Workmen’s Compensation Appeal Board (H.J.Heinz), 655 A.2d 636 (Pa.Cmwlth.), appeal denied, 541 Pa. 655, 664 A.2d 544 (1995). . Alternatively, Employer argues that it has a right of subrogation to the SUB payments. Although they overlap in some cases, the concepts of credit and subrogation are distinct. See Boeing Helicopters v. Workers’ Compensation Appeal Board (Cobb), 713 A.2d 1181 (Pa.Cmwlth. 1998). The concept of subrogation is found in section 319 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671. One of the requirements in section 319 is that the right of subrogation must be agreed to by the parties or "established at the time of the hearing before the referee [now WCJ] or the board.” 77 P.S. § 671. Here, the Employer did not establish its right of subrogation at the hearing before the WCJ. (See Hearing Transcript, January 25, 1993, R.R. at 96R-140R.) Thus, we will confine our discussion to whether Employer is entitled to a credit. . Employer testified that the SUB credits are not redeemable for any other benefits, such as vacation pay or retirement benefits, and that the SUB automatically terminates with no payout for any units "accrued” when the employee retires or his or her employment terminates. (R.R. at 272R-73R.)

OPINION SAYLOR, Justice. In this appeal, the Court is asked to assess a workers’ compensation claimant’s burden in seeking total disability benefits, having previously exhausted entitlement to compensation for partial disability. After working for forty-three years in the coal mining industry for Appellee Greenwich Collieries (“Employer”), Appellant Francis B. Stanek (“Claimant”) ceased work, sought compensation for disability resulting from coal workers’ pneumoconio-sis and was awarded partial disability benefits on such basis, effective November 10, 1981. Thereafter, he received $257.38 per week for a period of 500 weeks, following which, by operation of law, Employer’s obligations relative to the partial disability ceased. See 77 P.S. § 512. On January 29, 1993, at seventy-two years of age, Claimant filed a reinstatement petition contending that his pulmonary condition had worsened to such an extent that he had become totally disabled. At hearing, Claimant testified in support of the petition and offered testimony from an examining physician, Dr. Gordon A. Gress, to the effect that Claimant’s pulmonary condition had deteriorated progressively and substantially. Dr. Gress testified to his review of the report of Claimant’s treating physician (containing the opinion that Claimant was totally disabled) and indicated that Claimant’s condition precluded him from performing most jobs. Dr. Gress conceded, however, that there were some forms of sedentary employment Claimant could perform consistent with his physical limitations. The WCJ awarded benefits; however, the Workers’ Compensation Appeal Board (the “Board”) reversed, holding that Employee had not met his burden of proof under Meden v. WCAB (Bethenergy Mines, Inc.), 167 Pa.Cmwlth. 68, 71, 647 A.2d 620, 622 (1994)(en banc), appeal denied, 540 Pa. 624, 657 A.2d 494 (1995), and the Commonwealth Court affirmed the Board’s decision, also relying upon Meden. We allowed appeal to determine whether Meden articulates an appropriate standard in circumstances involving a post-500week claim for total disability benefits. The relevant statutory provisions are Sections 306(b) and 413(a) of the Workers’ Compensation Act. Section 306(b) establishes a general rule setting compensation for partial disability at sixty-six and two-thirds percent of the difference between pre-injury wages and post-injury earning power. 77 P.S. § 512(1). Compensation is available throughout the period during which the employee’s earnings capacity is affected, “but for not more than five hundred weeks," 77 P.S. § 512(l)(emphasis added); thus, the period during which partial disability benefits are available is capped at approximately nine and one-half years. Section 413(a) provides for, among other things, modification of benefits “at any time” upon proof that a claimant’s disability has increased, 77 P.S. § 772, for example from a partial to a total loss. Increased benefits generally are available as of the date on which the change is demonstrated to have occurred; however, Section 413(a) generally limits the availability of review, modification or reinstatement to claims filed within three years after the date of the most recent payment of compensation, and further provides that, where compensation has been suspended because the claimant has returned to work with earnings equal to or greater than his pre-injury wages, benefits may be resumed at any time during the 500-week period of eligibility for partial disability benefits. 77 P.S. § 772. In Stewart v. WCAB (Pa Glass Sand/US Silica), - Pa.-, 756 A.2d 655 (2000), we considered these statutory provisions in light of an employer’s argument that the final proviso of Section 413(a) operates as an absolute bar to a post-500-week claim on the part of a claimant who has received a full measure of partial disability benefits available under Section 302(b). While we rejected this argument, we did not assess the burden that must be borne by a claimant seeking total disability benefits under these circumstances. Claimant contends that the Commonwealth Court, in Meden and its progeny, has overstated the applicable burden by essentially requiring a showing that a claimant is totally disabled in a pure medical sense. He urges this Court to reject such interpretation, asserting that a claimant in his circumstance should be required to demonstrate only that his work-related condition has worsened — according to Claimant, core principles of workers’ compensation jurisprudence require allocation of the burden to establish job availability to the employer. In Meden, an en banc Commonwealth Court examined a workers’ compensation referee’s decision to deny a claim similar to that asserted in the present appeal, in which a retirement-age claimant, suffering from coal workers’ pneumoconiosis, sought compensation for total disability after having exhausted his entitlement to partial disability benefits. The claimant testified to and presented medical evidence regarding the deterioration of his physical condition; the medical testimony included the concession that the claimant had the ability to perform some forms of sedentary work; and no vocational or other evidence was offered to further demonstrate the effect of the deterioration of his physical condition upon his earning ability. The Commonwealth Court found that such evidence was insufficient to meet Section 413(a)’s requirement of increased disability (or loss of earning power), reasoning that the assessment of disability has a physical component (physical capacity to work) and a vocational one (availability of suitable employment), and mere deterioration of a claimant’s medical condition addresses only the first of these. See Meden, 167 Pa.Cmwlth. at 72-73, 647 A.2d at 623 (stating that “simply arguing that a claimant’s physical condition has changed without presenting evidence of its effect on his ability to work at his light duty job cannot satisfy a claimant’s burden of proof’). Thus, the Commonwealth Court determined that it was necessary for a claimant in such circumstances to present evidence that he could no longer perform work that was within his physical limitations at the time of the original award. Id. at 73, 647 A.2d at 623. As the centerpiece of its analysis, the Meden court equated the burden upon a claimant seeking modification to obtain total disability benefits subsequent to the expiration of the statutory period of eligibility for partial disability benefits with the standard announced in Dillon v. WCAB (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994), in which this Court clarified the burden upon a claimant seeking modification from partial to total disability benefits within the 500-week period of eligibility. Further, the en banc Commonwealth Court cited the panel decision in Volk v. WCAB (Consolidation Coal Co.), 167 Pa.Cmwlth. 75, 647 A.2d 624 (1994), also a case involving a pre-500-week modification petition, which was decided simultaneously with Meden. Reciprocally, the Volk panel cited to Meden in connection with the following articulation of the burden borne by a claimant seeking modification within the period of eligibility for partial disability benefits: At the time [the cjlaimant was awarded partial disability benefits, the referee found that [the c]laimant was medically disabled, but his loss of earning power (or disability for the purposes of worker’s compensation), was mitigated by the availability of light duty work which he could perform at a lower wage. Therefore, [the claimant must prove that his physical disability has changed and that he is unable to perform his light duty job, and, therefore, that he has suffered a further loss of earning power. This proof must be made by precise and credible evidence which is of a more definite and specific nature than that upon which the initial compensation is based. Only when this burden has been satisfied does the burden shift to [the e]mployer to demonstrate the availability of “lighter” light duty work within [the Claimant’s new physical limitations. Id. at 82-83, 647 A.2d at 627-28 (citations omitted). Meden and Volk thus set forth essentially identical standards applicable to pre-and post-500-week claims for modification. If there is any significant difference, by incorporating the “precise and credible” language which was not present in Meden, Volk would seem, perversely, to set forth a more exacting standard applicable to a petition filed in the pre-500~week setting. Unfortunately, this overlap, the Meden decision’s emphasis upon Dillon as articulating a controlling standard pertaining to post-500-week cases, and the corresponding failure to distinguish between the pre- and post-500-week settings in terms of the burden of proof applicable to modification claims caused confusion in the cases that followed. The Commonwealth Court cited Meden and Volk essentially interchangeably, see, e.g., Diffenderfer v. WCAB (Rabestos Manhattan, Inc.), 651 A.2d 1178, 1180 (Pa.Cmwlth.1994) (setting forth a claimant’s burden of proof in a post-500week case with reference to both Meden and Volk), appeal denied, 540 Pa. 642, 659 A.2d 561 (1995); indeed, in Island Creek Coal v. WCAB (Shenego), 651 A.2d 1174, 1176 (Pa.Cmwlth.1994), the court suggested, incorrectly, that Meden, Dillon and Volk were all post-500-week cases. Prior to the decision in Burton v. WCAB (Hershey Automatic), 711 A.2d 596 (Pa.Cmwlth.1998), all of the Commonwealth Court’s decisions in this area suggested that a workers’ compensation judge’s task upon assessment of a modification petition in both the pre-and posb-500-week contexts was essentially coextensive. In Burton, however, the Commonwealth Court acknowledged the critical distinction between pre- and post-500-week cases and attempted to clarify the relationship between its decisions in Meden and Volk. Before the court was a decision of the Board to affirm the denial of a modification petition, filed well within the 500-week eligibility period, which sought an increase in benefits based upon a worsening of the claimant’s medical condition and a corresponding loss of ability to continue to perform light-duty employment. Since the Board’s decision referred to both Me-den and Volk, the Commonwealth Court summarized those cases and stated as follows: Although the outcome in Meden and Volk was identical, the key distinction between those cases is the fact that, in Meden, the claimant had exhausted his 500 weeks of eligibility for partial disability benefits; therefore, to establish an increase in disability, he had no other option but to establish that the decline in his physical condition reduced his earning power to zero, rendering him totally disabled. On the other hand, Volk still had 123 weeks of eligibility for partial disability benefits, and he could have prevailed on his petition by establishing that the deterioration of his physical condition resulted in either total disability or that his earning power, although 'not reduced to zero, was now reduced more than it had been at the time that the [workers’ compensation judge] originally awarded him partial disability benefits. If Volk had made such a showing, he would have demonstrated that he was then presently partially disabled to a greater degree than he had been at the time he was originally awarded partial disability benefits and could have received partial disability-benefits at a higher rate for the remainder of the 123 weeks. Because Volk presented no evidence regarding the impact of his physical condition on his earning power, we affirmed the denial of his reinstatement. Id. at 600 (emphasis in original). The Commonwealth Court then analogized the circumstances before it to Volk: The case presently before us is identical to Volk in that, at the time [the claimant applied for reinstatement of total disability benefits, he still had approximately 403 weeks of partial disability eligibility remaining. Therefore, like Volk, he could prevail by showing that the deterioration of his physical condition has reduced his earning power to zero, ie., total disability, or that his earning power has declined further from the date that he was originally awarded partial disability benefits, ie., greater partial disability. Burton, 711 A.2d at 600 (emphasis in original). The court proceeded to discuss the evidence, finding that the claimant had established a deterioration of his physical condition resulting in a further disability (or decreased earning capacity), to the point where he was no longer capable of performing the light-duty work available to him. Under these circumstances, it found that the burden shifted to the employer to provide evidence of jobs available within the claimant’s new physical restrictions. Since the employer did not offer any such evidence, the Commonwealth Court found that the claimant was entitled to increased benefits. Id. at 601. To this point, Burton adhered to this Court’s workers’ compensation jurisprudence. See Dillon, 536 Pa. at 498, 640 A.2d at 390 (citing Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 25, 342 A.2d 384, 387 (1975)). However, because the claimant’s medical evidence established that he was physically capable of performing sedentary work, the Commonwealth Court found that he was not entitled to compensation for total disability, but rather, to “partial disability benefits at the total disability rate.” Burton, 711 A.2d at 601. It reached this conclusion although acknowledging that no jobs had been shown to be available within the claimant’s restrictions, the claimant’s “earning power was reduced to zero,” and, accordingly, that the claimant was totally disabled. Id. But see generally Dillon, 536 Pa. at 501-02, 640 A.2d at 391 (equating disability and loss of earning power). In support of its characterization of the benefits afforded, the Commonwealth Court cited Diffenderfer, a case involving a post-500-week claim (thus reincorporating a vestige of the Me-den/Volk overlap into its disposition). The function of the citation to Diffenderfer is not clear, since Diffenderfer found benefits unavailable and made no reference to a category of partial disability benefits at the total disability rate (partial disability benefits would have been unavailable in Diffenderfer in any event due to the expiration of the 500-week period). The significance of the Commonwealth Court’s decision to withhold compensation for total disability per se from the claimant, however, was to subject his benefits to the 500-week limitation, which otherwise would have been inapplicable. See Burton, 711 A.2d at 601. It therefore appears that Meden’s attempt to employ the standard articulated in Dillon in post-500-week cases has resulted in a hybrid standard that increases the burden upon a claimant seeking total disability benefits within the 500-week period to establish that he is medically disabled in a pure physical sense such that he is incapable of performing even sedentary work, see Burton, 711 A.2d at 601, and perhaps understates the burden borne by a claimant seeking compensation for total disability following the expiration of the 500-week period. See Meden, 167 Pa.Cmwlth. at 73, 647 A.2d at 623. We find such a hybrid standard to be erroneous. With regard to cases in which a modification petition is filed within the period of eligibility for compensation for partial disability, we reaffirm the standards enunciated in Dillon, 536 Pa. at 498, 640 A.2d at 390. Where an employee satisfies his burden of establishing that his work-related injury once again has resulted in a loss of earning capacity, the burden shifts to the employer to demonstrate job availability. Id. If the employer is unable to demonstrate that employment is available within the claimant’s physical restrictions, absent special circumstances of a kind not identified in Burton, benefits are payable under Section 306(a) of the Act, 77 P.S. § 511, the schedule of compensation for total disability, and the 500-week period of eligibility for partial disability benefits has no application vis-a-vis the increased benefits. With regard to claims filed after the expiration of the 500-week period, we acknowledge the difficulties faced by the Commonwealth Court in fashioning an appropriate construct. First, there may be a certain natural confluence between pre- and post-500-week claims, such as occurred in Meden and Volk, both involving retirement-age claimants suffering from coal workers’ pneumoconiosis who sought total disability benefits after having received compensation for partial disability for a substantial period; therefore, there may be a natural tendency to provide for similar treatment. Second, Dillon presents an attractive construct for application in the post-500-week setting, at a minimum presenting a logical starting point, since a claimant seeking modification after the expiration of the 500-week period certainly must prove at least as much as a claimant seeking modification within such period. The Dillon standard, however, is designed with a degree of inherent flexibility that is inappropriate to the post-500week setting, since Dillon will accommodate instances of increased partial disability that are not cognizable after the expiration of the 500-week period. Third, the post-500-week cases often involve occupational disease, where the disability is long-term and progressive, such that if the claimant is not now totally disabled, he may be in the future; thus, claimants will have an especially strong incentive to vigorously pursue their continuing entitlement, particularly in light of the three-year limitation on the assertion of their claims. See 77 P.S. § 772. Additional complications may arise in these cases as well; for example, a claimant may not assume light-duty employment during the period during which he receives partial disability benefits, and in such circumstances, there will be no convenient point of reference from which to measure further loss of earning capacity. Despite these difficulties, our task is to give effect to the General Assembly’s directive eliminating the receipt of compensation based upon partial disability after the expiration of the 500-week period. In this regard, we agree with the Commonwealth Court’s interpretation of Section 413(a) to the effect that it forecloses claims for increased compensation for partial disability short of total disability — in capping an employer’s liability for partial disability benefits, it seems plain the General Assembly did not intend serial petitions based upon incremental changes in medical condition or fluctuations in the job market. Moreover, just as in cases where benefits have been terminated the claimant cannot relitigate the cessation of compensation under the guise of a petition for reinstatement, Shipley Oil Co. v. WCAB (Lehr), 658 A.2d 489 (Pa.Cmwlth.1995), a post-500-week claim may not be used to overcome the effect of the statutory limit on eligibility for partial disability benefits. See generally Dijfenderfer, 651 A.2d at 1180 (“if it were otherwise, partial disability benefits would continue ad infinitum, obliterating the finite nature of those benefits imposed under Section 306(b)”). In reviewing the jurisprudence concerning post-500-week claims, we find that the Kunicki decision represents an appropriate starting point for the development of a standard of proof, and we endorse its finding that a posi>-500-week claimant must establish his total disability by precise and credible evidence of a more definite and specific nature than that required to obtain compensation initially or modification within the 500-week period. See Kunicki, 56 Pa.Cmwlth. at 75, 423 A.2d at 1370. See generally supra notes 6-7. A portion of the Commonwealth Court’s discussion from Burton is also helpful in its direction that the post-500-week claimant must, in the first instance, establish that he has no ability to generate earnings (or a “zero earning capacity”), since partial disability benefits are no longer available to that claimant. See Burton, 711 A.2d at 600. Further, we agree with developed Commonwealth Court jurisprudence requiring a demonstration of a worsening of the Claimant’s medical condition. See, e.g., French v. WCAB (Foster Wheeler Energy Corp.), 745 A.2d 92, 95 (Pa.Cmwlth. 2000). Ordinarily, proof of total disability may be accomplished by demonstration of a work-related injury that precludes the claimant from returning to his time-of-injury job. See, e.g., Dillon, 536 Pa. at 498, 640 A.2d at 390. Where an increase in existing benefits is sought, the inability to return to a light-duty job may be offered to establish the disability, and the burden shifts to the employer to demonstrate that the claimant has the ability to generate earnings consistent with his physical limitations. See Id. In the post-500-week context, where the claimant is working until the time period for which total disability benefits are sought, we discern no reason to require more than that the claimant establish, by clear and precise evidence, that his increased, work-related impairment has precluded continuation of such light-duty employment. The burden to prove the availability of employment consistent with the claimant’s physical limitations will then shift to the employer. Where, however, as here, the claimant has not engaged in the light-duty work which was found to be available and consistent with his physical limitations in connection with the award of compensation for partial disability, his burden will be greater. First, depending upon the circumstances, the claim may be vulnerable to denial on the basis of voluntarily retirement. See generally Republic Steel Corp. v. WCAB (Petrisek), 537 Pa. 32, 38, 640 A.2d 1266, 1270 (1994)(finding that a claimant who had voluntarily retired was not entitled to benefits under the Act); Island Creek, 651 A.2d at 1178 n. 4 (noting that the claimant would have been precluded from recovering benefits as he was retired); Meden, 167 Pa.Cmwlth. at 75 n. 6, 647 A.2d at 624 n. 6 (suggesting the same). Second, the claimant will not be afforded the benefit of the presumption of total disability from an inability to perform an existing light-duty job. Rather, the claimant is in the position of having to prove a negative (i.e., that there are no jobs available in which he could work consistent with his physical limitations). In this setting, medical testimony which concedes that a claimant retains the physical ability to accomplish light-duty work, with no vocational or other form of assessment as to why such work is not available, will be deemed fatal to the claim. Although we realize that this is an exacting burden and this Court has previously avoided requiring the proof of a negative in order to maintain benefits, in this context we find the allocation necessary to accommodate the General Assembly’s purpose in imposing the 500-week limitation. While this standard may undergo refinements in future cases, where, as here, the claimant has ceased work during the period of eligibility for partial disability benefits, is presently physically capable of work of some kind, and fails to offer credible evidence indicating why such work is not available to him, benefits cannot be afforded consistent with the Legislature’s decision to foreclose compensation for partial disability following a 500-week period of eligibility. Accordingly, the order of the Commonwealth Court is affirmed. . Claimant previously had filed a modification petition during his period of eligibility for partial disability benefits on similar grounds, which was denied on a workers’ compensation judge's finding that Claimant’s condition had not changed since he was awarded partial disability benefits. . Claimant testified to increasing shortness of breath and coughing with gray mucus, requiring him to limit his life activities and make adjustments in his sleeping position to avoid gagging and choking. Dr. Gress confirmed a deterioration of Claimant’s lung capacity and testified to his diagnoses of kyphoscoliosis, early clubbing of the fingers, and abnormal sounds in the lungs on inhalation. . Employer took the position that Claimant’s medical condition had not changed since his receipt of compensation for partial disability and offered medical evidence to that effect; however, the Workers’ Compensation Judge (the "WCJ”) credited Claimant’s evidence. . Act of June 2, 1915, P.L. 736 (as amended, 77 P.S. §§ 1-1041.4) (the "Act”). .In Stewart, we recognized that a claim for total disability benefits asserted after the expiration of the period of eligibility for partial disability benefits has attributes of both modification and reinstatement claims. See Stewart, - Pa. at -■, 756 A.2d at 655. For convenience sake, particularly in connection with comparison to other claims discussed in the pertinent decisional law, we have general ly referred to Claimant’s effort in this case as one to obtain modification. . The Meden court also cited to Kunicki v. WCAB (Felice), 56 Pa.Cmwlth. 72, 423 A.2d 1368 (1981); however, it did not develop the content of Kunicki in any way. This was an unfortunate oversight, since Kunicki recognized that the differential legislative treatment of modification claims asserted in the pre- and post-500-week settings calls for the imposition of different standards of proof. Id. at 75, 423 A.2d at 1370 (finding that the claimant pursuing modification after the expiration of the period of eligibility for partial disability compensation "had the burden of proving an increase in his disability by precise and credible evidence of a more definite and specific nature than that required to obtain compensation initially”). . The "precise and credible” language would more appropriately attach to Meden, since the cases from which it derives involve claims lodged at or after the expiration of the period of eligibility for compensation for partial disability. See Kunicki, 56 Pa.Cmwlth. at 75, 423 A.2d at 1370; see also Klingler v. WCAB (Rupert), 50 Pa.Cmwlth. 335, 337, 413 A.2d 432, 433 (1980), cited in Volk, 167 Pa.Cmwlth. at 83, 647 A.2d at 628. See generally supra note 6. . Burton appears to be the first published decision in which the Commonwealth Court attempted to apply such a distinction. The distinction, however, has subsequently been applied in other cases. See, e.g., Pappans Family Restaurant v. WCAB (Ganoe), 729 A.2d 661, 668 (Pa.Cmwlth.1999). . Perhaps the Commonwealth Court in Burton was attempting to achieve some sort of parity among all claimants suffering from a physical impairment that permits light duty or sedentary work. Under our current system, although two claimants may have an identical physical impairment, based upon work availability one may receive partial disability benefits and the other total. The former is subject to the 500-week limitation on benefits; whereas, the latter is not, since the General Assembly has established no cap on total disability benefits. While this scheme may seem to contain an aspect of arbitrariness, it provides employers with an incentive to accommodate a claimant's restrictions by any of a number of means, including provision of light-duty work and pursuit of outside employment opportunities with diligence. To the extent that the system results in uneven treatment, such is a consequence of the clear legislative design, pursuant to which disability is conditioned not directly upon the nature of a claimant's injury, but rather, on the effect of such injury upon the specific claimant’s ability to generate earnings. See generally 77 P.S. §§ 511, 512; Dillon, 536 Pa. at 501, 640 A.2d at 391 (stating that "we determine the degree of a worker’s disability by reference to how the injury affected his earning power” (citation omitted)). Absent an allegation of impairment of constitutional rights, it would be inappropriate to attempt to correct a perceived flaw in such design by judicially altering the structure, for example, by increasing the category of claims subject to the 500-week limitation to require similar results among claimants with similar injuries. . Although Section 413(a)’s limitations will impose a hardship on some claimants, particularly those suffering from progressive occupational disease, as noted, the provisions of the Act result from a legislative effort to balance benefits and burdens as between employers and employees, advantaging claimants, for instance, with compensation for work-related injuries without the necessity of establishing liability in tort. . Notably, with regard to pre-500-week claims, Dillon would also permit increased benefits to be afforded upon a showing that light-duty work is not available. See Dillon, 536 Pa. at 499, 640 A.2d at 391. As noted, however, modification in the post-5 00-week setting is a hybrid between modification of existing benefits and reinstatement of terminated benefits. See supra note 5; see also Stewart,-Pa. at-n. 8, 756 A.2d at 666 n. 8. In this regard, we find it appropriate to apply the termination/reinstatement model, see, e.g., Palmer v. WCAB (Helen Mining Co.), 710 A.2d 1245, 1248 (Pa.Cmwlth.1998)(re-quiring a showing of change in medical condition to support post-termination reinstatement), based upon the legislative design. . As noted in Vista Int’l Hotel v. WCAB (Daniels), 560 Pa. 12, 742 A.2d 649 (1999), recent amendments to the Act may affect employers’ burden in this regard for injuries suffered after the effective date. Id. at 29 n. 11, 742 A.2d at 658 n. 11.

