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NARICK, Senior Judge. The issue on appeal is whether there is competent evidence to support the conclusion of the Court of Common Pleas of Philadelphia County (trial court) that John J. Lynch, Sr. (Appellant) violated Sections 1572(a)(1)(h) and 1572(b) of the Vehicle Code. We con- elude that there is not, and the decision of the trial court is therefore reversed. Because the Department of Transportation (DOT) did not file a brief and Appellant’s brief was filed pro se, the facts of this case have been difficult to establish. However, our review of the record, primarily the transcript of the April 21, 1997 hearing before the trial court, and the exhibits entered into evidence by DOT, discloses what we believe to be the following relevant facts. On October 19, 1996, DOT sent a letter to Appellant stating as follows: “Upon receipt of evidence that you were issued a driver’s license in error, the Department is hereby canceling any driver’s license, learner’s permit or camera card in your possession as authorized under Section 1572 of the Vehicle Code.” Section 1572 provides as follows: § 1572. Cancellation of driver’s license (a) General rule.— (1) The department may cancel any driver’s license upon determining that one of the following applies: (1) The licensee was not entitled to.the issuance. (ii) The person failed to give the required or correct information or committed fraud in making the application or in obtaining the license. (iii) The license has been materially altered. (iv) The fee has not been paid. (v) The licensee voluntarily surrenders his driving privilege. (2) Upon the cancellation, the licensee shall immediately surrender the canceled license to the department. (b) Other states.— The department shall cancel a driver’s license issued during the period of another state’s suspension or revocation following an offense which resulted in an out-of-state suspension or revocation if the offense would result in suspension or revocation under this title. Appellant appealed to the trial court and a hearing was held on April 21, 1997, at which DOT offered the testimony of Kim Sullivan, Clerical Supervisor of the Department of Transportation, Bureau of Drivers Licenses. Ms. Sullivan testified that her investigation has revealed that Appellant currently has three Pennsylvania driver’s licenses. On cross-examination, Ms. Sullivan testified that Appellant did not actually apply for three Pennsylvania driver’s licenses. In fact, he only applied for one, and the application was entered into evidence as Commonwealth Exhibit C-1A. The other two “licenses” that Appellant has are apparently driver numbers that were assigned to him by DOT when he was cited for driving without a license, as shown by the following testimony of Ms. Sullivan: Q. Well, I guess what I’m asking is if I said I was John Copy Machine, and my date of birth was 9-26-60, and I was issued a citation, didn’t have a driver’s license, I was issued a ticket, driving without a license? A. We would assign you [a driver number.] Q. And I did nothing about the ticket, the ticket would—then the Court, the District Court would notify the Department of Transportation, you would move to suspend my driver’s license for failure to— failure to respond; is that correct, is that a correct assumption of what would happen? A. Yes. Q. Then you would find that John Copy Machine has no driving license, then what would you do? A. We would assign a driver number for that said individual. Q. You would create one? A. Yes. Q. So, therefore, in this case, you say there was only one application for a driver’s license and two other created numbers, correct? A. Correct. DOT also introduced documents showing convictions of Appellant for driving while his operating privilege was suspended or revoked, in violation of Section 1543 of the Vehicle Code. The driver numbers listed on those documents, 21843130 and 22368672, are apparently the driver numbers that were assigned to Appellant by DOT when he was cited for driving without a license. Ms. Sullivan testified that one of the numbers is revoked until the year 2018 and the other until 1999. On appeal, although not specifically stated in his pro se brief, Appellant essentially argues that the decision of the trial court is not supported by substantial competent evidence. We agree. The trial court, in an opinion dated August 9, 1997, held that “DOT was justified in canceling [Appellant’s] operating privileges pursuant to Section 1572.... The Appellant violated § 1572(a)(l)(ii), forbidding the applicant from giving false or fraudulent information in obtaining a license; and § 1572(b), prohibiting an operator from obtaining an out-of-state license within the time of a license suspension within the state.” With regard to the trial court’s conclusion that Appellant violated Section 1572(a)(1)(ii) by giving false information in obtaining a license, we simply see no evidence of this in the record. As noted above, Ms. Sullivan testified that Appellant submitted one application for a Pennsylvania driver’s license. There was, however, no testimony or other evidence that Appellant provided false information on that application. Furthermore, our review of the application^ which was entered into evidence by DOT as exhibit C-1A, reveals no apparent false information. Upon review of the entire record, we conclude that the trial court lacked substantial competent evidence to conclude that Appellant violated Section 1572(a)(1)(h) by providing false or fraudulent information in obtaining a license. With regard to the trial court’s second conclusion, that Appellant violated Section 1572(b) by “obtaining an out-of-state license within the time of a license suspension within the state [of Pennsylvania,]” we initially note that the trial court has misstated the law. As shown above, Section 1572(b) permits DOT to “cancel a driver’s license issued during the period of another state’s suspension or revocation following an offense which resulted in an out-of-state suspension or revocation if the offense would result in suspension or revocation under this title.” (Emphasis added.) Furthermore, even correctly applying Section 1572(b), we still must conclude that there is no competent evidence by which the trial court could have determined that Appellant violated Section 1572(b). DOT offered no testimony or documentation showing that Appellant has had an out-of-state license suspended or revoked, nor did that even appear to be an issue with DOT. Considering that Appellant has been twice convicted of operating without a license, there may be valid grounds upon which DOT may take action against Appellant. These grounds, however, should be established by DOT before a trial court, not speculated upon by this Court after reviewing a somewhat confusing record from the proceedings below. Accordingly, the order of the trial court is reversed. ORDER AND NOW, this 2nd day of April, 1998, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is hereby reversed. . 75 Pa.C.S. §§ 101-9805. . There was also testimony concerning a possible Delaware driver’s license. However, it is not clear from the record whether Appellant actually obtained a Delaware license or whether he simply applied for one. The only documentary evidence presented by DOT was an application for a Delaware driver's license that was completed by Appellant. . Appellant was represented by counsel at the April 21, 1997 hearing. . 75 Pa.C.S. § 1543. . Our review is limited to determining if the factual findings of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Furthermore, questions of witness credibility are solely within the province of the trial court. Id. . Appellant also argues that documents from the state of Delaware were improperly admitted into evidence because they did not conform to the requirements of 42 Pa.C.S. § 5328, proof of official records. This issue, however, has been waived because it is raised for the first time on appeal, and an appellate court may sua sponte refuse to address an issue raised on appeal that was not raised and preserved below. Siegfried v. Borough of Wilson, 695 A.2d 892 (Pa.Cmwlth.1997). .Neither in its October 19, 1996 letter to Appellant nor at the April 21, 1997 trial court hearing did DOT specify precisely which portion of Section 1572 was violated by Appellant.

Mr. Justice Clark delivered the opinion of the court, The evidence shows that in May, 1869, a policy of life insurance was issued by the defendant, the American Life Insurance Company, to the plaintiff, Mary F. McAden in the sum of #20,000, upon the life of her husband Rufus Y. Me- Aden of Charlotte, North Carolina; that the plaintiff paid premiums on this policy, in quarterly payments of $101.44, each, from its date, until in August 1879, when the company refused to accept the premium then tendered, declaring that the policy, by its terms, bad become forfeit to the company, the premium mentioned, not having been paid or tendered within the time stipulated, but one or two days later. This action of assiimpsit was thereupon brought not upon the contract contained in the policy, but as upon a rescission of it, to recover the premiums paid, upon a count for money bad and received by the defendant to the use of the plaintiff. Tiie policy was produced at the trial, and the plaintiffs offered to read it in evidence, but upon the objection of the defendants’ counsel, that it was an instrument under seal and the action assumpsit, tbo court excluded it. This ruling of the court was, we think, erroneous, but the defendant cannot complain, as it was made at his instance. The action it is plain, is not founded on the policy, for if the policy be in force, there can, in the nature of the case, be no recovery upon the count for money' had and received. The suit is in direct disaffirmance of the contract, and cannot therefore bo said to be founded upon it. Assumpsit, for money had and received, is frequently brought to recover back a deposit, or money paid upon an agreement, which the defendant omits or refuses to perform ; and on a single count, in the common form, various sums, received at different times, may be recovered: 1 Chitty PL, 353, 356. When, for example, a person purchases land and pays part of the purchase money, and the seller does not, and will not, complete the engagement, so that the contract is totally unexecuted, he, the purchaser, may either affirm the agreement by bringing ail action for non-performance of it, or he may elect to disaffirm it, ab initio, and bring an action for money had and received to his use: 1 Sugden on Vendors, p. 236, ¶ 39. Or, where two persons enter into a contract for services, and after part performance, by one, the other denies its existence, and gives notice of his intention to disregard it, the party not in default may at his option perform fully, and enforce the contract, or consider it at an end, and recover for part performance, upon a quantum meruit: Moorhead v. Fry, 12 Harris, 37. In Feay v. Decamp, 15 S. & B., 227, there was an agreement under seal for the sale of land, with possession delivered, and a large part of the money paid, but not to the extent the contract required; the owner resumed the possession and declared the contract at an end; held, to be a disaffirmance, and that the vendee might, in an action of assumpsit, recover back the money paid, on a count for money had and received. The doctrine as to the distinction to be drawn between a suit on the contract, and a suit grounded upon a rescission of it, is thus plainly stated in Smethurst v. Woolston, 5 "W. & S., 109: “ But this distinction, which pervades all the authorities, governs the whole case; for the purchaser may declare specially for the breach of the contract, or simply for money had and received to recover back the deposit, if any be made, or the purchase money if it be paid ; or he may join both causes of action in the same declaration. And when this is done, it is granted that, under the money count, the money advanced may be recovered back ; or where a specific article has been given in satisfaction, the purchaser may, when default is made, elect to consider the contract at an end, and recover the article itself, or its value, from the vendor. But, on the other hand, where the purchaser declares specially for breach of the contract, and thereby affirms it, the only rule of damages is the value of the article at or about the time it is to be delivered.” The same principle is applied in Wilkinson v. Ferree, 12 Harris, 190, and Miller v. Phillips, 31 Penn. St., 218. In all such eases, the contract, although under seal, is rightly received in evidence, to exhibit the transaction as it previously existed, to determine the resulting rights of the parties, and, in some cases, perhaps, to aid in the assessment of the damages : Mehaffy v. Share, 2 P. &. W., 361; Carrier v. Dilworth, 59 Penn. St., 406. If, however, the contract has been in part performed, the plaintiff having received some substantial benefit therefrom, and, if, upon a verdict in his favor the parties cannot be placed in statu quo, the count for money had and received, in general, is not maintainable: Chitty PL, 355. The plaintiff must show that he has equity and good conscience on his side, or he cannot recover. In the case at bar, the rights of the parties, under the contract of insurance, had attached, but the plaintiffs had never received any actual benefit from it. They may in some sense perhaps, be said to have enjoyed the protection which the policy afforded in the event of the husband’s death, but as that event did not occur, the policy had as jmt been of no appreciable actual advantage to the plaintiff, and no real disadvantage to the defendant. The parties for anything that appears, upon the plaintiff’s recovery, are placed precisely in the same situation they were in, before the contract was made; for, al ■ though the company carried the risk and the plaintiff, Mary F. McAden at all times, during the continuance of the contract, upon the happening of the event provided against, was entitled to the indemnity it secured, yet the company has paid nothing and the plaintiffs have received nothing. As in the case of any other contract the parties were each entitled, during its continuance, according to its terms. The policy, when made, was admittedly valid; the premiums which were paid were voluntarily paid upon that policy , the risk had been running for ten years ; the obligations of the contract were long since in force, on both sides, and it is clear that the plaintiffs could not on their own mere motion rescind it, so as to recover hack the premiums paid ; but if after receiving these several premiums, the company without right refuse to receive further premiums as they mature, deny their obligation, and declare the contract at an end, the plaintiff, we think, may take the defendants at their word, treat the contract as rescinded, and recover back the premiums paid, as so much money had and received for their use. Rescission or avoidance, properly so called annihilates the contract, and puts the parties in the same position as if it had never existed; and notice that a party will not perform his contract has the same effect as a breach: Bailout. Billings, 136 Mass., 309. It is of no consequence that the payment of the premiums was voluntary, upon a valid obligation of the plaintiff to discharge a debt which the plaintiff owed, and which the defendant had a right to receive; the action is not founded in any fraud or failure in the original contract, but on a rescission of it through the subsequent refusal of the defendant to perform it. It is clearly shown, indeed it is admitted, that the premium due in August 1879, was tendered to the company, and was refused, upon the ground that the company was not then bound to receive it, and that the policy, according to some alleged express stipulation it contained, respecting the payment of the premiums, was forfeited and void. The president of the company denied all liability on the policy, and declared the contract at an end. If the reasons assigned by the president were valid and true, the refusal to receive the premium was right; if the contract was in fact forfeited and void, there was no contract remaining to rescind, and if there was no rescission there could he no recovery of money had and received. But there was no proof whatever of a forfeiture of the policy; it was alleged, that the contract contained a clause, according to which, by reason of the non-payment of the premium due in August 1879, on or before the exact day designated for payment thereof, a forfeiture ensued; whether this was so or not, depended, in the first instance at least, upon the proper reading and construction of the policy itself, which the defendant would not allow the plaintiffs to offer in evidence, nor would they offer it themselves. The policy is therefore not before us ; we do not know what it provides; if it contains any such clause, it should have been given in evidence. As the case is now presented to us, the company would appear to have declared the lapse of the policy, without any warrant whatever, and without cause; and if the defendants received the plaintiff’s money, and, under such circumstances, upon demand, refused to return it, we think it may be recovered back in an action of assumpsit: May on Insurance, 429; Seipel v. International Ins. Co., 84 Penn. St., 47. The case of McKee v. Phoenix Insurance Co., 28 Mo., 383, is, in all respects, similar in principle to the case under consideration ; there, a wife insured the life of her husband, and after making several payments obtained a divorce; other payments were afterwards made, when the insurer refused to receive a semi-annual instalment, tendered when due; in an action for money had and received, it was held, that the decree of divorce did not authorize a forfeiture of the policy, and that “ if the defendant wrongfully determined the contract, by refusing to receive a premium when it was due, then the plaintiff had a right to treat the policy as at an end and to recover all the money she had paid under it.” In some cases perhaps the defendant ought to refund the principal merely, and in others he ought ex cequo et bono to refund the principal with interest; each case depends upon the justice and equity arising out of its peculiar circumstances. In this case, however, interest was allowed from the date of the demand only, and certainly the defendant can not complain of that. The judgment is affirmed. Trunkey J., dissented.

Mr. Justice Trunkey delivered the opinion of the Court, The ordinary rule in respect to improvements is that the mortgagee in possession will not be allowed for them further than is necessary to keep the premises in proper repair. This rule is not inflexible, for the allowance may be regulated by the justice and equity arising out of the circumstances of eaclr particular cause. Nor will the mortgagee be held to proof of absolute necessity: Harper’s Appeal, 64 Pa. St., 315. While charges for repairs for the purpose of ornament, or the comfort of the mortgagee, or new buildings unnecessary for the preservation of the estate, will not be allowed, expenses for permanent improvements necessary and beneficial for the proper use of'the estate will be allowed in the account: Jones on Mortgages, § 1129. Under the circumstances of this case, the evidence referred to in the second and third specifications was properly received. That the buckwheat refiner, was a substantial improvement, and not a repair of old machinery, was' not enough to exclude its cost as a proper charge. The old machinery may have been of such character as to have become useless in the competition with other mills in tbe neighborhood. Only upon the special circumstances could it be determined whether the defendant ought to be allowed the cost of the refiner. And for like reason the evidence relative to alterations in the sawmill was admissible. The only remaining question which calls for remark, namely, whether the court erred in entering judgment for the defendant, is raised by the fifth specification. As the verdict settles that the debt was not fully paid, the learned judge of the common pleas was of opinion that the verdict and judgment must be for the defendant, citing as authority Hewitt v. Huling, 11 Pa. St., 27. In that case, it is true, that the jury were instructed to render a verdict for the defendants, unless tho clear profits up to the time of the trial amounted to as much as the debt and interest. The point was not considered in this court, for there was an unconditional verdict for the plaintiff, showing that the jury found that the debt had been paid before the beginning of the suit. In Cole v. Bolard, 22 Pa. St., 431, the plaintiff alleged that the apparent deed was a mortgage ; there was no claim of any payment by rent or profit, and it was said that if the debt was paid any time before trial, though not before the bringing of the suit, the plaintiff was entitled to the verdict for the laud, conditioned that he should pay the costs before taking out execution. There, no point was raised in this court respecting a verdict should the jury find that a part of the mortgage debt was unpaid at the time of the trial. We are not advised of any other case in this state touching or disposing of the question. Formerly, in some other states, the mortgagor, after payment of the debt, could not recover possession in ejectment from the mortgagee; his remedy was by bill in equity. Even where this rule has been somewhat relaxed, it has been held that the mortgagor cannot maintain ejectment against the mortgagee in possession so long as there is any question whether the mortgage debt has been paid in full, or there remains any question of account to settle between the parties ; in such ease he must resort to a bill to redeem. When the mortgagee has in fact received rents and profits sufficient to satisfy the debt, the mortgagor's remedy is in equity, for only in a court of equity can he compel account and application of the profits to the payment of the debt. The mortgagor seeking to regain possession of the premises must do equity to the mortgagee by paying all that is due on the mortgage. Ordinarily, when the debt has not been fully paid, the form of the judgment is that the plaintiff may redeem, upon paying the amount found due on the mortgage, within a specified time, together with costs, and upon his doing so the defendant shall discharge the mortgage and. deliver up the premises, and that upon default of such payment the bill be dismissed with costs. And the decree should fix a time within which the redemption is to take place. The general rule in regard to costs upon a suit to redeem is that the plaintiff, although successful in the suit, instead of recovering costs, pays them to the defendant. An exception to this rule is made when the defendant sets up an unwarranted defence, or one which wholly fails, in which case he may be compelled to pay costs. If the amount due is in dispute, although the defendant proves to be in error, yet if he had reasonable ground for his view of the case, the costs will be awarded against the plaintiff: Jones on Mort., §§ 673, 674, 1106, 1111. In Pennsylvania the mortgagor may enforce his equitable rights against the mortgagee in possession, in an action of ejectment. In such case the rents and profits to be accounted for, and the sum due and owing by the mortgagor, will be. determined by the jury: Reitenbaugh v. Ludwick, 31 Pa. St., 131. And the defendant may be charged with the rents and profits of the land up to the date of trial: Stafford v. Wheeler, 93 Id., 462. He shall recover if the debt be paid at any time before the trial, for this would be his right in equity' in a suit to redeem. Where an account is necessaiy to determine whether or not aiything is due on the mortgage debt, in equity he could recover in case it was not wholly paid, upon condition that he pay the balance. In such case why may he not also recover in ejectment? The account is to be settled and the equity to be administered when it turns out that the rents and profits up to the date of trial do not equal the debt, precisely upon equitable principles as if it should happen that no balance was due and owing on the mortgage debt. We are of opinion that the mortgagor is entitled to recover in the former case, as well as in the hitter. This verdict establishes the amount owing by the plaintiff to the defendant on the mortgage debt, and the time within which it may be paid by the plaintiff with interest and costs ; and although in favor of the defendant for the land in question, it is conditioned that it be set aside and judgment entered for the plaintiff upon said payment within the specified time. Its form is incorrect; but its plain meaning is that judgment in favor of the plaintiff for the land shall be entered, “ upon the plaintiff pa.ying to the defendant $241.44 in six months, with interest thereon and costs.” The Act of March 14th, 1872, provides that no verdict shall be set aside for defectiveness in form. Therefore the parties need not lose the fruits of the long trial which resulted in determining the amount remaining unpaid on the* debt after settlement and application of the rents and profits received by the defendant. Judgment reversed, and now judgment is entered on the verdict for the plaintiff for the land claimed, upon condition that the plaintiff shall pay to the defendant two hundred and forty-one dollars and forty-four cents Of241.44), with interest from date of the verdict, and. costs, before taking out execution for delivery of possession ; and the plaintiff to be allowed six months from this date within which period she may make the said payment.

Mr. Justice Sterrett delivered the opinion of the court, If it were not for the alleged parol agreement in relation to the insurance on buildings, effected by plaintiff prior to the contract of sale, he would undoubtedly have been entitled to a verdict for the premises described in the writ to be released on payment of the residue of purchase money, $1,200, and interest, within such time as the jury might have considered reasonable. As to the terms of the written contract of March 30th, 1872, there is of course no dispute. Plaintiff covenanted therein to sell and convey the premises in controversy to defendant, on or before March 29th, 1874, and in consideration thereof the latter agreed to pay $2,200, $1,000 in hand and the residue in two equal annual payments with interest, with the privilege of paying the whole $1,200 within one year or less from that date. It is further provided that payment of the purchase money is “a condition precedent to the execution of the deed or deeds of conveyance” by plaintiff. It is conceded the hand money was duly paid, but neither of the deferred instalments lias ever been actually paid by defendant. Ills contention is that in equity, as between himself and plaintiff, they have been paid and satisfied ; that if plaintiff had acted in good faith in regard to the insurance policy he would have received the insurance money for the buildings which were destroyed by fire before the first deferred payment matured ; that as the result of his bad faith and gross negligence, insurance money fully equal to the unpaid instalments, and which should have been collected and applied in satisfaction thereof, was wholly lost. Shortly before the contract of sale, plaintiff had effected an insurance on the buildings for $1,500, and testimony was received, under exception, tending to prove that it was verbally agreed between the parties that he should continue to hold the policy as collateral security for the unpaid purchase money, etc.; that in pursuance of a mutual understanding that the arrangement was partly, at least, for the benefit of defendant, he at plaintiff’s request shortly before the fire paid, the only assessment that was made on the policy after the contract of sale; that on the day after the fire, plaintiff in response to notice from defendant visited the premises, and bjr his acts and declarations assured him that he would attend to collecting and property applying the insurance money. The testimony tending to prove these and other corroborating facts and circumstances was fairly submitted to the jury with proper instructions, under which they rendered a verdict for defendant. In so doing, they must have found the facts, in relation to the insurance, as claimed by defendant. It was therefore the duty of plaintiff to have taken the proper steps to collect the insurance money. It is contended, however, on his behalf that, assuming the facts to be as the jury must have found them, no such duty rested on him; and, moreover, that by the contract of sale, the policy, not being transferred, became void. There is nothing in the facts of the ease or the law applicable thereto, that Avarrants either of these conclusions. The effect of a mere contract of sale, on the relative rights of the parties thereto and their interest in existing policies of insurance, was considered in The Perry County Insurance Co. v. Stewart, 7 Harris, 45; Insurance Co. v. Updegraff, 9 Harris, 513; Reed v. Lukens, 8 Wright, 200; Hill v. Cumb. Valley M. P. Co., 9 P. F. Smith, 474, and cases therein referred to. In the case first above cited it is said, “ where one has entered into an agreement for the sale of his insured property, but has not made a conveyance thereof, nor received the purchase money, his interest in the property and policy is not thereby parted Avith, so as to bar his right of action on the happening of a loss.” It is also held in Reed v. Lukens, supra, that “ the money due on a policy of insurance for a loss by fire, occurring between the date of such contract and the time fixed for delivery of deed, as between the company and the vendor by whom it was insured, belongs to the latter, but as he is a trustee for the vendee he must account in equity to his cestui que trust for the insurance money.” The same principle is more fully elaborated in Hill v. The Cumb. Val. M. P. Co. supra. This case is also authority on the point that 'the policy was not avoided by the contract of sale. There has been something said about the company having cancelled the polic3r, but we fail to see anything in that position. They had no right to cancel it Avithout returning a ratable proportion of the premium to the assured for the unexpired time, which was not done. The conclusion of the jury vras warranted by the laAv, and the facts found by them. The only question as to which we had any doubt, is whether the admission of evidence to prove the parol agreement as to the insurance policy, impinged on the well known rule against the admission of parol testimony to vary the terms of a written contract. We are not satisfied it did. Moreover, the agreement in relation to the insurance was collateral to and not an essential or necessary part of the contract of sale. It practically constituted a separate and distinct agreement, which was afterwards recognized by the parties and acted upon when plaintiff called on defendant to pay the insurance assessment. The evidence as to their understanding in regard to the policy of insurance was full, clear and explicit, supported by four witnesses, one of whom was plaintiff himself. The case was well tried, and the result reached by the verdict was just and equitable. There is nothing in the case to indicate that the plaintiff in the exercise of reasonable diligence would not have received the insurance money or at least enough thereof to satisfy the deferred payments. It was his duty to do so. Instead of performing that duty, he acted in bad faith, misled the defendant, and the result was the insurance money was lost. The jury came to the conclusion that plaintiff should bear the loss, and in that we think they were right. Judgment affirmed.