OLSZEWSKI, J.: ¶ 1 This is an appeal by the Commonwealth from the suppression court’s order dated October 13, 1999, granting Henry Witherspoon’s motion to suppress evidence seized by the Pennsylvania State Police. We reverse and remand for a trial. ¶ 2 When we review the Commonwealth’s appeal from the decision of the suppression court, “[we] consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.” Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 880-81 (1998). “When the evidence supports the suppression court’s findings of fact ..., this Court may reverse only when the legal conclusions drawn from those facts are erroneous.” Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.2000). ¶ 3 The suppression court provided a concise restatement of facts: Defendant was driving a rented vehicle on Interstate 90 on December 7, 1998. The Defendant was from Michigan and was returning from a trip to New York City. The Defendant was stopped by the police for speeding and because the officer stated that Mr. With-erspoon appeared to be underage. After being stopped, it became apparent that the Defendant was legally old enough to drive but was not licensed either in Michigan or elsewhere. The officer issued a citation for driving without a license and then asked the Defendant to consent to a search. The Defendant consented and the vehicle was searched. The police found marijuana in the trunk of the vehicle. Defendant was charged with Possession, Possession With Intent to Deliver, and Possession of drug paraphernalia. The Defendant filed the above motion nunc pro tunc on September 9, 1999. The Court held a hearing on the matter on October 4, 1999. Trial Court Opinion, 10/13/99, at 1-2 (footnote omitted). Before proceeding, we are compelled to include several facts omitted from the suppression court’s factual summary. Appellee was travelling west on Interstate 90 where Trooper Rogers clocked him going 62 mph in a 55 mph zone. See N.T. Suppression Hearing, 10/4/99, at 4. Trooper Rogers testified that he stopped appellee due to a combination of speeding and appellee’s apparent age. See id. at 5. He further testified that during the stop he noticed a contraband copy of “Enemy of the State” in the back window of the car. See id. at 7, 9, 25. After issuing appellant a citation for driving without a license, Trooper Rogers returned appellee’s identification card and paperwork to him and informed him that he was free to leave. See id. at 9, 14, 24. Before appellee could drive away, Trooper Rogers asked him if he would consent to a search of the car. See id. at 9. Appellee then signed a consent form. See id. at 9-10, 31. Several more troopers arrived at the scene and commenced searching appel-lee’s car. See id. at 31-34. ¶ 4 The Commonwealth raises the following issue for our review: WHETHER THE SUPPRESSION COURT ERRED AND MISAPPLIED THE LAW BY ANALYZING THIS CASE UNDER AN INAPPLICABLE U.S. SUPREME COURT DECISION AND FAILING TO REALIZE THAT THE VOLUNTARY CONSENT TO SEARCH WAS LEGALLY OBTAINED. Appellant’s Brief, at 4. ¶ 5 The suppression court relied upon the recent United States Supreme Court case Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), for the proposition that one can never validly consent to having his car searched, subsequent to being stopped for speeding, without reasonable suspicion or probable cause. See Trial Court Opinion, 10/13/99, at 3. The court wrote that “[w]hile there was no consent given in Knowles, the officer did not need consent as he had statutory consent to search the vehicle. The Supreme Court determined that the statutory consent did not make the search valid and the Court can see no reason to treat the actual consent in this case differently than the statutory consent in Knowles.” Id. at 3. Our reading of Knowles leads us to a different conclusion. ¶ 6 In Knowles, an Iowa statute permitted a police officer to conduct a full search of an automobile whenever a policeman cited a driver for an infraction of any traffic or motor vehicle code. See Knowles, 525 U.S. 113,-, 119 S.Ct. 484, -, 142 L.Ed.2d 492, 496-97 (characterizing this as a “search incident to citation”). The Court proceeded to discuss the two constitutionally permissible rationales for conducting a search incident to an arrest: the need to (1) disarm a suspect and (2) preserve evidence for use at trial. See id. at -, 119 S.Ct. at -, 142 L.Ed.2d at 498. The Court then addressed the inherent differences between placing a suspect under arrest and issuing a citation, and held that the underlying concerns that support searches incident to arrest simply are not present when a police officer issues a citation. See id. at -, 119 S.Ct. at -, 142 L.Ed.2d at 498-99. Due to the absence of those concerns, the Supreme Court held the Iowa statute unconstitutional. See id. at-, 119 S.Ct. at-, 142 L.Ed.2d at 499. Our reading of Knowles, however, fails to discern any indication that the U.S. Supreme Court has prohibited every search not grounded in either reasonable suspicion or probable cause. As such, Knowles is inapplicable to this case and the trial court erred by relying upon it. ¶ 7 Pennsylvania constitutional jurisprudence has developed three distinct types of police-citizen interaction: a mere encounter, an investigative detention, and a custodial detention. See Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 339 (1998) (citing Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047-48 (1995)). If the level of interaction exceeds that of a mere encounter, the police must possess either reasonable suspicion or probable cause that the suspect was engaged in criminal activity. See id. Our Supreme Court has utilized the following test to assess the level of interaction for particular instances: “a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Commonwealth v. Wilmington, 729 A.2d 1160, 1172 (Pa.Super.1999) (en banc) (citing Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). Circumstances to consider include: the number of officers present during the interaction; whether the officer informs the citizen that he is suspected of criminal activity; the officer’s demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. See Boswell, 721 A.2d at 340. Therefore, if all of the circumstances indicate that a person understood that he was free to leave and not cooperate, a police officer may engage a citizen in a mere encounter without having a reasonable suspicion of criminal activity. See Commonwealth v. Vasquez, 703 A.2d 25, 30 (Pa.Super.1997) (quoting In re Jermaine, 399 Pa.Super. 503, 582 A.2d 1058, 1060 (1990) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). ¶ 8 Undoubtedly, the initial contact between Trooper Rogers and appellee constituted an investigatory detention, which would require a reasonable suspicion that the suspect had violated a law. See Boswell, 721 A.2d at 340; Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323, 1330 (1988) (quoting Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). It is uncontested that Trooper Rogers lawfully detained appellant for exceeding the maximum speed limit, a violation of 75 Pa.C.S.A. § 3361. See Commonwealth v. Pless, 451 Pa.Super. 209, 679 A.2d 232, 233 (1996). The question then arises as to whether the police may continue to detain a citizen subsequent to issuing a citation or warning without any other indication that additional crimes were afoot. ¶ 9 Pennsylvania jurisprudence conditions the answer upon whether the police officer first informs the detainee that he or she is free to leave. In Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), prior to returning his license, registration, and car rental agreement, the police continued to question Lopez and finally asked him if he would consent to a search. This Court found that Lopez was not free to leave as he could not do so legally, and held that the continued detention constituted an unreasonable Fourth Amendment seizure. See id. at 182; see also Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). ¶ 10 The courts, however, have reached an opposite conclusion when the police officer asks the detainee to consent to a search if the officer first returns the detainee’s paperwork and informs him that he is free to leave. See Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997) (en banc), aff'd by an equally divided court, 557 Pa. 496, 734 A.2d 1275 (1999). Whenever the surrounding circumstances indicate that police conduct would have communicated to a reasonable person that he was at liberty to ignore the police presence and go about his business, the investigative detention converts into a mere encounter with all of its attendant consequences. Commonwealth v. Prosek, 700 A.2d 1305, 1309 (Pa.Super.1997) (citing Hoak, 700 A.2d at 1268). One consequence of a mere encounter is that neither reasonable suspicion nor probable cause is required to foster the contact. As long as the detainee knows that he is not bound to answer the police officer’s questions, he may voluntarily consent to a valid search. ¶ 11 In the instant case, the record contains uncontested evidence that Trooper Rogers first returned the paperwork and identification to appellee and informed him that he was free to leave. Appellee then consented to a search of the vehicle that revealed controlled substances. We find that these facts constitute a constitutionally valid search flowing from a mere encounter. Accordingly, the trial court erred in suppressing the evidence. ¶ 12 Order reversed, case remanded for a trial. Jurisdiction relinquished. . The Commonwealth has certified that the suppression order would substantially handicap or effectively terminate its prosecution of this case. This permits appellate review of the suppression order. See Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998) (quoting Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985)); Commonwealth v. Pitts, 740 A.2d 726, 732 (Pa.Super.1999). . This movie had not yet been released for home viewing at the time of the stop. . The police still held his paperwork.

ORDER PER CURIAM. Order affirmed. NEWMAN, J., did not participate in the consideration or decision of this case.

OPINION OF THE COURT ZAPPALA, Justice. In an Opinion filed on February 7, 1997, 547 Pa. 385, 690 A.2d 1138, we set out the circumstances under which this matter came before the Court. We concluded that “Judge Avellino’s refusal to comply with the assignment, and independently his continued refusal to comply with the assignment after having been directly and unambiguously ordered to do so by this Court, can only be characterized as unjustified defiance of legitimate authority.” 690 A.2d at 1143-1144. The parties were then afforded an opportunity to be heard on the consequences, if any, that should attach to this “affront” to the Court’s “historical and constitutional powers of supervision.” 690 A.2d at 1144. The question is, quite literally, unprecedented, although we do not suppose that this is because conflicts between judges within a judicial district are unprecedented. If such conflicts have arisen before, however, their resolution has been promoted by the judicious temperament expected of those involved given the context, whereas resolution of this matter was impeded by obstinate contentiousness. Judge Avellino asserts a distinction between remedial and punitive measures, arguing that while the -former are within the Court’s power of superintendency, the latter are exclusively within the authority of the Court of Judicial Discipline. He further argues that, “[rjemoval, and/or a fixed fine or forfeiture of compensation can only be viewed as punitive sanctions for past behavior.” Brief at 2. Ultimately, he argues that because he is presently performing the judicial duties assigned to him, he is in compliance with the Court’s mandate and no further sanctions are appropriate. In his view, the authority of the Court has already been vindicated by our previous Opinion explaining that his conduct was unacceptable. We cannot accept the proposition advanced by Judge Avellino that the simple act of prospectively submitting to the authority of the Court is sufficient to remediate the harm occasioned by the disobedience. The record is replete with exhibits evidencing Judge Avellino’s animosity toward Administrative Judge Herron. His conduct, however, carried this personal conflict far beyond the limited sphere of these two individuals. It is true that to some extent the exhibits evidence Judge Avellino’s recognition of the proper channels for addressing his complaints. Disturbingly, what is nowhere apparent is an understanding on the part of Judge Avellino of the harm to the integrity of the judicial system attendant upon his refusal to be satisfied with obtaining redress of his grievances from this Court. Judge Avellino’s actions have unquestionably undermined the public perception of the judiciary. A judge more than anyone must be aware of the need to sublimate individual impulses in the interest of orderly dispute resolution; this is the very foundation of our system of laws. A judge’s refusal to comply with an assignment of an administrative judge, compounded by his refusal to obey an order of this Court, is in complete derogation of respect for the law and the integrity of the judiciary. A secondary interest that must be accounted for is more concrete. Judge Avellino’s actions necessitated the expenditure of scarce public resources to compel his compliance with his duties. Although these costs may not be precisely determinable, they constitute an appropriate consideration in fashioning a remedial sanction. Moreover, despite his refusal to perform his assigned judicial duties, Judge Avellino has received full compensation as a judge of the common pleas court. Accordingly, we herewith enter an Order suspending Judge Avellino without pay for a period of three months and requiring that for a period of six months thereafter he submit performance reports, in the form specified, to this Court. ORDER PER CURIAM. AND NOW, this 18th day of March, 1997, Judge Bernard J. Avellino is suspended without pay for a period of three months. The suspension shall be effective immediately. Upon resuming his assigned duties, Judge Avellino shall on a weekly basis file a report with the Administrative Judge of the Trial Division of the First Judicial District, the Honorable John W. Herron, stating the hours spent in the courtroom, the hours spent in chambers, the number of cases presented, the number of cases disposed of, the outcomes of the cases decided and the sentences imposed. A copy of the same shall also be provided to the Prothonotary of the Supreme Court. He shall also furnish a copy of any opinions filed in support of orders entered, and any additional information as may be requested by the Court for review of his performance. Administrative Judge John W. Herron is directed to establish the format of the report and the time frame upon which the report shall be submitted.

ORDER PER CURIAM: AND NOW, this 25th day of March, 1997, the above captioned case is hereby dismissed as having been improvidently granted.