Mr. Justice Trunkey delivered the opinion of the court, These plaintiffs were not parties in the case of Sanderson v. City of Scranton, 9 Out., 469, and therefore are not bound by the adjudication. The sole question in that case is the controlling one in this, namely, whether the deed dated May 10th, 1875, by Sanderson and others to Jermyn, “is a lease, properly so called, or virtually a sale of the minerals in place.” Notwithstanding the very able and ingenious argument of the plaintiffs’ counsel we are not convinced that there was error in the interpretation of the deed. Nothing can be added to the opinion of Justice Clark in support of the con■elusion “ that there was such a severance of the surface from the underlying strata as created a divided ownership in these distinct portions of the land.” It may not be amiss to remark some of tlie points of tbe plaintiffs’ argument. At present no question arises respecting the grantors’ security for the purchase money, nor of their power to subject their right under the deed to the lien of a mortgage. Nor is it a part of the case that the great body of coal lands in the Commonwealth are held under similar instruments. And if they are so held the real question remains as to the nature of the estate vested in the grantees. In this instrument the operative word of the grant is “lease,” which signifies to grant the temporary possession of the subject, but in another part, it is provided how long that possession shall continue. “ In consideration of the grant or lease aforesaid” the grantee or lessee agrees to pay a certain sum por ton; the mode of ascertaining the number of Ions, the times of making payment, and the minimum quantity to be paid for annually, are well defined. The moiiéy to be paid is called “payment,” “ price or royalty.” and “royalty,” but the meaning would be the same were the price to be paid for the coal called “ rent.” The stipulated remedies in case of default in payment, are consistent with either a sale or lease, but were the instrument a lease some of them would exist if not therein expressed. When the parties omit to name a term, do not create a lease at will, nor a lease for life, though much of their contract is expressed in words peculiar to a lease, the whole instrument must be taken into view to ascertain the intent. Where it is clear that the owner of a tract of land grants the right to take all the coal beneath the surface, and the grantee obligates himself to mine and remove all said coal and to pay a certain price per ton each month for all coal mined, not loss than a named quantity to be mined and paid for every year, the contract to be binding until, all the coal under the tract is mined, and the rights, covenants and obligations are made binding on the parties, their heirs and assigns, and executors or administrators, there is an actual sale of the coal. It is none the less a sale, if the parties called the deed a loase, and styled themselves lessor and lessee, and contracted that in case of non-payment of the “royalty” the grantor should have the right of distress, or at his option the right to forfeit the grant. A deed on such terms is not a lease at will, nor for a term of years, nor for life. It cannot be limited to the life of the grantee, for should all the coal not be mined at the time of his death, his rights and obligations do not die with him. Leases are generally for a term of years. If for a long term, as a hundred years, though of greater value than if for the life of the grantee, the estate is inferior. The entire body of coal under a tract of land maybe embraced in a lease, and the term be so long that in all probability the lessee will mine the whole of- the coal. Yet a term of years is a chattel, a transient interest in the land. A lease for the life of the lessee vests in him a freehold. A lease of a mine, whether for a term of years or for life, implies the possibility, if not the probability, of its reversion. That the mineral may be partly or wholly exhausted before the end of the term is a result involved in the contract. It is not pretended that the instrument in question is a lease for life. No particular period is named for the duration of a tenancy. Then if it is a lease the tenancy is from year to year. Such tenancy is contrary to the plain intent. The subject of the grant is coal, nothing else save some necessary incidents for mining, and when the grantee shall have, performed his covenants there can be no reversion. It may have been believed, as the plaintiffs allege, that instruments of this character, by settled construction, are mere leases, but we have not been advised of the authority settling such construction. In support of this allegation it is said that these instruments have been recognized as leases in the body of our statutes, and reference is made to the Act of April 27th, 1855, P. L., 369, and its supplement of April 3d, 1868, P. L., 57, relative to the mortgaging of leaseholds; but that statute expressly applies to “every lessee for a term of years.” It embraces no lease that vests a freehold. Nor an absolute grant of the whole body of mineral. Again, it is averred that judicial recognition of such instruments as leases, has been distinct and emphatic, and reference is made to Miners’ Bank v. Heilner, 47 Pa. St., 452; Effinger v. Lewis, 32 Id., 367; Offermau v. Starr, 2 Id., 394; Griffin v. Fellows, 32 Sm., 114; Greenóugh’s App., 9 .Pa. St., 18; Trout v. McDonald, 83 Id., 144; and Winton’s App., 97 Id., 385. Each of the first four of these cases related to a lease expressly for a term of years, Greenough’s Appeal to a lease determinable on one m.ontli’s notice by either party, and in each of the last two cases no question was made respecting the nature of the instrument, and the report does not show that it was not a lease for years. These cases seem to have no bearing upon the proper construction of the instrument in hand. They recognize the fact that a valid lease may be made of a mine; here the defendants deny that the mine was leased. In Sanderson v. City of Scranton, the right of the owner of a tract of land to lease all the coal under the surface is not gainsaid. Nor is it alleged that in Scranton v. Phillips it was decided that the instrument was not a lease, but the remark of the Chief Justice was referred to as evidencing that it was deemed more than a lease. In the late case of Stoughton’s Appeal, 88 Pa. St., 198, tbe instruments were leases, each was for a term of years, of land for tbe purpose of producing or mining oil. It was held that the guardian of a minor, without the approval of the Orphans’ Court, had no power to lease the lands of his ward for mining purposes, as in effect it would be a, grant of a part of the corpus of the ward’s estate. One of the leases having been properly approved, was held valid. The validity of leases of mines has been uniformly recognized by the courts in this Commonwealth. There is a marked difference between a chattel and a freehold — estates created by leases are not all of the same nature. Where by the terms of the deed the ownership of the mineral therein described is vested in the grantee, he is entitled to the benefits and is subject to the burdens incident to its ownership. It is contended that even if there was a sale of the coal, that the provision in the deed relative to taxes on the mined coal implies that the grantors shall pay the taxes on the unmined. The plaintiffs say that at the time of the execution of the deed there had been a tax upon the coal itself when mined, and doubts existed whether the tenant was not authorized to deduct such tax from the royalty or rent. This explains why tbe provision was inserted. At that day, probably, the parties had no thought that unmined coal was taxable as real estate separate from the surface. Their intent must be ascertained from the language in the deed. They meant to insert many covenants similar to covenants usually inserted in leases. In a matter of so much importance had they intended to create a leasehold — a chattel — they would have limited the estate to a “determinate period.” “ The estate of a lessee for years is called a term, terminus, because its duration is limited and determined; for every such estate must have a certain beginning and a certain end.” Where the subject and purpose of the grant involve the mining and removing of the entire thing granted, to be held by the grantee and his heirs until it shall be so mined and removed in accord with his covenants, how can it be said that lie takes a term? What can be more uncertain than the date when the subject shall be exhausted ? What greater estate in the mineral underlying the surface of a tract of land, can a man have than the right in himself, his heirs and assigns, to mine and remove the whole of it? If his title is burdened with covenants and conditions insuring his payment of the purchase money, the burden does not affect the nature of the estate. We are of opinion that there is no express or implied covenant obligating the grantors to pay the taxes assessed on the coal as land, the property of the plaintiffs. Judgment affirmed.

PELLEGRINI, Judge. The Borough of Pottstown (Pottstown or Borough) appeals a final order of the Pennsylvania Labor Relations Board (PLRB) finding that Pottstown engaged in an unfair labor practice by discharging Robert Weid-ensaul (Weidensaul) in violation of Sections 6(l)(a) and (e) of the Pennsylvania Labor Relations Act (PLRA) as read with the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10 (“Act 111”). At the core of this case is the relationship between Pottstown and Philadelphia Steam Fire Engine Co. No. 1 (Philadelphia Volunteers). Philadelphia Volunteers is one of four volunteer fire companies in Pottstown. Each is an independently incorporated nonprofit organization created to fight fires in Pottstown and operates under its own bylaws and internal operating procedures. Each has an independent management structure and is governed by a board of engineers, duly appointed by the president and a company chief. Elected by the volunteer fire company membership to a four-year term, each company chief is responsible for the day-to-day operations of the volunteer fire company and the conduct of its members, but consults with the company president in making any disciplinary decisions. Under its bylaws, the company chief is responsible for promulgating standard operating procedures for each volunteer fire company and participates in the hiring, evaluation and firing of any volunteer fire company employee. During the period in question, Joe Groff was Philadelphia Volunteers’ company chief. While Philadelphia Volunteers, as does the other three volunteer fire companies, fights fires with volunteer members, it also employs three paid drivers to drive the fire trucks to fire scenes as well as performing janitorial duties at the fire company station. Surprisingly, there is very little law governing the relationship between volunteer fire companies and local municipalities that they were created to serve. Perhaps the most exhaustive treatment of that relationship is set forth in Zern v. Muldoon, 101 Pa.Cmwlth. 258, 516 A.2d 799 (1986), where this court set forth a short history of that relationship. In Zem, we quoted from Commonwealth v. Barker, 211 Pa. 610, 61 A. 253 (1905), where our Supreme Court upheld annual appropriations to volunteer fire fighting associations, even though they were private organizations, and characterized the relationship as follows: The protection of the city from fire is a municipal function of the highest importance, and as said in the case just cited ‘a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men.’ At the time of the passage of the ordinance the city had no paid fire department and the appellant association was performing that part of the city’s municipal functions. The fact that it was doing so voluntarily did not make it any the less eligible for appointment as the city’s agent in that regard. Barker at 614, 61 A. at 254. (citation omitted) (emphasis added). To become a city’s agent to fight fires in a particular municipality is dependent upon designation by the local municipality as the volunteer fire company authorized to fight fire within its geographical confines. See Lacey Park Volunteer Fire Company No. 1 v. Board of Supervisors of Warminster Township, 27 Pa.Cmwlth. 54, 365 A.2d 880 (1976). Pottstown has designated Philadelphia Volunteers and three other volunteer fire companies as composing its fire department (Pottstown Code, § 254) and exercises regulatory control over them through the Potts-town Code. See also The Borough Code, Act of February 1, 1966, P.L. (1965), as amended, 53 P.S. §§ 45101-48501. Under the Pottstown Code, the borough fire chief, a part-time employee of Pottstown, supervises and directs the volunteer fire companies fire fighting capabilities. (Pottstown Code § 255). He assigns each fire company its duties and may dismiss any fire company when its services to Pottstown are no longer necessary. (Pottstown Code § 262(1)). The borough fire chief can establish and effectuate “policy, rules and regulations, practices and procedures” required to operate the Pottstown fire department. (Pottstown Code § 262(2)). The borough fire chief may also suspend any member of the fire department, i.e., any member of a volunteer fire company, for insubordination at a fire. (Pottstown Code § 262(3)). While the borough fire chief has overall supervisory responsibilities for controlling the four volunteer fire companies, the Potts-town Code designates each of the volunteer fire company chiefs as an assistant borough fire chief. (Pottstown Code § 258). An assistant borough fire chief, when the borough fire chief is absent and only if most senior, is to coordinate fire fighting activities at the scene of a fire. Each assistant borough fire chief receives compensation “as the Borough Council shall from time to time determine to be paid semiannually from the Borough Treasury.” (Pottstown Code § 260). When the paid drivers decided to unionize, because of this intertwined relationship, even though paid drivers were hired and fired by the volunteer fire companies, the PLRB held that Pottstown and Philadelphia Volunteers were joint employers over the paid drivers for collective bargaining purposes. Because volunteer fire companies are private entities and not within jurisdiction of the PLRB, this dispute involves under what circumstances is Pottstown responsible for unfair labor practices committed by Philadelphia Volunteers, its joint employer. This question was presented to the PLRB as a result of an unfair labor practice filed by Local 3536 of the International Association of Firefighters (Local 3536) involving the termi nation of Weidensaul. Since June 1987, Philadelphia Volunteers employed Weidensaul as a paid driver. In 1990, he began having discussions with other volunteer fire company employees concerning unionization of their work force under Local 3536. By 1993, Weidensaul had become more active in encouraging unionization of the paid drivers by soliciting signatures for union authorization cards and attending meetings to advocate unionization. Partly as a result of Weiden-saul’s efforts, Local 3536 filed for and was granted certification as the exclusive bargaining representative for all full-time and regular part-time paid fire officers and firefighters of Pottstown. In January 1995, unrelated to his union activities, Weidensaul, along with six other drivers, filed a federal lawsuit against three of the four fire companies alleging that the fire companies had failed to compensate their drivers for certain overtime pay in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA). Following the filing of the FLSA lawsuit, Weidensaul was involved in the following incidents: January 17,1995 The Philadelphia Volunteers president posted a memorandum on the fire station bulletin board alerting Philadelphia Volunteers that a FLSA suit had been filed and Weidensaul was a named plaintiff. The memorandum stated that Weidensaul was jeopardizing his job and that all members should express their feelings about the FLSA suit to Weidensaul at a February 2, 1995 meeting. February 8,1995 Weidensaul failed to timely respond to a fire radio call and arrived at the scene of a gas leak fire late. His discipline was suspension for one 24-hour shift. May 26,1995 Weidensaul responded to a fire call and damaged a stop sign while maneuvering down a narrow street but failed to report the incident in violation of Philadelphia Volunteers’ policy. When questioned, he denied running over the sign. His discipline was suspension for two 24-hour shifts. February 8-9,1996 In an attempt to catch an employee who was stealing liquor from the Philadelphia Volunteers bar, Weidensaul was captured on videotape appropriating 2-liters of soda, some candy bars and several quarters from the Children’s Christmas Fund collection jar. On February 12,1996, as a result of his theft, the board of engineers and the company chief terminated Weidensaul. On February 14, 1996, Local 3536 filed an unfair labor practice charge on behalf of Weidensaul against Pottstown and Philadelphia Volunteers as joint employers and the PLRB issued a complaint pursuant to the charge. After receiving evidence, the hearing examiner issued a proposed decision and order concluding that Pottstown and Philadelphia Volunteers “seized upon ... [various] situations] to discipline Mr. Weidensaul as another step in the plan to discharge him for union activity ... during this time period ... [Philadelphia Volunteers’] management was bent on revenge because of [Weidensaul’s] union activity and the filing of the FLSA suit.” The hearing examiner reviewed each of the principal events constituting anti-union animus and concluded the following regarding each of the incidents: January 17,1995 The Philadelphia Volunteers’ president’s memorandum posting and subsequent conduct was anti-union animus because a named plaintiff pursuing a FLSA lawsuit is a protected union activity under Triangle Tool and Engineering, 226 NLRB 1354, 94 LLRM 1108 [1976 WL 7599] (1978) and Apollo Tire Co., Inc., 236 NLRB 1627, 99 LLRM 1138 [1978 WL 7660] (1978), enf'd, 604 F.2d 1180 (9th Cir.1979). February 8,1995 Because Weidensaul arrived to the scene of the gas leak late, and did not fail to show up at all, as characterized by Philadelphia Volunteers, Weidensaul’s discipline was an overreaction to and exaggeration of the incident. Weidensaul would not have been disciplined had it not been for his union activities. May 26,1995 Weidensaul’s running over the stop sign was not as serious as suggested by Philadelphia Volunteers. Further, it was understandable that Weidensaul denied that the event occurred because he was aware of the anti-union animus directed toward him by the members of Philadelphia Volunteers and it was not likely that he would receive a fair investigation of the incident. The discipline in this instance was another step in the plan to discharge him. February 8-9, 1996 Weidensaul’s theft was sufficient in other circumstances to justify his discharge, however, he might only have been disciplined had there not been anti-union animus toward him from Philadelphia Volunteers. Because “the Borough’s assistant fire chiefs—the chiefs of the fire companies— serve as agents of the Borough on site at the volunteer fire companies, and are involved in the daily direction of the employes on site....” , the hearing examiner imputed the conduct of Philadelphia Volunteers to Pottstown and found that both had commit ted an unfair labor practice by disciplining and subsequently discharging Weidensaul. Pottstown and Philadelphia Volunteers filed exceptions to the hearing examiner’s proposed decision and order. The PLRB, in its final order, agreed with the hearing examiner that “the facts reveal that the discharge of Weidensaul was unlawfully motivated and the Borough, through its ‘high ranking official’ [Company Chief/Assistant Borough Fire Chief] Groff, played a leading role in that discharge and preceding discipline.” While it found that Philadelphia Volunteers had committed an unfair labor practice, the PLRB held that it lacked any jurisdiction over the volunteer fire company because it was not an employer as defined by Act 111 —i.e., political subdivisions of the Commonwealth are within that definition but not a nonprofit corporation such as the Philadelphia Volunteers. Nonetheless, because Groff was a “high ranking official” as an assistant borough fire chief, the PLRB imputed his conduct to Pottstown. The PLRB directed Pottstown to reinstate Weidensaul (1) to his former position with Philadelphia Volunteers or to a similar position with one of the other three volunteer fire companies in Pottstown or (2) to a position in Pottstown with equivalent salary and benefits and (3) pay him back pay from the date of his discharge until the present. This appeal followed. Pottstown contends, inter alia, that any anti-union animus instigated and carried out within the domain of the Philadelphia Volunteers cannot be imputed to it based upon the knowledge and conduct of a single individual who is designated as “volunteer fire company chief/assistant borough fire chief’. While no Pennsylvania cases have addressed whether the action of one employer forming the basis of an unfair labor practice can be imputed to the other employer in a joint employer relationship, our courts have been guided by federal interpretations of provisions under the National Labor Relations Act, 29 U.S.C. §§ 151-169, that are similar to provisions under the PLRA. See Pennsylvania Labor Relations Board v. Loose, 402 Pa. 620, 168 A.2d 323 (1961). In America’s Best Quality Coatings Corporation (ABQC) v. National Labor Relations Board, 44 F.3d 516 (7th Cir.), cert. denied, 515 U.S. 1158, 115 S.Ct. 2609, 132 L.Ed.2d 853 (1995) ABQC, a metal plating corporation, transferred its employees to the payroll of Staff Right, Inc., a temporary employment agency, due to economic hardship. During this time, ABQC engaged in various acts of intimidation to thwart unionization of its employees. The union filed an unfair labor practice charge against ABQC with the National Labor Relations Board (NLRB). Finding that Staff Right, Inc. was a joint employer, the NLRB agreed with the administrative law judge that it was not liable for any unfair labor practices because it neither knew nor should have known about ABQC’s discriminatory conduct. In affirming the NLRB’s findings, the Seventh Circuit applied the joint employer liability standard set forth in Capitol EMI Music, Inc., 311 N.L.R.B. 997, 1993 WL 195860 (1993), enforced sub nom., Capitol EMI Music, Inc. v. NLRB, 23 F.3d 399 (4th Cir.1994). In that case, the Fourth Circuit affirmed the NLRB, holding that: [I]n joint employer relationships ... we will find both joint employers liable for an unlawful employee termination (or other discriminatory discipline short of termination) only when the record permits an inference (1) that the nonacting joint employer knew or should have known that the other employer acted against the employee for unlawful reasons and (2) that the former has acquiesced in the unlawful action by failing to protest it or to exercise any contractual right it might possess to resist it ... The burden then shifts to the employer who seeks to escape liability for its joint employer’s unlawfully motivated action to show that it neither knew nor should have known, of the reason for the other employer’s action or that, if it knew, it took all measures within its powers to resist the unlawful action. Adopting and applying that standard to this case, the sole reason that the PLRB found that Pottstown, as the nonacting joint employer, knew or should have known of the unfair labor practice was because Groff was an assistant borough fire chief and because of his knowledge and acquiescence when he was present at or 'involved in some of the discipline of Weidensaul. The PLRB stated: [I]t is apparent that [Pottstown] has, through the provisions of its code, designated the assistant fire chief as an official responsible for the “superintendence and direction of the fire department.” § 255. The [Pottstown] code also provides that the assistant fire chief shall serve as the chief of the individual fire company from which he was elected. § 258. At the [Philadelphia Volunteers], Groff held the dual position of Borough assistant fire chief and [company] chief at the time of Weidensaul’s discharge and for the three years preceding it, during which time the events at issue occurred. Thus, under our plain reading of the borough code, Groff is both a high ranking official of the Borough and the [Philadelphia Volunteers] and is authorized to direct the operations of the fire department at the [Philadelphia Volunteers]. Because the PLRB imputed Groff’s knowledge and acquiescence to Pottstown only because of his designation as an assistant borough fire chief, that designation makes him a “high ranking official” of Pottstown. Whether his conduct can be imputed to Pottstown is determined by whether that characterization is correct. At the very least, a person who is a “high public official” must be considered a manager. In City of Pittsburgh v. Pennsylvania Labor Relations Board, 124 Pa.Cmwlth. 502, 556 A.2d 928, appeal denied, 522 Pa. 626, 564 A.2d 917 (1989), we addressed the standards that had to be met to be considered a manager within the context of fire department officers in a collective bargaining unit. In that case, the City of Pittsburgh filed a petition for unit clarification requesting the exclusion of captains, battalion chiefs and deputy chiefs in the Bureau of Fire from the collective bargaining unit. Upholding the hearing examiner’s findings, the PLRB entered a final order of unit clarification concluding that the positions were non-managerial and should remain within the bargaining unit. In affirming the PLRB’s findings, we applied the test set forth in Fraternal Order of Police, Star Lodge No. 20 v. Pennsylvania Labor Relations Board, 104 Pa.Cmwlth. 561, 522 A.2d 697 (1987), aff'd, 522 Pa. 149, 560 A.2d 145 (1989) {Star Lodge II). In Star Lodge II, we concluded that a position is classified “as managerial when the named function is affirmatively among the powers of the position, and ... [classified] as merely supervisory when the function is absent from those powers[.]” 522 A.2d at 704, 522 A.2d 697. Powers sufficient to classify a position as managerial include: • Policy Formulation—authority to initiate departmental policies, including the power to issue general directives and regulations; • Policy Implementation—authority to develop and change programs of the department; • Overall Personnel Administration Responsibility—as evidenced by effective involvement in hiring, serious disciplinary actions and dismissals; • Budget Making—demonstrated effectiveness in the preparation of proposed budgets, as distinguished from merely making suggestions with respect to particular items; • Purchasing Role—effective role in the purchasing process, as distinguished from merely making suggestions; [and] • Independence in Public Relations—as evidenced by authority to commit department resources in dealing with public groups. Id. We held that deputy chiefs, battalion chiefs and captains were not managerial employees because their primary duties were supervisory and operational in nature. A review of Groffs duties as assistant borough fire chief reveals that he is not a manager of Pottstown. He has neither authority to formulate or implement policies on behalf of Pottstown, nor can he prepare a budget, purchase fire equipment or allocate resources to public groups on behalf of Potts-town. Under the Pottstown Code, he only has to report to the Borough Manager any violation of the Pottstown fire department’s rules and/or regulations and to assume command at the scene of a fire when necessary. The deputy chiefs in City of Pittsburgh only had operational control for fighting fires and recommending discipline, and we have held both functions to be insufficient to character-íze a deputy chief, a full-time employee of the city, as a manager, let alone a designated assistant borough fire chief, who is not elected by Pottstown but by the Philadelphia Volunteers. Accordingly, because an assistant borough fire chief is not a “high ranking official” of Pottstown, his conduct and knowledge of the unfair labor practice against Weidensaul cannot be imputed to the borough and the final order of the PLRB is reversed. ORDER AND NOW, this 1st day of April, 1998, the Final Order of the Pennsylvania Labor Relations Board, dated June 10,1997, is reversed. .Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.6(l)(a) and (c). Section 6(l)(a) of the PLRA provides: It shall be an unfair labor practice for an employer—To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act. (footnotes omitted). Section 6(l)(c) of the PLRA provides, in part: It shall be an unfair labor practice for an employer—By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization ... . The three remaining volunteer fire companies operating in Pottstown are Empire Hook & Ladder Company, Goodwill Fire Company and North End Fire Company. . During the period in question, Charlie Pierce was president of the Philadelphia Volunteers. .Several statutes provide volunteer fire companies with particular benefits, including: volunteer firefighters may become special fire police with full power to regulate traffic, control crowds and exercise all other police powers necessary to facilitate the fire company’s work at a fire or any other emergency, see Section 1 of the Act of June 18, 1941, P.L. 137, as amended, 35 P.S. § 1201; volunteer fire companies are exempt from vehicle title and registration fees, see 75 Pa.C.S. § 1901(b)(2); volunteer fire companies are eligible for low interest state loans in order to purchase equipment, see Section 1 of the Act of July 15, 1976, P.L. 1036, 72 P.S. § 3943.4; an employer may not terminate a volunteer firefighter for missing work while responding to a fire call, see Section 1 of the Act of December 1, 1977, P.L. 249, 43 P.S. § 1201; firefighters are covered under the provisions of the Pennsylvania workers’ compensation act when engaged in fire fighting activity, see Section 601 of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1031; boroughs may enact legislation and make regulations for fire safety, see Section 1202 of the Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202, and may make appropriations to volunteer fire companies, see Section 1302 of the Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46302; the state may regulate relief companies, see Section 1 of the Act of June 11, 1968, P.L. 149, 53 P.S. § 8504; and a fire station is exempt from property taxes, see Section 202 of the Act of May 21, 1943, P.L. 571, as amended, 72 P.S. § 5453.202. . Prior to the PLRB’s final decision, Pottstown amended its municipal ordinance (Ordinance 1830) "to revise and modify certain powers and duties of the [borough] fire chief; to establish the composition and role of the borough fire committee; [and] to provide for independent internal organization of the volunteer fire company.” We note, however, that these amendments are not pertinent to our appellate review since they were enacted in September 1996, eight months after Weidensaul’s termination. . The PLRB's decision was affirmed by this Court in the unreported decision of Borough of Pottstown v. Pennsylvania Labor Relations Board, (No. 389 C.D.1996, filed September 8, 1997), petition for allowance of appeal denied, 548 Pa. 620, 693 A.2d 590 (1997). The parties to this action have stipulated to the incorporation of the entire record from that proceeding into the Record of this proceeding. . Local 3536’s representation did not include the borough fire chief, fire marshal or any managerial employees. . The three volunteer fire companies involved in the FLSA suit were Philadelphia Volunteers, Empire Hook & Ladder Company and North End Fire Company. . We note that events characterized as unfair labor practices must in and of themselves substantively support the underlying charge because a subsequent discharge alone is insufficient to support this contention. See Pennsylvania Labor Relations Board v. Frank V. Rizzo, 21 Pa.Cmwlth. 216, 344 A.2d 744 (1975). . The unfair labor practice charge stated "that ... Pottstown and [Philadelphia Volunteers] ... engaged in unfair labor practices contrary to the provisions of [PLRA], Section 6, subsection (1), clause(s) (a), (c) and (d).” . Local 3536 also alleged a violation of Section 6(l)(d) of the PLRA against Pottstown and Philadelphia Volunteers, but the hearing examiner found no evidence to support this allegation and dismissed it from the complaint. . Weidensaul alleges and the hearing examiner accepted as fact that he was the target of several instances of anti-union animus. In the summer of 1993, Weidensaul received a verbal reprimand that was documented for the unauthorized use of equipment when he used a fire truck to collect union dues. In September 1993, Weidensaul was accused of stealing cigarettes from the fire station bar but was never disciplined. After filing the FLSA lawsuit, Weidensaul found "Dr. Kevorkian” notes in areas where he would be sure to find them; a help wanted sign was posted on the bulletin board for an emergency medical technician (EMT) although Weidensaul had EMT certification with the volunteer fire company; "loyalty” signs were posted; "cave man" cartoons were posted on the bulletin board to denigrate unions; Weidensaul’s name was crossed out from an invitation list for an appreciation night event to which all members of the volunteer fire company were invited; and when he left his helmet overnight at the station, Weidensaul found it the next day with the eyes gouged out. Weidensaul also contends that he began to experience harassment outside of the work place at his home including a Valentine’s Day card containing a death threat and a smashed car window. . In addition to the incidents leading to his discharge on February 12, 1996, Weidensaul was involved in other incidents regarding his conduct at work: Summer 1993 Weidensaul received a verbal reprimand, documented in writing, for the unauthorized use of fire company equipment. September 1993 Groff and chief engineer Stillings accused Weidensaul of stealing cigarettes from the bar. Weidensaul agreed to pay for the cigarettes but was not disciplined for the incident. June 16, 1995 Weidensaul received another verbal reprimand, documented in writing, for the unauthorized use of fire company equipment because he used a fire truck to collect union dues from members at another volunteer fire company. .The hearing examiner also based his decision in part on a previous proceeding. In Local 3536’s certification petition, reported at Pottstown Borough, 27 PPER ¶ 27043 (Final Order, 1996), the PLRB, in its final decision dated January 16, 1996, concluded that "the Borough exercises sufficient control over various terms and conditions of employment of the paid firemen to support a conclusion that the Borough is at least a joint employer of the paid firemen.” The PLRB’s decision was affirmed by this Court in the unreported decision of Borough of Pottstown v. Pennsylvania Labor Relations Board, (No. 389 C.D.1996, filed September 18, 1997), petition for allowance of appeal denied, 548 Pa. 620, 693 A.2d 590 (1997). . Section 1 of Act 111 extends the right to bargain to "[pjolicemen or firemen employed by a political subdivision of the Commonwealth or by the Commonwealth ...” 43 P.S. § 217.1. . This Court’s scope of review is limited to a determination of whether an error of law has been made, whether constitutional rights have been abridged, or whether the PLRB’s findings of fact are supported by substantial evidence on the record. Township of Upper Saucon v. Pennsylvania Labor Relations Board, 152 Pa.Cmwlth. 530, 620 A.2d 71 (1993). .As an alternative, Pottstown argues that Weid-ensaul’s discharge was not a pretext to terminate him because of his union activities, but was the result of several instances of misconduct during the course of his employment. However, because of the manner in which we resolve this case, we need not address that argument. . The only conduct set forth to demonstrate Groffs knowledge and acquiescence is the following: February 2,1995 Pursuant to the January 17, 1995 posted memorandum, Groff was present at the Philadelphia Volunteers’ meeting when the president expressed his feelings about Weidensaul’s union activities and his involvement in the FLSA lawsuit. February 1995 Groff contacted Weidensaul and another volunteer fire company operator to investigate the February 18, 1995 incident where Weidensaul failed to respond to the first call of a gas leak. May 26,1995 Groff contacted Weidensaul and several witnesses to investigate whether Weidensaul had damaged a stop sign while trying to maneuver down a narrow street. February 12, 1996 Groff was present at and participated in the special meeting held to discuss whether charges would be brought against Weidensaul for his theft caught on videotape. On this same day, he commented to Mrs. Weidensaul that "this is all because of what is going on”, however, the Record is unclear as to the exact meaning of this comment. . The term "high public official” is a term of art used to determine whether a public official is absolutely immune from suit. In that context, a Pottstown assistant borough fire chief would not be one. See Bass v. Cuyler, 36 Pa.Cmwlth. 74, 387 A.2d 964 (1979); Staley v. Commonwealth, 33 Pa.Cmwlth. 22, 380 A.2d 515 (1977).