OPINION NIGRO, Justice. On November 4, 1994, following a jury trial, Appellant Vinson Washington was found guilty of first-degree murder for the killing of Anthony Richardson. The jury returned a verdict of death, and on January 5, 1995, the trial court formally imposed the death sentence. This direct appeal followed. For the reasons presented herein, we affirm the judgment of sentence. Although Appellant does not challenge the sufficiency of the evidence, this Court is required in capital cases to review the record to determine whether the Commonwealth has established the elements necessary to sustain a conviction for first-degree murder. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In conducting such a review, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner and determine whether the jury could find every element of the crime beyond a reasonable doubt. See Commonwealth v. Michael, 544 Pa. 105, 110, 674 A.2d 1044, 1047 (1996). To obtain a conviction for first-degree murder, the Commonwealth must prove that a human being was unlawfully killed; that the defendant did the killing; and that the killing was done intentionally. See 18 Pa. Cons.Stat. § 2502(a), (d) (1983); Commonwealth v. Wilson, 543 Pa. 429, 437-39, 672 A.2d 293, 297 (1996). Further, the specific intent to kill may be inferred from the defendant’s use of a deadly weapon upon a vital part of the victim’s body. See Michael, 544 Pa. at -, 674 A.2d at 1047; Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995). The relevant facts are as follows. On November 22,1993, at approximately 10:25 p.m., Anthony Richardson and Lenora Grimes were standing in front of Grimes’ apartment on the 1800 block of Wilmot Street in Philadelphia. They were engaged in drug dealing. Appellant, who had been standing on a nearby corner with another man, walked up the street toward Grimes and Richardson. Grimes asked him if he needed anything, but Appellant ignored her. Richardson then asked Appellant if he wanted anything. Appellant walked past Richardson but then turned, pulled out a .357 Magnum handgun, and shot Richardson in the right side, just below the chest. Richardson fell to the ground and said “[y]ou can take it all.” N.T., 12/2/95, at 59. Appellant then moved closer to Richardson and shot him twice in the back of the head. Appellant later confessed to the killing and indicated that,. as he walked past Richardson and Grimes, Richardson had called him “one of the stick-up boys” and had reached toward his waist with his left hand as if to draw a gun. Appellant, bothered by this perceived insult, replied with “I ain’t no stickup boy,” and then shot Richardson as described above. N.T., 12/5/94, at 21-22. He then fled the scene. Richardson died almost immediately. Grimes identified Appellant as the shooter in a photo array, at the preliminary hearing, and at trial. Further, a .357 Magnum caliber bullet was recovered from Richardson’s body. At approximately 4:30 a.m. on December 31,1993, Appellant was arrested on a charge unrelated to the instant case. At 2:30 p.m. on December 31, 1993, the police received information from a robbery suspect implicating Appellant in the Richardson killing. Consequently, at 8:45 a.m. on January 1, 1994, Appellant was transported to the offices of the Homicide Unit for questioning concerning the Richardson case. He was given his Miranda warnings and, by 1:55 p.m. that same day, he had confessed to the killing. This evidence is more than sufficient to demonstrate that Appellant shot Richardson and did so with the specific intent to kill. Thus, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the jury could have found each element of an intentional killing beyond a reasonable doubt. See 18 Pa. Cons.Stat. § 2502(a), (d) (1983); Wilson, 543 Pa. at 437-39, 672 A.2d at 297. On December 5, 1994, the jury found Appellant guilty of first-degree murder and possessing an instrument of crime. At the sentencing hearing, the Commonwealth sought to prove that Appellant had a significant history of felony convictions involving the use or threat of violence to the person. Specifically, the Commonwealth offered evidence that on March 26, 1992 Appellant pled guilty to charges of aggravated assault, robbery, and criminal conspiracy, and that Appellant had been adjudicated delinquent of those offenses. Further, the Commonwealth established that on November 4, 1994, Appellant was found guilty of first-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime in the killing of Zachary Jackson and that Appellant had been sentenced to death for that killing. Ultimately, the jury found one aggravating circumstance, that Appellant had a significant history of felony convictions involving the use or threat of violence to the person, and no mitigating circumstances. The jury therefore returned a verdict of death, which the trial court formally imposed on Januaiy 5, 1995. Appellant then directly appealed to this Court, raising three ineffective assistance of counsel claims and one argument for a change in existing law. To prevail on each of his ineffective assistance of counsel claims, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness. See Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994). Appellant first argues that counsel was ineffective for not moving to suppress his confession because it was obtained in violation of the “six-hour” rule announced in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In Davenport, this Court held that an arrestee must be arraigned within six hours of arrest in order “to guard against the coercive influence of custodial interrogation [and] to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Davenport, 471 Pa. at 284, 370 A.2d at 305. If arraignment did not occur within six hours of arrest, any statement by the accused obtained between arrest and arraignment was not admissible at trial. See Davenport, 471 Pa. at 286, 370 A.2d at 306. Later, in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), the Court modified the rule, indicating that the crucial consideration was not the time of the arraignment. Rather, the “focus should be upon when the [defendant’s] statement was obtained, i.e., within or beyond the six hour period.” Thus, since Duncan, any statement obtained within six hours of arrest, absent coercion or other illegality, is not to be suppressed on the basis of Davenport. In the instant case, Appellant argues that since he had been in custody for approximately 28 hours prior to the start of questioning on the Richardson killing that his confession to that crime was obtained through “the intrinsically coercive effects of unbroken custody and multiple police inter rogatories.” Appellant’s Br. at 11. To accept this argument would be to ignore the clear import of the facts of this case. Appellant was arrested at 4:30 a.m. on December 31, 1993 on an unrelated charge. While being processed on that charge, he was placed in a holding cell. Then, at 8:45 a.m. on January 1, 1994, he was taken to an interrogation room in the Police Administration Building , where he gave an inculpatory statement within approximately five hours from the start of questioning. On these facts, we decline to find a violation of the Davenportr-Duncan rule, which is premised on a desire to avoid the coercive effect of prolonged police interrogation. See Bond, 539 Pa. at 308, 652 A.2d at 312; Davenport, 471 Pa. at 284, 370 A.2d at 305. And, in any event, Appellant has failed to establish the prejudice necessary to support his ineffectiveness claim. Lenora Grimes witnessed the entire course of events surrounding the Richardson shooting and gave a description of Appellant and the murder weapon. She later identified Appellant in a photo array, at his preliminary hearing, and at trial. Further, her account of the criminal episode was corroborated by the ballistics evidence in the case. Given these factors, it is clear that Appellant has failed to demonstrate that the outcome of the case would have been different but for counsel’s inaction. See Howard, 538 Pa. at 100, 645 A.2d at 1308 (to establish prejudice, “a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness”). Accordingly, his ineffectiveness claim fails. Next, Appellant suggests that counsel was ineffective for failing to request jury charges on self-defense and voluntary manslaughter. It is clear that jury instructions regard ing particular crimes or defenses are not warranted where the facts of the case do not support those instructions. See Commonwealth v. Browdie, 543 Pa. 337, 347-50, 671 A.2d 668, 673-74 (1996); see also Commonwealth v. Harris, 542 Pa. 134, 139-40, 665 A.2d 1172, 1175 (1995) (no self-defense instruction required where the evidence did not support self-defense); Commonwealth v. Carter, 502 Pa. 433, 443-44, 466 A.2d 1328, 1332-33 (1983) (trial counsel not ineffective for failing to request instruction on voluntary manslaughter where no evidence existed to support a conviction for that offense). Deadly force may not be used in self-defense unless: (1) the actor reasonably believed himself to be in imminent danger of death or serious bodily harm and that it was necessary to use deadly force against the victim in order to prevent such harm, (2) the actor was without fault in provoking or continuing the situation that resulted in the killing, and (3) the actor did not violate any duty to retreat. See 18 Pa. Cons.Stat. § 505 (1983); Commonwealth v. Butler, 516 Pa. 522, 524-5, 533 A.2d 992, 993 (1987). The facts in this case do not support a finding that Appellant acted in self-defense when he killed Richardson. In his confession, Appellant stated: I walked past [Richardson] and he said something to me. [He] said I was one of the stick-up boys and he put his hand on his waist like he was reaching into his pants for a gun. He reached toward his pants with his left hand. I said I ain’t no stick-up boy. [He] said go the f*ck ahead. I was by the church wall and then he was like walking a little bit, and I was thinking[,] why [is] this nigger talking to me like this, and it was like about from one corner of this room to the other like about a couple of steps and I pulled my gun and shot him. I think I hit him in the back. Excuse me. I think I hit him in his back. I ain’t sure. Cause he fell and said you can have it. So then I was walking past him and I shot two more times and then I left the scene. N.T., 12/5/94, at 21-22. Nowhere in this passage does Appellant indicate that he believed he was in danger of imminent death or serious bodily injury. Moreover, despite Appellant’s claim that Richardson reached toward his waist, Appellant never stated that he feared Richardson actually had a gun — and there is no evidence that he did. Appellant’s lack of fear is also shown by the fact that he did not immediately draw his own weapon when Richardson made the allegedly threatening gesture toward his waist. Rather, he responded verbally with “I ain’t no stick-up boy.” Richardson then spoke again. It was only at that point, after reflecting on Richardson’s comments and attitude, that Appellant drew his weapon and fired. Also, after the first shot brought Richardson to the ground, Appellant could not reasonably have possessed a belief that his life was still in danger and that it was necessary to shoot Richardson twice in the head to defend himself. Thus, the evidence in Appellant’s case does not support a finding that he acted in self-defense. See 18 Pa. Cons.Stat. § 505 (1983); Butler, 516 Pa. at 524-5, 533 A.2d at 993. An instruction on that issue was therefore not warranted. See Harris, 542 Pa. at 139-40, 665 A.2d at 1175. Appellant’s underlying claim is thus without merit and his ineffective assistance claim fails. See Howard, 538 Pa. at 93, 645 A.2d at 1304. In a related claim, Appellant contends that counsel was ineffective for not requesting a jury charge on “unreasonable belief’ voluntary manslaughter. Under 18 Pa. Cons.Stat. § 2503(b) (1983), an intentional killing is voluntary manslaughter if committed as a result of an unreasonable belief in the need for deadly force in self-defense. See Commonwealth v. Mehmeti, 501 Pa. 589, 597, 462 A.2d 657, 661 (1983); Commonwealth v. McNeil, 497 Pa. 187, 198, 439 A.2d 664, 669 (1981). The facts of this case, as set forth in Appellant’s confession and corroborated by Grimes’ testimony, do not support a finding of unreasonable belief voluntary manslaughter. Despite Richardson’s allegedly threatening gesture, Appellant was never confronted with a gun. Moreover, his own statement indicates that he had time to pause, reflect on Richardson’s comments, and conclude that he was offended by them. He then attacked Richardson and, after felling him with one shot, approached him and shot twice more, all without Richardson drawing a weapon. We believe these facts are inconsistent with the conclusion that Appellant possessed a real, but mistaken, belief that his life was in imminent danger. They suggest, rather, that Appellant was offended by a perceived insult and decided to respond with deadly force. A jury instruction on unreasonable belief voluntary manslaughter was therefore not warranted given the evidence presented. See Browdie, 543 Pa. at 347-49, 671 A.2d at 673; Carter, 502 Pa. at 443-414, 466 A.2d at 1332-33. Appellant’s underlying claim is thus without merit and his ineffective assistance claim fails. See Howard, 538 Pa. at 93, 645 A.2d at 1304. Next, Appellant contends that counsel was ineffective for not requesting the redaction of a reference to prior criminal activity contained in his confession. Appellant is referring to Richardson’s remark that Appellant was one of the “stick-up boys.” ' Appellant suggests that this remark implied that he had, at an earlier date, engaged in armed robbery. He suggests that the jury may have taken this as evidence of a general criminal disposition and that counsel was ineffective for allowing it to be admitted. Generally, evidence of criminal activity unrelated to the offense in question is inadmissible against a defendant. See Commonwealth v. LaCava, 542 Pa. 160, 176, 666 A.2d 221, 228-29 (1995); Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). However, such evidence is admissible when offered to prove motive or malice. See LaCava, 542 Pa. at 176, 666 A.2d at 229; Commonwealth v. Williams, 541 Pa. 85, 94, 660 A.2d 1316, 1321 (1995). Appellant’s confession clearly indicates that he was offended by Richardson’s comment and chose to respond with gunfire. Richardson’s remark was therefore properly admitted as evidence of Appellant’s motive for the shooting. Appellant’s ineffective assistance claim must therefore fail given that his underlying claim is without merit. See Howard, 538 Pa. at 93, 645 A.2d at 1304. Lastly, Appellant contends that he is entitled to a new sentencing hearing because it was improper for the jury to be informed that he had received the death sentence for the killing of Zachary Jackson. In sentencing for first-degree murder, a jury may consider only those aggravating circumstances listed in 42 Pa. Cons.Stat. § 9711(d). Section 9711(d)(9) sets forth one such circumstance, that “the defendant has a significant history of felony convictions involving the use or threat of violence to the person.” Appellant argues that the use of the word “convictions,” and nothing more, indicates that the Legislature intended for sentencing juries to be informed only of the mere fact of the prior conviction itself, not of the circumstances surrounding that conviction. He suggests that the decisions of this Court interpreting section 9711(d)(9) as allowing the introduction of such evidence were wrongly decided and should be overruled. See, e.g., Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995); Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984). In Beasley, this Court stated: [cjonvictions are defined by the essential and necessary facts upon which they are based, and judgments of sentence flow naturally from, and form an integral part of, those convictions. Thus, reason impels that the construction of the term ‘convictions’ in [section] 9711(d)(9) be such as to permit consideration of the essential and necessary facts pertaining to the convictions, including the circumstances of the crimes and the sentences imposed. In the present case, therefore, no error was committed when the jury was informed ... of appellant’s prior murder conviction[ ] ..., and that the jury in that case had returned a verdict of death. Beasley, 505 Pa. at 289, 479 A.2d at 465. Since Beasley, this Court has not departed from this rationale. See, e.g., Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995); Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993); Commonwealth v. Reid, 533 Pa. 508, 626 A.2d 118 (1993); Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289 (1989). We see no reason to do so today, and Appellant offers no compelling arguments in support of his position. Accordingly, we reject Appellant’s claim as inconsistent with our prior decisions. Having concluded that Appellant’s claims for relief are without merit, we must affirm the judgment of sentence unless we determine that (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa. Cons.Stat. § 9711(h)(3) (Supp.1995). Upon review of the record, we conclude that the sentence was not the product of passion, prejudice or any other arbitrary factor. Rather, it was based upon evidence properly admitted at trial. We also conclude that the evidence was sufficient to support the finding of one aggravating circumstance, that Appellant has a significant history of felony convictions involving the use or threat of violence to the person. See id. § 9711(d)(9). Lastly, we have reviewed Appellant’s sentence in light of the sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts. See Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 968, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). We conclude that the sentence of death imposed upon Appellant is not excessive or disproportionate. Accordingly, we affirm the judgment of sentence. NIX, Former C.J., did not participate in the consideration or decision of this case. . See 18 Pa.Cons.Stat. § 2502(a) (1983). . See id. § 907(a). . See 42 Pa.Cons.Stat. § 9711(d)(9) (Supp.1995). . This Court affirmed Appellant’s judgment of sentence in the Jackson killing. See Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018 (1997), at No. 90 Capital Appeal Docket 1995. . See 42 Pa.Cons.Stat. § 9711(d)(9) (Supp.1995). . On the charge of possessing an instrument of crime, the trial court sentenced Appellant to one to two years imprisonment. That sentence was made consecutive to any other sentences Appellant was serving. See N.T., 1/5/95, at 8. . Pursuant to 42 Pa.Cons.Stat. § 9711(h)(1) (Supp.1995) and Pa.R.A.P. 1941. . After a thorough review of the record and the briefs in this case, we cannot conclude that Appellant did anything other than languish, unmolested, in his cell until he was removed for questioning on January 1, 1994. . Thus, even if one were to conclude that the interrogation of Appellant on the Jackson shooting constituted an arrest on that charge, there was no violation of the Davenport-Duncan rule. . We also note that, even if this claim had merit, Appellant would not be able to establish the prejudice necessary to succeed on an ineffectiveness claim given the other, properly admitted evidence clearly establishing his guilt, i.e., his confession (even if redacted), the eyewitness testimony of Grimes, and the ballistics evidence matching a bullet retrieved from Richardson’s body to the type of handgun Appellant admitted to using in the killing. . Appellant failed to raise this claim at the trial court level, and it is therefore waived. See Pa.R.A.P. 302(a); Commonwealth v. Robinson, 543 Pa. 190, 198-200, 670 A.2d 616, 620 (1995). However, we will address the merits of the claim in accordance with the relaxed waiver rule applicable in capital cases. See LaCava, 542 Pa. at 175 n. 8, 666 A.2d at 228 n. 8. . The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor of Pennsylvania. See 42 Pa.Cons.Stat. § 971 l(i) (1982).

OPINION NIGRO, Justice. On November 4, 1994, following a jury trial, Appellant Vinson Washington was found guilty of first-degree murder for the killing of Zachary Jackson. The jury returned a verdict of death, and on January 5, 1995, the trial court formally imposed the death sentence. This direct appeal followed. For the reasons presented herein, we affirm the judgment of sentence. Although Appellant does not challenge the sufficiency of the evidence, this Court is required in capital cases to review the record to determine whether the Commonwealth has established the elements necessary to sustain a conviction for first-degree murder. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In conducting such a review, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner and determine whether the jury could find every element of the crime beyond a reasonable doubt. See Commonwealth v. Michael, 544 Pa. 105, 109, 674 A.2d 1044, 1047 (1996). To obtain a conviction for first-degree murder, the Commonwealth must prove that a human being was unlawfully killed; that the defendant did the killing; and that the killing was done intentionally. See 18 Pa.Cons.Stat. § 2502(a), (d) (1983); Commonwealth v. Wilson, 543 Pa. 429, 437, 672 A.2d 293, 297 (1996). Further, the specific intent to kill may be inferred from the defendant’s use of a deadly weapon upon a vital part of the victim’s body. See Michael, 544 Pa. at 109, 674 A.2d at 1047; Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995). The relevant facts are as follows. On the evening of December 11, 1993, Appellant and another man, Rasheed Miller, followed the decedent, Zachary Jackson, as he drove through the streets of West Philadelphia. Jackson, a shopkeeper, had just left his store, and Appellant and Miller believed he was carrying a large sum of money. Jackson eventually stopped at an intersection in response to a red light. At that moment, Miller, who was driving, blocked off Jackson’s car. Appellant ordered Jackson out of his car at gunpoint, demanded money, and began frisking Jackson. When Appellant looked away briefly, Jackson tried to flee, but fell when Appellant shot him four times in the lower back and legs. Appellant again tried to search for money, but Jackson fought him off. Appellant then retrieved another gun from his car and shot Jackson once in the abdomen. Appellant and Miller then fled the scene. Jackson died the next day. An eyewitness, Denise Grant, viewed the entire episode. At approximately 4:30 a.m. on December 31,1993, Appellant was arrested on a charge unrelated to the instant case. At 2:30 p.m. on December 31, 1993, the police received information from a robbery suspect implicating Appellant and Miller in the Jackson killing. Consequently, at 8:45 a.m. on January 1, 1994, Appellant was transported to the offices of the Homicide Unit for questioning concerning the Jackson case. He was given his Miranda warnings and, by 1:55 p.m. that same day, he had confessed to killing Jackson. Miller, who was also being held on unrelated charges, also confessed on January 1, 1994 to his involvement in the case. Further, the weapon Appellant admitted using to shoot Jackson the fifth and final time was later recovered. Ballistics evidence matched this gun to a bullet fragment found in Jackson’s body and a cartridge casing found at the scene of the shooting. This evidence is more than sufficient to demonstrate that Appellant shot Jackson and did so with the specific intent to kill. Thus, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the jury could have found each element of an intentional killing beyond a reasonable doubt. See 18 Pa.Cons.Stat. § 2502(a), (d) (1983); Wilson, 543 Pa. at 437, 672 A.2d at 297. Appellant and Miller were tried jointly. On November 4, 1994, the jury found Appellant guilty of first-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime. After a penalty hearing, the jury found that one aggravating circumstance, that the killing occurred during the perpetration of a felony, outweighed one mitigating circumstance, that Appellant had no significant history of prior criminal convictions. The jury therefore returned a verdict of death, which the trial court formally imposed on January 5, 1995. Appellant then directly appealed to this Court, raising one claim of trial court error and three ineffective assistance of counsel claims. Appellant first argues that the trial court erred in refusing to sever his trial from Miller’s. Appellant suggests that he was prejudiced by the admission of Miller’s redacted confession because it “contextually implicated” him in the killing and therefore violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the U.S. Supreme Court held that the introduction at trial of a non-testifying co-defendant’s confession describing the defendant’s participation in a crime deprives the defendant of his rights under the Confrontation Clause of the Sixth Amendment. It is well-settled, however, that no Bruton violation occurs if the co-defendant’s statement is redacted to remove any specific references to the defendant and if a proper limiting instruction is given. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987); Commonwealth v. Jones, 542 Pa. 464, 495-96, 668 A.2d 491, 506 (1996). In the instant case, the phrase “the guy with me” was substituted for any reference to Appellant in Miller’s statement. Further, the trial court instructed the jury that it was to consider each co-defendant’s confession as evidence only against that co-defendant. Thus, the introduction of Miller’s statement did not violate Bruton. Despite this, Appellant claims that he suffered prejudice nonetheless because the jury, viewing the redacted confession in light of the other evidence connecting Appellant to the murder, could easily have inferred that the unnamed individual mentioned in the confession was actually Appellant. In other words, Appellant contends that he was prejudiced as the result of a Bruton violation occurring through contextual implication. We realize that contextual implication can impact a defendant’s rights under the Confrontation Clause. However, reversible error does not necessarily result from eveiy infringement of a defendant’s right to confront witnesses against him. Review under the harmless error standard set forth in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) is appropriate in such circumstances. See Bond, 539 Pa. at 312, 652 A.2d at 314. Under Story, an error is harmless if it could not have contributed to the verdict because the erroneously admitted evidence is merely cumulative of substantially simi lar, properly admitted evidence. See Story, 476 Pa. at 411, 383 A.2d at 165. In Appellant’s case, even assuming that the admission of Miller’s redacted statement violated the dictates of Bruton, such error was indeed harmless and did not prejudice Appellant. Any evidence of Appellant’s involvement in the murder that could be inferred from Miller’s confession was merely cumulative of other, properly admitted evidence indicating his guilt. Appellant’s own statement, wherein he confessed to shooting Jackson, was introduced into evidence and was factually indistinguishable from Miller’s. Further, the eyewitness, Denise Grant, identified Appellant at trial and gave an account of the attack which was essentially identical to the statements of both Appellant and Miller. And, finally, the ballistics evidence corroborated Grant’s testimony and Appellant’s confession. Thus, even assuming a Bruton violation occurred, it was harmless error in light of the properly admitted evidence clearly establishing Appellant’s guilt. See Commonwealth v. Chestnut, 511 Pa. 169, 174-75, 512 A.2d 603, 605-06 (1986); Story, 476 Pa. at 411, 383 A.2d at 165. In light of this, and considering the trial court’s limiting instruction to the jury, Appellant has failed to demonstrate that he was prejudiced by the denial of his motion to sever. Accordingly, we find no abuse of discretion on the part of the trial court. See Commonwealth v. Wharton, 530 Pa. 127, 142, 607 A.2d 710, 717-18 (1992). Next, Appellant raises three ineffective assistance of counsel claims. To prevail on each of these claims, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness. See Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994). First, Appellant argues that counsel was ineffective for failing to object when the prosecution “broke redaction” of Miller’s confession during closing argument. A prosecutor’s comments do not constitute reversible error unless “‘the unavoidable effect of such comments [was] 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.’ ” Bond, 539 Pa. at 314, 652 A.2d at 315 (quoting Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987)). Appellant complains initially of the following statement by the prosecution: In the statements, beginning with Mr. Miller, he says a guy named Boo tells them there’s a furniture store at 54th and Lancaster. It closes at eight. That’s [a] black guy about 35 to 40. He[’ll] be wearing a black Basalini hat and he closes [h]is store'. He has $6,000 in his sock. So what do they do? They do go to that area, they wait at that store. < N.T., 11/4/94, at 43. Appellant contends that the prosecution’s use of the word “they” was an improper reference to Appellant, tying him in to Miller’s statement. We disagree. The use of the pronoun “they” was indicative of nothing more than the fact that Miller’s statement spoke of two men, Miller and the “guy” with him. As such, the prosecutor’s remark was insufficient to prejudice the jury against Appellant. Second, Appellant complains of the following statement by the prosecutor: When Vinson Washington shot the man in the back four times, and then walks up to him with or with the knowledge of or with the participation with Rasheed Miller saying go back and get it, was that a hardness of heart, a cruelty of disposition when he finished the job off? Because if you find that hardness of heart, then you have malice, and if it’s malice it’s murder. N.T., 11/4/94, at 49. Upon consideration, we conclude that this remark, like the first, was simply insufficient to prejudice the jurors against Appellant to a degree rendering them incapable of objectively weighing the evidence and returning a true verdict. Appellant’s underlying claim is thus without merit. We note also that the trial court instructed the jury that Miller’s statement could be used as evidence only against Miller and that the closing arguments of both prosecution and defense counsel were not to be considered evidence. Thus, even assuming that Appellant’s underlying claim had merit, he has failed to demonstrate the requisite prejudice necessary to establish the ineffective assistance of counsel. See Howard, 538 Pa. at 93, 645 A.2d at 1304. Accordingly, this claim fails. Next, Appellant suggests that counsel was ineffective for failing to object when Police Officer Joel Fitzgerald testified concerning the description of the shooter that Denise Grant had given him at the scene of the shooting. Appellant contends that this testimony was inadmissible hearsay. Appellant’s claim is without merit. Although Officer Fitzgerald’s testimony was hearsay, it was admissible under the excited utterances exception to the hearsay rule. To qualify as an excited utterance, a statement must be a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.... Commonwealth v. Stokes, 532 Pa. 242, 258, 615, A.2d 704, 712 (1992). In the instant case, we are convinced that the events witnessed by Grant were clearly unexpected and shocking. Indeed, Officer Fitzgerald commented that when he arrived at the scene, Grant was “in a very excited state. She was — she looked as if her life had passed before her eyes____” N.T., 11/2/94, at 56. We also note that Grant spoke with Officer Fitzgerald only a few moments after the episode occurred. In light of this, we conclude that Grant’s description of the shooter was an excited utterance and was therefore not inadmissible hearsay. See Stokes, 532 Pa. at 258, 615 A.2d at 712. Appellant’s ineffective assistance claim must therefore fail given that his underlying claim is without merit. See Howard, 538 Pa. at 93, 645 A.2d at 1304. Lastly, Appellant argues that counsel was ineffective for not moving to suppress his confession because it was obtained in violation of the “six-hour” rule announced in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In Davenport, this Court held that an arrestee must be arraigned within six hours of arrest in order “to guard against the coercive influence of custodial interrogation [and] to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Davenport, 471 Pa. at 284, 370 A.2d at 305. If arraignment did not occur within six hours of arrest, any statement by the accused obtained between arrest and arraignment was not admissible at trial. See Davenport, 471 Pa. at 286, 370 A.2d at 306. Later, in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), the Court modified the rule, indicating that the crucial consideration was not the time of the arraignment. Rather, the “focus should be upon when the [defendant’s] statement was obtained, i.e., within or beyond the six hour period.” Thus, since Duncan, any statement obtained within six hours of arrest, absent coercion or other illegality, is not to be suppressed on the basis of Davenport. In the instant case, Appellant argues that since he had been in custody for approximately 28 hours prior to the start of questioning on the Jackson killing that his confession to that crime was obtained through “the intrinsically coercive effects of unbroken custody and multiple police interrogatories.” Appellant’s Br. at 10. To accept this argument would be to ignore the clear import of the facts of this case. Appellant was arrested at 4:30 a.m. December 31, 1993 on an unrelated charge. While being processed on that charge, he was placed in a holding cell. See N.T., 11/3/94, at 74. Then, at 8:45 a.m. on January 1, 1994, he was taken to an interrogation room in the Police Administration Building , see id. at 73-74, where he gave an inculpatory statement within approximately five hours from the start of questioning. On these facts, we decline to find a violation of the Davenport-Duncan rule, which is premised on a desire to avoid the coercive effect of prolonged police interrogation. See Bond, 539 Pa. at 308, 652 A.2d at 312; Davenport, 471 Pa. at 284, 370 A.2d at 305. And, in any event, Appellant has failed to establish the prejudice necessary to support his ineffectiveness claim. Denise Grant witnessed the entire course of events surrounding the Jackson shooting and identified Appellant at the trial. Her account of the criminal episode was factually indistinguishable from Miller’s statement and was corroborated by the ballistics evidence in the case. Given these factors, it is clear that Appellant has failed to demonstrate that the outcome of the case would have been different but for counsel’s inaction. See Howard, 538 Pa. at 100, 645 A.2d at 1308 (to establish prejudice, “a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness”). Accordingly, his ineffectiveness claim fails. Having concluded that Appellant’s claims for relief are without merit, we must affirm the judgment of sentence unless we determine that (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.Cons.Stat. § 9711(h)(3) (Supp.1995). Upon review of the record, we conclude that the sentence was not the product of passion, prejudice or any other arbitrary factor. Rather, it was based upon evidence properly admitted at trial. We also conclude that the evidence was sufficient to support the jury’s finding of one aggravating circumstance, that the killing occurred during the perpetration of a felony. See id. § 9711(d)(6). This conclusion is amply supported by Appellant’s own statement and by the eyewitness testimony of Denise Grant. Lastly, we have reviewed Appellant’s sentence in light of the sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts. See Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). We conclude that the sentence of death imposed upon Appellant is not excessive or disproportionate. Accordingly, we affirm the judgment of sentence. NIX, Former C.J., did not participate in the consideration or decision of this case. . Miller was convicted of second-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime. He was sentenced to life imprisonment. After the Superior Court affirmed Miller's judgments of sentence, this Court denied allocatur. See Commonwealth v. Miller, 449 Pa.Super. 724, 674 A.2d 317 (1995), appeal denied, 544 Pa. 655, 676 A.2d 1196 (1996). . See 18 Pa.Cons.Stat. § 2502(a) (1983). . See id. § 3701. . See id. § 903. . See id. § 907(a). . See 42 Pa.Cons.Stat. § 9711(d)(6) (Supp. 1995). . See id. § 9711(e)(1) (1982). . On the remaining charges, the trial court sentenced Appellant as follows: ten to twenty years imprisonment for robbery, five to ten years in prison for criminal conspiracy, and one to two years imprisonment for possessing an instrument of crime. The sentences were made concurrent to each other but consecutive to any other sentences Appellant was serving. See N.T., 1/5/95, at 5. . Pursuant to 42 Pa.Cons.Stat. § 9711(h)(1) (Supp.1995) and Pa.R.A.P. 1941. . The decision whether to sever the trials of co-defendants is within the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of that discretion. See Commonwealth v. Wharton, 530 Pa. 127, 142, 607 A.2d 710, 717 (1992). The decisive question is whether Appellant was prejudiced by the trial court’s decision. See Wharton, 530 Pa. at 142, 607 A.2d at 717-18. The burden is on Appellant to establish such prejudice. See Commonwealth v. Lambert, 529 Pa. 320, 331, 603 A.2d 568, 573 (1992). . After a thorough review of the record and the briefs in this case, we cannot conclude that Appellant did anything other than languish, unmolested, in his cell until he was removed for questioning on January 1, 1994. . Thus, even if one were to conclude that the interrogation of Appellant on the Jackson shooting constituted an arrest on that charge, there was no violation of the Davenport-Duncan rule. . The Prothonotary of the Supreme' Court is directed to transmit the complete record of this case to the Governor of Pennsylvania. See 42 Pa.Cons.Stat. § 971 l(i) (1982).

ORDER PER CURIAM: AND NOW, this 27th day of January, 1997, the Petition for Allowance of Appeal is GRANTED, but LIMITED to the following issue: 1. Whether the School Board improperly commingled prosecutorial and adjudicatory functions in violation of the principles of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), where the School Board first voted to prefer charges against Petitioner, and subsequently adjudicated Petitioner’s challenge to her discharge. NEWMAN, J., did not participate in the consideration or decision of this matter.

OPINION NEWMAN, Justice. This is an appeal from an order of the Court of Common Pleas of Northampton County that denied Martin D. Appel’s (Appel) Petition for Relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq. (PCRA) and vacated a stay of execution of the death penalty. We affirm the Order of the Court of Common Pleas (trial court). I. Facts and Procedural History In Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988) (Appel I), we summarized the facts of the case as follows: [I]n early May of 1986, appellant decided to rob a bank. He enlisted the aid of a friend, Stanley Herzog, believing that his plan would require at least two persons in order to ensure that all persons who might be in the bank at the time of the robbery could be executed before an alarm could be pressed. It was also crucial to appellant’s plan that no eyewitness survive. The East Allen Township branch of the First National Bank of Bath was selected as the target. Preliminary to the actual robbery, appellant and Herzog broke into the bank during the early morning hours of May 29, 1986, to ascertain the nature of the layout of the bank and the nature of its security system. During this burglary, the two men vandalized the bank in an attempt to deceive the police as to the purpose of the break-in. Appellant and Herzog then purchased handguns, appellant selecting a nine millimeter handgun for maximum ‘firepower.’ They practiced for the robbery by shooting at human silhouette targets. Appellant also took measures to estimate the time it would take the police to respond in the event the robbery would be reported while in progress. On June 6, 1986, appellant and Herzog drove to the vicinity of the bank. Appellant, using a pay telephone, communicated a bomb threat to the airport located across the street from the State Police barracks closest to the targeted bank. He also telephoned the bomb threat to an Allentown radio station as well as the Allentown police. Appellant and Herzog then drove to the bank, entered, concealing their handguns, and each approached tellers’ windows for the ostensible purpose of obtaining change. Appellant shot both tellers in the back as they were attempting to comply with the request. One, Janice Confer, fell to the floor wounded. The other, Hazel Evans, was killed instantly. Appellant next fired two shots at the branch manager, Marcia Hauser, but missed. He then shot across the lobby at a bank official, Jane Hartman, and a customer with whom she had been conversing. The customer was wounded but survived. Ms. Hartman dropped to the floor and hid under her desk. Appellant then ran across the lobby and shot her twice in the back, killing her instantly. In the meantime, Herzog had entered Ms. Hauser’s office and shot her through the head. She survived but is permanently disabled. Appellant and Herzog then proceeded behind the teller’s counter to collect the deadly object of their greed. Appellant discovered, however, that Ms. Confer, one of the tellers he had shot, was still alive. In accordance with his master plan, he shot her again in the back, the bullet penetrating her heart and lungs and causing her death. The robbers had collected approximately $2,280.00 when an automobile approached the bank’s drive-in window, whereupon they fled in appellant’s vehicle. Appellant and Herzog were apprehended by the State Police approximately two hours and thirty minutes later. Appellant subsequently gave full and complete confessions to an agent of the Federal Bureau of Investigation and to a State Police Trooper. 517 Pa. 529, 534-536, 539 A.2d 780, 782-783. Appel appeared before the trial court on June 12, 1986, and said that he wanted to represent himself. He also expressed concern that professional legal representation would hamper the prosecution’s case against him. The trial court conducted a thorough colloquy concerning Appel’s waiver of his right to counsel, and Appel indicated throughout the colloquy that he understood his rights and wanted to waive his right to counsel. Before accepting Appel’s waiver, the trial court ordered a competency evaluation. Janet Schwartz, M.D., performed the first psychiatric evaluation of Appel in 1986. Dr. Schwartz is board certified in both psychiatry and neurology, and was familiar with competency evaluations because she had performed them prior to her evaluation of Appel. Before examining Appel, Dr. Schwartz met with John Weaver, a social worker for Northampton County’s Mental Health and Mental Retardation Unit, who had interviewed Appel and obtained a detailed social history. She also spoke with the stand-by counsel appointed by the trial court to represent Appel, and she reviewed various documents including police reports and Appel’s arrest record provided to her by the District Attorney’s Office. Dr. Schwartz familiarized herself with the facts of the crime from a police report/arrest record, and then personally conducted a mental status examination of Appel and found no evidence of any formal thought disorder or flight of ideas. She found no evidence of delusions, nor could she elicit delusions through the use of psychological tests. Lastly, Dr. Schwartz found no evidence of any psychosis nor any evidence of mental disorders that would affect Appel’s ability to function in court. When Dr. Schwartz asked Appel about the facts of the robbery and murders, he said that he conceived the idea about a month earlier, and that it was the fastest way to get a large sum of money. In her report to the trial court, dated June 17, 1986, which was made part of the record of the trial court, Dr. Schwartz stated the following: Diagnosis: No mental illness. Impressions: Mr. Appel appears to have made a rational and well-thoughLout decision that he would like to receive the death penalty and would like this to occur as soon as possible. On the basis of my examination, I feel that he is competent to make this decision and to refuse counsel. On June 20, 1986, Appel reiterated in court that he wanted to proceed without counsel. After reviewing Dr. Schwartz’ competency evaluation, the trial court accepted Appel’s waiver of his right to counsel. The trial court appointed two members of the Northampton County public defender’s office to serve as stand-by counsel, and the court made it clear that if Appel changed his mind, the court would appoint counsel to represent him. Appel said that he was a graduate of Blooms-burg State College with a B.A in psychology, having received his degree on May 10, 1980, and that he clearly understood everything that the judge was stating to him. At the request of defense counsel, the trial court ordered a second psychiatric evaluation. On August 19, 1986, psychiatrist Paul Kenneth Gross, M.D., met with Appel for two hours to perform his evaluation and consulted with psychologist Dolores Kristofits, who had done psychological testing. Dr. Gross identified a “narcissistic personality disorder” present in Appel, which is associated with such factors as a grandiose sense of self importance or uniqueness, exaggeration of achievements and talents, preoccupation with fantasies, and feelings of rage. In his report dated August 27, 1986, Dr. Gross stated that he found “no evidence of any psychosis on the part of Mr. Appel.” Dr. Gross concluded that Appel was competent, stating “he knows the nature and quality of his behavior and can appreciate the consequences of his own behavior.” Notes of testimony, May 18,1995, p. 69. Appel subsequently waived his preliminary hearing, and, on July 20,1986, he announced that he wanted to plead guilty to all charges against him, including three counts of first degree murder. The trial court did not allow Appel to plead guilty to any counts of first degree murder, but instead accepted his pleas of guilty to three counts of murder generally, and to the following other charges: two counts of attempted murder in the first degree, two counts of aggravated assault, one count of robbery, eight counts of criminal conspiracy, burglary, criminal mischief, and terroristic threats. A degree of guilt hearing commenced on August 7, 1986 to determine the degrees of the three counts of murder to which Appel pled guilty. At that hearing, the Commonwealth presented extensive testimony and submitted numerous exhibits during a three-day period. After the hearing on August 9, 1986, the trial court found Appel guilty of three counts of first degree murder. The trial court again informed Appel of his right to counsel during the penalty phase and Appel again waived his right to counsel. During the penalty phase, Appel made the following statement to the trial court: Okay, Your Honor. I would like to state for the record, that during the entire proceedings and/or hearings in this matter, I have been very much aware of what is going on. That is to say, I am rational, sane, competent and alert. I have had plenty of opportunities to discuss and consult with stand-by counsel, Mr. Crowe and Ms. Kraft. And, I have consulted with them on various occasions. I feel that by cooperating with the prosecution and by pleading guilty to all charges, that I have done the honorable thing. And, I hope that I have set a precedent here today for all future defendants in so doing. The only mitigating factors that I wish to enter into the record, would be: One, that I have had no prior felony convictions against me; and, Two, that I was gainfully employed at the time of my arrest. I would also like to say that I will not appeal your decision or any decisions that you made. Furthermore, I trust that the American Civil Liberties Union will not interfere with this matter and that no other outside legal aid groups will make any appeal [on] my behalf. That’s all. Notes of testimony, August 9, 1986, p. 367. During closing argument, the Commonwealth urged the court to sentence Appel to death. When again questioned concerning his position, Appel repeated his request for the death penalty. After deliberation, the trial court returned sentences of death for each of the three counts of first degree murder, finding that the Commonwealth had proved the following two aggravating circumstances beyond a reasonable doubt: (1) Appel killed the victims to prevent their testimony against him in a criminal proceeding, 42 Pa.C.S. § 9711(d)(5); and (2) Appel committed the killings in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6). The trial court also found one mitigating circumstance, that being Appel’s lack of a prior record of felony convictions. The Court concluded that the aggravating circumstances outweighed that mitigating factor. Appel did not file post-verdict motions and, on September 3, 1986, the trial court imposed three death sentences and a consecutive aggregate term of forty-two to eighty-four years imprisonment. Again, Appel stated that he did not want an appeal to be filed on his behalf, and he wanted to be executed. Nevertheless, the record was transmitted to this Court in accordance with Pa.R.A.P.1941 and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), rehearing denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Although no issues were presented to this Court on appeal, we independently reviewed the following two issues: (1) whether the evidence is sufficient to support Appel’s three convictions of first degree murder pursuant to Zettlemoyer; and (2) whether the sentences were “the product of passion, prejudice or any other arbitrary factor,” 42 Pa.C.S. § 971 l(h)(3)(i); whether the evidence supports the finding of a valid aggravating circumstance, 42 Pa.C.S. 9711(h)(3)(ii); and whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, 42 Pa.C.S. § 9711(h)(3)(ni). This Court affirmed the judgments of sentence on March 28, 1988. On February 28, 1995, the Honorable Thomas J. Ridge, Governor of Pennsylvania, issued a death warrant, which set the date of Appel’s execution for the week of April 4, 1995. On March 29, 1995, Appel’s current counsel filed a PCRA petition and an Application for Stay of Execution with the trial court. The PCRA petition was assigned to the same judge who presided over Appel’s guilty plea and who imposed sentence. On March 30, 1995, the trial court issued an Order staying the execution pending disposition of Appel’s PCRA petition. The trial court held evidentiary hearings beginning May 6, 1995, and ending May 19, 1995. Appel was represented by counsel during the PCRA proceedings before the trial court. By Order and Opinion filed June 14, 1995, the trial court denied Appel’s PCRA petition and vacated its prior stay of execution. Appel, represented by the same attorneys who represented him in the PCRA proceedings below, now appeals from the trial court’s denial of post conviction relief. II. Issues In his appeal, Appel presents the following issues for our review: A. Whether Appel is entitled to relief from his conviction and death sentence because confidence in the reliability of the original competency evaluation and ruling has been undermined and/or because Pennsylvania has employed an unconstitutional standard for evaluation of competency. B. Whether Appel is entitled to relief because he was denied assistance of counsel during the original trial court proceedings. C. Whether Appel is entitled to relief from his conviction and sentence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. D. Whether Appel is entitled to relief from his conviction and sentence because he was not afforded a reliable evaluation of his impaired mental health and competency and was thus deprived of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution. E. Whether Appel is entitled to relief from his death sentence because the trial court was prevented, by a combination of constitutional errors, from considering and giving full effect to the evidence of Appel’s mental illness as evidence weighing against imposition of the death penalty. F. Whether Appel is entitled to relief from his death sentence because he was sentenced on the basis of the trial court’s finding of an aggravating circumstance that was not supported by evidence aside from Appel’s own confession, thereby violating the corpus delecti rule, the Eighth and Fourteenth Amendments to the United States Constitution, and the corresponding provisions of the Pennsylvania Constitution. G. Whether Appel is entitled to relief from his conviction and sentence under this Court’s King’s bench powers and its supervisory authority over the lower courts. H. Whether inaccuracies in the PCRA transcripts undermine Appel’s Eighth and Fourteenth Amendment rights to meaningful appellate review. III. Eligibility For PCRA Relief To be eligible for PCRA relief, a defendant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated errors or defects found in Section 9543(a)(2), and the issues have not been previously litigated. An issue is deemed finally litigated for purposes of the PCRA if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been finally litigated, the appellant must also establish that those allegations of error have not been waived and that, if waived, the conditions listed in Section 9543(a)(3)(ii) or (iii) must be satisfied. 42 Pa.C.S. § 9543(a)(3). An issue is deemed waived “if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, [or] on appeal----” 42 Pa.C.S. § 9544(b). Finally, the appellant must demonstrate that the failure to litigate the issue prior to trial, during trial, or on direct appeal could not have resulted from any “rational strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(4). IY. Competency in 1986 A. Applicable Legal Standards Appel first argues that he is entitled to relief because he was incompetent during the time he pled guilty, waived his right to counsel, and was sentenced to death. Appel claims that the original competency evaluation and the trial court’s determination of competency based on that evaluation in 1986 are unreliable and have been undermined by the testimony of witnesses he presented at the PCRA hearing. A defendant’s competency is an absolute and basic condition of a fair trial, and conviction of a legally incompetent defendant violates his constitutionally guaranteed due process rights. Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974). Section 402(a) of the Mental Health Procedures Act provides that a defendant is legally incompetent if he or she is “substantially unable to understand the nature or object of the proceedings against him [or her] or to participate and assist in his [or her] defense.” 50 P.S. § 7402(a). Stated otherwise, the relevant question is whether the defendant has sufficient ability at the pertinent time to consult with counsel “with a reasonable degree of rational understanding,” and have a “rational as well as a factual understanding of the proceedings.” Commonwealth v. Hughes, 521 Pa. 423, 435, 555 A.2d 1264, 1270 (1989) (quoting, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (I960)). Additionally, a determination of a defendant’s competency to stand trial rests in the sound discretion of the trial court and can be disturbed only on a showing of an abuse of that discretion. Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). This Court has also stated that the sensitive nature of competency determinations requires that a trial judge’s conclusions be afforded “great deference” because the judge has the opportunity to personally observe a defendant’s behavior. Commonwealth v. Chopak, 532 Pa. 227, 235, 615 A.2d 696, 700 (1992). See also, Commonwealth v. McGill, 545 Pa. 180, 680 A.2d 1131 (1996) (trial court’s observations of defendant during colloquies and throughout trial supported the conclusion that appellant was competent to stand trial). Furthermore, when making a competency determination, the trial court may resolve conflicts in the testimony of expert witnesses and may accept an expert’s opinion if the record adequately supports it. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). See also Hughes (where the record reveals that the Commonwealth’s expert witnesses were familiar with the defendant’s condition and had sufficient information upon which to base their opinions, the trial court does not err in choosing to accept the Commonwealth’s experts’ opinions rather than those of defendant’s experts). It is the burden of the person asserting mental incompetency to establish such incompetency by a preponderance of the evidence. 50 P.S. § 7403(a)(amended July 2,1996); Commonwealth v. duPont, 545 Pa. 564, 681 A.2d 1328 (1996). During the 1986 court proceedings in this case, former Section 7403(a) of the Mental Health Procedures Act provided that a party seeking to show incompetency “shall have the burden of establishing incompetency to proceed by clear and convincing evidence.” 50 P.S. § 7403(a)(repealed, July 2, 1996). That statute was still in effect during Appel’s PCRA proceedings in the lower court, which concluded on June 14,1995. Appel now cites the United States Supreme Court’s April 1996 ruling in Cooper v. Oklahoma, — U.S. —, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), to challenge the “clear and convincing evidence” standard contained in the former Section 7403(a). In Cooper, the United States Supreme Court held that an Oklahoma statute that required a defendant alleging incompetency to establish such by “clear and convincing evidence” violates the defendant’s due process rights under the Fourteenth Amendment of the United States Constitution, and the proper standard is proof by a fair preponderance of the evidence. This Court recently followed Cooper in duPont, in which we held former Section 7403(a) of the Mental Health Procedures Act unconstitutional, and we held that a defendant who asserts his or incompetency bears a burden of proof by a fair preponderance of the evidence. Although Cooper and duPont have affected the statutory burden of proof at competency hearings, Appel is not entitled to relief because the trial court determined that Appel did not meet his burden of proof pursuant to either the clear and convincing evidence standard or the preponderance of the evidence standard. In its Opinion in the present case, the trial court first applied the clear and convincing standard, but also held that Appel did not meet his burden of proof pursuant to the preponderance of the evidence standard. Because the trial court specifically held that Appel failed to meet his burden of proof pursuant to the proper preponderance of the evidence standard, any application of the dear and convincing standard according to the former section 7403(a) in this case was harmless error. See Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978)(where a trial court violates the federal constitution, this Court must employ the federal harmless error rule and must determine whether the error was harmless beyond a reasonable doubt); see also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)(where a violation of a federal constitutional right constitutes harmless error, reversal is not required). B. Evidence Concerning Competency Presented at the PCRA Hearing In the PCRA proceedings below, Appel alleged that he was unable to participate in his defense in 1986 because he suffered from delusional thinking that made it impossible for him to accept the assistance of an attorney or to participate in his defense. Specifically, he claimed that in 1986, he suffered from an “encapsulated delusion,” and he believed that his killing of the people in the bank was a secret Central Intelligence Agency (CIA) mission to eliminate “moles and clones” working in the bank. According to Appel, his delusions in 1986 required that he could not offer a defense to the prosecution or the imposition of the death penalty. To support his claims of incompetency, Appel presented evidence concerning his personal history, character and mental condition until 1986, including the testimony of his mother, his girlfriend, acquaintances, and co-defendant Herzog. These individuals described numerous incidents of strange behavior that Appel allegedly exhibited for several years. According to some of these lay witnesses, Appel was preoccupied with the military, the CIA, and with military intelligence. Appel did not testify in the PCRA proceedings, other than to explain that he wanted his current attorneys to represent him during the PCRA proceedings. Appel also presented extensive testimony from experts in the mental health field, who gave differing diagnoses and opinions regarding Appel’s mental health status during the 1986 court proceedings. Several defense experts, who did not examine Appel until 1995, opined that Appel was delusional and incompetent at the time of the 1986 court proceedings. None of these defense experts examined Appel before or during the 1986 court proceedings. Although they relied on the records and reports from that time, Appel’s experts examined him nine years after his guilty plea and sentencing. The trial court expressly considered this factor when it rejected their testimony. In addition, Appel introduced testimony from the three experts who examined him in 1986, Dr. Schwartz, Dr. Gross and psychologist Dolores Kristofits. All three of these experts concurred in their prior determinations that Appel was competent during the 1986 court proceedings. Dr. Schwartz and Dr. Gross both testified that they did not have information regarding Appel’s bizarre behavior or about his alleged CIA delusions in 1986. However, both testified that if they had such information, it would not have changed their respective recommendations. Appel also introduced expert opinion testimony that he suffered from Graves disease in 1986 and that this condition contributed to his alleged mental illness at that time. The trial court did not credit the expert testimony concerning incompetency and delusions introduced by Appel’s defense team, and instead accepted evidence that Appel was competent during the 1986 court proceedings and that he simply committed these crimes for money. To rebut Appel’s belated allegations of incompetency, the Commonwealth introduced considerable evidence that Appel’s motivation for this crime was to get money, and that he had rational reasons for wanting to plead guilty and be executed. The Commonwealth also presented expert testimony that Appel was competent during the 1986 court proceedings. Albert Levitt, a forensic psychologist for the Court of Common Pleas of Philadelphia and former chief psychologist for the Pennsylvania Board of Probation and Parole, also testified for the Commonwealth. Mr. Levitt did not examine Appel, but reviewed Appel’s prison records, test results, and reports prepared by the defense experts. Levitt concluded that Appel was legally competent during the 1986 court proceedings. Levitt also testified that Appel suffered from a “character disorder,” but was not mentally ill. He opined that Appel was using the CIA story to manipulate others, and that Appel was not delusional and had never been. Kenneth Kool, M.D., a board certified psychiatrist, also testified for the Commonwealth. Dr. Kool testified that Appel was not delusional in 1986 and was competent during the court proceedings. He based his opinions on a videotape of an interview with Appel, Levitt’s analysis, Kristofits’ testing, Dr. Schwartz’ report, Dr. Gross’ report, and a transcript of the court proceedings. Dr. Kool’s opinions were not limited to Appel’s competency during the 1986 court proceedings, but also concerned Appel’s state of mind when he committed this crime. Dr. Kool concluded that Appel was not psychotic, but that he had sociopathic features, criminal goals, and the capacity to act on them. He noted that no physician from 1986 to 1994 diagnosed Appel as having a major mental illness and that the intricacy of the planning of the robbery, negated the possibility of a major or discrete mental illness. During the PCRA proceedings below, the trial court also reviewed the 1986 reports of Dr. Schwartz, the first court appointed psychiatrist, and Dr. Gross, the second psychiatrist appointed at the defense’s request. Both of those reports concluded that Appel was competent then. Also, the two doctors testified during the PCRA hearing and continued to hold their opinions that Appel was competent during the 1986 court proceedings. Dr. Schwartz testified at the PCRA hearing that Appel demonstrated no evidence of Graves disease, that he was not delusional, and that he told her that he committed the bank robbery because it was the easiest way to get quick money to pay his bills and help his girlfriend. • He also told her that he shot the victims because he did not want to leave any witnesses, and that he expected to get a lot more money than he did. In addition, Appel gave Dr. Schwartz the following rational reasons for wanting imposition of the death penalty: it was preferable to spending the rest of his life in prison; he thought that God might forgive him if he cooperated with the state in the prosecution; if he died, his girlfriend would receive insurance benefits; he wanted to die because he deserved to die; and his death might be a comfort to the victims’ friends and families. On May 6, 1987, nearly one year after the murders, Appel gave an interview for a television documentary entitled “In the Mind of a Murderer.” The Commonwealth introduced a videotape of excerpts from that interview during the PCRA hearing to allow the trial court to observe Appel’s demeanor at that time, and to show that Appel continued to admit that his motivation for robbing the bank was to get money, and that he killed the victims so that they would not be able to testify against him. Another Commonwealth exhibit at the PCRA hearing was a videotape of a deposition of Appel dated April 18, 1990, taken in connection with a civil lawsuit against the bank and other parties. In that deposition, Appel stated that he selected the First National Bank of Bath because it was physically isolated. Both of these videotapes belied Appel’s current claims that he robbed this bank and killed people inside because he believed that there were CIA “moles” in this bank. The Commonwealth also introduced a transcript of a taped interview with Appel on September 16, 1993. During the interview, Appel explained that his idea to use Graves disease as a basis to appeal came from Jay Smith, a former inmate on death row. Appel also explained that he robbed the bank to get money for his girlfriend, and that if they caught and executed him, she would get insurance proceeds. Appel said that he enjoyed being in control of the court proceedings and assisting the Commonwealth in his prosecution. The Commonwealth also introduced the testimony of several lay witnesses who testified concerning their interactions with Appel after his arrest. Social worker John Weaver testified that he interviewed Appel shortly after his arrest and Appel told him that money was the motivation for committing this crime. John Spirk, one of the assistant district attorneys who prosecuted Appel testified that he spoke to Appel many times because Appel represented himself and that Appel appeared to understand the court proceedings. Another assistant district attorney, Anthony Blasco, testified that Appel told him that during the first six months of 1986, he and Herzog were not making enough money and decided to do something “bigger.” The Commonwealth also introduced a videotape of Appel’s civil deposition testimony, in which Appel stated that he had cased four banks, and chose the First National Bank of Bath because it was physically isolated. According to Appel’s former girlfriend’s PCRA hearing testimony, Appel was spending more money than he was making, and he was also giving money to her. She testified that Appel was always talking about money, and that he once told her that he could kill everybody at a bank and get $15,000. Before the robbery, he told her that he was going to rob a bank and kill everyone so there would be no witnesses. Appel told his girlfriend that he considered robbing the Holiday Inn, where she worked, and that he had “cased” other banks, but selected this particular bank because there were not too many people there. Earlier in the week of the murders, Appel said to her, “Friday is payday,” and that she would not have to worry about money because there would be a “big payday.” Appel’s payday was normally Wednesday at that time, and on the Wednesday before the robbery, he gave her his entire paycheck. Appel also told her that he made her the beneficiary of his life insurance, and that he wanted her to get the insurance proceeds. Thus, contrary to Appel’s recent claims of CIA delusions, Appel’s statements to his girlfriend before these murders clearly exhibited that a desire to obtain money motivated him. Co-defendant Herzog corroborated Appel’s girlfriend’s testimony that he robbed the bank to obtain money. Herzog testified that he and Appel had been on a six-month crime spree consisting of thefts and strong-arm robberies before the bank robbery. Herzog stated that he participated in these crimes just for the thrills, and that he always let Appel keep the money they stole. Before the June 6 robbery, he and Appel had cased other banks, but picked the First National Bank of Bath because it was in an isolated rural area. Herzog stated that one of the reasons they chose June 6 to commit the robbery was that it was a Friday and there would be more money in the bank because people would be cashing their paychecks. In its well-reasoned opinion, the trial court considered all of the evidence besides its own observations of Appel in 1986 and 1995. Most notably, the trial court found that Appel participated in the colloquies in a meaningful way and fully comprehended the court’s instructions. The trial court had numerous opportunities to observe Appel’s demeanor throughout the court proceedings in 1986 and concluded that Appel could understand the nature and object of the proceedings against him and to participate and assist in his defense. The trial court concluded that Appel was not operating in a delusional state during court proceedings in 1986 and that he was legally competent at that time. Based on the record before us, there is no basis for this Court to conclude that the trial court abused its discretion when it determined that Appel was competent during the 1986 court proceedings. To the contrary, the record shows that the trial court was vigilant in ensuring that Appel was competent by ordering a competency evaluation sua sponte before accepting Appel’s waiver of his right to counsel, and by granting a defense request for a second competency evaluation. The trial court’s opinion expressly states that the court accepted the expert testimony presented by the Commonwealth, and rejected the testimony of the defense experts who concluded that Appel was incompetent. As Dr. Kool explained before the trial court, this case is an example of a criminal person with a criminal goal, who carefully planned, practiced, and rehearsed this crime to obtain money. The trial court properly rejected Appel’s belated claims of incompetency and CIA delusions. Accordingly, this claim does not warrant relief pursuant to the PCRA. Y. Ineffective Assistance of Counsel Appel also claims that he is entitled to relief because his court-appointed stand-by counsel did not provide effective assistance during the period preceding the trial court’s ruling on Appel’s competency. Specifically, Appel asks us to find that his stand-by counsel were deficient because they: (1) did not investigate Appel’s background; (2) spoke to no one who knew Appel; (3) did not obtain records about Appel; and (4) provided no information about Appel’s alleged history of mental illness to the court-appointed psychiatric experts or to the court itself. In Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994), this Court held that claims of ineffective assis tance of counsel are not cognizable during post-trial proceedings, when the defendant has previously insisted on representing himself. In Griffin, the defendant was represented by counsel at a jury trial that resulted in his conviction for first degree murder and sentence of death. After that, trial counsel filed post-trial motions, and the defendant also filed post-trial motions pro se in which he alleged ineffective assistance of trial counsel. The defendant represented himself at a post-trial evidentiary hearing, with a public defender serving as stand-by counsel. The trial court denied post-trial relief, and on direct appeal, this Court affirmed the conviction and sentence of death. The defendant then filed a PCRA petition, in which he alleged that stand-by counsel was ineffective at the PCRA hearing. This Court stated the following in Griffin: The Superior Court has consistently held that claims of ineffective assistance of counsel are not cognizable during post-trial proceedings, including the [Post Conviction Relief Act ], when the claimant has previously insisted on self-representation. Commonwealth v. Sims, 379 Pa.Super. 