MONTEMURO, Judge: In this lender liability action, Appellant, Fidelity Bank, appeals from the denial of post-trial motions and entry of judgment in favor of Appellees, Kehr Packages, Inc. and Charles and Emily McMurtrie and James McMurtrie (the McMurtries), in the total amount of $3,251,585.00 arising from a breach of an alleged oral agreement. Appellant primarily contends that the trial court erred in failing to bar the admission of evidence concerning this alleged oral agreement pursuant to the parol evidence rule. We agree, and, therefore, reverse. Appellee-Kehr is a Pennsylvania corporation engaged in the business of printing cellophane packaging wrappers for the snack food industry. In 1986, Roger Kehr negotiated the sale of Kehr Packages stock to Appellees Charles and James McMurtrie for the purchase price of $3,750,000. Soon thereafter, Appellant-Fidelity issued a -written commitment to the McMurtries to finance the purchase and provide working capital financing for the company. The transaction by which the McMurtries acquired the Kehr Packages stock was what is commonly referred to as a “leveraged buyout,” the entire funding of which was provided by the Fidelity loan. Fidelity’s commitment was to lend the McMurtries a total of $4,165,000; $3,750,000 would be disbursed to fund the purchase price, and the balance would be used to finance closing costs and provide Kehr with a working capital line of credit. The closing took place on December 12, 1986. During the morning, the parties completed the requisite written documentation between the McMurtries and Roger Kehr concerning the sale of assets. During the afternoon, the transaction moved to the bank financing component and involved the execution of a number of documents, including, inter alia, a written credit agreement, various promissory notes, real property mortgages, and financing statements. Appellee-James McMurtrie testified that towards the end of the closing he realized that there were insufficient monies to fund the closing costs and still.reserve a line of credit sufficient to continue operation of Kehr Packages. McMurtrie had anticipated that after the payment of closing costs, a balance of $350,000 would remain to fund a working capital line of credit; however, when he reviewed the settlement sheet only $165,-000 was left for the line of credit. Thereafter, the settlement was temporarily adjourned, and the McMurtries, with counsel, discussed the situation among themselves in a separate room. Following the session with counsel, the McMurtries met with James Noon and Neil Cohen, agents of Fidelity, who, according to the McMurtries, entered into an oral agreement promising to “term out” a line of credit in the form of an additional loan for $185,000, so that Kehr would have $350,000 working capital line of credit. After this meeting, the parties returned to the settlement table and completed the closing. Both Cohen and Noon testified, however, that they made no promise either to lend additional monies to Kehr or to alter the available line of credit. The terms of the alleged oral agreement were never included in any of the loan documents signed at the time of settlement or in other correspondence at any time thereafter. By the summer of 1987, Kehr began to experience financial difficulty, and, although it was able to acquire additional working capital from other sources, it went into default on the loans. Fidelity confessed judgment against Kehr and the McMurtries, and assumed management control of Kehr, liquidating its assets and foreclosing on some of the real estate which secured the loans. After the proceeds from the sale of assets were applied to the outstanding debt, Kehr and the McMurtries remained indebted to Fidelity for the $3,001,585.25 balance left under the loans. On June 18, 1990, Appellees, Kehr Packages and the McMurtries, filed suit against Appellants, Fidelity, Thomas Donnelly, Neil Cohen, and James Noon for breach of contract, negligent misrepresentation, and tor-tious interference with a contract. Following a bifurcated jury trial, Appellants were found liable to Appellees for breach of contract, promissory estoppel, and negligent misrepresentation. After the damages phase of trial was completed, the jury awarded Appellee-Kehr $3,001,585.00 against all Appellants, jointly and severally, in addition to awarding Appellees Charles and Emily McMurtrie the sum of $250,000. Both parties filed post-trial motions, and, following oral argument on June 12,1995, these motions were denied by Order dated January 6, 1997. Appellants filed this timely appeal presenting several issues for our review, the first of which challenges the admissibility of evidence of the alleged oral agreement under the parol evidence rule. Appellants first contend that [t]he trial court erred in allowing the jury to hear evidence of an alleged oral promise to make an additional $185,000 loan to Kehr without first deciding whether, as a matter of law, the alleged oral agreement was barred by the parol evidence rule. This error was then compounded when the trial court allowed the jury to decide whether the alleged oral promise was made either before or after (but not contemporaneously with) the execution of the “Credit Agreement.” (Appellants’ Brief at 15). Appellees sought the introduction of evidence concerning the alleged oral agreement to show that Appellants modified the written Credit Agreement, which governed the terms, conditions, and amounts of the loans, by orally agreeing to lend Appellees an additional $185,000. Appellants contend, however, that although it fails to contain an integration clause, the written Credit Agreement was a fully integrated document containing the final expression of the parties, and, therefore, the court erred by permitting parol evidence of the alleged oral modification. We first note that our standard of review regarding a challenge to the admissibility of evidence is very narrow; we will only reverse a ruling of the trial court if there is an abuse of discretion or error of law. Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 412-13, 595 A.2d 1211, 1215 (1991). The parol evidence ride states that, absent fraud, accident, or mistake, parol evidence of a prior or contemporaneous oral agreement is not admissible to alter, vary, modify, or contradict terms of a contract which has been reduced to an integrated written instrument. Id. Therefore, before we permit the parol evidence rule to bar evidence of the alleged oral agreement, we must determine whether this agreement was made prior to or contemporaneous with the Credit Agreement, as well as whether the Credit Agreement is an integrated writing. Appellants contend that since this alleged oral agreement was made during the course of settlement, it was contemporaneous with the execution and delivery of the integrated Credit Agreement, and, therefore, any evidence concerning this oral modification is barred by the parol evidence rule. However, the trial court determined, and Ap-pellees argue, that the relevant inquiry is whether the oral agreement occurred before or after the signing of the Credit Agreement. In essence, the focus is on the Credit Agreement as the controlling document, and, according to this analysis, if the oral agreement was made after the Credit Agreement was signed, it constitutes a subsequent modification, the evidence of which is not barred by the parole evidence rule. Upon review of the applicable authority, we disagree with this analysis and find that the trial court’s focus upon the actual signing of the Credit Agreement as the determining factor for the application of the parol evidence rule was erroneous. The alleged oral agreement occurred during settlement proceedings on December 12, 1986. During the day-long course of this closing, Appellees executed a number of documents, including the Credit Agreement, security agreement, various promissory notes, and UCC-1 financing statements, all of which related to their financing obligations to Appellant-Fidelity Bank. However, near the conclusion of this proceeding, Appellee-James McMurtrie discovered that insufficient monies remained to satisfy both the closing costs and reserve a $350,000 line of credit for working capital. It was at this time, before settlement had been completed, that Appel-lees insisted upon a temporary adjournment so that they could discuss this matter with their attorney. Following this meeting with counsel, Appellees spoke with the agents of Appellant-Fidelity, Noon and Cohen, during which time they allege that Appellants orally promised to lend an additional $185,000 line of credit. Soon thereafter, Appellees returned to complete the settlement proceeding. Appellants deny that any oral promise was ever made. We find that the trial court’s decision to designate the execution of the Credit Agreement as a terminus beyond which point evidence of all other agreements would not be barred by the parol evidence rule improperly attempts to create a distinction without a difference. This Credit Agreement, which undisputedly controls, inter alia, the type and amount of the loans, was but one document of many executed in the course of the lengthy settlement proceeding. Upon review, it is clear that this settlement proceeding constituted one transaction in which Appellees sought to obtain financing from Appellant-Fidelity to fund their purchase of Kehr Packages. The execution of one specific agreement, i.e., the Credit Agreement, cannot be divorced from that of other, interrelated agreements within the same transaction when it is clear that the rights and liabilities of the parties to this transaction did not attach until the conclusion of settlement, when all of the documents had been duly executed and delivered and the monies distributed. Thus, focusing upon the actual point in time at which one of numerous documents was signed in the course of a complex financial transaction improperly places form over substance, and creates an absurd distinction between contemporaneous and subsequent modifications which was surely not within the contemplation of the parol evidence rule. All of the documents, including the Credit Agreement, relating to the financial obligations between Appellants and Appellees were executed and delivered within essentially one transaction which constituted the entire settlement proceeding between these parties. Accordingly, we find that the alleged oral agreement, which undisputedly occurred during this transaction, was contemporaneous with the execution of the Credit Agreement. Next, we must determine whether the Credit Agreement, which the alleged oral agreement purports to modify, constitutes an integrated writing which would bar the admission of any parol evidence seeking to alter its terms. Initially, we note that the “purpose of the parol evidence rule is to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations.” Lenzi v. Hahnemann University, 445 Pa.Super. 187, 195, 664 A.2d 1375, 1379 (1995) (citation and internal quotation marks omitted). Therefore, before the parol evidence rule is applied, the court must determine, as a matter of law, whether the writing at issue is an integrated agreement. McGuire v. Schneider, Inc., 368 Pa.Super. 344, 349-51, 534 A.2d 115, 118 (1987). A written contract is “integrated” if it represents a final and complete expression of the parties’ agreement. Lenzi, 445 Pa.Super. at 194-96, 664 A.2d at 1379. In the instant ease, the trial court determined that the Credit Agreement was not an integrated writing because of the absence of an integration clause. The court stated that “[n]othing in the parties’ written agreement supports the contention that it was intended as a complete and exclusive statement of the terms of the agreement.” (Trial Ct. Op. at 9). We note, however, that although the presence of an integration clause within an agreement makes the parol evidence rule particularly applicable, McGuire, 368 Pa.Super. at 347-49, 534 A.2d at 117, its absence does not automatically subject the written agreement to parol evidence. See International Milling Co. v. Hachmeister Inc., 380 Pa. 407, 417, 110 A.2d 186, 191 (1955)(holding that “the presence of an integration clause cannot invest a writing with any greater sanctity than the writing merits-”). Rather, in the absence of an integration clause, the court “must examine the text [of the agreement] to determine its completeness.” Henry v. First Federal Savings & Loan Assoc., 313 Pa.Super. 128, 136, 459 A.2d 772, 776 (1983)(affirming summary judgment and finding evidence of alleged prior oral representations were barred by the parol evidence rule upon finding that, even in absence of integration clause, -written loan agreement was complete as to such matters). See Gemini Equipment, supra (barring evidence of alleged contemporaneous oral agreement to vary terms of written agreement; despite absence of integration clause, the writing was fully integrated since it unambiguously detailed the parties’ rights and obligations). In examining the Agreement at issue, we are mindful that typically, in cases such as this, “where the cause of action rests entirely on an alleged oral understanding concerning a subject which is dealt with in a written contract, it is presumed that the writing was intended to set forth the entire agreement as to that particular subject.” Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 324, 126 A. 791, 792 (1924)(landmark case discussing parol evidence rule). Further, it is well established that parol evidence of a contemporaneous oral agreement is inadmissible if the subject of such agreement would naturally and normally have been included in the writing between the parties. Gemini Equipment, 407 Pa.Super. at 414, 595 A.2d at 1216 (stating that “parol evidence is not admissible to show an agreement which normally is found in the written instrument.”). Therefore, if the written agreement and the alleged oral agreement “relate to the same subject-matter and are so interrelated that both would be executed at the same time, and in the same contract, the scope of the [oral] agreement must be taken to be covered by the writing.” Gianni 281 Pa. at 324, 126 A. at 792. Despite the absence of an integration clause, we find that the Credit Agreement in the instant case is a fully integrated contract. In comparing the contents of the alleged oral agreement and the written Credit Agreement, it is clear that both address the same subject-matter and are greatly interrelated. Appellee-James McMurtrie testified that Fidelity’s agents agreed to “term out” a line of credit in the form of an additional loan of $185,000. Allegedly, this loan was to be governed by the same terms and conditions as the other loans which were enumerated in the Credit Agreement, and, therefore, according to Appellees, the only thing that was not in writing was the amount of this “additional” loan. The text of the Credit Agreement provides in minute detail the rights and liabilities of the parties, including, inter alia, the exact amount of money that Appellant-Fidelity was to lend Appellees, the type of loan which was advanced—either a “Term Loan” or a “Line Loan” —as well as the collateral or security which Appellees pledged for the loans. Perhaps most revealing, however, is the fact that under the Credit Agreement, all loans are required to be evidenced by either a Term or Line Note, and, as a condition precedent to the advancement of the loans, Appellees were to deliver to Appellant-Fidelity such duly executed Notes. Therefore, it is clear that by its very terms, this alleged oral promise to advance an additional Line Loan of $185,000 for working capital is precisely the type of thing that would naturally and normally have been contained in the written Credit Agreement. In fact, in addition to other Term Notes, Appel-lees executed and delivered a $600,000 Line Note at settlement. However, although Ap-pellees claim that the alleged $185,000 loan was to be governed by the terms of the Credit Agreement, this amount is not evidenced in any way by a Line or Term Note, as mandated by the Agreement. Indeed, it is difficult to fathom why, despite ample opportunity before the conclusion of settlement to incorporate this additional $185,000 loan into the Credit Agreement, Appellees, who were not only represented by counsel, but who are also sophisticated business people, failed to do so. It is all too clear that Appellees “should have protected themselves by incorporating in the written agreement the promises or representations upon which they now rely_” McGuire, 368 Pa.Super. at 353, 534 A.2d at 120. As a result, we conclude that evidence of the alleged contemporaneous oral agreement is barred by the parol evidence rule since it is offered solely to modify or add to the terms of the integrated written Credit Agreement. Judgment reversed. Case remanded for new trial limited to the issue of damages. Jurisdiction relinquished. CAVANAUGH, J., files a Concurring Opinion. .Emily McMurtrie’s involvement in this transaction exists only to the extent that she and her husband, Charles, were joint owners of various real estate parcels, the mortgages of which were granted in favor of Fidelity Bank pursuant to the financing agreement involved in Appellees’ purchase of Kehr Packages, Inc. . Appellees also raise a cross-appeal challenging the damages award; however, in light of our disposition of the instant matter, we need not address the issues contained in this cross-appeal as all of Appellee’s issues are based upon the assumption that evidence of the alleged oral agreement is admissible. . In view of our disposition of this issue, we need not address Appellant’s remaining contentions. . The jury also found in favor of Appellees upon their claim that Appellant-Fidelity liquidated Kehr’s assets in a commercially unreasonable manner. This claim was initially filed under a separate action and was later consolidated for trial with the instant case. . The trial court concluded that this was a factual question to be determined by the jury through special interrogatories which asked whether the oral agreement was made before or after the signing of the Credit Agreement. Over Appellants’ objection, and contrary to the language of the parol evidence rule, the court refused to instruct the jury as to whether the agreement was "contemporaneous with” the execution of the Credit Agreement. The jury found that the oral agreement occurred after the Credit Agreement was signed. . According to the Credit Agreement, Line Loans were provided for general working capital purposes, the advancement of which was in the sole discretion of the Bank. See Credit Agreement ¶¶ B, 2.1. . We note that a second suit filed by Appellees against Fidelity for commercially unreasonable liquidation of Kehr's assets was consolidated for trial with Appellees' breach of contract complaint. The jury specifically found Fidelity liable on the basis of unreasonable liquidation. Fidelity’s liability on this ground, which is not at all dependent upon the existence of the alleged oral agreement, was not challenged on appeal, and, thus, remains unaffected. Appellees’ damage award, however, was not allocated between the causes of action. Accordingly, we remand this matter so that the trial court may conduct a new trial limited to the issue of damages related to the unreasonable liquidation claim.

Mr. Justice Sterrett delivered the opinion of the Court, After fully and sufficiently setting forth their authority to act as a board of water commissioners in the construction of the public water works under the provisions of the Act authorizing the same, the plaintiffs below aver that they have selected a site for the erection of such works and the buildings and appliances necessary thereto, and also a site for the reservoir, etc., as the law provides; “ that said locations, in their judgment, are in every way suitable and convenient, and the amount of land in quantity ample for the purpose; that arrangements have been made with the owners for the purchase of said land upon terms and for a price reasonable and just.” Then follow the averments of fact which, it is claimed, constitute such neglect of duty, on the part of the town council, as warrants the issuance of the mandamus, viz : “ That the town council of the borough of Easton have been from time to time duly notified, in writing and otherwise of the action of your petitioners, and have been called upon to issue the bonds to raise tbe money necessary for them to carry out the provisions of the law, and to discharge the duties imposed upon them thereby.” “That the said, the town council, have hitherto neglected and-refused to comply witli the request of your petitioners, and to take such action in the premises as the law provides.” In response to these averments, the defendants below, members of the town council, in the third paragraph of their answer to the alternative writ, aver, inter alia, “That the said water commissioners have not yet informed the said town council whether they have made any contract to construct the said works, or whether they will construct them otherwise than by contract. That they have not informed the said town council how much money will be required, during the year 1882 or during any other period of time, for the construction of said works or any part thereof; nor, have they requested the said town council to appropriate any specific sum of money to the construction of said water works.” “ That your respondents are advised that a reasonable construction of the said Act of Assembly does not require the said town council to borrow money or issue bonds for the construction of said water works, unless they should find that the current revenues of the said borough from year to year should be insufficient for the payment of the cost and construction of the said water works, and that as the said water commissioners have not furnished the said town council with any estimate or statement either of the contract price of constructing said water works, or of the probable cost of constructing the same otherwise than by contract, the said town council have had no data or basis upon which to make appropriations for the construction of said works, and these respondents are advised that they are not required to vote for the issue of bonds by the said corporation until it be ascertained that the current revenues of the said borough are insufficient to pay for the cost of said works.” While the petition in the inducement clauses thereof, is sufficient, it is defective in not setting forth such facts asare necessary to show that the town council was in default in not discharging the duties devolved on them by the Act. Conceding to the board of water commissioners the most extended authority they can possibly claim under the Acts recited in their petition, it was surely their duty to furnish the town council with full and specific information, of the nature and character set forth in the above quoted portions of the answer, including an estimate or estimates of the amount that would be required to prosecute the work entrusted to them, and make due and timely requisition on the council for the amount so required. While the powers of the board are large and ample, their authority is not supreme. The town council are charged with the duty of providing the funds necessary to construct the water works ; but, in order that they may discharge that duty properly, they should be furnished with such information as will enable them to act intelligently and for the best interests of their constituents. They are clothed, it is true, with authority “ to issue bonds to raise money necessary for the purposes of the Act ” but they are the judges of the necessity for doing so. If they find that the current revenues of the borough from year to year are sufficient to pay for the construction of the works, they are not required to create a bonded indebtedness under the authority given them by the Act. For these and other reasons that might be suggested, it is obvious that the town council should be formalty and officially furnished with such information as has been suggested and is not averred in the petition. The petition being defective in that regard the writ of mandamus should not have issued. But, aside from this, assuming that the averments of the petition above quoted sufficiently charge the town council with neglect of duty, it should be observed these averments are not all admitted by the pleadings. On the contrary, the converse of some of them is thereby admitted. By demurring to the answer the plaintiffs below admit everything that is well pleaded therein, whether by way of traverse or otherwise. They thus admit, for example, the averments of fact above quoted from the third paragraph of the answer, among which are, that they never “ informed the town council how much money would be required during the year 1882, or during any other period of time, for the construction of said works or any part thereof; ” that they never “requested the town council to appropriate any specified sum. of money to the construction of said water works; ” and that they never “ furnished the town council with any estimate or statement either of the contract price of constructing said water works, or of the probable cost of constructing the same otherwise than by contract.” We have already said it was their duty to do these things before they are in a position to charge the town council with negligence and refusal to perform their duty. This is an additional reason why the peremptory writ of mandamus should not have issued. The second to fifth specifications of error inclusive are sustained. In the first specification it is claimed “ the court erred in deciding that the issue of bonds commanded in the alternative writ of mandamus was not in violation of Section 8, Article IX. of the Constitution.” This presents substantially the same question that was considered and passed upon by this court in Wheeler v. Philadelphia, 27 P. F. S., 352; and Pike County v. Rowland, 13 Norris 238. The very able and ingenious argument of the learned counsel for defendants below has failed to convince us that there is any error in the construction given by the learned judge to the constitutional provision above referred to. The first assignment is dismissed. Judgment reversed and judgment for defendants below on the demurrer.

Opinion by Mr. Justice Fell, The defendant, Catharine Doyle, claiming to own the party wall between her premises, No. 2009 Pepper St., and the adjoining premises, No. 2011 Pepper St., obtained an injunction restraining the owner of No. 2011 from using the wall without making compensation therefor. After the injunction had issued the lot No. 2011 with the unfinished building was sold at sheriff’s sale and purchased by Thomas J. Rose, who conveyed it to the plaintiffs. The plaintiffs, desiring to complete the building, tendered to the defendant the price of the party wall. She declined to receive the money unless they would pay also the costs of the injunction proceeding against the former owner of the property, and she attempted by rule to make them parties to the proceeding. At the hearing of the rule to show cause the tender was again made and declined for the same reason. The rule was discharged November 25,1893, and on January 3, 1894, at the request of the defendant she was paid in full for the wall. It was subsequently ascertained that the defendant’s grantor had reserved the party wall and that she had no title to it or right to compensation for it, and this action was brought to recover back the money which the plaintiff had paid her. There is no ground for the argument that this payment was made in mistake of law, or in settlement or compromise of a doubtful right. The defendant asserted her ownership of the wall, and the plaintiffs relying on her statement at once agreed to pay for it, and tendered the price. She attempted to exact the payment of the costs of a legal proceeding to which they were not parties and for which they were not liable. They refused to pay the costs, and the court refused to make them parties to the proceeding. This was the only litigation to be compromised, and there was no compromise of it. They successfully resisted her unfounded demand, and the proceeding as far as it concerned them was ended. Recognizing their duty to pay the owner of the wall, and relying upon her assertion of ownership, they paid her. It was a pure mistake of fact. The defendant sold what she did not own. There is nothing to take the case out of the rule that money erroneously paid under a mutual mistake of fact may be recovered back. The mere omission to take advantage of means of knowledge within the reach of the party paying does not prevent a recovery: Notes to Marriott v. Hampton, 2 Smith’s Leading Cases, 414; Meredith v. Haines, 14 W. N. C. 364. It was said in the latter case: “ It is not sufficient to prevent a party from recovering money paid by him under a mistake of fact that he had the means of knowledge of the facts unless he paid it intentionally, not choosing to investigate the facts.” The judgment is affirmed.

Per Curiam, All that need be said in vindication of the judgment for defendant on the demurrer will be found in the clear and convincing opinion of the learned president of the common pleas, and on it we affirm the judgment. Judgment affirmed.

Opinion by Mr. Justice Williams, This is a controversy between neighbors over a very narrow strip of land lying along the boundary line between them. Their farms are on adjoining warrants. The elder of these was located in 1773 by an ancestor of the defendant, and the title to the farm on which he now resides has been in the descendants of the warrantee continuously from the time of its original location to the present. The warrant on which the plaintiff’s farm is, was located about 1790 as an adjoiner of the elder warrant, and the line as run in 1773 became thereby the boundary of the younger warrant. There was evidence tending to show that for more than half a century both farms had been continuously occupied by their respective owners, and that a fence had been maintained as a division or line fence between them, up to which each had claimed and occupied without the slightest objection on the part of the other. The line of the fence which extended along most of the common boundary was intended, and assumed, to be upon the warrant line, and the improvements along it had been made to conform to it on both sides. In 1890 the plaintiff acquired his title to the farm lying within the younger warrant. The fences along the line were then standing as they had stood for many years before; but he conceived the idea that they were not, as to the part of the line involved in this litigation, standing on the exact site of the line of 1773, and this action of ejectment was brought for the avowed purpose of compelling the removal of the fence to what he regarded as the true line of the original warrant survey. The case was tried in the court below as depending on the answer to the question, Where was the line of 1773 actually run ? The assignments of error complain of this mode of trial, and of the refusal of the court below to submit to the jury the question whether the owners of these farms had not by their treatment of the line fences established for themselves the location of the line? The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open adverse possession by the other of that which is on his side of such division fence, which, after twenty-one years, will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line. There was evidence given by both the parties upon which the defendant was justified in asking the submission of this question to the jury; and if the fact had been found to be that a division fence had been maintained by the owners of these farms for more than twenty-one years before this suit was brought, which had been built and maintained as a line fence, extending over that part of the line now in controversy, we think the verdict should have been in favor of the defendant. The value of such a fence does not rest upon the acts of him. who alleges its existence merely but upon its recognition and maintainance by the owners of the farms which it separates, as the line between them. After twenty-one years of occupancy up to' a fence on each side, as a line fence, it is not material to inquire whether the fence is on the right line or not: Brown v. McKinney, 9 Watts, 567. If this question had been submitted to the jury and they had found against the defendant upon it, then it would have become the duty of the jury to inquire into the exact location of the warrant line established in 1773, and to have adopted it as the boundary line between these farms. But they should have been directed to inquire in the first place whether the owners of the land on both sides of this line had not in effect agreed upon its location, built their division fence accordingly, and held and occupied respectively up to the fence as their common boundary for more than twenty-one years before this suit was brought. If this fact had been found for the defendant he was entitled to a verdict regardless of the true location of the warrant line. The judgment is reversed for the reason now stated and a venire facias de novo is awarded.

Per Curiam, There was no error in making the decrees referred to in the first specification, nor in dismissing the exceptions to the master’s report recited in the third specification. The questions involved in the assignments of error, so far as they are material, have been so fully considered by the learned master that we deem it unnecessary to add anything to what he has said. The decree is affirmed on his report, and the appeal is dismissed with costs to be paid by the defendant.