252, 549 A.2d 1280 (1988), allocatur denied, 521 Pa. 630, 558 A.2d 532 (1989); Commonwealth v. Glessner, 337 Pa.Super. 140, 486 A.2d 521 (1985); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980). Having knowingly and voluntarily waived the right to counsel, an appellant is not permitted to “rely upon his own lack of legal expertise as a ground for a new trial.” Commonwealth v. Celijewski, 324 Pa.Super. 185, 190, 471 A.2d 525, 528 (1984). For example, in Commonwealth v. Sims, 379 Pa.Super. 252, 549 A.2d 1280 (1988), the defendant acted as his own counsel during trial, with stand-by counsel available for consultation. The defendant appealed from an order denying relief under the PCHA asserting, among other things, ineffective assistance of counsel. The Superior Court refused “to address appellant’s assertion that stand-by counsel was ineffective. Appellant cannot shift the responsibility for his performance to stand-by counsel.” Sims, 379 Pa.Super. at 257, 549 A.2d at 1282. We see no reason not to adopt the Superior Court’s disposition of this issue as our own. Furthermore, we see no distinction, and today do not choose to define one, which would permit a different policy for judgements of sentence imposing the death penalty. The law is therefore clear that Appel is not entitled to relief based on his claims of ineffectiveness of stand-by counsel. Appel nevertheless maintains that his Sixth Amendment right to counsel took effect when he first entered court, and argues that his court-appointed stand-by lawyers were ineffective during the period beginning when he first requested to waive counsel until the trial court accepted his waiver. Although Appel’s self-representation precludes post-trial relief based on a claim of ineffective assistance of counsel, we will nevertheless discuss his ineffectiveness claims because of the irrevocable nature of the death penalty. Ineffective assistance of counsel provides a basis for relief under the PCRA only when it “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). To warrant relief, a defendant must prove that the underlying claim is of arguable merit, counsel had no reasonable basis for the act or omission in question, and but for counsel’s act or omission, the outcome of the proceedings would have been different. Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994), citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). First, we must examine whether Appel’s claim of ineffective assistance of stand-by counsel has arguable merit. Both of Appel’s stand-by attorneys, Ellen Kraft, Esquire, and Lorenzo W. Crowe, Esquire, testified at the PCRA hearing. Kraft stated that when she and Crowe first met Appel in prison, he told them that he did not them her to represent him. He said that the only reason that he had requested a public defender was so that he could get visiting privileges and have communication with people outside the prison. He also told them that he did not want to fight the charges or mount a defense, and wanted the trial court to impose the death penalty. Kraft testified that they met with Appel frequently, almost daily, up to the competency hearing and on a weekly basis after that. Both attorneys repeatedly spoke to Appel about the death penalty, and Kraft testified that Appel was extremely well informed about the legal system and the charges against him. She assisted Appel with non-legal matters such as paying bills from prison, including a bill for his girlfriend’s furniture, and his life insurance premium. Kraft explained that Appel specifically directed his attorneys not to contact his girlfriend or family, and insisted that stand-by counsel were not his attorneys. Appel told them that his decision to plead guilty was a “glimmer of honor in a terribly dishonorable act,” and he did not want them to interfere with the legal process because he was adamant that he wanted the trial court to impose the death penalty. According to Kraft, Appel nevertheless argued the existence of two mitigating circumstances at the penalty phase hearing because he wanted to underscore that he understood the court proceedings and wanted it to appear that he was acting in the same way that an attorney representing him would have acted. Attorney Crowe essentially corroborated Kraft’s testimony. The record establishes that from the moment that he first met the two attorneys appointed to represent him, Appel refused their representation. Appel’s stand-by counsel were faced with a client who insisted that he was competent, refused legal counsel, and was later adjudicated to be competent. Nevertheless, stand-by counsel secured the services of a psychologist, Dolores Kristofits, to perform a battery of psychological studies on Appel to determine his “personality, background, and makeup.” Notes of testimony, May 9, 1995, p. 27. After that, the trial court ordered two psychiatric examinations and both psychiatrists who examined Appel concluded that he was competent. This case presents a peculiar situation in which a defendant refused counsel, expressly waived his right to counsel after a thorough colloquy, yet nevertheless claims in a PCRA petition nine years later that he is entitled to a new trial because his court appointed stand-by counsel were somehow ineffective. We have held that we will not deem counsel ineffective for respecting his or her client’s wishes. Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123,128 L.Ed.2d 678 (1994) (where the defendant in a death penalty case directed trial counsel not to prove or argue mitigating factors, trial counsel will not be deemed ineffective because he did not defy the defendant’s instruction); Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687 (1990)(trial counsel is not ineffective for following the defendant’s request to limit testimonial evidence of mitigating factors during the penalty phase of first degree murder prosecution). As we have previously discussed, Appel was competent and it was therefore reasonable for counsel to accept the word of both medical experts and Appel himself and to proceed as he instructed them. We will not adopt a rule that requires stand-by counsel to presume that both their client and the examining psychiatrists are wrong in their competency assessments when all of the available facts suggest that he or she is competent. We reject Appel’s argument that standby counsel must ignore the pleadings of their criminal defendant clients and undertake an exhaustive survey of the client’s personal background in an attempt to establish incompetency. In a case where other facts do not suggest incompetency, we will not impose such a duty upon stand-by defense counsel. When two qualified psychiatrists find a defendant competent, and where the defendant insists he is competent, we will not hold that stand-by counsel should conduct an extensive investigation to uncover evidence of incompetency. The mere fact that Appel wanted the trial court to impose the death penalty does not necessarily lead to the conclusion that stand-by counsel should have assumed that he was incompetent. As noted by the trial court, Appel expressed several rational reasons for wanting to die. He said that he preferred the death penalty to life imprisonment; he wanted to keep his girlfriend and parents out of the case and off the witness stand; he wanted to insure that his girlfriend received his life insurance proceeds; he said that he wanted to do the honorable thing and bring some comfort to the families of the victims; and he thought that God might forgive him if he cooperated. Based on the facts of the present case, we find that Appel’s allegations of ineffective assistance of counsel do not have arguable merit and do not warrant relief pursuant to the PCRA. VI. Alleged Discovery Violations After Appel’s arrest, Charles Marshall, a state police investigator, interviewed several people familiar with Appel including Appel’s girlfriend, Herzog, one of Appel’s taxicab customers, and a psychologist who had met Appel several times when Appel came to his office to pick up a friend. Marshall testified at the PCRA hearing that the individuals he spoke to described Appel’s strange behavior, and were aware of his unusual ideas, including his beliefs about the military and connections to spy organizations. According to Appel, the Commonwealth had a duty to disclose this information to the defense or to the trial court so that this information could be considered in determining Appel’s competency. Appel argues that the Commonwealth’s failure to disclose that information violates the rule set forth in the United States Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not agree. In Brady, the United States Supreme Court held that a prosecutor’s suppression of evidence favorable to an accused after a defendant’s discovery request violates due process where the evidence is material either to guilt or to punishment, regardless of the good or bad faith of the prosecution. See accord, Commonwealth v. Powell, 449 Pa. 126, 295 A.2d 295 (1972). However, the Brady rule is not an all-encompassing directive to the prosecution to disclose all evidence in its possession to a criminal defendant. The prosecution is not required under Brady to “make a complete and detailed accounting to the defense of all police investigatory work on a case,” Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972), nor must the prosecutor “disclose possible theories of the defense to the defendant,” United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir.1988). In explanation of its Brady rule, the U.S. Supreme Court has stated that “unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose.” U.S. v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). This Court has recognized several instances where disclosure by the prosecution is mandatory. First, the defendant’s right to discovery of information held by the prosecution is set forth in our Rule of Criminal Procedure 305, which provides in relevant part: Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule [pursuant to Pa. R.Crim.P. 305(F) ], 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. (a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth. Pa.R.Crim.P. 305(B)(1)(a). As we have noted in the past, the purpose of our discovery rules is to permit parties in criminal matters to be prepared for trial; trial by ambush is contrary to the spirit and letter of those rules and will not be condoned. Commonwealth v. Shelton, 536 Pa. 559, 640 A.2d 892 (1994). In addition, we have held that where the Commonwealth has in its possession pretrial statements of its witnesses which: (1) have been reduced to writing, (2) relate to the witness’ testimony at trial, and (3) are signed, adopted or otherwise shown to be substantially verbatim statements of that witness, the Commonwealth must, if requested, furnish copies of the statements to the defense to allow the defense to prepare for cross-examination. Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984). The evidence that is the subject of Appel’s alleged Brady violation consists of statements, made by people Appel knew and/or came into contact with, describing Appel’s behavior. These statements were not relevant to Appel’s guilt or innocence, but instead pertained only to Appel’s competency, which Appel did not contest. Because Appel was competent during the 1986 court proceedings and chose not to challenge his competency or mount any defense, the Commonwealth was not required to furnish these statements to the defense. Moreover, Appel was aware of his contacts with these people. Therefore, their descriptions of Appel’s behavior were not in the control of the prosecution. Accordingly, no relief is due. VII. Reliability of the 1986 Competency Evaluation Next, Appel argues that he is entitled to relief from his conviction and sentence because he was not afforded a reliable evaluation of his impaired mental health and competency and was thus deprived of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution. Appel relies upon the United States Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68, 70, 105 S.Ct. 1087, 1090, 84 L.Ed.2d 53 (1985), as his sole authority for the proposition that “the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition” when the defendant’s mental health is at issue. Appel’s brief, p. 97. Relying on Ake, Appel alleges that Dr. Schwartz did not conduct an appropriate examination or competently provide a competency evaluation and that he is thus entitled to relief. However, Appel’s reliance on Ake is misplaced. In Ake, the United States Supreme Court stated the following: The issue in this case is whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effec tive defense on Ms mental condition, when his samty at the time of the offense is seriously in question. * * * * * * We therefore hold that when a defendant demonstrates to the trial judge that Ms samty at the time of the offense is to be a significant factor at trial, the State must, at a mmimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake at 70, 83, 105 S.Ct. at 1089, 1096. The case before us does not involve an insaMty defense at trial, but instead, a pretrial determination of competency to stand trial. The process of evaluating competency and an insaMty defense involve similar questions regarding the defendant’s mental status, but they are nevertheless distinct issues. Here, there was no demonstration that Appel was going to make his sanity, at the time of the offense, an issue at trial. Therefore, the U.S. Supreme Court’s holding in Ake is not controlling here and no relief is due. VIII. Mental Illness as a Mitigating Factor at Sentencing Appel argues that the cumulative effect of three constitutional violations prevented the trial court from giving full consideration and effect to Appel’s mental illness before imposing the death sentence. Specifically, Appel alleges that the three constitutional violations were: (1) the ineffective assistance of counsel during the pre-trial period and during the 1986 proceedings; (2) the prosecution’s failure to provide exculpatory information under Brady; and (3) the allegation that Appel’s right to a competent mental health evaluation was violated. Accordmg to Appel, each of these alleged violations acted singly and m concert to prevent the trial court from considering Appel’s dimimshed mental capacity as a mitigatmg factor in determming Appel’s sentence. Because we have rejected each of the three alleged constitutional violations, we similarly hold that tMs argument is without merit. IX. Application of Corpus Delicti Rule to Penalty Phase The trial court found the following two aggravating circumstances: (1) that Appel killed the victims to prevent their testimony against him in a criminal proceeding and (2) he committed the killings in the perpetration of a felony. There was one mitigating factor, Appel’s lack of a prior record of felony convictions, and the trial court held that the aggravating factors outweighed the mitigating factor pursuant to 42 Pa.C.S. § 9711(c)(l)(iv). Appel now argues that because the only direct evidence of his motivation to kill the victims came from his confession, the trial court’s finding of an aggravating factor violates the corpus delecti rule. We cannot agree that the doctrine of corpus delicti entitles Appel to relief. It has long been our rule that an extrajudicial admission or confession of an accused cannot be admitted until the corpus delicti for a crime has been first established by independent proof. See, Commonwealth v. Turza, 340 Pa. 128,16 A.2d 401 (1940). Further, the corpus delicti rule requires that independent evidence establish the commission of the crime. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967). We have stated that a corpus delecti in a murder prosecution consists of proof that an individual is dead and that the death resulted from criminal means. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978). Here, Appel admitted to his motivation to kill the victims when he pled guilty. During the guilty plea colloquy, the prosecutor explained that Appel’s plan included killing all the people inside the bank so that there would be no living witnesses to later testify against him or his co-defendant. Notes of testimony, July 22, 1986, p. 36. In court, Appel admitted under oath that this was true. Id. at 42. We have never applied the corpus delecti rule to in-court admissions, and we decline to do so here. Thus, our existing corpus delicti rule does not bar a finding of this aggravating circumstance. X. This Court’s King’s Bench Powers Next, Appel requests this Court to exercise our Powers of the King’s Bench to repair alleged trial court error and to grant Appel relief. Appel’s plea is inappropriate and unnecessary. Our King’s Bench powers, preserved in the Schedule to the Article 5, Section 1 of the Pennsylvania Constitution and implemented under Pa.R.A.P. 3309 and 42 Pa.C.S. § 726, are powers of extraordinary jurisdiction. In cases in which we elect to exercise our powers of the King’s Bench, our action has the effect of transferring jurisdiction of a matter pending before an inferior court to the jurisdiction of this Court. Our grant is deemed the taking of an appeal as of right. See generally, Beharry v. Mascara, 92 Pa.Cmwlth. 484, 499 A.2d 1129 (1985). Because we have already recognized and accepted jurisdiction in this case, and have acted upon that jurisdiction, the assumption of extraordinary jurisdiction under our powers of the King’s Bench is neither possible nor necessary. XI. Alleged Inaccuracies in the PCRA Transcript Finally, Appel alleges that certain errors in the typewritten transcription of the PCRA hearing preclude an adequate appellate review of the trial court’s decision. Appel essentially asks us to stay our appellate review and remand the case to the trial court for the limited purpose of correcting the transcript. Appel claims that the transcript filed with the Court incorrectly states that one of his expert witnesses, Dr. Merikangas, stated that Appel had an antisocial personality disorder. According to Appel, the witness testified that Appel does not have an antisocial personality disorder but is mentally ill. In addition, the transcript indicates that Dr. Merikangas said “no” when asked if Appel’s behavior at the time of the offense was affected by his mental illness, when, Appel alleges, the witness actually responded, “It was.” Appel filed three motions with this Court seeking limited remand on this issue on December 1, 1995, February 15,1996, and February 20, 1996. We have denied Appel’s motions seeking limited remand three times. In each instance where Appel has claimed that there was a transcription error, the Commonwealth has stipulated to the correction and this Court has accepted the stipulation. Appel has not pointed out any additional error that undermines our appellate review. Accordingly, Appel is not entitled to a remand for this issue. XII. Conclusion For the above reasons, we affirm the Order of the Court of Common Pleas of Northampton County denying Martin D. Appel’s Petition for Post-Conviction Relief and direct the Prothonotary of the Supreme Court to transmit the complete record in this case to the Governor pursuant to 42 Pa.C.S. § 9711(i). CAPPY,J., concurs in the result. . This Court has exclusive jurisdiction of appeals from final orders denying post conviction relief in cases in which the death penalty has been imposed. 42 Pa.C.S. § 722(4), 42 Pa.C.S. § 9546(d). . Appel’s standby counsel retained Kristofits to make a psychological assessment of Appel in 1986. After performing a battery of psychological tests on July 23 and August 1, 1986, she determined that Appel suffered from emotional disturbances, but was nevertheless legally competent. . In Pennsylvania, a defendant may not enter a guilty plea to murder in the first degree. Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). Instead, a defendant may plead guilty to murder generally, and the burden is then on the Commonwealth to prove that the offense meets the requirements of murder in the first degree. Id. . In the PCRA petition, Appel alleged: (1) he was mentally ill and incompetent at the time of his guilty plea, degree of guilt, and sentencing proceedings in 1986; (2) the Commonwealth was in violation of the directives of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and of several provisions of the U.S. and Pennsylvania Constitutions, by failing to provide exculpatory evidence regarding Appel's history of mental illness; (3) he received ineffective assistance of counsel during the 1986 court proceedings; (4) he was not afforded a reliable evaluation of his impaired mental health and competency and was thus deprived of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution; (5) the sentence of death was in violation of Pennsylvania’s corpus delicti rule, and, thereby, the Eighth and Fourteenth Amendments to the U.S. Constitution, in that the sentence was based upon the court’s finding of an aggravating circumstance that was not supported by evidence besides Appel’s own confession; and (6) that the trial court did not consider and give full effect to the evidence of Appel’s illness as a mitigating factor in sentencing. Appel sought relief in the form of an Order vacating his convictions and sentences, or, in the alternative, a new sentencing hearing to permit him to introduce evidence of mental illness as a mitigating factor. . Section 9543 of the PCRA provides, in pertinent part: (a) General rule.-To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following: (2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty. (iv) The improper obstruction by Commonwealth officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court. (v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner. (vi) The imposition of a sentence greater than the lawful maximum. (vii) A proceeding in a tribunal without jurisdiction. . Section 9543(a)(3), as it existed at the time of Appel's PCRA hearing, provided: That the allegation of error has not been previously litigated and one of the following applies: (i) The allegation of error has not been waived. (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. 42 Pa.C.S. § 9543(a)(3)(Effective April 13, 1988, amended November 17, 1995). . Act of July 9, 1976, P.L. 817, No. 143, § 402, as amended, 50 P.S. § 7402(a). . Competency to stand trial is not to be confused with the defense of insanity. Competency to stand trial pertains to the time of the trial or other legal proceedings, while sanity concerns the time of the commission of the offense. In Commonwealth v. Higgins, 492 Pa. 343, 424 A.2d 1222 (1980), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981), this Court held that a defendant who had been suffering from a lengthy and chronic psychological illness was nonetheless competent to stand trial. In Higgins, we stated the following: "The test to be applied in determining the legal sufficiency of [a defendant’s] mental capacity to stand trial, or enter a plea at the time involved, is not the M’Naghten ‘right or wrong’ test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his counsel [in making a rational] defense.” Id. at 233 — 234, 615 A.2d at 699. Appel does not claim that he was insane when he committed this crime. . As stated previously, Appel did not challenge his legal sanity in the PCRA hearings. See footnote 8. Nevertheless, Appel’s state of mind before and during the commission of this crime are relevant because Appel claims that his delusions existed at those times. Thus, we will discuss evidence of Appel’s motive to commit this crime because this evidence of motive is inextricably related to his claims of incompetency and allegations of delusions. . Herbert Ring, a former supervisor in the Lehigh County Jail, testified that he observed Appel acting strangely when he worked as a corrections officer under Ring’s supervision in 1983. Former death row inmate Jay Smith, a former psychologist, testified about his observations of Appel and his unusual behavior while they were in prison together. The defense had not subpoenaed Smith for the PCRA hearing, but he nevertheless attended the court proceedings and volunteered to testify for Appel. Yvonne Duggan, Appel’s girlfriend from 1983 to 1986, testified concerning Appel’s appearance and odd behavior. She also explained Appel’s desperate financial situation and recounted his statements about committing this crime for money. Co-defendant Herzog also described Appel's unusual behavior and discussed the six-month crime spree they committed before robbing the bank. Appel’s mother testified concerning Appel’s family history of Graves disease and she also described her observations of Appel’s unusual behavior. The defense also presented Dr. Frank D’Attilio, a clinical psychologist, who never treated Appel, but met him several times in 1984 when he was treating one of Appel’s friends. Dr. D'Attilio described Appel's behavior at that time as bizarre, and he stated that Appel appeared to be delusional, although he could not give an opinion with a reasonable degree of psychological certainty. Social worker John Weaver, a mental health caseworker for Northampton County, testified that he interviewed Appel after his arrest in 1986 to obtain a social history for his psychiatric evaluation. Weaver stated that Appel understood the purpose of the interview, and Appel stated that he wanted to take responsibility for what he had done. . James Merikangas, M.D., who is board certified in psychology and neurology, reviewed Appel’s records and examined him on April 22, 1995. He opined that Appel suffered from Graves disease in 1986 and that he was psychotic, delusional and incompetent at that time. Dr. Merikangas also believed that the competency evaluations conducted at the time of the original court proceedings were incomplete. Henry Dee, M.D., a psychologist and neurologist, testified that he reviewed Appel’s file and interviewed him on March 17, 1995. Dr. Dee opined that in 1986, Appel was delusional, psychotic, incompetent, and appeared to be schizophrenic at times. Stuart Wellman, Ph.D., a clinical psychologist employed by the State Correctional Institution at Pittsburgh, testified that he met with Appel on March 6, 1995. Dr. Wellman testified that Appel was chronically psychotic and delusional. He also opined that Appel was psychotic and delusional in 1986, although he did not examine him at that time. Jethro W. Toomer, Ph.D., a licensed psychologist, reviewed Appel’s records and examined him on April 19, 1995. Dr. Toomer opined that Appel suffered from a paranoid delusional psychotic disorder and was incompetent during the 1986 court proceedings. . Graves disease, or hyperthyroidism, is characterized by an enlarged thyroid, a rapid pulse, and increased metabolism due to excessive thyroid secretion. Appel suffered from Graves disease in 1990 and underwent thyroid surgery while he was in prison. At the PCRA hearing, Appel presented Jan Ulbrecht, M.D., an endocrinologist, who testified concerning Graves disease and his treatment of Appel’s thyroid condition in 1990. Dr. Ulbrect also testified that pre-existing mental illness could be worsened by Graves disease in a minority of cases. The Commonwealth's experts opined that Appel did not suffer from Graves disease in 1986. The Commonwealth also introduced a transcript of a 1993 interview with Appel in which he stated that Jay Smith, a former psychologist and death row inmate, gave Appel the idea that he could use his Graves disease as a basis to appeal on the theory that the thyroid condition somehow affected his behavior. The trial court found that it was “doubtful” that Appel suffered from Graves disease in 1986. . It appears that Jay Smith, a former psychologist and death row inmate, played a significant role in Appel’s PCRA petition. According to Appel, Smith conceived the theory of using Graves disease as a basis to appeal while he was in prison with Appel. Smith also was present at the PCRA hearing and gave testimony for Appel, although neither the Commonwealth nor the defense had subpoenaed Smith to the PCRA hearing. . The trial court also found that Appel’s claim of CIA delusions were a "conscious deceit and misrepresentation of self.” Trial court Opinion, p. 28. Although the trial court was not required to make this finding of fact in order to decide the competency issue, we note that this finding is supported by evidence in the record. Specifically, Dr. Kool testified that Appel's story about CIA delusions was "a conscious deceit and misrepresentation of self, trying to present himself as being an unusual individual____ [I]t’s part of his immature character, his sociopathological and paranoid personality and his narcissism to misrepresent, to self-aggrandize himself consciously so as to impress other people.” Notes of testimony, May 19, 1995, p. 222. . The Post Conviction Hearing Act (PCHA) was the predecessor to the PCRA. The PCHA was repealed and replaced by the PCRA on April 13, 1988. . According to Kraft, Appel was: “extremely knowledgeable probably more so than half of the defense attorneys I have met, as to the legal system, as to the charges against him, as to the various — he educated us, in terms of what he had done. And in specific about the criminal process and the criminal procedure and what happened at the preliminary hearing, what happened at the search and seizure of evidence at the trailer.” Notes of testimony, May 12, 1995, p. 151. This testimony is highly probative evidence because it directly pertains to Appel’s ability to "understand the nature or object of the proceedings against him or to participate in his defense.” 50 P.S. § 7402. . In addition, Rule 1.2 of the Pennsylvania Rules of Professional Conduct provides in pertinent part: (a) A lawyer shall abide by a client’s decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued---- In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. The Comment to Rule 1.2 provides in pertinent part: The client has the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The rule and comment to the rule make clear that it is the defendant who decides the objectives of legal representation. Defense counsel may consult with the defendant about the best means by which to pursue the defendant’s objectives, but cannot override what the defendant deems to be in his or her best interest. Sam. . The verdict must be a sentence of death if the fact finder finds “one or more aggravating factors which outweigh any mitigating circumstances.” 42 Pa.C.S. § 9711(c)(l)(iv). . In Appel I, this Court affirmed the trial court's determination that an aggravating factor existed because the victims were killed for the purpose of preventing their testimony against the defendant in the criminal proceedings involving the offense. We held that Appel’s admission that he tried to kill all of the people in the bank so that there would be no potential witnesses against him constituted sufficient direct evidence to establish this aggravating factor. . Literally meaning “the body of the crime,” corpus delicti refers to material proof that a crime has been committed. The corpus delicti consists of the occurrence of a loss or injury, and some person’s criminal conduct as the source of that loss or injury. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967).

OPINION ANNOUNCING THE JUDGMENT OF THE COURT FLAHERTY, Chief Justice. This case concerns whether a police radio broadcast that a man of a particular description is carrying a gun may serve as the justification for a search of that person and the seizure of the gun he is carrying when the arresting officer is unable to authenticate the telephone message on which the radio broadcast was based or provide an independent basis for the stop and frisk. On November 19, 1993, a Philadelphia police officer responded to a radio call that there was a man with a gun at Sydenham and York Streets. The suspect was described as a black male wearing a blue cap, black jeans and a gold or brownish coat. When the officer arrived, he observed Hawkins, who fitted the radio description. He then stopped and frisked Hawkins, finding a .22 caliber revolver in his waistband. At the suppression hearing, the officer stated that he did not know the source of the information contained in the radio call. No other testimony established the source of the call or the basis for the information. On May 25, 1994, Hawkins was convicted of a violation of the Uniform Firearms Act and sentenced to twenty-one months probation. A writ of certiorari in the court of common pleas was denied and Hawkins appealed to Superior Court. On July 20, 1994, Superior Court, in a memorandum opinion, affirmed the conviction. This court granted allocatur. The existing law with respect to searches such as the one conducted in this case is based on Terry v. Ohio, supra, which held that police are authorized under the Fourth Amendment to stop and temporarily detain citizens short of an arrest when they can point to “specific and articulable facts” causing them to have a reasonable suspicion that “criminal activity may be afoot.” 392 U.S. at 21, 30, 88 S.Ct. at 1880, 1884, 20 L.Ed.2d at 905-06, 911; Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996); Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276, 280 (1969). If police reasonably believe that they may be in danger, they may conduct a limited pat-down search of the suspect’s outer garments for weapons. Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 342-43, 62 L.Ed.2d 238, 246 (1979); accord, Commonwealth v. Melendez, supra. Thus, before police may briefly detain a person, there must be reasonable suspicion of criminal conduct, and before police may pat down for weapons, there must be a reasonable belief that the suspect is presently armed and dangerous. The initial question with which any analysis of this case must begin, therefore, is whether the police officer had grounds for reasonable suspicion that criminal activity was afoot. "When police receive an anonymous call alleging that a person of a particular description is carrying a gun at a particular location and the police broadcast this information to radio patrol cars, neither the police dispatcher nor the officers in the cars know whether the information is reliable. It may be a prank call. For this reason, in Commonwealth v. Queen, 536 Pa. 315, 320, 639 A.2d 443 (1994), we held that “a stop and frisk may be supported by a police radio bulletin only if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion.” To hold otherwise would be to sanction police interference with citizens upon less than the reasonable suspicion of criminal activity required by Terry. The Superior Court reasoned that because the officer arrived within three minutes of receiving the call, because Hawkins fitted the description of the man on the radio broadcast, and because Hawkins allegedly had a gun, there was “sufficient corroboration” of the phone call to give the officer reasonable suspicion that Hawkins was “armed and dangerous.” Superior Court erroneously believed that these factors were sufficient to justify the search of appellant and the seizure of his gun. If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. As the United States Supreme Court observed in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the fact that a suspect resembles the anonymous caller’s description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller’s allegations of criminal conduct. The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before. And since there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity, in the typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion. The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania, it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth’s fanciful and histrionic references to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. Even if the Constitution of Pennsylvania would permit such invasive police activity as the Commonwealth proposes — which it does not — such activity seems more likely to endanger than to protect the public. Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist. Contrary to the Commonwealth’s view, the public will receive its full measure of protection by police who act within the restraints imposed on them by Art. I, § 8 of the Constitu tion of Pennsylvania and this court’s relevant caselaw. Upon receiving unverified information that a certain person is engaged in illegal activity, the police may always observe the suspect and conduct their own investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may, of course, be briefly stopped and questioned (the Terry investigative stop), and, if the officer has reasonable fear for his safety, police may pat down the suspect’s outer garments for weapons. In this case, the police acted on an anonymous tip and had no basis for believing that the tip was reliable. They also had no independent reason to believe that the suspect may have been involved in criminal activity. But Queen requires that “a stop and frisk may be supported by a police radio bulletin only if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion.” 536 Pa. at 320, 639 A.2d at 445. Here, no facts were offered which supported the suspicion created by the anonymous call. The judgment of sentence must, therefore, be reversed. NIGRO, J., concurs in the result. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins. . 18 Pa.C.S. §§ 6106, 6108. . Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 230 (1996) makes it clear that the requirements of Terry are also the requirements of Art. I, § 8 of the Pennsylvania Constitution, and we decide the present case on the basis of Art. I, § 8 of the Pennsylvania Constitution, which provides: The 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, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. . Although it is not part of this case, the police might also justify an investigative stop based on a tip if they knew the identity of the person giving the tip and the basis of his knowledge. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (an informant’s veracity, reliability, and basis of knowledge are "highly relevant’’ in determining whether the informant has provided reasonable suspicion of criminal activity); Commonwealth v. Queen, supra. Additionally, if the tip is anonymous, police may reasonably rely on it if is predictive of the suspect’s behavior. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). . In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v. Commonwealth, 545 Pa. 279, 283, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license). . We do not address the scenario in which the officer has an independent reason to believe that a crime (carrying an unlicensed gun) may be in progress, inquires as to whether the gun is licensed and the person does not answer.