Opinion by Mr. Justice Fell, The under side of the iron grate which covered the coal hole jato which the plaintiff fell had become so worn at the edge where it rested on a stone ledge that it slipped out of place when she stepped on it. The ledge had also become worn, increasing the danger of the displacement of the grate. These defects were not apparent, and could not have been seen by any one on the pavement. The grate projected half an inch above the surface of the pavement, and had occasionally been displaced by passers-by who struck it with their feet. How often this had occurred before the plaintiff’s injury does not clearly appear from the testimony, but giving full effect to all the testimony in her behalf it had not occurred more than two or three times, and had not resulted in injury to any one. By the defendant’s fourth point the court was asked to charge that in the absence of actual or implied notice of the condition of the hole the city was not bound to examine it in order to ascertain its condition, and that notice of its defective condition could not be implied if the defect could not be seen without removing the cover and making an examination, and that in tbe absence of notice the city was not bound to do this. This is the fair effect of a not clearly expressed request for instructions to the jury, and it should have been affirmed. It is the duty of a municipality to exercise a reasonable supervision over its sidewalks; but as the first duty in relation to them rests upon the property owner, and that of the city is secondary only, it is not liable for defects without notice, actual or implied, of their existence. As was said in the recent case of Lohr v. Philipsburg, 156 Pa. 246, a municipality is not obliged to seek for defects, but to be “ vigilant to observe them when they become observable to an officer exercising a reasonable supervision.” The instruction on the subject in the general charge was clear and accurate as far as it went, but it did not cover the point raised or remedy the error complained of. The learned judge told tbe jury that to impose liability the city must either have had actual notice of the defect, or the defect must have been of such a character or of so long standing that the city must be presumed to have had notice, but the character of a defect of which notice will be imputed was not pointed out. The fifth point, which is the subject of the fourth assignment of error, is defective in asking for a peremptory direction for the defendant. This could not have been affirmed, as .there was testimony of actual notice. The question presented by the eighth assignment was not raised by the testimony. The third assignment of error is sustained, and the judgment is reversed with a venire facias de novo.

Per Curiam, The act complained of in this case was done in the exercise of an unquestionable equity power of the court below. In November, 1894, judgment in default of sufficient affidavit of defense was entered against the defendant. On his application, a week thereafter, a rule to amend the assessment of damages was granted. By agreement of counsel for both parties that rule was “ treated as a rule to open the judgment ” theretofore entered; and on December 22, 1894, the same was made absolute. The action of the court in thus opening the judgment and letting the defendant into a defense is assigned as error. The proceeding under the rule, as modified by agreement,, was virtually an appeal to the equity power of the court which, in all judgments by default, may be invoked by the defendant. In such applications, “ it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and this court will not reverse for the exercise of a sound discretion:” Wernet’s Appeal, 91 Pa. 319. That appears to have-been done in this case. The record fails to show that the discretion, with which the court is invested in all such cases, was not properly exercised. There is nothing in either of the assignments of error that requires further notice. They are both dismissed. Decree affirmed and appeal dismissed with costs to be paid by plaintiff.

Mr. Justice Gordon delivered the opinion of the court, The material assignments of error, in this case, with the exception of the third and fourth, may be disposed of in two general classes. (1) That relating to the waiver of the condition of the policy which exempts the company from all liability until the actual payment of the premium either at its office, or to an agent authorized in writing to receive the same. (2) That which embraces the rulings of the court on the effect and character of the proofs of loss. We will first dispose of the tliird and fourth assignments, in which complaint is made of the learned judge of the lower court, that he refused to say to the jury there was no evidence that the premium was paid prior to the alleged loss, so as to make the company liable therefor, and that they were instructed to inquire whether the defendant bad not, by its course of dealing, justified the belief that Anderson was authorized to receive the premiums on its behalf, and if such were the case, the want of written evidence would not necessarily operate as a defence. We cannot agree that in either of these exceptions the court below lias been convicted of error. As to the first, the evidence is that Block paid the required premium to Ileller, bis broker, from whom be received the policy, before that instrument came into his possession, and if wo are to believe Anderson’s written receipts, be received this money on and before the 14th of January; then from Anderson it passed to Huntzinger in the shape of a check, but as that came to band after the fire he refused to receive it. The next question involves not only the fourth assignment but also tlie second, and may, therefore, be discussed together with thorn. As we have seen, Block paid the required premium, and in due course received his policy. In looking at the face of that policy he would discover that it was issued in consideration of the premium which he had paid, and though he might have discovered the condition that it would not be effective until the amount of that premium was paid into the treasury of the company, or to its agent, yet he might also observe this significant paragraph, “but this policy shall not be valid until countersigned by B. K. Huntzinger, agent, at Harrisburg.” Seeing this he might well and logically conclude (1) That Huntzinger was the duly accredited agent of the company, and (2) the policy being countersigned by him nothing more was required to assure its validity. The regular sequence of thought must necessarily be as follows : the premium has been paid ; the policy lias come to band in due course ; the consideration appears on its face as though paid to the company; it has been regularly executed, and the stamp of complete verity has been given to it by the counter-signature of the company’s agent. In view of all this, after the company had thus compromised itself, it seems almost idle to discuss the powers of Huntzinger, or to inquire particularly concerning their limits, nevertheless we think the evidence warrants us in saying lie did not act beyond the strict line of his authority. Anderson sent the risk to Huntzinger to place in any company he thought fit; be, on his own motion, placed it in the defendant company, countersigned the policy and forwarded it to Anderson for the purpose of delivery; Anderson did deliver it, received the money and sent it to Huntzinger. Who then, in these particulars, was Anderson’s principal if not Huntzinger? Moreover, the company well knew that this risk was in New York, where it had no office, and that Hunt-zinger was necessarily doing this and similar business through an agent in that citj^ and, for that matter, through this very broker. There is no doubt at all but that there would have been nodufficulty whatever about the regularity of this whole transaction had the money reached Huntzinger before the loss, but if in such case the regularity of Anderson’s agency, and Huntzinger’s method of doing business would have been recognized, we cannot see how, or on what principle consistent with honesty and fair dealing, they can now be repudiated. Again, we repeat, the company knew that Huntzinger was placing its policies in New York; moreover, it knew that he could not go there personally and take contracts of insurance, for he had no power so to do because the company had no such power; such contracts must be made, if at all, in the state of Pennsylvania; how then could it be supposed that the agent was to transact such business except through the regular channels of trade, that is, by the employment of banks or brokers. Under such circumstances as these we cannot say that the court did wrong in referring, the evidence to the jury, and we think it was altogether sufficient to warrant the finding of that body. We may agree that the result would have been different had Heller, who was the immediate agent of the plaintiff, neglected to pajr over the premium to Anderson or Huntzinger, for then the case would have had some resemblance to that of the Pottsville Mutual Eire Insurance Co. v. Minnequa Springs Improvement Co., 4 Out., 137, for in that case the plaintiff’s own agent would have been chargeable with neglect which could not have been attributed to the company. Here, however, there is no neglect on the part of any one. Everything was done in the regular and ordinary course of business, and the defence set up must be regarded as utterly without merit. Nor can we see how the doctrine of estoppel can fail to apply in a controversy such as this. As we have seen the countersigning of the policy by Huntzinger, in accordance with the company’s own direction- expressed in writing on the face of that instrument, gave it the appearance of a valid paper, and thus Block was assured that every prerequisite had been complied with. By whose default then, if any such there was, did it pass through Anderson and Heller to the plaintiff? Intentionally and in the regular course of business the agent of the defendant issued that policy, and no attempt was ever made, as in the case above cited, to countermand or revoke it. It was, then, the default of the company by which Block was misled, and we are at a loss to divine by what rule of law that default can be thrown over on the assured. It is a clear case of equitable estoppel, and the company must bear the consequences of its own neglect. The other point has nothing at all in it. The proofs of loss were made out by a competent adjuster, and if they were not certified by the fire marshal of New York, it was because he properly refused so to do. The company had no right to require a public officer to act in the adjustment of its risks, and the neglect of the assured to even ask a certificate from that officer, would have been no default. Besides this, it was the duty of the company on the receipt of the proofs, to return them if they were objectionable and point out the particular defects. This it'refused to do, but replied generally that they did not correspond with the printed instructions, and refused to receive them. This was not sufficient; insurance companies cannot expect thus to escape from the payment of an honest claim through technicalities which do them no harm, and which they themselves can easily cure : Beatty v. The Insurance Co., 16 P. F. S., 9; Insurance Co. v. Flynn & Hamm, 2 Out., 627. The judgment is affirmed.

Per Curiam, The learned court below gave to the plaintiff every possible opportunity to recover before the jury that can be conceived. There was no provision in any of the correspondence, or in the contract as signed, or in the annexed specifications that gave .an absolute right to the plaintiff to have any earth excavation whatever. But there was positive provision that all.the work, including excavation, should be done, “ according to the directions and under the supervision of the engineer in charge of the-construction of said incline.” As no excavation, for- the loss of which the present action is brought, was directed by the engineer it is difficult to conceive upon what rational basis the claim can be sustained. Then too the receipt in full for' every item of claim made after the work was all completed, and which was “ in full settlement for all stone work and excavation, labor, material, etc., furnished in-'connection with the construction, etc., of the Nunnery Hill Incline Plane,” may well have convinced the jury that all demands under the contract were fully adjusted, settled and paid. Nevertheless, notwithstanding this receipt in full, the court left it to the jury to say whether this extraordinary claim for loss of profits was intended to be included within it. This suit was not commenced until nearly six years bad elapsed after the work was all done, and in all that time this claim for alleged loss of profits bad never been beard of. The only wonder is that the verdict was not absolutely in favor of the defendant instead of for six and a quarter cents in the plaintiff’s favor. The claim is very stale, it is unsupported by any reasonable view of the testimony and in our opinion it is entirely devoid of merit. The verdict was a condemnation of it on its merits. We discover no error in the several assignments and they are all dismissed. • Judgment affirmed.

Opinion bv Mr. Justice McCollum, While the evidence descriptive of the defendant’s conduct at the sale was conflicting, it clearly showed that he went there prepared for war. He carried with him a loaded revolver and his exhibition of it there was, to say the least of it, consistent with a purpose on his part to intimidate the plaintiff and his family. When it is considered that the property he proposed to sell to satisfy his disputed demand for rent was not worth, according to his estimate of its value, more than fifteen dollars, and that he could not realize from the sale of it more than seven dollars, exclusive of costs, it would seem that the methods he adopted to compel the sale were too expensive. This is a view of them that may have occurred to him after the verdict. All the specifications of error may be considered together because they really raise but one question and that is whether in maldng the sale the defendant was a trespasser. We agree with the learned court below that he elected to proceed for his rent under the statute which confers and regulates the exercise of the right of distress, and that having so elected he was bound to conform to its provisions in order to validate the sale. That his lease gave him another procedure for collecting the rent did not qualify or dispense with any of the requisites of the proceeding under the statute. If he failed to comply with the requirements of the latter he became a trespasser ab initio, and there is nothing in the lease which can relieve him from the consequences of his noncompliance. The property was not distrained as bis but as the property of the tenant, and the proceeding subsequent to the seizure of it should have been conducted precisely as if the lease had not given bfm another remedy: Fernwood Masonic Hall Association v. Jones, 102 Pa. 307. It is conceded that the appraisement required by the statute was not made, and it is settled that the failure to make it was fatal to the proceeding and rendered the defendant a trespasser ab initio: Kerr v. Sharp, 14 S. & R. 399; Quinn v. Wallace, 6 Wharton, 452, and Brisben v. Wilson, 60 Pa. 452. Judgment affirmed.

Per Curiam, This case involved questions of fact which were properly submitted to the jury with substantially correct and adequate instructions as to the law relating thereto. Their verdict for the plaintiff necessarily implies a finding of all the material facts in his favor; and, unless the learned trial judge erred in one or more of the particulars complained of, the judgment should not be disturbed. There is no complaint as to the admission or rejection of testimony. One of the errors alleged is the affirmance of plaintiff’s fifth request for instructions. Five of the others are the refusal of the court to affirm defendant’s requests for instructions,' recited therein respectively; and the remaining three are to portions of the learned judge’s general charge. Our examination of the record has not convinced us that any of these specifications should be sustained; nor do we think that either of them requires discussion. As to the question, whether the defendant indorsed the note in suit with knowledge of the circumstances connected with the transfer of certain property, etc., to the so-called syndicate, the testimony was conflicting, but we think it was sufficient to justify the submission of that ques tion to the jury as was clone in that part of the charge recited in the 9th specification of error. Referring to that transaction the learned judge' said, inter alia: “ If he (the defendant) knew it before the note was indorsed by him, and indorsed it with full knowledge of that fact, he would, of course, have no right to complain. It would be a substantial assent to the arrangement, and therefore he was not injured.” There is nothing in this, or in any of the instructions to the jury, of which the defendant has just reason to complain. Neither of the assignments of error is sustained. Judgment affirmed.

Mr. Justice Paxson delivered the opinions of the Court, DANIEL HADDOCK, JR., v. GRINNELL MANUFACTURING CORPORATION, NO. 238. SAME v. KIERNAN, TO USE, NO. 239. SAME v. MILES, TO USE, NO. 241. SAME v. DEWITT, TO USE, NO. 242. SAME v. CRIDER, TO USE, NO. 243. All of the above cases rest upon the same state of facts and are governed by the same principle. They may be considered together. The plaintiff in error was sued as a general partner of the firm of Vanuxem, Wharton & Co. In his affidavit of defence he alleged that he was not a general partner of said firm, but “ was a special or limited partner therein, by virtue of articles of agreement between his co-defendants and himself, recorded in the office of the Recorder of deeds for the county of Philadelphia, in Limited Partnership-Book No. 5, page 207, and in the same book page 305, &c. That the said limited partnership was duly and properly formed under the provisions of the Act of Assembly of the Commonwealth of Pennsylvania approved the twenty-first day of March, A. D. 1836, and its supplements, to continue for the term of one year from the first day of January, A. d. 1882, and the same was extended by the articles recorded on page 305 of the said book for the further term of two years from the thirty-first day of December 1882.” Copies of all papers relating to the formation of the said partnership and its renewal were attached to the affidavit. No question arises as to the regularity of the proceedings in the formation of the original partnership ; the difficulty occurs as to its renewal. It is objected in the first place that the renewal did not take place until six days after the expiration of the original partnership, and in the second place, that the renewal was not accompained by the affidavits and certificates required by the Act of Assembly. In Andrews v. Schott, 10 Barr, 47, the renewal did not take place until sixteen days after the expiration of the original partnership, and it was held that the continuity was broken, and that it was the formation of a new firm. It is proper to observe however, that there were other and weighty reasons for this ruling,’among which maybe mentioned the fact that other partners had been introduced. We need not speculate as to what the ruling of that case would have been had there been no other question involved save the mere break in the continuity. It is very clear in that case as well as in this, that from the expiration of the old firm to the date of the renewal, the partnership was general, and the special partner would have been liable for all debts contracted during that period. As this case turns upon other questions, we leave the effect of a renewal after the expiration of the original articles just where Andrews v. Schott left it. The eleventh section of the Act of 1836 regulating limited partnerships provides that “every renewal or continuance of such partnership beyond the time originally fixed for its duration, shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed, and notice given in the manner herein required for its original formation, and every such partnership which shall be otherwise renewed or continued shall be deemed a general partnership.” The twelfth section of said Act provides: “That every alteration which shall be made in the names of the partners, in the nature of the business, or in the capital or shares thereof, or in any other matter specified in the original certificate, shall be deemed a dissolution of the partnership, and every such partnership which shall in any manner be carried on after any such alteration shall have been made, shall be deemed a general partnership, unless renewed as a special partnership, according to the provisions of the last (eleventh) section.” Was this renewal a substantial compliance with the foregoing provisions of the Act of 1886 ? In considering this question we must bear in mind that while the Act was not intended to trip up those who have substantially and in good faith complied with its terms, yet inasmuch as it confers the privilege of embarking in business as a special partner without liability beyond the capital employed or put in by him, this court has uniformly held parties to a strict compliance with all the essential'features of the law. All our decisions from Andrews v. Schott to the present time are consistent upon this point. The Act of 1886 was intended to furnish information to creditors. This, and this only, is the object of its provisions which’ require the certificate to set forth tbe names and residence of the general and special partners, specifying which are general and which are special; the amount of capital contributed by the special partners; the length of the term of the partnership, &c. To a similar object must be referred the provisions of the Act providing for the acknowledgment and recording of the certificate; for the filing of an affidavit by the general partner that the sum specified as contributed by the special partner has been actually and in good faith paid in cash, and for the publication of the terms of the partnership. The penalty for a violation of any of these provisions is to make the firm a general partnership. An inquiry into the necessity of all this is foreign to this discussion. It is sufficient for us that the Act of Assembly so reads. Does the certificate of renewal furnish the information to creditors required by the Act of 1886 ? It contains no reference to the special capital. The affidavit of the general partner sets forth “That the sum of $50,000 specified in the original articles of co-partnership referred to in the foregoing certificate to have been contributed by the special partner, Daniel Haddock, Jr., to tlie common stock of Vanuxem, Wharton & Co., has been so contributed, and remains in the common stock of the said firm, &c.” The pinch of the case is in the last line of the affidavit. It is stated that the special capital remains in the common stock of the firm. But in what shape does it remain ? Is it in cash, in merchandise, or does it represent bad debts, a margin in stock, or a speculation in real estate? The creditors are entitled to know when the partnership is renewed whether the special capital is a reality or a myth; whether it is in a shape to respond to their claims. It may never have been drawn out by the special partner; the affidavit may truly say it remains in the common stock of the firm, yet it may be in such shape as to be of no more value to creditors than if drawn out by the special partner. The point was made that inasmuch as the eleventh section of the Act of 1836 does not specify what the affidavit of the general partner shall contain, it is only necessary to set forth the fact of the renewal in general terms. This construction of the Act would render it insensible. It provides, as before stated, that an affidavit of the general partner “shall be made and filed, and notice be given in the manner herein required for its original formation.” This evidently means that the affidavit shall give as full information upon the renewal as upon the original formation of the limited partnership. A mere formal affidavit setting forth the renewal only, would not give creditors any valuable information as to the condition of the firm, and the object of the Act was to provide this notice. When a special partnership is continued or renewed it must be in the same condition so far as the special capital is concerned, as when it was originally formed. Such capital must be unimpaired ; it must be in such condition as to be available for creditors, and it is the duty of the general partner to furnish this information in his affidavit. If this duty is neglected the partnership becomes general and the special partner has no immunity. We need not discuss the affidavit of the special partner, as it is not involved in this case. The Act of 1836 designates the general not the special partner as the person who shall make the affidavit. Hence the affidavit of the special partner though never so full, is of no more account than that of any stranger to the firm. We might give a good reason for this were it necessary; it is sufficient for us to point to the Act of Assembly. Upon the whole we find no error in this record and the judgment in each case is Affirmed. HADDOCK v. HUTCHINSON ET AL., NO. 240. The judgment in the above case is affirmed for the reason given in the other cases.

Mr. Justice Paxson delivered the opinion of the Court, This contention arises out of the following clause of the will of Philip Leibensperger, deceased: “I give and bequeath to my beloved wife, Susanna, my remaining personal propertjr, it may be money or whatever kind it will, to her full ownership, so long as she doth live. Further, I recommend that my hereinafter named executor shall see that her money does not become lost.” Mrs. Leibensperger survived her husband over four years. At her death the personal estate still remained in the hand's of her husband’s executor, she having drawn a portion only of the interest. The corpus thereof was claimed by her administrators, who are the appellants, and by the next of kin of her husband, who are the appellees. The Auditor awarded the fund to the appellants; the court below, upon excéptions filed, reversed the Auditor, and gave' the fund to the appellees. The language of the will above quoted is ample to vest the personal estate of the testator absolutely in his widow. It is a gift for life, without any limitation over, and without the intervention of a trustee. There is a line of decisions in this state which hold that such a bequest is absolute : Smith’s Appeal, 11 Harris, 9; Brownfield’s Estate, 8 Watts, 465; Diehl’s Estate, 12 Casej, 120; Silknitter’s Appeal, 9 Wright, 365; Grove’s Estate, 8 P. F. S., 429. Authorities might be multiplied were it necessary. We must give effect to the language above cited unless from the whole context of the will it clearly appears that the testator intended to limit his widow to a life interest in the personal estate. We say clearly appears, for it is not our purpose to grope for, or guess at, the testator’s intention. It is obvious that his wife was the first object of the testator’s bounty. They were childless and left no lineal descendants in any degree. It was the more natural therefore, that he should provide liberally for his wife. The bequest to her is the first in order of time in the will. Next follows a devise to his wife of a small tract of woodland, “ as her property, as long as she doth live, to have t'he,right to dig thereon for ore and to retain the revenues; she also dare take wood therefrom as much as she needs for her use it may be of which kind it will, nevertheless she can sell it if she wishes.” The question is not raised as to whether she took a life estate or a fee in this woodland ; it will not be discussed here, farther than to remark that it furnishes no ground to say that the testator intended an intestacy as to the personal estate. Then follows a bequest to his niece, Marietta Liobensperger of $3000, to be paid upon the death of his wife, but in case of the death of said niece, then to her children, and in default of children, to her brothers and sisters then living. Then follows a devise to Jacob Leibensperger (a nephew) of a valuable farm, he paying thereout the sum of $7000 to certain nephews and nieces, after which there are several unimportant provisions intended for the comfort of his widow. It is difficult to see in this, and there is nothing else, an intention to limit his widow to a life'estate in the personal property. The recommendation to his executor to see that his widow’s money “ does not become lost ” are precatory words, and since Pennock’s Estate, 8 Harris, 268, have never been hold sufficient to convert a devise or bequest into a trust. It does not take from the widow the control of the corpus, and the fact that she allowed it to remain in the hands of the executor, who appears to have been a prudent person, has no significance. Much stress is laid upon the circumstances of the legacy to Marietta Leibensberger. This legacy as before stated, was not to be paid until after the death of the widow, and it was agreed that if the widow was to have all the personal estate, free from any trust, how was this legacy to be provided for ? The answer to this is not difficult. The widow was to have all the personal estate left after the payment of debts and other bequests contained in the will. The personal estate was the natural and proper fund for their payment. There would have been no question about this had the bequest to the widow, which is practically of the residue, been inserted at the end of the will, instead of at the commencement. As was said by Chief Justice Shaiiswood, in Fox’s Appeal, 11 W. N. C., 236: “The order in which devises are made in a will are rarely of much importance. The legacy to the testator’s wife’s niece of the interest of $1000 .....as well as the specific bequest of the okl family clock to my oldest nephew or niece living, though subsequent in order to the devise of all his real and personal e,state to his wife, were clearly gifts preceding it. The will ought to be read as if they were actually written before it. Then the gift to the wife is only that which remains.” So we say here. The bequest to the widow should be read as if actually written at the end of the will. She then takes the “remaining personal property”; that is to say, remaining after other bequests which were properly payable out of the personal estate. Of such was the legacy to Marietta Leibensperger. As that was not payable until after the death of the widow, the interest of it would belong to the latter, and the executor would have been justified in retaining that sum out of the personal estate to meet this legacy, paying the interest to the widow in the meantime. To this extent there was an implied trust in the will, but no further. The executor was not in any legal sense a trustee for the widow as to the residue of the personal estate. The fact that the personal estate was much larger than the widow, with her simple tastes and habits of economj', required for her support, and that in point of fact she used but a small portion of the income, is not important. There is nothing upon the face of this will to indicate that the testator intended to die intestate as to the residue of the personal estate, and such an intent is never to be presumed. We find nothing in the will to control the legal effect of the language used in the bequest to the widow. Under the intestate laws she would have been entitled to one half the personal estate absolutely, and one half of the income of the real estate. In the absence of any expressed contrary intent we must assume he intended to give her a fair equivalent for this. The collateral heirs say she brought him nothing in the way of estate. We do not know how this is, but we do know that' the collateral heirs brought him nothing, and we have a right to presume that his wife by her care and thrift aided him in accumulating his estate, and nursed and cared for him in his sickness. He speaks of her in his will as his “ beloved wife.” She was evidently the principal object of his bounty, as well as of his affection. We are of opinion that she was entitled to the remaining personal estate absolutely. The decree is reversed at the costs of the appellees, and it is ordered that distribution be made in accordance with this opinion.