ORDER PER CURIAM: AND NOW, this 22nd day of January, 1997, upon consideration of the Report and Recommendations of the Disciplinary Board dated November 27,1996, it is hereby ORDERED that W. GUSTAVE McGEORGE, be and he is SUSPENDED from the Bar of this Commonwealth for a period of one (1) year and one day, retroactive to March 1, 1996, and he shall comply with all the provisions of Rule 217 Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

ORDER PER CURIAM. AND NOW, the order of the Common Pleas Court of Philadelphia County is AFFIRMED. See, Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc., 547 Pa. 142, 689 A.2d 213 (1997).

PETITION FOR REINSTATEMENT FROM INACTIVE STATUS ORDER PER CURIAM: AND NOW, this 3rd day of January, 1997, The Report and Recommendations of The Disciplinary Board of the Supreme Court of Pennsylvania dated November 27,1996, are approved and IT IS ORDERED that ZANE DENNIS, who has been on inactive status, has never been suspended or disbarred, and has demonstrated that he has the moral qualifications, competency and learning in law required for admission to practice in the Commonwealth, shall be and is, hereby reinstated to active status as a member of the Bar of this Commonwealth. The expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement shall be paid by the Petitioner.

ORDER PER CURIAM: AND NOW, this 23rd day of January, 1997, the Petition for Allowance of Appeal is GRANTED. The order of the Superi- or Court affirming petitioner’s conviction under 75 Pa.C.S. § 3731(a)(5) is REVERSED and the judgment of sentence is VACATED on the basis of this Court’s opinion in Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996).

PETITION FOR REINSTATEMENT ORDER PER CURIAM: AND NOW, this 22nd day of January, 1997, upon consideration of the Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 27, 1996, the Petition for Reinstatement is denied, and the requirements of Disciplinary Board Rule § 89.272(c) are hereby waived. Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement.

TAMILIA Judge: David Guffey, Sr., appeals from the September 30, 1996, judgment of sentence imposed after he pled guilty, on June 11, 1996, to defrauding secured creditors. The court imposed a two-year probationary period and directed that appellant pay costs and restitu tion. Relying on Commonwealth v. Thomas, 449 Pa.Super. 646, 674 A.2d 1119 (1996), appellant now argues he is entitled to a discharge of all charges as a result of the court’s failure to impose sentence within sixty (60) days of the entry of his plea, as required by Pa.R.Crim.P. 1405(A)(1). Initially, we note that after an accused has entered a guilty plea, his appellate rights are generally limited to challenging the validity of the plea entered, the legality of the sentence imposed and the jurisdiction of the sentencing court. Commonwealth v. Flood, 426 Pa.Super. 555, 627 A.2d 1193 (1993), appeal denied, 537 Pa. 617, 641 A.2d 583 (1994). Appellant’s challenge is to the legality of his sentence. Pennsylvania Rule of Criminal Procedure 1405, governing the imposition of sentence, states in pertinent part: A. Time for Sentencing. (1) Except as provided by Rule 1403.B, sentence in a court case shall ordinarily be imposed within 60 days of conviction or the entry of a plea of guilty or nolo contendere. (2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension. In Thomas, supra, a panel of this Court held that the proper remedy for the sentencing court’s failure to comply with the directive of Rule 1405 was the discharge of all charges pending against the defendant. Commonwealth v. Anders, 699 A.2d 1258 (Pa.Super.1997) (en banc), however, expressly overruled Thomas and this Court held that discharge is not warranted unless the defendant’s constitutional rights to due process or a speedy trial have been violated. Pursuant to Anders, if a defendant is sentenced more than 60 days after he is convicted or pleads either guilty or nolo con-tendere, and the court fails to set forth on the record “good cause” for the delay, then the court may consider defendant’s sentencing argument only to the extent that he alleges his rights to a speedy trial or due process have been violated. Addressing the issue of “good cause,” the Anders Court opined: “Good cause” for Rule 1405(A) purposes must necessarily be determined on a case-by-case basis. We trust that our courts will take heed of the official comment to Rule 1405(A), which states that good cause extensions ‘are intended to be the exception rather than the rule,’ and that ‘Paragraph A(2) is not intended to sanction pro forma requests for continuances. Rather it permits the judge to extend the time limit for sentencing under extraordinary circumstances only.’ At the very least, we read this rule to require that the delay (1) arise from a specific, articulable cause which is (2) not attributable to the Commonwealth’s own negligence or deliberate misconduct. Id., 699 A.2d at 1261-1262 n. 4. If the trial court has complied with the dictates of Rule 1405 and has set forth on the record “good cause” for the delay in sentencing, the inquiry will end. If, however, good cause is not established, the court will look to whether defendant’s constitutional right to due process or a speedy trial has been violated. An appellant’s failure to argue that these constitutional interests have been violated will result in a waiver of the issue of untimely sentencing. Anders, supra (A claim of untimely sentencing under Rule 1405(A) is waived where appellant has not alleged a speedy trial or due process violation.). In the matter before us, appellant argues the trial court did not set forth good cause or extraordinary circumstances which would justify sentencing him more than 60 days beyond the entry of his plea. Accordingly, appellant argues he is entitled to a discharge of all charges pending. Appellant entered his guilty plea on June 11, 1996, at which time the court entered an Order stating that the plea was accepted for review only, with final acceptance of the plea being deferred until a pre-sentence investigation report (PSI) was prepared and received by the court. Sentencing was thereafter scheduled for September 30,1996. On August 27,1996, the court conducted a consolidated evidentiary hearing to address generally the issue of untimely sentencing in Northumberland County. While appellant was not one of the original defendants party to this healing, he thereafter petitioned successfully to have the transcript of the proceedings made part of this record. On September 27, 1996, appellant filed a motion to dismiss based on the fact that the court had violated Rule 1405. On September 30, 1996, the court denied appellant’s motion to dismiss and imposed judgment of sentence. In its Opinion issued in support of its decision to deny appellant’s motion to dismiss, the trial court discussed the reasons for the sentencing delays experienced in Nor-thumberland County, and explained in great detail the administrative problems which prevented the court from complying with Rule 1405. The court referenced the Chief Probation Officer’s testimony and stated the delay in sentencing was due, in part, to overworked and underpaid caseworkers. The court reasoned as follows. The Northumberland County Adult Probation and Parole Department, in addition to numerous other duties, process [sic] approximately six hundred (600) to seven hundred (700) pre-sentence investigation reports per year. Additionally, resignations averaged highest in the State resulting in over half of the probation staff having less than two years experience. In response to this problem, the Probation Department, through the response to this problem, the Probation Department [sic], through the Court, has repeatedly requested the county raise hours, salaries, provide overtime and on-call to the staff in order to improve resources and stability. Further, pursuant to the hours designated by the county for operation, the work week amounts to only 33 hours, the lowest work week for a fifth class county in the State. Although the Probation Department is under the direct supervision of the President Judge, the county is responsible for setting the hours of operation, salaries and designating financial resources to the department. This bifurcated system of dual management creates problems which affect the operation of the Court system, but which are completely outside of the power and control of the Court. (Slip Op., Sacavage, J., 11/6/96, pp. 3-4) (footnotes omitted). In its Opinion, the court also mentions the fact that appellant’s plea was initially accepted for review only. Therefore, the court had the power to reject the plea and no guarantee was made to appellant that he would indeed be sentenced when the ease was called. Moreover, the record is devoid of any indication that appellant endured prejudice by not being sentenced within 60 days of the entry of his plea, or that a right of constitutional proportions had been violated. After a careful review of the record, we find that the trial court set forth good cause for sentencing appellant beyond the 60-day limit. Absent from the record is any indication of misconduct or negligence on the part of the Commonwealth, and the circumstances which existed in the Northum-berland County court system constituting a breakdown in the court, as described in detail above, exemplify those “extraordinary circumstances” which the comments to Rule 1405 suggest should be present before sentencing can be extended beyond 60 days. Moreover, assuming arguendo that good cause was not established, appellant’s appeal nevertheless would fail as he has not argued that the delay in sentencing implicated his right to due process or a speedy trial. This failure has resulted in waiver of those claims for the purpose of appeal. See Anders, supra. Lastly, appellant endured no prejudice from the delay in sentencing, as he was free on bond throughout the legal proceedings. Judgment of sentence affirmed. . 18 Pa.C.S. § 4110. . The Anders Court stated: Our courts have recognized that a delay in sentencing may implicate two constitutional rights: the right to a speedy trial as guaranteed by the Sixth Amendment, and the right to a direct appeal as guaranteed by the Due Process Clause of the Fourteenth Amendment. (Citations omitted). In the absence of a statute or further guidance by the supreme court to the contrary, we hesitate to grant relief for delays in sentencing unless the defendant’s constitutional rights have been violated. Commonwealth v. Anders, 699 A.2d 1258, 1262 (Pa.Super.1997) (en banc).

JOHNSON, Judge: Karen S. Baldwin (“Mother”) appeals from the trial court order that denied her petition to modify the existing consent order for custody of the minor child of Mother and Dennis A. Baldwin (“Father”). Specifically, Mother challenges the trial court’s decision to deny her request to relocate, along with the parties’ minor child, from Pennsylvania to South Carolina. Because the trial court’s conclusions in this instance are reasonable in light of its supportable factual findings, we affirm. Mother and Father’were married on May 28, 1983, and separated in May 1996. They had one child during the marriage, a daughter, who was bom in 1985. Following the separation, the court entered a consent order that granted the parties’ shared legal custody of the child. Mother retained primary physical custody of the child and Father was given partial custody every other weekend, every Tuesday evening, every other Thursday evening, shared holiday visitations and three weeks of summer vacation. During the course of the marriage and following the parties’ separation, Mother was employed at Mount Aloysius College as a nursing instructor. In February 1997, Mother’s employer informed her of the possibility that her teaching position would not be renewed for the upcoming year due to declining enrollment. On April 14, 1997, Mother received a letter from Mount Aloysius College confirming that her teaching contract would not be renewed. In the interim, Mother learned of opportunities available to teach near her sister in South Carolina. As a result, Mother actively sought a teaching position in that area and, in May 1997, she received a job offer from Midlands Technical College in Columbia, South Carolina. At no time, however, did Mother seek employment within Pennsylvania. After receiving the job offer, Mother filed a petition to modify the existing consent order so that she could move to South Carolina with the child. Father opposed the move, asserting that it was in the child’s best interest to remain in Pennsylvania. Following a hearing on the matter, the trial court denied Mother’s modification petition. The court also denied Mother’s petition for reconsideration and this appeal followed. Mother first argues that the trial court erred when it determined that it was not in the best interests of the parties’ minor child to relocate to South Carolina. “In Pennsylvania, custody and visitation matters are decided on the basis of the ‘best interests of the child’ standard, considering all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiri- tual well-being.” White v. White, 437 Pa.Super. 446, 450, 650 A.2d 110, 112-13 (1994). In addressing relocation disputes, the trial court must consider the following interests: the custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and finally,' the state’s interest in protecting the best interests of the children. Gruber v. Gruber, 400 Pa.Super. 174, 184, 583 A.2d 434, 438-39 (1990). To accommodate these competing interests, this Court has set forth the following factors for the trial court to consider in determining whether the custodial parent and child should be permitted to relocate at a geographical distance from the non-custodial parent: 1. The potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the- result of a momentary whim on the part of the custodial parent. 2. The integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it. 3. The availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber, supra, 400 Pa.Super. at 185, 583 A.2d at 439. While these factors are helpful in resolving relocation disputes, this Court has repeatedly noted that they do not create a new standard and that “the polestar of our analysis in this case, just as it was in Gruber and a legion of prior custody cases, remains the best interests of the child.” Lee v. Fontine, 406 Pa.Super. 487, 489-90, 594 A.2d 724, 726 (1991); see also Gancas v. Schultz, 453 Pa.Super. 324, 330-32, 683 A.2d 1207, 1210 (1996); Plowman v. Plowman, 409 Pa.Super. 143, 153-55, 597 A.2d 701, 707 (1991). Further, our review of child custody orders is well settled. On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to [substitute] our judgment for that of the trial court. Rather, we are bound by findings supported by the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court, (citations omitted). Lee, supra, 406 Pa.Super. at 488, 594 A.2d at 725, quoting Zummo v. Zummo, 394 Pa.Super. 30, 54, 574 A.2d 1130, 1142 (1990). After reviewing the record, we find no abuse of the trial court’s discretion that requires reversal of its decision. Rather, we find that the trial court carefully weighed all evidence and testimony of record before finding it to be in the child’s best interests to remain in Pennsylvania. With respect to the first Gruber factor, the trial court found the following: The Court does recognize that the Petitioner’s job in Pennsylvania was terminated and that she secured a position from Midland Technical College with a $32,-000.00 salary. It should be noted that this is less than the $36,000.00 salary that the Petitioner received from Mount Aloysius. However, in considering the relocation, the Court is not limited to considering solely economic benefits. Gruber, 400 Pa.Super. at. 184, 583 A.2d at 439. The Petitioner places emphasis on the fact that [the child] will have the benefit of being raised near her aunt and various first cousins in South Carolina. However, a majority of the Petitioner’s family resides in Pennsylvania, as does all of the Respondent’s immediate family. Presently, [the child] visits her [paternal] grandmother every other Sunday in Black Lick, Indiana County, Pennsylvania. Trial Court Opinion, filed July 3, 1997, at 4-5. With respect to the second Gruber factor, the trial court determined that Father’s motives were pure and that he was opposing the move solely because of his concern for the child and his desire to maintain a father-daughter relationship. The court, however, questioned Mother’s motives for seeking the move to South Carolina: [I]t is obvious that the Petitioner made no effort to seek employment within the vicinity of Indiana [County] or in the state of Pennsylvania. The Petitioner testified that there were no full time positions available for a nursing instructor in the area. However, she admitted that she failed to make any official inquiries by submitting her resume to either Indiana University of Pennsylvania or any other facility within Pennsylvania. Likewise, the Petitioner did not accept her prior employer’s offer to advertise her credentials or to pay for interview trips within Pennsylvania. Bather, she focused her job search solely in South Carolina. Opinion, swpra, at 5-6. The court also noted its concern regarding Mother’s intermittent refusal to allow Father to see his daughter at scheduled times. Id. at 6-7. Mother challenges the trial court’s determination that she made no effort to seek employment near Indiana, Pennsylvania. However, this factual determination, which is clearly supported by the record, has been resolved adversely to Mother’s interests. See N.T., June 26, 1997, at 18-23. We will not relitigate this issue on appeal. See Vineski v. Vineski, 450 Pa.Super. 183, 188 n. 5, 675 A.2d 722, 724 n. 5 (1996), quoting Plowman n. 4 (appellant may not attempt to relitigate factual issues already decided by the trial court as “ ‘it is inappropriate for the Superior Court to make factual determinations based on conflicting evidence’ ”). Mother further argues that she was not required to search for employment in Pennsylvania. Mother’s assertion, however, ignores the fact that an inquiry into the custodial parent’s motives in relocating is proper under Gruber. Here, the trial court questioned the integrity of Mother’s motives, based on Mother’s failure to seek local employment and the fact that Mother, at times, had refused to allow Father to see his daughter during scheduled visits. See Plowman, supra, 409 Pa.Super. at 157-58, 597 A.2d at 709 (though finding evidence of local job opportunities and salaries irrelevant on other grounds, this Court noted that custodial parent’s ability to obtain similar employment locally may be relevant to his or her motives behind the proposed move). Thus, we do not agree with Mother that it was unreasonable for the trial court to question Mother’s motives for relocation in light of its factual findings; findings that are clearly supported by the record. Compare White, supra (court denied mother’s petition to relocate, despite fact it would be beneficial for child to be near mother’s family in California where: move was not carefully planned out and mother had too little concern for disruptive effect the move would have on the parties’ child, who had spent the majority of his life with father and family; child had significant family contacts in Pennsylvania; mother had not secured employment in other state and had failed to pursue employment in Pennsylvania; and father’s motives for opposing the move were solely out of his concern for his relationship with the child) with Gruber, supra (court granted mother’s petition to relocate where both mother and father stated that mother permitted father access to the children as often as the visitation order permitted, and mother’s motives were pure as her relocation request was not motivated by a desire to deny father access to their children). Mother also disputes the trial court’s determination that she was uncooperative concerning visitations. Here, the trial court determined that “the Court cannot confidently say that the Petitioner would abide by any visitation agreement once she is in South Carolina when there have been visitation disputes when the parties reside within the same city.” Opinion, supra, at 7. We defer to the trial court’s findings as the record supports them. See N.T., supra, at 23-26, 33-36; Vineski, supra. Further, when considering whether a realistic substitute visitation arrangement is feasible, the court must foster a “continuing, meaningful relationship between the children and non-custodial parent.” Gntber, supra, at 186, 588 A.2d at 440; see also Plowman, supra, at 151-53, 597 A.2d at 706 (noting that the custodial parent has a responsibility towards the non-custodial parent to maintain the relationship between the child and the non-custodial parent). The trial court’s concern that, once relocated to South Carolina, Mother may attempt to hinder Father’s access to the child is not unreasonable in light of its factual findings. Moreover, the three factors we set forth in Gruber for the trial court to utilize in relocation disputes “must then be factored into the ultimate consideration of the court, which is to determine what is in the best interests of the child.” Plowman, supra, at 154, 597 A.2d at 707. Here, the trial court stated that: [I]n choosing to move to South Carolina, the Court finds that the Petitioner has a greater concern for her own interests, than that of her child. Despite the fact that [the child] would prefer to stay in Indiana to be near both of her parents, the Petitioner made no attempt to remain in Pennsylvania. Rather, the Petitioner decided to go to South Carolina to cope with her divorce. To allow the Petitioner to take [the child] to South Carolina at this time could very well thwart the development of a healthy relationship between [the child] and her father. Opinion, supra, at 7. We are cognizant of the fact that the resolution of relocation cases, like the present one, “involves imperfect and often painful solutions.” Gruber, supra, at 189, 583 A.2d at 441. This Court has also stated that the best interests of the child are more closely aligned with the interests and quality of life of the custodial parent. Id. at 186-89, 583 A.2d at 440. While this is often the case, there are other interests that must also be considered. Id. at 182-86, 583 A.2d at 438-39; see also Plowman, supra, at 151-53, 597 A.2d at 706. Further, there is no black letter formula that easily resolves relocation disputes; rather, custody disputes are delicate issues that must be handled on a case-by-case basis. Id. Here, the trial court was faced with the difficult task of determining, based on many relevant and competing interests, whether it was in the child’s best interests to relocate to South Carolina or to remain in Pennsylvania. We are satisfied that the trial court carefully considered all relevant factors, as required by Gruber, before making its determination regarding the child’s best interests. As an appellate court, we should not substitute our judgment for that of the trial court; rather, we are merely to decide if the conclusions of the trial court involve an error of law or are unreasonable in light of the sustainable findings of the trial court. Lee, supra. We find the trial court’s conclusions reasonable in light of its factual findings and will not disturb them on appeal. Id. We also find no merit to Mother’s second issue that this case should be remanded because the court failed to provide a full and fair hearing. Mother contends that she was not given an opportunity to rebut Father’s testimony at the hearing because the court was forced to terminate the hearing early due to a bomb drill. The record, however, belies Mother’s assertion. Following a thorough cross-examination of Father, Mother’s attorney stated that he had no further questions to ask Father. N.T., supra, at 48. It was only when the trial judge began to question Father that the alarm sounded. Id. The judge then asked the parties if they were finished, with the exception of the judge speaking with the child. Id. Mother’s counsel stated, “Yes, I believe so, Your Honor.” Id. As the record reflects, the trial judge gave Mother, through her attorney, the opportunity to respond further, but she declined this offer. Thus, we fail to see how Mother was deprived of her right to a full hearing. Moreover, after a review of Mother’s brief on this issue, we find that Mother is merely attempting to relitigate the court’s credibility determinations. Mother has also not provided a scintilla of evidence to support her argument other than her assertion that the court chose to ignore documentation corroborating her testimony at the hearing. However, “‘on issues of credibility and weight of the evidence, [an appellate court] defer[s] to the findings of the trial judge, who has had the opportunity to observe the proceedings and demeanor of the witnesses.’ ” Robinson v. Robinson, 538 Pa. 52, 645 A.2d 836, 837 (1994), quoting Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988). Accordingly, we find this issue to be wholly without merit. Based on the foregoing, we affirm the trial court’s order denying Mother’s request for relocation. Order AFFIRMED. Brosky, J., files a Dissenting Opinion.