Mr. Justice Clark delivered the opinion of the court, This action of replevin was brought on the 13th January, 1882, by Henry E. Shimp, to recover an engine and boiler in the defendants’ possession at Cedar Knoll, in Chester county. In the latter part of the year 1879 one S. G. Willauer was tíre owner of certain real property at the place named, containing a large deposit of kaolin, a variety of clay used in the manufacture of porcelain, and .had erected thereon buildings and machinery for the mining of that material. The engine and boiler in dispute were, in February, 1880, set up in these works by Shimp, under an arrangement with Willauer. As to the terms of this arrangement there is little if any dispute. Shimp testifying on this subject, in substance, says: “The engine and boiler were at Mount Joy, in Lancaster county. I told Willauer that I would put the engine and boiler there, and guarantee that it would do the work, that is, pump the water and hoist the kaolin, and if not it would be no sale; that the engine must give satisfaction. I think I told him I would charge $700; not over $800; not positive about that. He told me he was not very flush of money; I told him that the engine was not doing me any good, and I would give him a year’s credit, if satisfactory.” After the contract had been concluded Mr. George McFarland, an employee at the works, was called to witness its terms. Mr. Willaner, in the presence of this witness, said to Shimp: “I want you to say, before Mr. McFarland, the same as you do to mo about this machinery.” Mr. Shimp replied : “ I promised the Major that I would place all this machinery in first class running order, complete, for $700, he to pay me in one year’s time if satisfactory.” He then said, “ Is that all, gentlemen ? ” and they replying it was, he returned to his work. Both parties testify that Willaner was to notify Shimp whether or not the machinery was satisfactory, but no time was specifically mentioned within which this was to be done. The engine and boiler were, in the same month, removed to the works, and Joshua Bently was by Shimp employed to set them in place. Soon as this was completed they were put to work, and from that time to the bringing of this suit they have been successfully operated in the mines. On the 81st day of March, 1880, Willauer made an assignment for the benefit of his creditors, and on the 18tb day of February, 1881, the boiler and engine were sold by his assignees to Henry S. Hickman, from whom the defendants, the subsequent owners and operators of the mines, purchased them. The contract was a conditional one. It provided for subjection of the engine to trial, and became absolute only on approval; but such a contract created a condition which must be satisfied before the promise it qualifies becomes effectual. It is, therefore, a condition precedent, and the title will not pass until the option is determined. In this respect it differs from what is denominated among merchants “a sale and return,” which creates a condition subsequent merely, and passes the title at once, subject to the right to rescind and return: Hunt v. Wyman, 100 Mass., 198; Wharton on Contracts, 590; Benjamin on Sales, 791. In the event of disapproval, the vendor is entitled to receive notice; if a time be specified within which the option is to be exercised, the buyer has the full period agreed upon to give that notice, but no more; if none be fixed, a reasonable time is implied. In either ease, however, it is the duty of the buyer, if be disapprove, to make his disapproval known to the seller in due season, or the contract will become binding ui)on him by the resolution of the condition : 5 Wait's Act. and Def., 552. What is a reasonable time, where the facts are ascertained, is ordinarily a question of law for the court, to be determined upon- a consideration of all the circumstances ; where, however, the facts are not clearly established, or where the question depends upon other controverted matters it is, under proper instruction, for the jury. The buyer’s approval may, therefore, be implied from mere neglect to notify, or from any act or course of conduct, in relation to the property, which necessarily involves an unequivocal assertion of his absolute ownership; as, if he should sell it to another, or pledge it for the payment of his own debt. The same condition of facts, which will hold the buyer, in an action against him for the price, will establish his title in a replevin for the property. In the case at bar, under the instruction of the court, the jury found that no actual notice of Willauer’s approval had at any time been given to Shimp; but, as we have said, his acceptance may be implied from his conduct, in the absence of actual notice. It is admitted that on the 31st day of March, 1880, Willauer made a general assignment of his property for creditors; that, assuming to own the engine and boiler he had passed them over to his assignees, who took possession of them, completed the attachments for hoisting, and operated the engine and boiler in the work of the mine, pumping water and hoisting kaolin continuously and successfully until the sale in February, 1881. Whether, in the interim, upon notice of Willauer’s insolvency, Shimp might have removed them, we are not called upon to decide. Although the jury has found that he was in no default, it is admitted that he did not remove them, and that he made no offer to do so. On the contrary, a month or more after the assignment, and when the engine and boiler were in the possession of the .assignee, he was at the works to adjust the pump or water gauge, or by proper repairs to add to the efficiency of the machinery. It was not until the long period of credit had about expired that he gave any notice of his claim, or set up any title whatever. At the sale in February, 1881, the property was sold by the assignees and purchased by the present defendants, who have ever since held it in their possession, claiming, using, and operating it as their own ; and although the period of credit had, at the institution of this suit, altogether expired, no word of dissatisfaction or disapproval had at any time been expressed either by Willauer, or his assignees, or the defendants; and an implication, without doubt, fairly arises from the contract, as proven or admitted, that, in contemplation of the parties, the time for notice of approval could not reach beyond this period of credit. If this were an action by Shimp against Willauer for the price, we think that, under the admitted facts of this case, his right to recover could not be denied. He might well complain if. after the transfer and delivery of the engine and boiler by Willauer to his assignee for creditors, and the lapse of a whole year, during which time the engine and boiler were kept in constant operation, without a word of complaint or dissatisfaction, Willauer should be permitted to defend upon the ground that he had never formally expressed his satisfaction. From the terms of the contract, taken with the admitted facts, an implication of acceptance fairly arises, and that implication being raised, the property is in the buyer, even though the seller may wish to retain it. The case of JDewey v. Erie Borough, 2 Harris, 211, is very similar in all respects. The defendant in that case gave a note for the price of a town clock, payable in one year, “ conditioned, however, that the said clock perform to the satisfaction,” &c. The suit was upon the note, and it was shown that the clock was not satisfactory. Chief Justice Gibson, delivering the opinion of the court, says: “ The defendant promised to pay the price at the expiration of a year, on condition that the clock should perform to the satisfaction of the burgess and town council, or their successors. The corporation, consequently, had a year to signify its determination...... The burgess and council were ultimately dissatisfied with it, and, after two years, took it down, but did not offer to return it, or attempt to give notice of their dissatisfaction......It is clear and adisputable law that the burgess and council were bound to give notice of tlieir dissatisfaction, with an offer to return the clock, or attempt to do it......But there was not a spark of evidence to prove that any effort had been made whatever, and the contract had become absolute.” The facts of this case, so far as they are material to the determination of the questions involved, are in no way controverted, but are clearly established, and we are of opinion that the court should have instructed the jury that under the evidence the plaintiff was not entitled to recover. The judgment is therefore reversed.

Per Curiam, - ‘ Wé find nothing in the testimony to form the basis of a substantial dispute as to any material fact relating to the validity of the testamentary paper in this case, — nothing that would justify. a trial judge in sustaining a verdict against it as a valid will. There is not even a reasonable suggestion of testamentary incapacity, dr of undue influence. The only question is as to' the proper execution of the instrument by the alleged testatrix. As to that, the genuineness of her signature thereto is clearly and satisfactorily established by the testimony of three disinterested witnesses familiar with her handwriting; and they are corroborated by the testimony of the experts. There appears to be nothing in the record that requires further comment. For these and other reasons, given by the learned judge of the orphans’ court, there was no error in refusing the issue and dismissing the appeal from the decision of the register. . Decree affirmed and appeal dismissed, with costs to be paid by the appellants.

Opinion by Mr. Justice Green, In the case of SewicHey M. E. Church’s Appeal, 165 Pa. 475, we decided that church property was not exempted from liability to pay assessments for local improvements. We held that such special assessments were not general taxation and therefore did not come within the operation of the constitutional exemptions from taxation of churches and other properties designated. Again, in the case of City of New Castle v. Stone Church Graveyard et al., 172 Pa. 86, we held that a graveyard was not exempt from such assessments for the same reasons expressed in the decision of the former case. The present is the ease o’f a graveyard, and of course comes within both the foregoing decisions. ; There is no force in the objection that the ordinance under which the improvement was made was passed under the act of 1889, and therefore no assessment could have been made under the act of 1891. Tins question was settled by our decision in the case of Hand v. Fellows, 148 Pa. 456, and in Frederick Street, Hanover Borough’s Appeal, 150 Pa. 202. The fourth and fifth assignments are not sustained because there was a general appearance for all the defendants and a general affidavit of defense for all. The objection that there could be no proceeding against the heirs of Jacob Beltzhoover without naming them is answered by the decision of this court in Wistar v. City, 86 Pa. 215, and Northern Liberties v. Coates’ Heirs, 15 Pa. 245. The assignments of error are not sustained. Judgment affirmed.

Mr. Justice Paxson delivered the opinion of the court The will of George P. De Silver, a citizen of this state, was proved June 6th, 1873, by which lie gave $60,000 in trust, to invest the same and pay the income as follows: “To my wife Elizabeth DeSilver, during her life, and upon her decease to pay one half the said principal sum to such person or persons, and in such manner as she, my wife, may by her last will and testament duly executed according to the law of her domicil order and appoint, and in default of such appointment the said one half of the said principal sum shall form part of my residuary estate.” The widow of Mr. De Silver married the appellant, who survived her. At the time of her death she was domiciled in Paris, France. Previous to her death she attempted to exercise the power given her by her first husband’s will, in favor of her second husband. This was probably not the direction Mr. De Silver intended his money to go. But with that we have no concern. If the power was legally executed the second husband will get the money. We shall treat it as a dry question of law. The contest is between the husband on the one hand, and the residuary legatees, who are the brother and sister of the testator, on the other. The fund is in the hands of the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustee in place of Henry M. Phillips, deceased, who was the original trustee under Mr. De Silver’s will. When the appellant appeared before the Orphans’ Court to claim this fund he produced an Acte de Notariete, executed by Mrs. Aubert, his wife, on the sixth of September, 1877, and disposing of her property at her death as follows: “ To Monsieur Aubert, her husband, who accepts it, here present, the whole of her property, real and personal, which will compose her estate after her death, of whatever value it ma}'- be, and wheresoever the same may be situated, without any exception or reserve; that Monsieur Aubert in case of his survivorship, may enjoy and dispose of said property as something belonging to him in f-ull ownership, from the day of the death of said donatrix.” He also produced a will executed in Paris by Mrs. Aubert, dated May 18th, 1876, and which contained the following clause: “ I the undersigned Elizabeth Claire Aurelie Paley make the following dispositions: If I die before my husband, Jean Ernest Aubert, I leave him all my fortune, in full ownership, so that he may dispose of it as he shall deem advisable.” By the law of France testaments are of two kinds, viz. 1. By public act, which must be executed before two notaries in the presence of two witnesses, or before one notary in the presence of four witnesses; and 2. By holograph, which is not valid unless it has been written, dated and signed exclusively by the hand of the testator. The will in question was a holograph will and appears to have been properly executed. The Acte de Notariete was a donation inter vivos. We need not discuss the latter paper at length for the reason that, according to the law of France, it is not a testament. Such gifts are conventional in their nature, partaking of the character of agreements or covenants. Ordinarily they are irrevocable, and can only affect property then the possession of the donor. In the case of husband and wife, however, they are revocable, and may include property to be acquired in the future. It is conceded that the holograph will of 1876 was properly executed and that it is a French will. It is contended, however, that it is not effective to pass the fund, for two reasons : 1st. That it was revoked by the subsequent Acte de Notariete, and 2d. That if not revoked, it contains no reference to the power, and is not an execution thereof. The usual mode of revoking wills is by a subsequent will or codicil containing an- express clause of revocation, or provisions which are inconsistent with the-former will: Jarman on Wills, 886. And the same writer lays down the doctrine, which I do not understand to be seriously disputed, that an instrument purporting to be a conveyance, but incapable of taking effect as such, may operate to revoke a previous devise. But the reason of this rule evidently is, that the subsequent conveyance was inconsistent with the devise, and disclosed an intent to revoke it. But here the Acte de Notariete is in entire harmony with the previous will. It passed the same estate and to the same person. It was evidently intended to confirm the will. It was not necessary; it adds no strength to the will, but to say that it revokes what it was intended to make sirre is a contradiction of terms. It is true there is an apparent difference in the disposition of the property by the two instruments. By her will Mrs. Aubert gives her husband “all my property in full ownership, so that he may dispose of it as he shall deem advisable,” while by the Acte tíre gift is reduced in the event of there being children by the marriage to “one quarter in ownership and one quarter for life.” But this difference is only apparent. I understand by sections 913, 916 and 920 of the French Code, that the Acte would not be revoked by the subsequent birth of children, because the said Code would, in such event, reduce the portion of which disposition had been made in the gift iniei' vivos exactly as in the testament. So that this provision in the Acte was surplusage; the Code would have written it in that instrument in case children had been born of the marriage. The second objection to the will presents a question of more difficulty. As before observed, the will makes no reference to the power; it purports only to pass the estate of Mrs. Aubert ; the fund in question is a part of the estate of George P. DeSilver, over which he gave his wife a power of appointment. It is very clear that by the law of Pennsylvania as it existed at the time this will was written, the will would not have been an execution of the power. But after the date of the will and before the death of Mrs. Aubert, the Act of 4th June, 1879, P. L. 88, was passed by the legislature of this state, the third section of which provides inter alia that “ a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, as the ease may be, which he may have power to appoint in any maimer he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.” And the fourth section enacts that “this Act shall operate and go into effect as to the wills of all persons who shall die after the date of the Act.” It was argued with much plausibility that the Act of 1879 could not be applied in this case for the reason that inasmuch as it was not in existence when the will was executed, Mrs. Aubert could not have had it in contemplation when she made said will; hence her omission to refer to the power was not an accident, but the result of an intent to give her husband only her own estate. This course of reasoning, however, ignores the purpose of the Act, which was to make a general will execute the power in all cases when a contrary intent does not appear upon the face of the will. When such contrary intent does appear the Act has no effect, for it was not intended to thwart the intent of the testator, but to cany it into effect. Experience had shown that in many instances a power had been defectively executed through ignorance or the carelessness of the draftsman of the will. The Act declares substantially that a gift, or devise of all of a man’s estate, shall carry with it property over which he had a power of appointment by will; in other words that a general will is an execution of the power. And it assumes that such was the intent of the testator unless the contrary intent appears by the will. It is true we must presume that Mrs. Aubert knew the law when she made her will, and that as it then existed a general will would not execute a power. But the same is true of the many other persons whose failure to properly execute a power led to the passage of the Act of 1879. The recognized presumption is that no one is ignorant of the law, yet every intelligent man knows that this is an extremely violent presumption; it is a convenient, if not necessary fiction, nothing more. We cannot impute to Mrs. Aubert a greater knowledge of the law upon this subject then was possessed by hundreds of others who have failed in the execution of powers. We would equally err in imputing to her less. The probability is that she knew nothing about it. The Act of 1879, as we have.seen, operates upon the wills of all persons who shall die after the date of the Act. It is not confined to wills which are executed after the date of the Act. The reason of this is plain. The Act is based upon the fact that testators in many instances are either ignorant of the law or neglect to comply with it. In order that their intent may not by such means be defeated, it declares that under certain circumstances a general will shall execute a power. We are of opinion that this will comes within the Act of 1879. At first I was disposed to regard the provision in Mr. De Silver’s will that the power should be exercised by his wife in and by her “last will and testament, duly executed according to the law of her domicile ” as a restrictive clause. Subsequent reflection has changed my view upon this point and I am clear that it was intended as an enabling clause. Mr. De Silver was a citizen of this state and we have no reason to suppose he would not have been satisfied with an appointment in conformity with Pennsylvania law. But his wife was of French birth and he evidently contemplated her being domi ciled abroad. He probably knew if be made no provision upon the subject the validity of the appointment must be determined by the law of this state. This would require a knowledge of our laws on the part of whoever prepared her will in a foreign country, and might involve a failure. In order to facilitate the execution of the power he provides that it may be done in conformity to the law of her domicile. It is too plain for argument that the donee of this power intended to execute it and give the filed to her husband. It was said in Bingham’s Appeal, 14 P. F. S., at page 349: “It may be admitted that the intention of the donor of a power is the true criterion to determine its execution.” The decree is reversed at the cost of the appellees ; the adjudication of the auditing judge is confirmed, and it is ordered that distribution be made in accordance therewith.

Chief Justice Mercur delivered the opinion of the court, A testator may make a legacy a charge upon lands which he devises, by express direction or by clear implication. When lie blends his real and personal estate together in a general devise, it is a circumstance to be considered in determining whether the legacies are chargeable on the realty. An obligation may be imposed on a devisee by bis acceptance of the estate, to pay a legacy, without its being charged on the land devised. Thus a devise of land on a contingency, to several, they paying another named, “in lieu thereof” the sum. of ¡¡?800, was held not to constitute a charge on the land upon the happening of the contingency: Montgomery v. McElroy, 3 Watts & S., 370. So a devise to testator’s son Thomas of land. If he chose to accept it, he was to pay $1700 — to different persons. He did accept the devise, yet it was held the legacies were not a charge on the land: Wright’s Appeal, 2 Jones, 256. A devise that H. “is to take the 100 acres of land at my death and pay $700 to each of my within named heirs,” and H. accepted the devise, held that he became personally liable for the legacies, and that they could be collected of him in assumpsit; but that they were not charged on the land: Hamilton v. Porter, 13 P. F. S., 332. A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on the land. Thus a testator gave to his two sons all his farm, and directed that they should pay his daughter a certain sum in two years after his death. It was held not to imply that the legacy should be a charge on the land: Cable’s Appeal, 10 Norris, 327. Referring to the will now before us we find the testator gave to his wife all his real and personal estate during her life, after paying out of the same all his debts and funeral expenses. After her death he gave to the appellee and her heirs all his real and personal estate that should be left at her decease. It was an absolute devise without any reference to the payment of legacies, or an intimation that any would be given by the will of the testator. The legacy in question was given to the appellant in a subsequent part of the will. It is true the appellee was thereafter made the residuary legatee of all the personal estate of the testator. This however creates no implication that any specific legacy was thereby chargeable on the real estate previously devised to the appellee. Decree affirmed and appeal dismissed at the costs of the appellant.

Per Curiam, We are not convinced that there was any error in entering judgment against the defendant for want of a sufficient affidavit. In view of the nature of the business relation that existed between the legal plaintiff and the defendant as partners, etc., and the circumstances which led to the execution of the agreement on which this action is based, the averments relied on by the defendant are too vague and indefinite to have justified the court in sending the case to a jury. Judgment affirmed.

Opinion by Mr. Justice Dean, This suit arose out of these facts : In 1875, plaintiff obtained a judgment against William Hamilton for 11,160.25, which was a lien on the debtor’s undivided interest in a piece of land in Philadelphia. By proceedings in partition, this land was sold, and the claim of the judgment creditor transferred to the fund, which was distributed by an auditor to and among those entitled to it, there being appropriated to the plaintiff’s judgment 1971.24; but there was a life tenancy in the land, vesting in one Margaret Magee, therefore the auditor directed she should receive the money on giving proper security, to be approved by the court, conditioned for the payment of the principal sum at her death to the remainder-man, this plaintiff’s intestate. In utter disregard of the terms of the distribution, the money was paid over to her without exacting the security fixed as a condition precedent to its payment. About ten years afterwards, on May 22, 1886, on petition of plaintiff, the court awarded a rule on Margaret Magee to show cause why attachment should not issue against her for neglecting to obey the decree that she give security for payment of the principal on termination of the life estate. On June 26, following, the rule was made absolute, and attachment directed to issue. After several dilatory motions, in June, 1887, the writ was placed in the hands of Robert Henry, an assistant of Sheriff Ridgway, with instructions to execute it. Henry went to her residence at Fox Chase, and found her suffering from dropsy and also from a fall, so that she could not be moved; she fainted when he read the writ to her. Having procured an affidavit and certificate of a physician as to her condition, he attached these papers to the writ, and then handed them all to Mr. Grew, the sheriff’s solicitor, who took them into court and delivered writ, affidavit and certificate to the presiding judge. Nothing further was done by plaintiffs; the papers have been lost, and no minute has been made of their return; but that the sheriff’s assistant attempted to execute the attachment, and desisted only because it would have been inhuman to do so, and that a full and authenticated report and return of the writ were actually made to the court are facts sworn to and not denied. About three years after this Margaret Magee died without having given the security she ought to have given before receiving the money. The plaintiff, then, on March 9,1892, brought trespass for damages against the sheriff for neglect to perform his official duty under the writ, which commanded him to arrest Mrs. Magee and bring her forthwith before the court. The sheriff’s bond and recognizance are dated February 28, 1887; as noticed, this suit was brought March 9, 1892, two weeks more than five years from the date of the bond and recognizance. In protection against plaintiff’s claim, the sheriff invoked the act- of April 13, 1868, which declares : “ Any suit or suits which may hereafter be brought or instituted against any person who has heretofore acted or may hereafter act as sheriff or coroner of the city or county of Philadelphia, for any act done by him in his official capacity as such sheriff or coroner, or upon any official bond, obligation or recognizance, heretofore executed or entered into, or which may hereafter be entered into or executed by such person as such sheriff or coroner, shall not be sustained by any court of this commonwealth, unless such suit or suits shall have been instituted within five years after the date of the official bond.” The learned judge of the court below held, that the limitation prescribed by this act barred the plaintiff’s claim, the latter not having been placed in suit until two weeks after the expiriation of the five years from date of bond. Whether this is a correct inti rpretation of the scope of this act, we do not decide. It may ha-f 3 been the intention of the legislature to include trespass and all other common law actions with those brought strictly on the official bonds and recognizances of the officers ; if that be so, we can see that often great hardship and injustice may, in many cases, result. We therefore do not consider the question raised by appellant’s first assignment of error, for even if sustained, in view of this evidence, appellant would take no benefit. It is clear, on the undisputed testimony, plaintiff has no cause of action against the officer, for she failed to show any neglect of duty on Ms part. His writ commanded him to bring Margaret Magee before the court; without causing her great suffering and endangering her life he could not obey; he promptly makes return of the facts, and the court makes no further order in the matter. He was not bound, in a techmcal execution of Ms writ, to commit an act of barbarity; his plain duly was to report the facts; the court then suspends temporarily the writ, or in due time awards an alias, in its discretion; until it made such order, the officer was not bound to proceed further on a writ in the hands of the court. Although Margaret Magee lived nearly three years, plaintiff made no further application. Appellant has no just ground of complaint agamst this officer; the one who really wronged her was the custodian of the money realized from the sale of her land, twenty years ago, who, in plain violation of the decree confirming the auditor’s report, paid it to the life tenant without proper security. WMle affirming the judgment of the court below, we decline to determine the statute of limitation of 1868 protects defendant in this form of action. The judgment is affirmed.

Per Curiam, In principle, this case is ruled by Christain’s Appeal, 102 Pa. 184, and other cases, among which are Callahan’s Appeal, 124 Pa. 138, and Fraternal Guardian’s Estate, 159 Pa. 594, cited by the learned auditor. The action of the court below in dismissing appellants’ exceptions to the auditor’s report is the sole subject of complaint in the several assignments of error respectively. Our examination of the record, with special reference to each of said exceptions, has led us to the conclusion that the court was right in dismissing them and confirming the report. In view of the careful consideration that appears to have been given by the learned auditor to all the material questions in the case, and the satisfactory disposition that was made of them, it would serve no useful purpose for us to consider the specifications of error in detail. There is nothing in any of them that requires discussion. They are all dismissed. Decree affirmed and appeal dismissed with costs to be paid by the appellants.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted.

Per Curiam, We find no error in this record that would justify either a reversal or modification of the decree. The learned judge’s findings of fact and conclusions of law are substantially correct, and fully warranted tbe decree dismissing the bill at plaintiff’s costs. There appears to be nothing in either of the specifications of error that requires discussion. The decree is affirmed and appeal dismissed with costs to be paid by the appellant.

Per Curiam, We are by no means convinced that the learned trial judge erred in directing the jury to find for the defendants. On the contrary, a careful consideration of the evidence on which the plaintiff relies has led us to the conclusion'that it does not come up to the measure of proof that is required in such cases. As was said in Hart v. Carroll, 85 Pa. 510, “ In order to take a parol contract for the sale of lands out of the operation of the statute of frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been, exclu sive, continuous and maintained. It must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.” These rules have been firmly settled by a long line of cases, including those cited in Hart v. Carroll, supra, and many others. It is the duty of the trial judge who, in such cases, exercises the functions of a chancellor to determine, in the first place, whether the evidence adduced is sufficient to support an equity in the party claiming specific execution of the verbal contract, and then for the jury to say whether the testimony is true or not. If the evidence fails to make out a case that can be fairly classed as an exception to the operation of the statute of frauds, it is the duty of the judge either to reject it, or to instruct the jury in favor of the defendant, as was done in this case: Bowers v. Bowers, 95 Pa. 480; Allison v. Burns, 107 Pa. 53; Lord’s Appeal, 105 Pa. 460. Without further reference to the evidence adduced by the plaintiff or the principles of law applicable thereto, it is sufficient to say that the learned judge was right in giving binding instructions to find for defendants. It is unnecessary to notice the question of estoppel. It is not in the case, because the evidence adduced by plaintiff is insufficient. Judgment affirmed.

Opinion by Mr. Justice Dean, The Pennsylvania Railroad and Pennsylvania Canal are located closely along side each other through the city of Harrisburg ; the streets of the city were carried over the canal by bridges and by grade crossings over the railroad; the structures over the canal were narrow and insufficient for the public; the crossings over the railroad were highly dangerous to both the public and the transportation company; the growth of the city in population and cumulation of traffic upon the railroad only increased the inconvenience and danger to the public. Under these circumstances, impelled by public demand, and acting under a sense of public duty, in 1887, the city councils, with a view to abolishing grade crossings, under an arrangement with the railroad company, passed an ordinance to abolish them by ■overhead bridges spanning both canal and railroad at three points — Fourth and Chestnut streets, Paxton street and Dock ¡street. The declared purpose of the ordinance, as embodied in it, is “ to promote the safety of persons and property within the ■city, and is deemed expedient for the public good.” The bridges were to be erected by the railroad company at its own expense, and were thereafter to be taken charge of and maintained by the city. The railroad company at once proceeded to construct the bridges. Owing to the peculiar conformation •of the line of the canal, its relative location to the railroad and to the streets, as an engineering problem, the company determined the improvement could be properly and most advantageously made by straightening, thereby moving at one point the bed of the canal about eighty feet for a distance of twenty-five hundred feet, and permitting the removal of the railroad tracks to this vacated bed of the canal. This involved the appropriation by this canal company of a little over one and a half acres ■of plaintiff’s land. This land, though cultivated to some extent, was not otherwise improved. The canal company, in the exer■cise of its alleged right of eminent domain, and with the desire to aid in the improvement of overhead crossings, after unsuccessful efforts to agree with plaintiff on compensation for damages, filed a bond with sureties in sum of $20,000, conditioned for payment of damages; thereafter the work at large outlay was proceeded with to completion. Soon after the commencement of work, however, plaintiff filed this bill for an injunction to restrain defendant from appropriating tbe land. The defendant filed answer asserting its right. The material averment of the bill is the want of authority in defendant to appropriate her land under the exercise of its right of eminent domain. The issue was referred to George Kunkel, Esq., as master, to find facts, conclusions of law, and suggest decree. He had many sittings during the eight years the suit was pending, took much testimony, and finally, on March 29, 1895, made his report. He finds as a fact that the change of location by defendant of its canal bed was not made with a view to increase its facilities for navigation, but was done to enable the Pennsylvania Railroad Company to improve its passenger stations and track bed and avoid grade crossings within the city of Harrisburg; therefore, its attempt to appropriate plaintiff’s land was unlawful. He suggests that an injunction issue as prayed for. The learned judge of the court below declined to adopt his suggestion for a decree, because at the date of hearing the improvement had been made at large ■expense, and both the public and the two companies were then in full enjoyment of the same; therefore, to grant the injunction would cause greater damage, oppression and inconvenience than to refuse it, and he accordingly dismissed the bill without prejudice to plaintiff in her legal remedy. From this decree the plaintiff appeals, assigning for error the refusal of the court to adopt the report of the master and ■award the injunction. We do hot concur in the legal conclusion of the master, nor do we adopt the decree suggested by him; we affirm the decree of the court below, but not the reason therefor given by him. The act of the canal company in changing the bed of its canal was under the authority of the first section of the act of 1879, as follows: “ It shall and may be lawful for any railroad, canal and slack-water navigation company, now or hereafter incorporated by any law of this commonwealth, to straighten, widen, deepen, enlarge and otherwise improve the whole or portions of their lines of railroad, canal and slack-water navigations, and the approaches, crossings, sidings, aqueducts, piers and structures thereof, and make new feeders, whenever in the opinion of the board of directors of any such company the same may be nec essary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic thereon, and for such purpose to purchase,, hold, use, or enter upon, take and appropriate land and material, provided, however, that before any such company shall: enter upon or take possession of any such land and material, they shall make ample compensation to the owner or owners thereof, or parties interested therein, or tender adequate-security therefor.” The learned master, it seems to us, takes too narrow a view of the scope of this section. The purpose of it was, not only to permit changes of location by straightening so as to facilitate-transportation, but also to better secure the safety of the persons and property of those who had occasion to cross the canal. The physical form of great highways of commerce, such as-canals and railroads, necessarily involves the contemporaneous-construction and maintenance thereafter of public crossings, for-the convenience and safety of that part of the public not directly concerned in the transportation of passengers and freight. All the legislation on this subject, from the acts authorizing the construction of the Pennsylvania Canal to the general act of 1849 and its supplements, makes provision for crossing the lines of canals and railroads by the public. It was never intended that one highway should supersede or obstruct unnecessarily the other and the rights of the public who use both were protected. It is here conceded that if defendant had taken this land for the purpose of directly facilitating navigation the appropriation was authorized; but there is nothing in the act which limits the right to this particular purpose. “ Whenever in the opinion of the board of directors the same may be necessary for securing the safety of persons and property ” there may be an appropriation. The legislature well knew that many of these improvements had been located at an early day in small towns and sparcely settled neighborhoods; that the growth of towns into large cities, rural regions into villages and thickly settled communities would, in the interests of the public, often, compel changes in the beds of canals and railroads ; hence the-enlargement of the right of eminent domain; it was not limited to the first appropriation. The purpose of this appropriation is-thus stated by Thomas T. Wierman, engineer of defendant. “It was a public improvement to tbe city and community, and the canal as well. The straightening of the canal and railroad brought them close together and permitted bridging them both to avoid grade crossings at the streets, and this was the only way to effect that much needed improvement. I consider the straightening of the canal and railroad through Harrisburg the greatest public improvement that has ever been made here for all interests; that for the canal, railroad and the public.” There is not a word of evidence to contradict this. The master in one part of his findings of fact states : “ The change was made, not for the purpose authorized by the statute, but for the purpose of giving to the railroad company the old bed of the canal.” This is not a full statement of the facts. He should have gone further and stated that for purpose of constructing overhead crossings for both canal and railroad, sufficient to accommodate safely the public, the canal and railroad company moved their beds further south; defendant’s purpose in moving was not to relinquish its old bed to the railroad company, although that was the effect of it; its purpose was to adopt a new bed that the overhead crossings could, in capacity and convenience, be constructed over both. The mistake is in calling that a purpose which was a mere incident of the real purpose, the avoidance of grade crossings. We do not consider it material that the agreement with the city was made with the railroad company and the change of bed was made at the suggestion of the railroad company. If the agreement had been expressly made with both companies to join in an improvement to provide overhead crossings, the right of the canal company to exercise its lawful corporate powers, as it did exercise them, would have been undoubted; but the fact that the railroad company directly made the agreement with the municipality does not render the corporate action of the canal company illegal. Defendant chose to aid the municipality and another private corporation in constructing a public improvement, which it could, in the absence of the other private corporation, have agreed with the city to construct as it was constructed; this, in no sense, proves it was not acting by authority of the statute from which its power was derived. It is argued by appellee’s counsel that a relocation of the canal bed was in the discretion of the board of directors under the act, and is not reviewable by tbe courts. This is stating the proposition too broadly. It is a settled rule that courts of equity hesitate to and generally will not interfere with acts involving in their performance scientific and professional judgment ; it is just as well settled, however, that they will interfere if a discretionary act involving scientific skill is arbitrarily or unnecessarily exercised to the injury of the property of another. But it is a waste of time to discuss further this proposition, because there is no evidence tending to show the plan adopted to construct the overhead crossings was not good engineering, and was not, in the honest judgment of the directors, the best to accomplish the purpose. The court below, on a balancing of the injuries and benefits that would result from an injunction, concluded to refuse it, because such refusal would occasion less hardship than granting it. In support of this principle many authorities are cited. None of the cases warrants the adoption of the rule as a basis for such decree in this case. The master’s findings of fact place in plaintiff a clear legal right to the property taken, and Ms conclusions of law are that the taking by defendant was wholly without authority. If these conclusions be correct, no injury, in the legal sense of that term, could result to defendant from restoring to plaintiff her right; the wrongdoer, although he may be inconvenienced, can never be injured by being compelled to make restitution. Where a case is doubtful on its facts, or the injured party has, in some particulars, condoned the wrong, or has not been very vigilant in asserting his right, or the injury complained of be a trifling annoyance, and such like cases, the balance of injury prmciple may be Mvoked to stay the hand of the chancellor. But all our Pennsylvania cases hold an undoubted substantial injury to a right of property will be redressed in equity where there is no adequate remedy at law, without regard to the inconvenience or damage the wrongdoer may sustain: Lead Co.’s Appeal, 96 Pa. 116; Price v. Grantz, 118 Pa. 402; Walters v. McElroy, 151 Pa. 549; Evans v. Fertilizing Co., 160 Pa. 209. Here, the defendant appropriated one and a half acres of plaintiff’s land; if this was unauthorized under its right of eminent domain the property damage was of that character and the wrong of that nature that equity was bound to interfere. We do not, therefore, concur with the court below in its reason for dismissing the bill. We are of the opinion, however, that defendant had full power, under the authority granted it by the commonwealth, to straighten and change its canal bed, as here proved for the purpose here clearly shown. Therefore the decree is affirmed.

Opinion by Judge MacPhail, The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals an order of the Court of Common Pleas of Schuylkill County which sustained the appeal of John E. Curran (Appellee) from a one-year suspension of his operating privileges by the Department. We reverse. Appellee was arrested for driving under the influence at the scene of an automobile accident in which he was involved. He was informed of the implied consent provisions of Section 1547 of the Vehicle Code, 75 Pa. C. S. §1547, requiring that he submit to a chemical test for blood alcohol content or lose his operating privileges for one year. The arresting officer informed Appellee that he would have to submit to a blood test because there were no intoxilyzer operators on duty to administer a breath test. Appellee requested a breath test asserting that he was afraid of needles and of giving blood, but he did agree to try the blood test. At the hospital, however, Appellee refused to go through with the blood test after verbally consenting to do so. Appellee was not told he could undergo a urinalysis for blood alcohol, and he later testified before the trial court that he would have submitted to a urine test if it had been offered. Appellee’s operating privileges were suspended for one year for refusing to submit to the chemical test for blood alcohol, pursuant to Section 1547(b), 75 Pa. C. S. § 1547(b). He appealed to the court of common pleas which sustained the appeal and reversed the Department’s order. The Department’s appeal of this order is now before our Court. We note, initially, that our scope of review is limited to a determination of whether the trial court’s findings are not supported by competent evidence, erroneous conclusions of law have been made, or the decision exhibits a manifest abuse of discretion. Bruno v. Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). The Department argues that the trial court erred as a matter of law in concluding that Appellee did not refuse to submit to a chemical test because of his “understandable” fear of needles and blood tests and that the arresting officer should have presented the option of a urinalysis. We agree with the Department that this conclusion is contrary to the decisions of this Court in Department of Transportation, Bureau of Traffic Safety v. Bartle, 93 Pa. Commonwealth Ct. 132, 500 A.2d 525 (1985) and Smith v. Department of Transportation, 97 Pa. Commonwealth Ct. 74, 508 A.2d 1269 (1986). In Bartle, a licensee arrested for driving under the influence was asked to submit to a blood test because of a malfunctioning breathalyzer. He refused the blood test because he was afraid of needles and later argued that this did not constitute a refusal warranting a suspension due to the fact that he had not been given the option of urinalysis. In rejecting this argument and reversing the trial courts order sustaining the licensees appeal, we reasoned: Under section 1547(a) of the Vehicle Code, an operator is deemed to have consented to one or more of the chemical tests of breath, blood, or urine. The plain meaning of that section is that an officer may request a driver to submit to any one of the enumerated tests as long as the officer has reasonable grounds to believe the driver was operating a motor vehicle while under the influence of alcohol. There is nothing in this section to indicate that the driver has the option of choosing the test. . . . Anything less than an unqualified, unequivocal assent to take the test constitutes a refusal. Bartle, 93 Pa. Commonwealth Ct. at 134, 500 A.2d at 526. See also Binder v. Commonwealth, 99 Pa. Commonwealth Ct. 548, 551, 513 A.2d 1105, 1107 (1986) (Section 1547(a) does not give a licensee the right to choose from among the tests listed.) We followed Bartle in our decision in Smith, wherein a licensee also refused to submit to a blood test due to his fear of needles. We concluded “that a motorist who refuses to submit to a blood alcohol test, even though he has assented to a breath and urine alcohol test, has foiled to comply with the statutory duty which motorists undertake when they exercise their operating privileges.” Smith, 97 Pa. Commonwealth Ct. at 77, 508 A.2d at 1270. The factual situation in the case at bar is indistinguishable from that in Bartle, and therefore, following Bartle and Smith, we reverse the order of the court of common pleas and reinstate the one-year suspension of Appellees operating privileges. Order The order of the Court of Common Pleas of Schuylkill County in the above-captioned proceeding is hereby reversed, and the suspension of John E. Currans operating privileges is reinstated. Notes of Testimony from September 16, 1985 (N.T.) at 17, Reproduced Record (R.R.) at 25a. Appellee testified that his wife, now deceased, had contracted a blood infection from a needle and that he was “deathly afraid” of needles. N.T. at 17, R.R. at 25a.

Opinion by Judge Craig, The Philadelphia Board of Pensions and Retirement appeals from an order of the Court of Common Pleas of Philadelphia County which reversed the boards decision and ordered the approval of service-connected disability benefits for the claimant, Barbara Ransom. We affirm. The facts in this case are not in dispute. The claimant began her employment with the Philadelphia Department of Recreation in 1966. On June 21, 1981, while supervising activities at a playground, an unknown assailant shot the claimant in the left leg. After a period of recuperation, the claimant returned to active duty on August 30, 1981. The department promoted the claimant to Recreation Leader III on September 7, 1981. However, the claimant had difficulty functioning as a recreation leader, and the department soon granted her an injured-on-duty leave of absence. A psychologist, Dr. Gerald Cooke, treated the claimant throughout her leave of absence from October, 1981 through all of 1982. In January, 1983, the department returned the claimant to active duty as a facilities supervisor at a recreation center. However, after one month at that position, the claimant stopped working because of her inability to cope with the job. Responding to the claimants request, in April, 1983 the department reassigned her to the performing arts division. After four months at that position, the claimant again experienced difficulties and requested the department to reassign her. The department again assigned her to a position as a recreation supervisor, at which she worked for one week before going on sick leave. The claimant appealed to the Civil Service Commission her assignment as a recreation supervisor. On February 22, 1984, the commission issued an order stating that the claimant could not “return to active duty as a Recreation Supervisor because of emotional difficulties which continue to manifest themselves in psychological disability.” The commission further stated that the claimant required “a clearly structured job in order to offset continuing residual emotional disability which has regularly recurred since the June 21, 1981 trauma episode.” Responding to a request for clarification, the commission issued a further order stating that “all of the [claimants] absences from work after June 21, 1981 to the date of her reinstatement to a non-playground position are related to her original injury and constitute compensable injured-on-duty time.” The department offered the claimant a non-playground position in March, 1984, which she refused. On May 8, 1985, the claimant terminated her employment with the department. The claimant made a claim for service-connected disability benefits to the Philadelphia Board of Pensions and Retirement. On August 15, 1985, the board determined that “the medical panel advised its findings on December 12, 1984 that Barbara Ransom is not disabled and suffers no psychiatric disorder” and denied her service-connected disability benefits. The claimant appealed that decision to the court of common pleas, which ultimately reversed the boards decision, holding that substantial evidence did not support the board’s findings. This court’s limited scope of review is to determine whether there has been a constitutional violation or an error of law and whether substantial evidence supports the board’s findings. Estate of McGovern v. Pennsylvania State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Hence, the sole focus of our review here is to determine whether substantial evidence supports the board’s finding that the claimant is not disabled and suffers no psychiatric disorder. A review, of the board s order and the record reveals the following. After noting that the Civil Service Commission determined that the claimant was disabled and was unable to return to work in a playground or recreation area situation, and that the recreation commissioner stated on January 8, 1985 that he believed that the claimants disability was the result of the performance of her duties, the board then indicated that it was basing its determination of nondisability on the medical panels “findings on December 12, 1984.” However, as the claimant correctly asserts, the record lacks any medical panel findings dated December 12, 1984. The record does contain a letter from a medical panel member, Dr. Robert M. Toborowsky, dated December 4, 1984, addressed to Dr. Abney, corchair of the medical panel, stating Dr. Toborowsky s opinion that the claimant was not then psychiatrically disabled. The only other evidence in the record to support the boards finding of nondisability are the 1983 recommendations of city compensation clinic doctors, to the effect that the claimant could then be. returned to a non-playground job, which cannot be conclusive in view of the point that pension entitlement turns upon incapacitation from the employees particular “position,” which had been that of recreation leader. The only record element resembling any medical panel findings is found at R.77a, a “Medical Report on Application for Retirement Benefits under Service Connected Disability,” signed by Dr. Abney and containing the following cryptic conclusion: “[N]o psychiatric disorder.” However, that report—apparently the only one submitted by a panel chairman—could not constitute the required medical findings because it was dated October 18, 1984, which was four days before Dr. Abneys letter of October 22, by which he referred Ms. Ransom to Dr. Toborowsky for examination. Accordingly, because the record lacks substantial evidence of medical panel findings as a basis for the boards decision, we must affirm the determination of Judge DiBona that substantial evidence does not support the boards finding of nondisability, and that “other record evidence clearly indicates [the claimants] inability to function as a Recreation Leader and the continued pattern of the Department’s failure to accommodate [the claimant’s] disability, which arose from the shooting of June 21, 1981.” Order Now, July 14, 1987, the order of the Court of Common Pleas of Philadelphia County, No. 1160 October Term, 1985, dated February 26, 1986, is affirmed. Dr. Cooke, who began treating the claimant during her leave of absence in 1981, was still treating her at the time of her application for service-connected disability benefits with the board. Dr. Cookes position before the board was that the claimant was disabled from the 1981 incident to the extent that she was incapable of performing her duties as a recreation supervisor. The claimant applied for service-connected disability benefits under section 206.1 of the Municipal Retirement Ordinance which provides: Upon written application, any employee found by the Board to be permanently incapacitated from the further performance of duty, which incapacity resulted solely from the performance of the duties of his position, and was not caused by the employees own wrongful conduct, shall be retired; Provided that: a) the Board shall find that the employee is mentally or physically totally incapacitated from the further performance of the duties of his position and b) that such disability is likely to be permanent, and c) that such disability existed while the employee was in the employment of the City, and d) that application for such retirement is filed in one (1) year after separation from employment with the city.

Opinion by Senior Judge Barbieri, Petitioner, Purcell Bronson, filed a petition for review invoking this Courts original jurisdiction pursuant to Section 761 of the Judicial Code, 42 Pa. C. S. §761, seeking declaratory relief against several named respondents, all of whom are Assistant Attorneys General of this Commonwealth. Respondents have filed preliminary objections to the petition for review in which they challenge the sufficiency of the service of the petition, Bronson’s standing; and a general demurrer to the petition. It is respondents’ preliminary objections that are before this Court. A brief recitation of the factual background of Bronson’s petition is helpful in disposing of the preliminary objections. Bronson has apparently filed a number of lawsuits in federal court alleging various civil rights violations against employees and officials of the Commonwealths Department of Corrections (Department). Bronson is currently an inmate at a state correctional institution under the jurisdiction of the Department. The named respondents have all entered their appearances in federal court on behalf of the defendant-employees and officials in federal court. By this action, Bronson seeks declaratory relief from this Court that under the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-101—732-506, the Attorney General s Office has no statutory duty to represent Commonwealth employees or officials in civil rights actions. Bronson also alleges that the Attorney Generals Office should represent him in his civil rights suits against the defendant-employees and officials of the Department. Respondents initially challenge the method by which Bronson served his petition for review upon them. It is undisputed that the petition was served upon respondents by first class mail. Respondents contend that service by first class mail is ineffective to invoke the jurisdiction of this Court and obtain personal jurisdiction over them. We agree. Service of process under this Courts original jurisdiction is governed by the Rules of Appellate Procedure. Philadelphia County Intermediate Unit No. 26 v. Department of Education, 60 Pa. Commonwealth Ct. 546, 432 A.2d 1121 (1981). The requirements for service of process are found in Pa. R.A.P. 1514(c), which requires service upon each individual respondent either in person or by certified mail. In Feigley v. Jeffes, 97 Pa. Commonwealth Ct. 583, 510 A.2d 385 (1986), we specifically held that service of a petition for review invoking this Courts original jurisdiction by first class mail is not authorized by Pa. R.A.P. 1514(c) and is insufficient to vest this Court with jurisdiction over the named respondents. Id. at 587, 510 A.2d at 386. See also 1 R. Darlington, K. McKeon, D. Schuckers & K. Brown, Pa. Appellate Practice §§1514:6 and 1514:7 (1986). Bronsons service of his petition by first class mail is therefore defective service under Pa. R.A.P. 1514(c). While Bronson concedes his attempted service by first class mail is not in conformity with Pa. R.A.P. 1514(c), he argues that since he is an indigent inmate allegedly without funds to pay for certified mail, we would be violating his rights to due process and equal protection if this Court were to dismiss his petition for failure to make personal service or use certified mail. We do note that this Court entered an order granting Bronson permission to proceed in forma pauperis (IFP) in this matter that excuses him from paying this Courts filing fee of $30. See Pa. R.A.P. 2701; 204 Pa. Code §155.1. See also 2 R. Darlington, K. McKeon, D. Schuckers & K. Brown, Pa. Appellate Practice §§2701:2 and 2702:5 (1986). We also take judicial notice of the fact that the current fee charged by the United States Postal Service for a certified letter weighing no more than one ounce is $1.45. Additionally, since this is a declaratory judgment action, Bronson had the option of personal service made by any competent adult not a party to the action. See Pa. R.C.P No. 400(b)(1); Pa. R.A.P 1517. Our review of the case law, along with the balancing of the interests involved, convinces us that requiring an indigent inmate to serve a petition for review either by personal service or by certified mail does not constitute any constitutional deprivation of due process or denial of equal protection. When determining whether the payment of a filing fee or complying with a rule of procedure constitutes a denial of due process or equal protection to an indigent, we must evaluate both the indigents interest in the litigation and balance that interest against the states interest in ensuring compliance with the rule or payment of the fee. In so doing, we also consider the onerousness of the charge or fee involved. In Boddie v. Connecticut, 401 U.S. 371 (1971), the United States Supreme Court held that Connecticut denied indigents due process of law by refusing to permit them to bring divorce actions without the payment of court fees and service of process costs that they are unable to pay. In Boddie, the Court made specific note of the basic position of the marital relationship in our society’s hierachy of values and the state’s monopolization of the means for legally dissolving this relationship. In light of the fundamental interest involved in the marital relationship, and of dissolving it, the Supreme Court concluded that due process prohibits the states from denying, solely on the inability to pay, ¿ccess to its courts to individuals who seek judicial dissolution of their marriages. Id. at 374. The total costs involved in Boddie were about $45.00. Id. at 373. However, two years later, in United States v. Kras, 409 U.S. 434 (1973), the Supreme Court upheld a requirement that an indigent petitioner in voluntary bankruptcy pay the required filing fees, then about $50.00. The Supreme Court noted that there were reasonable alternatives available to allow indigents to pay fees in installments over a six month period, amounting to approximately $1.92 per week and that no fundamental or constitutional right was involved. Id. at 446. Later the same year, in Ortwein v. Schwab, 410 U.S. 656 (1973), the Supreme Court held that the state of Oregon did not deny indigents any constitutional rights by requiring them to pay a $25 filing fee to appeal an unfavorable decision by the state welfare agency. In Ortwein, the Court distinguished the interests involved in the litiga tion and found that an indigent who seeks increased welfare payments has a far less constitutionally significant interest than one seeking to dissolve a marriage. Id. at 659. The Ortwein Court also found that no fundamental interest was involved in the litigation nor was indigency a suspect classification. Id. at 660. We are satisfied that this case falls under Kras and Ortwein rather than Boddie. Accordingly, all that needs to be shown in order to uphold the requirement of service either in person or by certified mail is to show a rational relationship between the requirement and a legitimate state objective. Ortwein; Kras. We conclude such a relationship does indeed exist. The two basic requirements of due process as delineated by the United States Supreme Court are notice and an opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254 (1970). By requiring service either in person or by certified mail, the judiciary is seeking to ensure that the respondent in a lawsuit or appeal actually receives notice of the pending lawsuit or appeal and is aware that some action is required to protect his or her interests. This is surely a legitimate state objective. By the use of personal service, the petitioner has available a witness who can testify that the respondent actually received the petition in the event service is denied. By the use of certified mail, the petitioner has available a document showing when and where the certified mail document was delivered in the event the respondent denies service was made of the petition. We also note the minimal expense here involved. In order for Bronson to comply with Pa. R.A.P. 1514(c), we calculate it would cost him $7.25. That expense is minimal, even to an inmate at a state correctional institution. Additionally, Bronson could have had any competent adult not a party to this action personally serve his petition upon the respondents pursuant to Pa. R.C.P. No. 400(b)(1), an option that may or may not have entailed any cost to him. We therefore find that Pa. R. A.P. 1514(c)s requirement of personal service or service by certified mail does not violate Bronsons due process or equal protection rights. We likewise find no violation of Bronsons access to the courts guaranteed by Article 1, §11, of the Constitution of the Commonwealth of Pennsylvania. The minimal cost to Bronson coupled with the alternative method of service by any competent adult and the legitimate interest of the state in ensuring that litigants are properly notified of legal proceedings instituted against them convince us that Bronsons access to the courts for redress of his grievances has not been denied. We thus distinguish the circumstances presented here from those found in Lutz v. Heasley, 12 Pa. Dist. 139 (C.P. Clarion 1902), wherein the Court of Common Pleas of Clarion County held that a local court rule requiring insolvent plaintiffs to post security for court costs violated the guarantee to free access to the courts contained in Article 1, §11, of the Pennsylvania Constitution of 1874. Similar provisions were found in Article 9, §11, of the Pennsylvania Constitutions of 1838 and 1790. In view of the foregoing, Bronsons attempt to serve his petition by first class mail is defective under Pa. R.A.P. 1514(c) and the respondents’ preliminary objection as to the sufficiency of that service must be sustained and the petition dismissed. As we have no personal jurisdiction over the respondents due to insufficient service of process, we need not address the other preliminary objections of the respondents. Order Now, July 23, 1987, upon consideration of the preliminary objections of the respondents to the petition for review, as well as the briefs filed in support of and in opposition thereto, the preliminary objection to the sufficiency of service of the petition for review is hereby sustained and the petition for review is dismissed. Francis R. Filipi; Joel M. Ressler; Joseph S. Sabadish; Amy Zapp; and Frank R Tuplin. As there are five named respondents, Pa. R.A.P. 1514(c) requires that they be served individually. Thus, Bronson would have to send five certified documents at a cost of $1.45 each for a total cost of $7.25. While Bronson alleges that his prison account is “in the red,” we note that the Department has an established policy of permitting inmates with less than $10.00 in their institutional account or any other account may anticipate for postage under a Department Administrative Memorandum dated November 13, 1984. Inmates who are physically able to work but refuse available work within the state correctional institution are not eligible to anticipate postage. See Waters v. Department of Corrections, 97 Pa. Commonwealth Ct. 283, 509 A.2d 430 (1986).

Opinion by Judge Craig, Before this court are the appeals of the Pennsylvania Liquor Control Board and 146, Inc. from two separate orders of the Court of Common Pleas of Allegheny County. The trial court reversed a Liquor Control Board order imposing a $500 fine on licensee Charles E. Wiegand, and affirmed a Liquor Control Board order imposing a $750 fine on licensee 146, Inc. Because those cases relate to similar feet situations involving sales to the same minor, allegedly in violation of the sales-to-minors prohibition in the Pennsylvania Liquor Code, those cases have been consolidated on appeal here. The question is whether there were, as a matter of law, sales to a minor within the meaning of the Liquor Code. The board had determined that licensee Wiegand furnished intoxicating liquor to minor Kimberly Knapp on July 19, 1984. After a non-jury de novo trial, the trial judge also determined that licensee Wiegand had served alcoholic beverage to that minor on July 19, 1984. However, the trial judge determined that the minor “had deliberately planned and executed a deception” against which the licensee could not protect himself. Accordingly, the trial judge reasoned that, because licensee Wiegand “did not permit a person known to be a minor to frequent the premises on July 19, 1984” the licensee had not violated the Liquor Code. With respect to the alleged violations of licensee 146, Inc., the trial judge determined that substantial evidence supported the boards determination that licensee 146, Inc. had served intoxicating beverages to the same minor, Kimberly Knapp, in violation of the Liquor Code. This court’s scope of review is limited to a determination of whether the record supports the board’s action and whether the trial court abused its discretion or committed an error of law. In Re: Peters Pub, Inc., 94 Pa. Commonwealth Ct. 282, 503 A.2d 499 (1986). There are two forms of identification acceptable as proper proof of age under the Liquor Code—a photo driver’s license or a board-issued identification card. Section 495 of the Liquor Code establishes the purpose of an identification card as follows: (b) Such identification card shall be presented by the holder thereof upon request of any State Liquor Store or any licensee, or the servant, agent or employe thereof, for the purpose of aiding such store, licensee, or the servant, agent or employe to determine whether or not such person is twenty-one years of age and upwards, when such person desires alcoholic beverages at a State Liquor Store or licensed establishment. (c) In addition to the presentation of such identification card, the agent of the State Liquor Store or the licensee or his servant, agent or employe, shall require the person whose age may he in question to fill in and sign [a declaration of age] card .... (Emphasis added.) The trial judge found, as the licensee Wiegand argued, that, because of the minors deception in presenting a false photo drivers license, the licensee did not consider the purchasers age to be in question; consequently, 'there was no need to have her execute a declaration of age card. We disagree. This court has consistently held that the Liquor Code provides only one defense against prosecution for service to minors—compliance with section 495 of the Liquor Code, which permits a licensee to rely on statements contained in a purchasers declaration of age card which the licensee must keep on file. To allow a licensee “to escape the consequences of the illegal sale by claiming deception would render the Liquor Code a nullity.” GTRT, Inc. Liquor License Case, 78 Pa. Commonwealth Ct. 584, 586-87, 467 A.2d 1233, 1234 (1983). Moreover, the plain language of section 495(c) of the Liquor Code requires that the declaration of age card be executed in addition to the presentation of an identification card. Although the licensee argues that the presentation of the minors deceptive identification card resolved any doubt regarding the purchasers age, implicit in a request for acceptable identification is an indication that the purchasers age is in question. Hence, whenever a licensee or a state liquor store employee requires a purchaser to present an acceptable identification card, the licensee or state liquor store employee can only later establish a successful defense against a sales-to-minor allegation if that purchaser who had to show proper identification also executed a declaration of age card. Accordingly, we must find that the trial court made a mistake of law in reversing the board s imposition of a fine on licensee Charles Wiegand because that licensee served alcoholic beverage to a minor without requiring her to execute a declaration of age card. Additionally, we find that the record supports the trial court s affirm - anee of the boards action with respect to licensee 146, Inc. Order in 1499 C. D. 1986 Now, June 24, 1987, the order of the Court of Common Pleas of Allegheny County, at No. S. A. 73 of 1986, dated April 23, 1986, is affirmed. Order in 231 C.D. 1987 Now, June 24, 1987, the order of the Court of Common Pleas of Allegheny County, at No. S.A. 1103 of 1986, is reversed. Liquor Code, Act of April 12, 1951, P.L. 90, as amended, §493, 47 P.S. §4-493. 47 P.S. §4-495.