DOYLE, Judge. Bonita Brose (Claimant) appeals from an order of the Workers’ Compensation Appeal Board (Board) which raises once again the issue of a claimant’s entitlement to counsel fees, under Section 440 of the Workers’ Compensation Act, for an unreasonable contest in litigating by further appeal the award of such fees. On December 1, 1991, Claimant sustained a work-related injury, in the nature of bilateral carpal tunnel syndrome, while working as a computer operator for Keystone Optical Laboratory (Employer). Claimant subsequently received compensation benefits pursuant to a Notice of Compensation Payable at the rate of $218.00 per week based upon an average weekly wage of $262.00. On October 26, 1994, Employer filed a petition to terminate Claimant’s benefits, alleging that Claimant had fully recovered from her injury as of July 24,1994. However, by letter dated August 15,1995, Employer requested that the termination petition be withdrawn. Claimant objected to the withdrawal of the termination petition on the basis that Claimant had incurred expenses in defending the petition and requested the payment of counsel fees and costs. On September 28,1995, Claimant’s counsel submitted a bill totaling $1,608.00, represent ing his time, effort and costs in defending Employer’s termination petition on behalf of his client. Thereafter, on October 10, 1995, he submitted a revised bill for counsel fees and costs which totaled $3,311.57. The revised bill included counsel fees for services provided from September 8, 1995, through September 22, 1995, and represented time and expenses incurred in drafting proposed findings of fact and conclusions of law, as well as supporting briefs, relating to the award of counsel fees. After a hearing on September 20,1995, the Workers’ Compensation Judge (WCJ), by decision and order dated February 27, 1996, determined that Employer did not have a reasonable basis for filing the termination petition and accordingly awarded counsel fees to Claimant. The amount of fees awarded by the WCJ was $1,608.00, which was the amount indicated on the original bill as fees and costs specifically incurred in defending the termination petition. The WCJ did not award Claimant the total amount requested, $3,311.57, which included the additional fees and costs of pursuing the award of counsel fees. Both parties cross-appealed to the Board from the WCJ’s decision. By decision and order dated July 1, 1997, the Board affirmed the WCJ’s decision. This appeal by Claimant ensued. On appeal to this Court, Claimant contends that the WCJ and Board committed errors of law in failing to award Claimant counsel fees incurred in pursuing the original award of attorney’s fees. The Board concluded as follows with respect to this issue: On [a]ppeal, Claimant contends that the WCJ committed an error of law when he concluded that Claimant was entitled to reasonable counsel fees and costs but excluded the costs incurred by Claimant’s counsel in attempting to recover his own attorney fees. It is well settled in this Commonwealth that counsel fees cannot be awarded for time and effort expended in trying to sustain an award of one’s own attorney fees.... The WCJ found that Claimant’s counsel spent $1,608.00 in preparation of Claimant’s defense to the Termination Petition. We believe there is substantial evidence to uphold this finding. Therefore we will not disturb the WCJ’s finding. (Board’s Opinion at 4.) (Citation omitted.) In support of its decision regarding counsel fees, the Board cited our decision in Allums v. Workmen’s Compensation Appeal Board (Westinghouse Electric Corp.), 110 Pa.Cmwlth. 444, 532 A.2d 549 (1987), for the proposition that counsel fees may not be awarded for the time and effort expended by an attorney in pursuing his own fees. Although the Allums decision is relevant, the instant case is more closely analogous to the facts in Weidner v. Workmen’s Compensation Appeal Board, 497 Pa. 516, 442 A.2d 242 (1982), in which our Supreme Court, reversing a divided panel decision of this Court, held that, where an unreasonable contest had been advanced by the employer by filing a termination petition, the claimant’s counsel was entitled to reasonable compensation from the employer for his time and effort in securing a suspension of benefits for his client, rather than a termination, but that he could not recover additional compensation for his efforts to obtain the fee award. In so holding, the Supreme Court stated as follows: We therefore conclude that where, as here, there has been an ‘unreasonable contest’ advanced by the employer and its carrier, an award of attorney’s fees is proper under Section 440 of the Act, regardless of whether the claimant himself has actually incurred any costs. Instantly, because counsel clearly incurred some costs on claimant’s behalf, the referee’s award of fees directly to counsel was proper. However, while an attorney acting on a claimant’s behalf is entitled to reimbursement when there has been an ‘unreasonable contest,’ an attorney acting on his own behalf is not. Counsel in this case, having made the economic judgment to pursue an award of counsel fees, is entitled to reason able compensation from the employer for his time and effort spent in securing a suspension for his client. On this record, however, counsel’s representation of the claimant’s interests did not extend beyond the initial referee’s hearing. Thereafter, his efforts were directed to his own benefit in securing his fee. Counsel may not, therefore, recover fees for his efforts on appeal from the initial referee’s determination, solely in order to obtain a fee award. Weidner, 497 Pa. at 522-23, 442 A.2d at 245 (emphasis added) (footnote omitted). Additionally, in Allums, we acknowledged the principle and holding of the Supreme Court’s Weidner decision, stating as follows: The Supreme Court reversed this Court’s Weidner II decision and held that counsel fees were proper, but only for the work the attorney did in securing the initial award, ie., the $ 8,750 award for the work the attorney performed in representing the Claimant, not for the efforts the attorney expended in his attempt to obtain counsel fees. Thus, Weidner (Pa.) establishes that an attorney is only entitled to fees where the work he does is on behalf of the client’s interests, not his own. Allums, 532 A.2d at 551-52 (emphasis added)(footnote omitted). Thus, it is clear from these two cases that, where there has been an unreasonable contest by an employer by filing and pursuing a termination petition, and where counsel fees have been awarded pursuant to Section 440 of the Act, the amount awarded by the WCJ should only reflect the time, effort and costs for the claimant’s benefit in defending the termination petition and not the expenses incurred by the claimant’s counsel in procuring his or her own fee. Claimant’s counsel, however, cites this Court’s Allums decision for the contrary position, ie., that counsel fees incurred in procuring the actual award of counsel fees should have been awarded in this case, and further contends that the Claimant will otherwise be required to pay these additional fees out of her own pocket. Specifically, Claimant’s counsel directs our attention to the following language from Allums: What Weidner (Pa.) did not clearly decide was whether an employer’s appeal from an award of counsel fees under Section 440 of the Act makes additional counsel fees proper. Keeping in mind that the relevant inquiry is whether the work done by the attorney is on behalf of the claimant’s interests, it is our view that an award of counsel fees to an attorney defending against an employer’s appeal of an award of attorney’s fees is permissible under Weidner (Pa.) in certain circumstances. In the instant case, the Claimant’s fee arrangement with his attorney was not upon a contingency basis. Therefore, if Claimant does not defend the award of fees on appeal and that award is reversed, the money to pay his attorney will come out of Claimant’s own pocket. In contrast, Weidner (Pa.) involved a contingency fee arrangement, and while the termination petition which Claimant resisted at first did endanger his own benefits, the appeal over counsel fees did not. Therefore, in Weidner (Pa.) the pursuit of counsel fees on appeal was done solely for the benefit of counsel, since claimant qua claimant had nothing to lose if the award of counsel fees was ultimately reversed on appeal. Thus, Weidner (Pa.) is distinguishable from the case at bar. Accordingly, we hold that the attorney here is entitled to an award of attorney’s fees under Section 440, and we will remand for findings on the amount due and entry of an appropriate order by the Board. Allums, 532 A.2d at 552 (emphasis added). Citing this language, Claimant’s counsel contends that, although there was a contingent fee agreement signed by Claimant in this case, because the agreement also provided that Claimant would, “[s]hould no recovery be made,” pay to counsel a fee based on a hourly rate, the Claimant would be compelled to pay the attorney’s fee at the hourly rate even if no approval of such fee was secured from the compensation authorities. We initially note that the reliance placed upon our decision in Allums by Claimant’s counsel is misplaced. The critical factor in that case was not, as Claimant’s counsel suggests, the existence or absence of a contingent fee agreement. Rather, it was the fact that in Allums the claimant’s counsel was acting in the interests of the claimant by defending the award of counsel fees challenged by the employer on appeal, and that, if the claimant had lost the appeal, the claimant would have had to pay that amount out of his own pocket. However, these are not the facts of the matter presently before us. Pursuant to Section 440 of the Act, the WCJ is given the discretion to award reasonable counsel fees to a claimant where there has been an unreasonable contest as to a claimant’s entitlement to his or her workers’ compensation benefits; but, pursuant to Section 442 of the Act, the WCJ is given the authority, and obligation, to approve all counsel fees charged to a claimant by his or her attorney. Section 442 of the Act provides in pertinent part as follows: All counsel fees, agreed upon by claimant and his attorneys, for services performed in matters before any workers’ compensation judge or the board, whether or not allowed as part of a judgment, shall be approved by the workers’ compensation judge or board as the ease may be, providing the counsel fees do not exceed twenty per centum of the amount awarded. The official conducting any hearing, upon cause shown, may allow a reasonable attorney fee exceeding twenty per centum of the amount awarded at the discretion of the hearing official. In cases where the efforts of claimant’s counsel produce a result favorable to the claimant but where no immediate award of compensation is made such as in cases of termination or suspension the hearing official shall allow or award reasonable counsel fees, as agreed upon by claimant and his attorneys, without regard to any per centum. 77 P.S. § 998 (emphasis added). As noted above, it is clear from the decisions of this Court in Allums and our Supreme Court in Weidner that, where there has been an unreasonable contest regarding a claimant’s entitlement to workers’ compensation benefits, and where counsel fees have been awarded pursuant to Section 440 of the Act, the amount awarded and approved by the WCJ should only reflect the expenses incurred for the claimant’s benefit in defending the termination petition and not the expenses incurred by the claimant’s counsel in procuring his or her own fee. Thus, based upon our review of the record, the WCJ committed no error of law in awarding counsel fees in the amount of only $1,608.00. Consequently, contrary to the assertions of Claimant’s counsel, counsel is entitled to only that fee which was approved by the WCJ for his representation of Claimant in this matter, and not $3,311.57 as claimed. Consequently, we note that Claimant does not, as Claimant’s counsel suggests in his brief, owe her counsel the difference between the fees approved ($1,608.00) and the amount requested as attorney’s fees by counsel ($3,311.57). Order affirmed. ORDER NOW, March 27, 1998, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is hereby affirmed. . Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996. . Firestone Tire & Rubber Co. v. Workmen's Compensation Appeal Board (Weidner), 41 Pa.Cmwlth. 601, 399 A.2d 1176 (1979), rev'd, 497 Pa. 516, 442 A.2d 242 (1982). . The fee agreement between counsel and Claimant provides in pertinent part as follows: DO, the undersigned, do appoint the law firm of MARKOWITZ & MARKOWITZ, P.C. to investigate, institute and maintain an action against Keystone Optical Laboratory Inc. and any person or firm or corporation, who may be responsible for [my] claim for damages sustained on December 1, 1991, or to effect an amicable settlement. For their services, MARKOWITZ & MAR-KOWITZ, P.C. shall receive a percentage of all that is received or recovered by reason of any settlement, compromise or verdict in this matter, in accordance with the following schedule: 1. Settlement before or during trial or upon verdict 20% 2. Upon filing of post-trial motions by either party 20% 3. Upon filing of appeal by either party 20% .... Should no recovery be made by [me], [I] understand that [I am] still liable for repayment of expenses to MARKOWITZ & MAR-KOWITZ, P.C., and will be charged for the office time expended on this matter at the hourly rate of $175.00 per hour and trial time at $250.00 per hour. (Contingent Fee Agreement at 1-2.) It is clear from this language of the contingent fee agreement that the 20% (40%; 60%) contingent fee was only the measure of counsel fees if there was a "recovery” on Claimant’s "claim for damages,” which would be totally inapposite to the litigation involved in this case where Claimant was defending against the loss of his benefits awarded years earlier. It is rather clear that this pro forma fee agreement, at least the contingent fee part, was meant to apply to a claimant during the litigation of an initial claim petition. It does not, as Claimant’s counsel suggests, establish a clear entitlement to the fees counsel seeks in this case. .Section 440 of the Act provides as follows: (a) In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. (b) If counsel fees are awarded and assessed against the insurer or employer, then the workers’ compensation judge must make a finding as to the amount and the length of time for which such counsel fee is payable based upon the complexity of the factual and legal issues involved, the skill required, the duration of the proceedings and the time and effort required and actually expended. If the insurer has paid or tendered payment of compensation and the controversy relates to the amount of compensation due, costs for attorney’s fee shall be based only on the difference between the final award of compensation and the compensation paid or tendered by the insurer. 77 P.S. § 996.

RODGERS, Senior Judge. In these consolidated appeals, Joseph Pér-sico and Donald Vemet (Claimants) petition for review of two orders of the Unemployment Compensation Board of Review (Board) denying Claimants and approximately 41 other employees of Wheeling-Pittsburgh Steel Corporation (Employer) unemployment benefits pursuant to Section 402(d) of the Unemployment Compensation Law (Law). We affirm. The Office of Employment Security (OES) denied Claimants benefits under Section 402(d) of the Law. Claimants appealed and the case was assigned to a referee. Following hearings, the referee affirmed the OES’ determinations and denied Claimants’ request to re-open the record. Claimants then appealed to the Board, which, by orders dated May 16, 1997, affirmed the decisions of the referee, adopting the referee’s findings of fact and conclusions of law and denying Claimants’ request for a remand. The relevant Findings of Fact are summarized as follows. Claimants are members of United Steel Workers of America, Local 1187 (Union). As of September 30, 1996, the terms and conditions of Claimants’ employment were governed by a 1994 collective bargaining agreement, which expired at 12:01 a.m. on October 1, 1996. The Union and Employer engaged in negotiations prior to the expiration of the contract but failed to reach an agreement. Employer specifically offered to allow Union members to continue working under the terms and conditions of the expired agreement. (Finding of Fact (FOF) #11.) At no time either before or after expiration of the agreement did the Union offer to continue work or return to work without an agreement to institute a Defined Benefit Pension Plan. (FOF # 5.) Upon expiration of the agreement, the Union initiated a work stoppage. (FOF # 12.) Claimants did not report to work on or after, October 1, 1996, because they had been participating in the work stoppage. (FOF # 13.) Claimants filed petitions for review to this Court, which were consolidated by this Court’s order dated November 13, 1997. On appeal, Claimants argue they are entitled to benefits because Employer was the party to change the status quo upon expiration of the agreement. Where unemployment is due to a work stoppage, a claimant’s eligibility for compensation depends on whether the work stoppage is a strike or a lockout. Vrotney Unemployment Compensation Case, 400 Pa. 440, 163 A.2d 91 (1960). Where employees reject an offer to continue working under pre-existing terms and conditions, employees are engaged in a strike. High v. Unemployment Compensation Board, 67 Pa.Cmwlth. 472, 447 A.2d 701 (1982), aff'd, 505 Pa. 379, 479 A.2d 967 (1984). Where an employer will not permit employees to continue working under pre-existing terms and conditions, the work stoppage is a lockout. Id. The party who first changes the status quo after the contract expires is held responsible for the work stoppage. Schulmerich Carillons, Inc. v. Unemployment Compensation Board, 154 Pa.Cmwlth. 343, 623 A.2d 921 (1991), petition for allowance of appeal denied, 535 Pa. 642, 631 A.2d 1013 (1993). The issue of whether a work stoppage is a strike or a lockout is a mixed question of fact and law, subject to our review. Hercules v. Unemployment Compensation Board of Review, 146 Pa.Cmwlth. 77, 604 A.2d 1159 (1992). Claimants first argue that Employer altered the status quo by refusing the Union’s demand to reach agreement on a Defined Benefit Pension Plan. Claimants acknowledge that such a plan was not in existence under the terms of the 1994 agreement. In fact, Employer’s Defined Benefit Pension Plan had been terminated in 1985, during Employer’s bankruptcy proceedings. Claimants argue that the termination of the plan was not a condition of employment mutually agreed upon by the parties, but was a condition imposed upon the parties by the Bankruptcy Court. Claimants assert that the last freely negotiated agreement included a Defined Benefit Pension Plan and argue that the existence of this benefit must be considered as part of the status quo. However, the status quo has been defined as the terms and conditions in effect at the expiration of the agreement. All American Gourmet Co. v. Unemployment Compensation Board of Review, 143 Pa. Cmwlth. 330, 598 A.2d 1351 (1991). See also Vrotney, wherein the court directed us to examine whether the employer has refused to “extend the expiring Contract and maintain the status quo.” Id. at 444-445, 163 A.2d at 93-94. We find no authority for Claimants’ assertion that the status quo includes terms and conditions of employment beyond those in effect under the most recent labor agreement. Claimants also argue that Employer changed the status quo by failing to mail eligibility cards pursuant to the agreement’s Surviving Spouse Payment clause. Under the 1994 agreement, Employer was required to make scheduled payments to eligible spouses, which payments were due on each November 1st occurring during the term of the 1994 agreement, commencing November 1, 1994. In previous years, Employer had mailed out “applications” in August or September, but no “applications” were mailed in the fall of 1996. The referee noted that this mailing was merely a method adopted by Employer to fulfill its obligations, but was not an act required by the agreement. More important, Claimants did not dispute the testimony of Richard Bowness, Employer’s comptroller of payroll and benefits accounting, that all eligible persons had been paid the maximum amount of benefits provided by the agreement. Since Employer established that no payments were scheduled to be made in November of 1996, the Board properly concluded that Employer’s failure to send out “applications” in 1996 did not violate the terms of the agreement or alter the status quo. Claimants further contend that Employer changed the status quo by failing to send out vacation preference cards in 1996. Under the agreement, employees are entitled to vacation in a calendar year if they have accrued one year of continuous service during that calendar year and have reported for work on or after December 18th of the previous year. Thus, Claimants would be eligible for vacation in 1997 if they reported to work on or after December 18, 1996. The agreement required Employer to mail vacation preference cards on or promptly after October 1st of each year to employees entitled or expected to become entitled to take vacation in the following year. After cards were completed and returned, Employer’s supervisors would review their needs and then meet with employees to resolve conflicts and complete vacation schedules. Since the work stoppage had commenced as of the start of the business day on October 1, 1996, the language of the agreement regarding employees “expected to become entitled” to vacation does not apply. No employees met the eligibility requirements for vacation in 1997. As of October 1, 1996, no employees were available or expected to be available for the meetings required to finalize vacation schedules and, more important, there is no assertion that Employer attempted to limit the rights of employees to select their own vacation period. Claimants also assert that continuing work was not available, citing Employer’s cutbacks in inventory and equipment preparation. However, as the referee noted, the agreement guarantees employees pay for forty hours of work per week, regardless of whether work is available. (FOF # 4.) Accordingly, these assertions are not relevant to the issue of Claimants’ entitlement to benefits. Finally, Claimants argue that the Board erred in denying their request for a remand to submit additional evidence pursuant to 34 Pa.Code § 101.24(b). This section applies only in circumstances where a party did not attend a hearing, and all parties were present at the hearing before the referee in this appeal. Under 1 Pa.Code § 35.231, the record may be re-opened upon filing of a petition that clearly sets forth facts constituting grounds requiring re-opening of the proceedings. Claimants’ request for remand was made by letter from Claimants’ counsel (Record Item No. 11) which included no specific reason for the request and, therefore, Claimants’ request was properly denied by the Board. Having reviewed the record, we conclude that the Board’s findings are supported by substantial evidence and no error of law was committed. Accordingly, the orders of the Board are affirmed. ORDER NOW, April 9, 1998, the orders of the Unemployment Compensation Board of Review, at Nos. B-361097 and B-361098, dated May 16,1997, are affirmed. . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(d), which states that an employee shall be ineligible for compensation for any week in which his unemployment is due to a stoppage of work which exists because of a labor dispute, other than a lockout, at his last place of employment. . The OES issued two determinations in accordance with the Token Claim Agreement signed by the parties, naming Joseph Pérsico as Lead Token claimant and Donald Vemet as Token claimant. (Record Item No. 5.) .Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Peoples First National Bank v. Unemployment Compensation Board of Review, 159 Pa.Cmwlth. 134, 632 A.2d 1014 (1993). . In addition, the referee noted that no evidence or testimony was presented on this question at the hearing; the issue was first raised in the brief submitted to the referee by Union's counsel. Accordingly, there is no evidence of record that would support a finding that the status quo included a Defined Benefit Pension Plan.