Opinion by Judge MacPhail, Stephen Snipes (Petitioner) appeals from the September 18, 1986 denial of his application for administrative relief by the Pennsylvania Board of Probation and Parole (Board). We affirm. On June 13, 1985, Petitioner was ordered to serve 78 months backtime as a technical and convicted parole violator. The Board order included notice that if Petitioner wished to appeal the decision, a request for administrative relief must be filed within thirty days. Although not included in the certified record, Petitioner alleges that he wrote a letter to the Board on December 7, 1985 expressing his confusion over the wording of the Boards order. The record does include a letter from counsel with the Philadelphia Defenders Association, dated March 7, 1986, requesting a review of Petitioners file and raising the possibility of a violation of our Supreme Courts ruling in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). The Board responded to this communication on April 1, 1986, rejecting therein any challenge on the basis of Rivenbark. Subsequently, Petitioner requested administrative relief on September 12, 1986 by a letter in which he outlined his contentions regarding several issues including the applicability of Rivenbark to his case. The Board responded on September 18, 1986 by again rejecting the Rivenbark argument and dismissing all other issues as untimely. Petitioner filed a pro se petition for review with this Court following the Boards September 18, 1986 denial of administrative relief. The Public Defender of Huntingdon County has been appointed to represent Petitioner in the instant appeal. In response to the appeal petition, the Board filed a motion to limit the issue on appeal to that of timeliness with the exception of the issue of the applicability of Rivenbark. We granted the motion to limit by per curiam order dated February 18, 1987. We will, accordingly, first address the issue of the timeliness of Petitioners request for administrative relief keeping in mind that 37 Pa. Code §71.5(h) clearly limits the time period for filing such requests to thirty days following entry of the Board’s order. As reflected by the procedural history detailed above, the earliest possible date on which a request for administrative relief was filed was December 7, 1985, almost six months after the Board’s June 13 revocation order. Moreover, the request for administrative relief which is the subject of the instant appeal was not filed until September 12, 1986, some fifteen months following the Board’s order. Though Petitioner’s request for administrative relief would, therefore, appear to be untimely, Petitioner argues that his late filing should not be fatal to his case, since he was operating without the benefit of counsel when he filed for administrative relief. Petitioner contends that our recent holding in Blair v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 478, 518 A.2d 899 (1986), supports his position. In Blair, we noted that indigent parolees are entitled to the effective assistance of counsel at parole revocation hearings and in prosecuting subsequent appeals as of right. Implicit in our decision, however, was the recognition that in order for such representation to be required the parolee must request that legal counsel become involved. In the instant case, Petitioner was represented by counsel at his revocation hearing. As noted previously, the order revoking his parole included notice that Peti tioner was entitled to the assistance of counsel in pursuing a request for administrative relief. The order also includes a notation which indicates that a copy of the decision was sent to counsel who had represented Petitioner at the revocation hearing. We are satisfied that the Board did all that could be required of it in this case to inform Petitioner of his right to counsel in the appeals process. Following receipt of the revocation order and the notice provided therein, we believe it was then incumbent on Petitioner to promptly request further legal representation by his hearing counsel. The record does not reveal that any such request was made. We, accordingly, conclude that Petitioner has failed to establish adequate grounds for an appeal nunc pro tunc. Thus, we affirm the Boards denial of administrative relief as untimely filed as to all issues except the applicability of Rivenbark. With respect to the Rivenbark issue, we conclude that the Board acted properly in addressing that issue on the merits. We have previously recognized that the Board may address requests for reconsideration, as opposed to those for administrative relief, beyond the thirty day appeal period provided by 37 Pa. Code §71.5(h). Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986). We believe that Petitioners September 12 letter could be construed as such a request. Moreover, since Riven-bark, which was decided on December 10, 1985, is entitled to retrospective effect we believe the Board acted properly in deciding to consider Petitioners argument regarding the applicability of Rivenbark to his case. See Threats. Petitioners argument regarding Rivenbark relates solely to his three technical parole violations: No. 1 (leaving the district without prior written permission of parole staff); No. 2 (moving approved residence without permission); and No. 3(a) (failing to report regularly as instructed). He argues that since the technical violations all resulted from his action in leaving Pennsylvania and travelling to North Carolina, they constitute an improper duplication and may not support an increased period of recommitment. Thus, Petitioner contends that the rationale of Rivenbark should be extended to require that where a single act, which does not itself constitute a crime, results in a violation of more than one condition of parole, the violations must be consolidated for purposes of imposing backtime. We must reject this argument. In Rivenbark, the Supreme Court held 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. This ruling was not based on constitutional double jeopardy grounds, but rather, is supported by the statutory language of Section 21.1 of the Act of August 6, 1941 (Act), 61 P.S. §331.21a. In construing that provision, the Supreme Court observed that Section 21.1(b) of the Act specifically excludes a parolee from recommitment as a technical violator when the technical violation also constitutes a crime for which he is convicted. Our review of the Act reveals that there is no similar express prohibition regarding multiple technical violations which arise based on a single act of the parolee. We observe that the technical conditions themselves are not duplicative, but rather, coincidentally may arise as discrete aspects of a single action such as that taken by Petitioner in leaving his parole district for an extended period of time. Just as multiple convictions which arise from the same criminal event may support separate recommitment periods, Perry v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 548, 485 A.2d 1231 (1984), we conclude that multiple technical violations may arise from a single action of a parolee and will support application of the multiple violation presumptive ranges set forth in 37 Pa. Code §75.4. In sum, we foil to see how the statutory interpretation undertaken in Rivenbark has any application to the instant case. We, accordingly, will affirm the Boards denial of administrative relief. Order The order of the Pennsylvania Board of Probation and Parole denying Petitioners application for administrative relief is affirmed. The attorney who was contacted by Petitioner was not, apparently, the same counsel who represented Petitioner at the Board revocation hearing. Instead, it appears that Petitioner contacted counsel who had represented him in criminal court. Petitioner prepared a pro se brief on this issue which his present counsel moved to have accepted and deemed timely filed. This Court denied the motion by per curiam order dated March 23, 1987. Notice of a revocation order must be provided to the parolees attorney pursuant to 37 Pa. Code §§71.2(19) and 71.4(9). While we approve of the Boards provision of written notice regarding the right to counsel in filing for administrative relief, we observe that even this notice is not strictly required by the Boards regulations. We render no opinion regarding the respective roles which an indigent parolee and counsel who represented him at a revocation hearing should play in initiating communications regarding whether an appeal will be taken. See Lewis v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 271, 508 A.2d 644 (1986) (public defender is appointed to represent the parolee in all respects including providing prompt notice of any Board decisions). In early 1986, Petitioner apparently did contact counsel with the Philadelphia Defenders Association for assistance in filing for administrative relief. As discussed in note 1 supra, however, the attorney who was contacted was not the same counsel who represented Petitioner at the Board revocation hearing. Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986). While we are not convinced that Petitioners action in moving from Pennsylvania to North Carolina for several months in order to avoid arrest in Pennsylvania can properly be viewed as a single “act,” we will accept Petitioners characterization for purposes of argument. P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401. In Rivenbark, the parolee had been recommitted as a technical parole violator for possessing a weapon. He had also been recommitted as a convicted parole violator for possessing a firearm. The Court concluded that this type of duplicative recommitment, while constitutionally sound, was violative of the Act.

Opinion by Judge Barry, This is an appeal by Life Services, Inc., (Life Services) d/b/a Park Avenue Manor of Chalfont and Grenoble Associates, (Grenoble), a general partnership, from an order of the Court of Common Pleas of Bucks County in which that court found the imposition of a “contribution fee” against them by the Chalfont-New Britain Township Joint Sewage Authority (Authority) to be reasonable. We affirm. In September of 1982, Grenoble purchased an improved parcel of land situate in the Borough of Chalfont from The Patriotic Order Sons of America (P.O.S. of A.) P.O.S. of A. operated a residential nursing facility on the premises and Grenoble now leases the same to Life Services which operates a personal care boarding home facility licensed by the Pennsylvania Department of Public Welfare under the name Park Avenue Manor of Chalfont (Park Avenue Manor). The initial license was for a maximum occupancy of seventy-eight (78) residents. Prior to" its expansion in 1983, Park Avenue Manor operated at a capacity of fifty-five (55) residents. On June 21, 1979, the Department of Environmental Resources issued an order prohibiting additional connections to the Authority’s sewage treatment plant. Pursuant to a planned expansion of their facilities Life Services: 1) sought and obtained approval from the Pennsylvania Department of Public Welfare for its expansion which resulted in the relicensing of the facility for a maximum capacity of 158 residents, 2) sought and obtained an exception granted in July of 1983 to a Department of Environmental Resources ban on the entry into the sewer system of the Authority and 3) sought and obtained a building permit from Chalfont Borough on September 13, 1983. On December 13, 1983, the Authority amended its 1980 Statement of Policy for Sewer Service to Apartments, Townhouses, Condominiums, Shopping Centers and other Multiple Commercial and Industrial Units or Equivalent Dwelling Units. This Statement of Policy provides for the imposition of, inter alia a one-time contribution fee of $600.00 per ownership unit, rental unit or equivalent dwelling unit (EDU). An EDU is defined as “one (1) family unit or 350 gallons usage per unit.” The December 1983 amendment created a new classification called “Institutions” and provides for the imposition of a contribution fee at the rate of $500.00 per one equivalent EDU with the equivalent being 100 gallons per day per person based on maximum occupancy. The Authority applied the Statement of Policy, as amended, to Park Avenue Manor and calculated its contribution fee as follows:2 Estimated actual number of new occupants 60 Times 100 gallons per person per day x_100 Equals gallons per day 6,000 Divided by usage per EDU (350 gallons) 350 17.142857 Times contribution rate ($500) x $500.00 Equals Contribution Fee $ 8,571.43 On April 24, 1984, Park Avenue Manor paid the contribution fee under protest and subsequently initiated this action for a refund of that payment by filing a Complaint in the Court of Common Pleas pursuant to the Municipality Authorities Act of 1945 5alleging that the imposition of the fee was unreasonable and contrary to law. The burden is upon Life Services, as the challenging party, to prove that the Authority abused its discretion by establishing a rate system which was either unreasonable or lacking in uniformity. Vener v. Cranberry Township Municipal Sewer and Water Authority, 5 Pa. Commonwealth Ct. 123, 289 A.2d 506 (1972). The court below found that Life Services had not met its burden. Our scope of review on appeal is limited to considering whether the factual findings are supported by substantial evidence and whether the law was properly applied to the facts. Port Authority of Allegheny County v. Scott, 62 Pa. Commonwealth Ct. 631, 437 A.2d 502 (1981). Upon review of the record we find that there is substantial evidence to support the lower courts factual findings and that the law was properly applied thereto. The Authority’s power to establish and set its rates is set forth in §4B(h) of the Municipality Authorities Act of 1945 , which provides in pertinent part: B. Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: (h) To fix, alter, change and collect rates and other charges in the area served by the facilities at reasonable and uniform rates to be determined exclusively by it, for the purpose of providing for the payment of expenses of the construction, the improvement, repair, maintenance and operation of its facilities and properties, and ... to determine by itself exclusively the services and improvements required to provide adequate, safe and reasonable service, including extensions thereof. . . . Life Services argues that the Authority incurred no added liabilities, expenses or obligations as a result of the Park Avenue Manor expansions connection, thereby making the imposition of a contribution fee unreasonable. It argues further, that all of the Authority’s obligations and costs of services are satisfied by the normal user fees paid on account of service. The evidence in the record and as found by the court below is to the contrary. In 1979 the DER imposed a ban on further connections into the Authority’s sewage treatment plant due to a hydraulic overload at that facility. This is significant inasmuch as the Authority’s sludge hauling costs have increased substantially because of the facility’s inability to tolerate the flow. DER granted Life Services an exception to its ban and permitted the additional con nection into the Authority’s sewage system which will, necessarily, increase the flow into the already overburdened facility. We agree with the court below that the imposition of a contribution fee under these circumstances is reasonable. Life Services further argues that the contribution fee is arbitrary in that it is based on an assumed consumption of one hundred (100) gallons per day per per1 son while their studies show that the facility consumes only fifty-one (51) to fifty-nine (59) gallons per day per person. As the trial court correctly points out in its opinion 1) Life Services made its usage estimates during periods when the facility was still expanding and therefore not at maximum capacity and 2) the contribution fee was calculated based upon an increase to the facility’s population of sixty (60) rather than the facility’s potential increased capacity of seventy-eight (78). The Authority’s rates “must have a reasonable relation to the value of the service rendered either as actually consumed or as readily available for use. . . .” Patton-Ferguson Joint Authority v. Hawbaker, 14 Pa. Commonwealth Ct. 402, 322 A.2d 783 (1974). The Authority is not required to establish its rates solely upon services actually consumed. On these facts, we find that the contribution fee imposed by the Authority is reasonably related to the value of the service rendered and the Authority’s assumed use of one hundred (100) gallons per day per person is not arbitrary. Life Services advances two arguments in its attempt to invalidate the imposition of the contribution fee which were presented to the court below but were not addressed. First, it argues that imposing a contribution fee against Park Avenue Manor is void as against public policy inasmuch as it has been determined to be a “facility of public need” by DER. We are not persuaded by this argument. We are not willing to extend the ef feet of DER’s determination beyond the narrow purpose for which such determination was intended, i.e., to permit connection into a sewer system upon which DER had imposed a ban prohibiting additional connections. DER’s exemption does not operate to eliminate Life Services’ responsibility for payment of the Authority’s properly imposed charges. Life Services also argues that the adoption of the resolution imposing the contribution fee on Park Avenue Manor took place after its expansion work had commenced, was aimed specifically at that facility and, therefore, constitutes impermissible special legislation. In support of this argument, Life Services cites us to Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A.2d 514 (1965). Commercial Properties addresses questions involving spot-zoning which we find wholly unrelated to the instant case. For the foregoing reasons we find that the facts as found by the court below are supported by substantial evidence and that the law was properly applied thereto to conclude that the imposition of the contribution fee here was reasonable and that Life Services is not entitled to a refund of its payment. Order Now, July 21, 1987, the Order of the Court of Common Pleas of Bucks County, entered January 23, 1986, at No. 84-6348-12-2 is affirmed. Trial in this case was conducted on September 24, 1985, before the Honorable George T. Kelton, Judge on which date Judge Kelton entered a decision as trial judge in favor of the defcndant/authority. Timely exceptions were filed by Life Services, treated as motion for post-trial relief under Pa. R.C.P. 227.1 by the court below, denied and judgment entered on the court’s decision of September 24, 1985, from which Life Services appeals to this Court. The 1980 Statement of Policy also included provisions for the imposition of the Authority’s standard rates for sewer service; the imposition of the Authority’s customary tap-in fees; the imposition of the Authority’s charges for miscellaneous services; and guidelines concerning the application for services, ownership of rights-of-way and the installation of service lines. There is. agreement between the parties that if the institutional contribution fee is otherwise valid, it has been calculated properly. Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §301 et seq. 53 P.S. §306B(h). 25 Pa. Code §94.1 defines hydraulic overload—The condition that occurs when the hydraulic portion of the load, as measured by the average daily flow entering a plant, exceeds the average daily flow upon which the permit and the plant design are based during each month of a recent three-month period or when the flow in any portion of the system exceeds its hydraulic carrying capacity. Life Services sought and was granted an exception to the ban under 25 Pa. Code §94.57 which provides: Connections which are necessary to eliminate a public hazard or which are necessary for the operation of a facility of public need shall constitute an exception to a ban. DER found the facility operated by Life Services to be a “facility of public need” as defined in 25 Pa. Code §94.1.

Opinion by Judge Craig, Boeing Vertol Company, as employer, has appealed the Workmens Compensation Appeal Boards affirmance of a referees decision granting total disability benefits to claimant Donald Coles, employed as an engineering writer of technical manuals. The referee found that stressful employment situations and events caused the claimant to suffer a compensable injury in the nature of an aggravation of pre-existing cardiovascular disease. The employers primary contention is that the claimants subjective reaction to normal work conditions was the sole cause of the cardiac injury, and that it therefore should be deemed to be non-compensable. Secondarily, the employer contends that the referee should not have included the cost of medical data copies and referees hearing transcripts as part of the costs and fees awarded to the claimant. The Causation Issue This court has recognized that worker compensation cases involving mental or psychological elements fall into three categories: 1. Psychological stimulus causing physical injury; 2. Physical stimulus causing psychic injury; and 3. Psychological stimulus causing psychic injury. Note, Jones, Gray Areas and Gray Matter: Compensable Psychic Injury under Pennsylvania Workmens Compensation Law, 91 Dick. L. Rev. 583 (1986). This court has struggled particularly with the third category, involving mental and nervous disabilities resulting from work-related stress. See Bell Telephone Co. of Pennsylvania v. Workmen's Compensation Appeal Board (DeMay), 87 Pa. Commonwealth Ct. 558, 487 A.2d 1053 (1985). Recognizing that medicine is not an exact science and confronted with the difficulty of identifying the linkage between intangible stress elements on the job and the similarly intangible nature of psychic injury, this court has been concerned about the adequacy of proof in such cases. “Due to the highly subjective nature of psychiatric injuries, the occurrence of the injury and its cause must be adequately pinpointed.” Thomas v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 449, 455, 423 A.2d 784, 787 (1980). In that case, where this court disallowed benefits to a claimant whose mental disability stemmed from his fear that a job site explosion might recur, we held that “evidence of an employees subjective reaction to being at work and being exposed to normal working conditions is . . . [not a compensable] injury under the act.” 55 Pa. Commonwealth Ct. at 456, 423 A.2d at 788. However, this case clearly does not fall into that third category, the mental-mental cases. This case involves physical cardiovascular injury found to have been caused by psychological stress at the job, a classic example of the first category listed above. The referees pertinent findings were as follows: 7. In his position as an engineering writer, he was assigned to a project to prepare a manual for a helicopter being developed by the defendant for the Royal Air Force. 8. Testimony by the claimant and by Mr. Farris and Mr. Ortlief of Boeing Vertol showed that the RAF project claimant was assigned to was already behind schedule as of the time claimant was assigned to the project. 9. Claimant has testified to at least one dozen incidents at work involving discussions, meetings, deadlines, and arguments occurring at work with his senior lead men and supervisors resulting in claimant feeling dizzy, headachy and ill and in some occasions leaving work early. The Referee accepts such testimony as credible. 10. The testimony of the defendant presented on the incidents at work described by Claimant, did not contradict claimants testimony, but in feet corroborated claimant’s version of what occurred. 11. The claimant presented the testimony of Dr. Donald Heiman, board certified in inter nal medicine. Dr. Heiman testified that as a result of the incidents that occurred at work involving his supervisors, claimant suffered a significant aggravation of a pre-existing hypertensive cardiovascular disease that resulted in claimant not being able to return to his employment at Boeing Vertol and further that claimant was disabled from performing any work where he would be subject to anxiety, apprehension or emotional tension. The Referee accepts the testimony of Dr. Heiman as competent and credible. 12. The Referee notes that the defendants medical witness, Dr. Norman Makous, in his testimony stated that claimants complaints of headache, dizziness and shortness of breath, that these symptoms may have been related to claimants work environment and if claimant perceived events at work as stressful, then the symptoms may have been produced by work at Boeing Vertol. 14. The Referee finds as a feet that claimant sustained a compensable injury while at work for defendant, Boeing Vertol. The injury was in the nature of an aggravation of pre-existing hypertension and cardiovascular disease caused by the stress to claimant by the problems he incurred at work. Of course, this court cannot negate those findings if they are supported by substantial evidence, and the record here provides that support. The employer seeks to attack the causation link by urging that we apply the proof principles of the mental-mental category to this mental-physical case, in which there is no dispute concerning the fact of injury to physical organs. Then, proceeding upon that basis, the employer further urges that we characterize the stressful events and situations described in the claimant’s testimony as simply the claimant’s subjective—i.e., imagined—version of events and situations which, according to other testimony deemed favorable by the employer, were not in fact stressful. In actuality, however, the employer’s analysis is a skillful attempt to escape the referee’s power to make credibility determinations; the employer’s argument assumes the verity of the employer’s testimony in order to eliminate the claimant’s testimony from consideration on the theory that it is just a reflection of his subjective reaction. But, in heart attack cases as well as in other cases, the referee is the finder of fact, Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981), and, as always, has the responsibility and power to determine which of various conflicting accounts are to be believed. Bell Telephone Co. of Pennsylvania v. Workmen's Compensation Appeal Board (Gussey), 91 Pa. Commonwealth Ct. 112, 116, 496 A.2d 1277, 1279 (1985). Examination of the record discloses that testimony concerning the claimant’s working conditions was conflicting, but, with substantial evidence present on both sides, the referee expressly found the claimant’s testimony to be credible as to actual facts, being corroborated by employer witnesses in some instances. (Findings Nos. 9, 10.) Similarly, the referee weighed the testimony of the medical experts on both sides, with respect to the crucial matter of the causation linkage, and expressly found the testimony of the claimant’s expert to be competent and credible. (Finding No. 11.) Therefore, analysis shows that this case rests upon considerations of the substantiality of evidence and the credibility of testimony, rather than upon any matter of subjective reaction. Moreover, there is no basis for extending the concerns with which we struggle in the psychic injury cases to physical injury situations like the present case. Reimbursement of Legal Counsel Expenses Among the costs which the referee awarded to the claimant were sums for notes of testimony taken before the referee at two different hearings and costs of reproducing medical records of two hospitals and three physicians. In challenging the inclusion of these costs for reimbursement, the employer cites section 440 of The Pennsylvania Workmens Compensation Act, which allows a reasonable sum for costs incurred for attorneys fee, witnesses, necessary medical examination and the value of unreimbursed lost time to attend the proceedings .... Because the quoted language does not expressly refer to transcript expenses or copy reproduction expenses, the second question is whether reimbursement of those costs may be included within the concept of attorneys fee or the concept of expenses for witnesses. With respect to medical record copies, an earlier decision of this court has settled the point that costs incurred for such copies, when they are actually used in the case, are reimbursable. Duquesne Light Co. v. Workmen's Compensation Appeal Board (Birx, Jr.), 97 Pa. Commonwealth Ct. 13, 509 A.2d 427 (1986). Although this court has also held that the expense of deposition transcripts is reimbursable when necessary for presentation of the case, Papernik v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 81, 83, 399 A.2d 1205, 1207 (1979), the court has not previously considered the matter of reimbursement for hearing transcript costs. The employer points out that a previous decision of the board has refused reimbursement for hearing transcript costs, Balko v. Lobster Pot Restaurant, Docket No. A-71176 (1976). Certainly, in construing terms of a statute governing the responsibilites of administrative agencies, the courts give weight to the interpretation which the expert administrative agency has adopted. Masland v. Bachman, 473 Pa. 280, 291, 374 A.2d 517, 522 (1977). Consonant with that principle, however, we also have the boards decision in the present case, where the board expressly considered the appropriateness of reimbursing reproduction and transcript costs and construed them to be allowable under the statutory provision quoted. The cost of making copies of medical exhibits is indispensably related to preparation and examination of witnesses. Similarly, transcripts of testimony in the proceeding itself are frequently essential for the accurate and effective prosecution of the matter. The conclusion must be that the questioned costs are allowable, when found to be reasonably necessary for presentation of the case, consistent with the principle of interpreting the act liberally with respect to claimants’ concerns. Conclusion The decision of the board should be affirmed. Order Now, July 15, 1987, the decision of the Workmen’s Compensation Appeal Board, at Docket No. A-87163, is affirmed. This Courts scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of feet are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §996.

Opinion by Judge Blatt, The Alternate Energy Store, Inc. (petitioner) petitions for review of the order of the Environmental Hearing Board (Board) which dismissed the petitioners appeal from a letter (the letter) which the Department of Environmental Resources (DER) mailed to the petitioners counsel on April 5, 1985.* This controversy has its genesis in DERs May 20, 1981 grant of a noncoal surface mine operating permit (the permit) to the petitioner for a site in Lower Provi dence Township (Township), Montgomery County: The permit carried a standard condition requiring compliance with local zoning ordinances and a special condition establishing a two-year life span for the permit. The Township appealed the permit grant to the Board (Township appeal), which then conducted proceedings separate and apart from the instant proceedings. And, in order to satisfy the permits zoning compliance condition, the petitioner filed a validity challenge and a request for a special exception with the Townships zoning hearing board. Both of these administrative matters required lengthy proceedings and the zoning case is now pending before the Montgomery County Common Pleas Court a second time. Due to this litigation, the petitioner never commenced mining operations under the permit. At no time prior to the permits expiration did the petitioner seek an extension from DER. Following the completion of the Boards proceedings on the Townships appeal in 1984, the petitioner became aware that DER was considering the temporal expiration of the permit. The petitioner, in December 1984, requested DER to extend the permit nunc pro tunc. Inasmuch, however, as the permit had expired more than one and one-half years earlier, with no timely extension request and no commencement of mining, DER, in the letter here concerned, implicitly rejected this belated extension request. The petitioner then filed its appeal to the Board, which, in response to DER’s motion, issued the dismissal order presently under review. On review, the petitioner presents several allegations of legal error on the part of the Board. The first such allegation is that the Board erred in rejecting the petitioners contention that the letter constituted an appealable administrative order. In Sunbeam Coal Corp. v. Department of Environmental Resources, 8 Pa. Commonwealth Ct. 622, 304 A.2d 169 (1973), we held that written notice from DER to certain coal companies advising these companies that DER considered them to be violating the Surface Mining Conservation and Reclamation Act, 52 P.S. §§1396.1-1396.31, were not “adjudications” within the meaning of the Administrative Agency Law, nor ap pealable DER “actions” as defined by the Administrative Code.* **** We believe that Sunbeam Coal is controlling here. Just as the written notices in Sunbeam Coal were neither adjudications nor appealable DER actions, so the presently involved letter may not be classified in either category. Clearly, DER, through its counsel, was merely advising the petitioner of the status of the permit. We must conclude, therefore, that the Board did not err in holding the letter to be unappealable. Next, the petitioner contends that its right to due process was violated by the letter because it was afforded no advance notice by DER of the permit’s expiration and because DER did not raise the expiration issue during the Board’s proceedings on the Township’s appeal. Inasmuch, however, as the petitioner was notified at the time of the issuance of the permit that its rights thereunder would expire after two years unless mining was commenced or an extension was granted, the petitioner cannot now claim ignorance of the conditions under which it accepted the Commonwealths approval to conduct mining operations. Nor, we believe, can the petitioner escape the consequences of its failure to timely request an extension based on what it asserts to be DER’s failure to raise the expiration issue before the Board as that tribunal was considering the Township’s appeal. This is so because the issue then before the Board, as we perceive it, was the validity of the permit, a determination which could stand as res adjudicata on the question of whether or not mining may be conducted on the involved site. Presently, the expiration of the permit by operation of regulation imposes no permanent barrier, of which we are aware, which would prevent the petitioner from reinstituting the permitting process. Accordingly, we perceive no due process violations in this case, nor do we believe that the petitioner was deceived by DER in any way as to the running of the permit’s time limit. Lastly, the petitioner contends that it should be allowed to appeal the expiration of the permit to the Board, nunc pro tunc and, also, that it should be allowed a nunc pro tunc extension of the permit. We can find no conduct on the part of the Board, however, which could constitute appropriate grounds for appealing the permits expiration nunc pro tunc. See Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). Nor can we, in light of our holding here that the petitioner was not relieved of its obligation to request an extension of the permit by DERs participation in the Townships appeal, hold that the petitioner was in any way misled by DER as to the need to so extend the permit dúring the pendency of the Townships appeal. See Tarlo v. University of Pittsburgh, 66 Pa. Commonwealth Ct. 149, 443 A.2d 879 (1982). We conclude, therefore, that the Board did not err in refusing to grant the petitioners requests to file nunc pro tunc appeals. Accordingly, we will affirm the Boards order. Order And Now, this 23rd day of June, 1987, the order of the Environmental Hearing Board in the above-captioned matter is affirmed. The text of the April 5, 1985 letter is as follows: I am writing in response to your letter of April 1, 1985. You have advised me, and I have confirmed that Alternate Energy Store (‘AES’) was issued Mining Permit No. 302093-46800301-01-0 (‘Mining Permit’) on May 4, 1981. You have also advised us, and we have confirmed [sic] that mining had not commenced at this site. You have also advised us [sic] and we have confirmed [sic] that a request for an extension of the mining permit was not made prior to the expiration date. 25 Pa. Code [sic] 77.102(a)(6) specifies that mining permits expire automatically within two years of issuance unless an extension of time has been granted by the Department. By automatic operation of 25 Pa. Code [sic] 77.102(a)(6), the mining permit expired on or about May 4, 1983. Please call me if you wish to discuss this matter further. Sincerely yours, Is/ JOHN WILMER Assistant Counsel As will be seen, the May 4, 1981 issuance date referenced in the letter is erroneous, however, inasmuch as the petitioner made no attempt to extend the permit until 1985, this error is immaterial in this case. The pertinent standard condition provides as follows: Permittee is hereby notified that he/she/it is responsible for complying with local zoning ordinances pursuant to section 17 of the Surface Mining Conservation and Reclamation Act. The relevant special condition is found at 25 Pa. Code §77.102(a)(6) and provides as follows: The permit issued shall expire two years from the date of the permit issuance unless mining has been started or an extension of time has been granted by the Department. Our review of Board adjudications is limited to determining whether or not constitutional rights have been violated, legal errors have been made or necessary findings of fact are unsupported by substantial evidence. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Department of Environmental Resources v. Pennsylvania Mines Corp., 102 Pa. Commonwealth Ct. 452, 519 A.2d 522 (1986). At the time that Sunbeam Coal was decided, Section 2(a) of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. §1710.2(a), defined an adjudication as: Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a court, or which involves the seizure or forfeiture of property, or which involves paroles, pardons or releases from mental institutions. The foregoing was repealed in 1978, Act of April 28, 1978, P.L. 202, as amended, and re-enacted in substantially the same form as follows: Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions. 2 Pa. C. S. §101. Section 1921-A(c) of the Administrative Code, Act of April 9, 1929, P.L. 177, added by Section 20 of the Act of December 3, 1970, P.L. 834, 71 P.S. §510-21(c), provides: Anything in the law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regard to the Administrative Agency Law, but no such action of the department adversely affecting any person shall be final as to such person until such person has had the opportunity to appeal such action to the Environmental Hearing Board, provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified. For the purposes of the Boards practice and procedure, 25 Pa. Code §21.1 defines a DER “action” as: [a]n order, decree, decision, determination or ruling by the Department affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person, including, but not limited to denials, modifications, suspensions and revocations of permits, licenses and registrations; orders to cease the operation of an establishment or facility, orders to correct conditions endangering waters of the Commonwealth, orders to construct sewers or treatment facilities; orders to abate air pollution; and appeals from and complaints for the assessment of civil penalties.

Opinion by Judge Blatt, The Commonwealth of Pennsylvania, Department of Transportation (DOT) appeals from an order of the Court of Common Pleas of Bucks County (trial court) which sustained an appeal by Ede Motor Company (Ede) of a DOT order suspending its dealer registration plates and its authorization to issue temporary registration plates. As a result of complaints received from individuals who had purchased motor vehicles from Ede, but had not received their title papers and registration cards, a garage inspector for the Commonwealth visited Ede in April and July of 1985. After checking Ede’s records, he discovered that the necessary paper work had not been submitted to DOT within the ten-day period required by Section 1103(d) of the Pennsylvania Vehicle Code (Vehicle Code), 75 Pa. C. S. § 1103(d). DOT held a hearing on this matter on August 8, 1985, and found that Ede, on four separate occasions, had failed to timely deliver applications to DOT for certificates of title, thus violating Section 1103(d) of the Vehicle Code. Pursuant to 67 Pa. Code §53.9(a)(12), therefore, Ede was issued a warning for the first violation and notified, pursuant to Section 1374(a)(5) of the Vehicle Code, of the three one-month suspensions for the other offenses to be served concurrently. Also, pursuant to 67 Pa. Code §43.11(a) (4), DOT informed Ede that its authorization to issue temporary registration plates was likewise suspended for four one-month periods to run concurrently. Ede appealed DOTs decision to the trial court, which concluded that the penalty was extreme and, therefore sustained the appeal thereby effectively lifting the suspension. DOT contends that the trial court erred, as a matter of law, in substituting its discretion for that of DOT and in holding DOTs assessment of the suspension so extreme that DOT should be reversed. We agree. The trial court, in reviewing a DOT license suspension, is limited in its decision solely to a de novo determination as to whether or not the person charged has indeed committed the violation for which the sanction was imposed. Department of Transportation, Bureau of Traffic Safety v. Verna, 23 Pa. Commonwealth Ct. 260, 351 A.2d 649 (1976). And, where evidence leads to the conclusion of a violation of the law, the trial court may not modify the penalties imposed unless it makes findings of fact and conclusions of law different from those of DOT. Department of Transportation v. Kobaly, 477 Pa. 525, 384 A.2d 1213 (1978); Commonwealth v. Lossie, 96 Pa. Commonwealth Ct. 553, 507 A.2d 1312 (1986). The trial court here found that Ede had committed the violations for which it was charged, but sustained Edes appeal solely because it found the penalty to be too severe in light of mitigating circumstances. A trial court, however, may not reverse or modify a DOT suspension simply because it believes the result harsh. Commonwealth v. Demuro, 24 Pa. Commonwealth Ct. 480, 357 A.2d 270 (1976). And it is a manifest abuse of discretion for a trial court to modify a DOT suspension when it finds a punishable violation but disagrees with the penalty imposed. Department of Transportation v. Cormas, 32 Pa. Commonwealth Ct. 1, 377 A.2d 1048 (1977). Accordingly, we will reverse the order of the trial court. Order And Now, this 25th day of June, 1987, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is reversed and the order of the Department of Transportation is reinstated. Ede was precluded from filing a brief in this matter. The trial court also found that the penalty provisions of Section 1374(a)(5) of the Vehicle Code, 75 Pa. C. S. §1374(a)(5), were discretionary, rather than mandatory because of that sections use of the word “may.” The mitigating circumstances found by the trial court were that Ede had been in business for thirty-one years and committed only four violations, that the violations caused no financial loss, and that they were unintentional and due to emotional and financial strain on the part of the owner.

Opinion by Judge Palladino, This is an appeal by Mary Lightcap (Lightcap) from a final order entered by the Department of Public Wei- fare (DPW) adopting a recommendation of an attorney examiner who calculated the benefits of Lightcap pursuant to Act 534. The facts are not in dispute. On November 16, 1979, Lightcap was injured in the course of her duties while employed at the Ebensburg Center operated by DPW. Lightcaps claim for injuries was initially treated as á workmens compensation claim. Lightcap, however, had requested to receive benefits under Act 534. By decision dated November 3, 1982, DPW denied this request and Lightcap appealed to the Office of Hearings and Appeals. After a hearing, a hearing officer found that Lightcap had been injured by an “act of a patient” which rendered her claim compensable under Act 534. On April 1, 1983, the Office of Hearings and Appeals issued a final decision determining that Lightcaps injury was compensable under Act 534. Subsequently, DPW calculated benefits due Lightcap under Act 534 and credits for workmens compensation and other benefits received by Lightcap. It is not disputed that Lightcap was absent from employment with DPW for a total of 582 days. During the period of disability, Lightcap received $15,960.70 in workmens compensation benefits. In addition, Lightcap received $3,985.10 in work-related disability leave benefits (WRDL) pursuant to a collective bargaining agreement and was paid for 139.4 days of accumulated leave-time following the expiration of WRDL payments. Act 534 benefits were calculated on the basis of a constant $40,875 per day for the 582 days of absence. This figure was derived from the hourly rate of pay which Lightcap received at the time of injury. However, as of July 1, 1980, had Lightcap not been injured, her hourly wage would have increased to $5.75 per hour and would have further increased to $6.21 per hour on July 1, 1981 and $6.71 per hour on July 1, 1982. The WRDL benefits received by Lightcap incorporated these contractual pay raises. DPW calculated an overpayment of $1,168.98 as a result of the payment of workmens compensation and WRDL payments credited against Act 534 liability. DPW also took a full credit for the 139.4 days of accumulated leavetime paid to Lightcap. Lightcap challenged DPWs calculations and a hearing was held before an attorney examiner. The attorney examiner accepted DPW’s calculation of wages under Act 534 as being properly based on the amount Lightcap earned at the time of injury. In response to Lightcap’s assertion that she should be entitled to accumulated leave during the period she was receiving Act 534 benefits, the attorney examiner concluded that an injured employee may not accrue sick leave, vacation leave, personal leave time or holiday time. With respect to credits taken by DPW against its Act 534 liability, the attorney examiner allowed DPW’s credit for the $15,960.70 of workmen’s compensation and $3,985.10 of WRDL benefits paid to Lightcap. The attorney examiner found that at the outset of her disability, Lightcap had accumulated annual leave of 63.25 days; 64.65 days sick leave; 2.5 personal days and 9 holidays. Lightcap was paid for these 139.4 days of accumulated leave following the expiration of WRDL benefits. As to DPW’s credit for these 139.4 days paid to Lightcap, the attorney examiner allowed DPW to offset, against its Act 534 liabilities, 45 days of annual leave and 64.65 sick days. Lightcaps leave account was to be credited for these days because DPW personnel rules provided for an accumulation of 45 days of annual leave and 64.65 sick days. However, the attorney examiner disallowed a credit for Lightcaps personal leavetime and holidays. Lightcap appealed to the Office of Hearings and Appeals which adopted the recommendation of the attorney examiner in its entirety. On appeal to this court Lightcap asserts that 1) DPW erred in excluding contractual pay raises from its calculation of salary due under Act 534; 2) she should have been permitted to accumulate sick leave, vacation leave, personal leave and holiday leave time; and 3) DPW erred in allowing a credit against Act 534 benefits for exhaustible benefits received by Lightcap while awaiting an outcome on her Act 534 claim. Act 534 was designed to assure those who undertake employment in certain state institutions that they would be fully compensated in the event they were disabled as a result of an act of a patient. Krug v. Department of Public Welfare, 9 Pa. Commonwealth Ct. 563, 308 A.2d 168 (1973). Further, the benefits provided by Act 534 “supplement the compensation and payment of medical/ hospital bills authorized by an employee under the Pennsylvania Workmens Compensation Act.” Boughter v. Department of Public Welfare, 55 Pa. Commonwealth Ct. 521, 522-523, 423 A.2d 806, 808 n. 1 (1980). Section 1 of Act 534 provides in pertinent part: Any employe ... of a State mental hospital or Youth Development Center under the Department of Public Welfare, who is injured during the course of his employment by an act of any inmate or any person confined in such institution . . . shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of his injury. During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmens compensation received or collected for such period shall be turned over to the Commonwealth and paid into the General Fund, and if such payment shall not be so made, the amount so due the Commonwealth shall be deducted from any salary then or thereafter becoming due and owing. 61 P.S. §951. As to the salary determination, Lightcap asserts that she had a right to receive contractual increases in salary which she would have been entitled to but for the injury. Lightcap asserts that to interpret Act 534 as mandating a calculation of salary benefits based on the salary an employee received at the time of injury, defeats the remedial nature of Act 534. As there is no precedent interpreting a calculation of benefits under Act 534, we note that the Statutory Construction Act provides in pertinent part: (a) the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions. (b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Section 1 of Act 534 provides for payment of an employees “full salary” until the disability no longer prevents return as an employee “at a salary equal to that earned by him at the time of the injury.” The statute makes no provision for affording contractual increases to a disabled employee. As the words of the statute are clear, we will not expand the amount of benefits “under the pretext of pursuing its spirit.” Further, we disagree with Lightcap s assertion that limiting the salary paid to that received at the time of injury defeats the remedial nature of Act 534. This interpretation does not interfere with the extraordinary benefits provided by Act 534. For example, Act 534 contains no time limitation on receipt of benefits and an employee, who is injured by the act of a patient can potentially receive a full salary for an unrestricted period of time. In addition, Act 534 makes no distinction between temporary and permanent disability. If the legislature intended to provide contractual increases in the calculation of benefits under Act 534, they would have explicitly so stated. Therefore, it was not error to limit a calculation of Act 534 benefits to the salary earned at the time of injury. Lightcap also contends that it was error for the attorney examiner to conclude that sick leave, vacation time, personal leave time and holiday time accumulations were not permitted under Act 534. Section 2 of Act 534 provides: No absence from duty of any State employe to whom this act applies by reason of any such in jury shall in any manner be deducted from any period of leave allowed the employe by law or regulation. 61 P.S. §952. Act 534, then, guarantees that a qualified employee will not forfeit that leave time which would have been available to her had she not been absent from work because of an Act 534 injury. In the case at bar, if Lightcap had not been injured, she would have been able to accumulate 45 days of annual leave and up to a maximum of 200 days of sick leave. Lightcaps Act 534 injury should not deprive her of the leave she would have been able to accumulate. Therefore, the attorney examiner erred in concluding that accumulation of leave-time was disallowed under Act 534. Next, Lightcap contends that the attorney examiner erred in the calculation of credits for leave-time paid to Lightcap after the expiration of her WRDL benefits. Commencing August 17, 1981 and continuing through February 26, 1982, DPW paid $6,492.55 for 139.4 days of accumulated leave time. After DPW determined that it was liable under Act 534, it took credit for the 139.4 days of leave paid to Lightcap against its Act 534 liability. The attorney examiner modified DPWs action and disallowed an offset for the days of personal leave and the holidays because, according to DPW personnel rules, these days could not be accumulated. However, DPW was allowed to offset 45 days of annual leave and 64.65 sick days from its Act 534 liability. These amounts were then to be credited to Lightcaps leave account. Act 534 has been interpreted by analogy to workmens compensation law. Trumpikas v. Department of Public Welfare, 50 Pa. Commonwealth Ct. 130, 412 A.2d 218 (1980). Under workmens compensation case law, an employer is entitled to a credit for payments made to an employee who is totally disabled when payments are made, not as wages for work performed but in relief of the employees inability to work. Temple v. Department of Highways, 445 Pa. 539, 285 A.2d 137 (1971). However, an employer is not entitled to a credit, if the payments were incidents or benefits pursuant to the work agreement and are an entitlement, like wages, for services performed. Id. The employer is not entitled to credit for payments which come out of an accrued entitlement such as sick leave, vacation pay and holiday pay when holiday pay arises from the performance of services during some preceeding period. Hartwell v. Workmen's Compensation Appeal Board (McLean Trucking Co.), 96 Pa. Commonwealth Ct. 313, 507 A.2d 902 (1986). In the case at bar, the attorney examiner properly concluded that DPW was not entitled to a credit for the 9 holidays and 2.5 personal days. However, DPW should not have been afforded a credit for any annual leave or sick time paid to Lightcap as these payments were an accrued entitlement. Hartwell. Accordingly, the order of DPW’s Office of Hearings and Appeals is affirmed with respect to the calculation of salary paid to Lightcap under Act 534 but reversed in its disallowance of the accrual of leave-time. Further DPW is not entitled to a credit for the 139.4 days of leave-time paid to Lightcap. Therefore, the order of DPW is reversed insofar as it allows an offset to DPW for 63.25 days of annual leave and 64.65 days of sick leave and orders the crediting of these amounts to Lightcaps leave account. Order And Now, June 24, 1987, the order of the Department of Public Welfare in the above-captioned case is affirmed with respect to the calculation of salary, but reversed as to disallowance of the accrual of leave-time and as to allowance of an offset of 63.25 days of annual leave and 64.65 days of sick leave. Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. §§951 and 952. The WRDL benefits received by Lightcap were pursuant to the contract between the Commonwealth of Pennsylvania and the American Federation of State, County and Municipal Employees. The attorney examiner concluded, and Lightcap does not dispute, that had Lightcap not sustained an Act 534 injury she would have been entitled to the WRDL payments under Article 27 of the contract. An adjudication of DPW will be sustained if it is in accordance with the law and is supported by substantial evidence. Krug v. Department of Public Welfare, 9 Pa. Commonwealth Ct. 563, 308 A.2d 168 (1973). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1603. 1 Pa. C. S. § 1921(a), (b).

Opinion by Senior Judge Kalish, The Redevelopment Authority of the County of Washington (condemnor) appeals from a decision of the Court of Common Pleas of Washington County which denied its motion for post-trial relief and entered judgment in favor of Joseph R. Sepesy, Diane L. Sepesy, Robert P. Sepesy and Loretta J. Sepesy (condemnees). We affirm. Condemnees owned a parcel of land in the Borough of California, Washington County. A restaurant with a liquor license was operated on the land. The property was condemned by condemnor on October 18, 1982. A Board of View awarded damages to condemnees in the amount of $52,900. Condemnees filed an appeal from the award. Prior to trial, condemnor paid to condemnees $40,800 as its estimate of just compensation for general damages. In addition, condemnor paid condemnees $10,000 for business dislocation damages, and $17,465 for direct loss of personal property, i.e., the machinery, equipment, and fixtures. At the time of trial, the building on the property had been demolished, and the liquor license was held by the Liquor Control Board for safekeeping. The jury returned a verdict for damages to condemnees in the amount of $110,000. Condemnor filed a motion for post-trial relief which was denied. Condemnor contends that this case raises the question of the applicability of the Assembled Economic Unit Doctrine to the facts of this case, specifically in reference to the damages to be paid for the real estate and the liquor license only, where the bulk of the personal property, including the liquor license, is movable. Condemnor asserts that the Assembled Economic Unit Doctrine may not apply to valuation of a restaurant and liquor license, and that the trial court erred in its charge to the jury in connection with the standard to be used in determining the value of the real estate where the building was a restaurant-tavern with a liquor-dispensing license. Our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977). The just compensation to which condemnees are entitled, pursuant to section 601 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-601, as applied to real estate, is the fair market value of condemnees’ entire interest. Fair market value is defined as the price which would be agreed upon by a willing buyer and seller, including such factors as the use of the property, machinery, equipment, and fixtures forming part of the real estate. Section 603 of the Code, 26 P.S. §1-603. Since the Code did not define when machinery, equipment, and fixtures become part of the real estate, our Supreme Court fashioned the so-called Assembled Economic Unit Doctrine to meet this problem. The doctrine attempts to preserve the economic status of a condemnee by moving the condemnee and establishing a comparable economic unit elsewhere. Under the doctrine, where the condemned building is so unique that a comparable building was not available or adaptable within a reasonable distance from which the condemnee drew his patrons, all machinery, equipment, and tools, even though they could be moved, may nevertheless be left there by the owner, and he will be entitled to receive the fair market value, in place, as part of the real estate. Singer v. Oil City Redevelopment Authority, 437 Pa. 55, 261 A.2d 594 (1970); Redevelopment Authority of Erie v. Pulakos, 17 Pa. Commonwealth Ct. 251, 330 A.2d 869 (1975). It is the function of the jury to determine whether the Assembled Economic Unit Doctrine applies to the facts of a particular case, based on credibility and the weight of the testimony. Benkovitz Appeal, 56 Pa. Commonwealth Ct. 523, 425 A.2d 1178 (1981). This case was tried on the basis of this doctrine. The nature of the business and the uniqueness of the building was such that no other building within a reasonable distance from which condemnees drew their patrons was available or adaptable to the functioning of the business as an economic unit. There was testimony in the record to that effect. The building, land, machinery, equipment, and fixtures became part of the real estate, to be valued as such, in place, at the fair market value. The trial court was correct, when it instructed the jury: In this case, the plaintiffs-condemnees have already received payment for the machinery, equipment and fixtures forming part of the real estate taken, and you should therefore reduce the amount of damages by the fair market value of the machinery, equipment and fixtures for which the plaintiffs have already received compensation. The condemnees, the Sepesys, have produced evidence that they have received the sum of $17,465 as the fair market value of the machinery, equipment and fixtures. How does the fact that this real estate has use value because of the liquor license impact on the valuation of the real estate? Use is an extremely important factor to be considered by an expert in formulating his opinion of fair market value. The issuance of a liquor license in Pennsylvania constitutes governmental permission to use particular premises for a particular purpose. ... it cannot be disputed that a liquor license adds significant use value to a particular premises. . . . The use value added to a particular premises by a liquor license is not unlike the use value which a premises enjoys because it may be used for a particular purpose under a zoning enactment. Redevelopment Authority of the City of Philadelphia v. Lieberman, 461 Pa. 208, 222, 336 A.2d 249, 257 (1975) (emphasis in original). This concept was further elaborated in 1412 Spruce Street, Inc. v. Pennsylvania Liquor Control Board, 504 Pa. 394, 474 A.2d 280 (1984), where the court indicated that it is not the per se existence of a liquor license that is the inquiry, but rather the value of the business property where it has the opportunity for business income. In other words, it is the opportunity for business income brought about by the liquor license that affects the value of the real estate. This is in line with the concept of ownership of property which is viewed as the accumulation of legal interests in the physical object, rather than the physical object itself, and includes such things as the right to possess, use, and dispose of the physical object. Lieherman. The real estate appraisal expert is confronted with this problem of enhancement in the value of the real estate, and how it is measured, when he formulates his opinion of its fair market value. An expert may testify as to what facts and data he considered in arriving at his opinion, subject to cross-examination to determine credibility and weight of his testimony, and the trial judges responsibility in controlling the relevancy of such evidence. Commonwealth v. 108.3 Acres of Land, 431 Pa. 341, 246 A.2d 124 (1968). The trial court, also confronted with this problem, instructed the jury: In this case, the entire land and building was taken so that the after value of the land and building was zero, but you must determine the fair market value of the liquor license after the condemnation as well as before it. For purposes of considering damages in eminent domain, a restaurant-liquor license is a property interest and a value thereof is an element to be considered in computing the damages resulting from the condemnation. In determining the value of such license immediately before the condemnation and as unaffected by it, you should consider its value and use as part of a going restaurant-tavern business and in considering the value of such a license after the condemnation and as affected by it. You should consider the value detached from the going business and not in use. The trial court did not refer to “enhanced value” or “opportunity for business” in its charge. It did refer to the liquor license as a property interest and a value to be considered as part of a going business. The testimony of Mr. Miller, condemnees’ expert, was: [T]he best way to start on this is to start with the cost of a good sold . . . using a factor of anywhere from two to four times the cost of goods sold according to where your location would be, the type of restaurant . . . would determine the factor you would use to determine the value. This appraisal technique, together with the facts and data used, is subject to impeachment by cross-examination, but its weight is determined by the jury. The charge of the court, while not a model of clarity, viewed in its entirety, fairly instructed the jury to consider the value of the liquor license not as a separately calculated element of damages, but rather as a factor in determining the extent to which it increased the value of the real estate at the time of the taking. Since this was a complete taking, the reference to after value of the license was a factor in considering the extent to which the value of the real estate was enhanced at the time of taking. Mr. Miller, in his testimony on value, referred to. goods sold, and not to profit. He indicated correctly that it is difficult to get a true picture if profit was considered because of skimming by the owner, or the bartender walking off with the profits. The court did not err in permitting this testimony. The dollar value of the drinks was considered in determining the extent to which the value of the land was enhanced through the sale of the liquor. Profits are inadmissible because so much depends on the owners skill in operating a restaurant with a bar, so that such evidence is too speculative. In Deer Creek Drainage Basin Authority v. Pacoma, Inc., 87 Pa. Commonwealth Ct. 492, 487 A.2d 1033 (1985), this court found no error in the trial courts charge that “[e]vidence of the loss of income from a decline in the patronage of the Plaintiffs golf course . . . may be considered by you as a factor in determining the fair market value of Plaintiffs property. . . ” Id. at 496, 487 A.2d at 1035. At trial, Mr. Fine, an expert testifying for condemnees, gave a valuation different from the valuation he testified to at the Board of View Hearing. Condemnor contends that when Fine changed his opinion, condemnor should have been notified, and that it was error to permit such testimony. Section 703(2) of the Code, 26 P.S. §1-703(2), provides: If any valuation expert who has not previously testified before the viewers is to testify, the party calling him must disclose his name and serve a statement of his valuation of the property before and after the condemnation and his opinion of the highest and best use of the property before the condemnation and of any part thereof remaining after the condemnation, on the opposing party at least ten days before the commencement of the trial. Here, Mr. Fine did testify at the Board of View hearing, and secondly, this was a complete taking with no after value. Accordingly, we affirm the trial court. Order Now, July 2, 1987, the order of the Court of Common Pleas of Washington County, at No. 150 October Term 1982, dated April 10, 1986, is affirmed. Judge Palladino dissents.

Opinion by Judge Palladino, Adolfo Tribuzio (Claimant) appeals a decision of the Workmens Compensation Appeal Board which affirmed a referees determination that his work related disability had ceased on July 19, 1983. In addition, Carmen Paliotta Construction Company (Employer), appeals the Boards modification of the referees decision from termination to suspension of benefits. For the reasons set forth below, we affirm. On October 7, 1982, Claimant began receiving benefits for a compensable injury he sustained on September 17, 1982 when a wheelbarrow struck the anteri- or part of his lower leg, causing an ulcer to form at the trauma-site. On November 28, 1983, Employer filed a petition for termination averring that Claimants disability had ceased on September 27, 1983. At the hearing, both Claimant and Employer presented the depositions and medical reports of their respective examining physicians. Employers physician, Dr. Robert F. Quinlin, examined Claimant on five separate occasions, the first shortly after Claimants work injury and the last on July 19, 1983. He testified that Claimant suffered from a pre-existing condition known as chronic venous insufficiency of his lower extremities. This condition essentially means that there is an inadequate return of blood to the heart through the veins. Dr. Quinlin stated that when the wheelbarrow struck Claimants leg, an ulcer formed at the point of impact causing Claimants disability, and that due to the venous insufficiency, the ulcer took longer than normal to heal. Dr. Quinlin further testified that when he examined Claimant in March of 1983, the wound had completely healed. Moreover, when asked whether as of his examination on July 19, 1983, Claimant had recovered from the injuries sustained in the wheelbarrow incident, Dr. Quinlin stated: I feel that he should return to work. I felt that he was able to return to work based on my physical examination, which failed to uncover any significant findings that ought to keep him away from work. ... I was concerned about the degree of pain that he was complaining of but could not support that degree of pain based on his physical findings. Based on my examination, I felt that he probably should return to work. Finally, in a letter dated September 12, 1983, Dr. Quinlin further elaborated on his position regarding Claimant: We seem to be having difficulty communicating to Mr. Tribuzio that he is going to have to live with his chronic venous insufficiency and the discomforts that go along with this rather significant problem. I do not think it is realistic to think that Mr. Tribuzio will ever be pain-free, but at the same time this should not be a major impediment to his returning to work. . . . Mr. Tribuzio s traumatic injury which occurred almost one year ago now has little to do with his disability. The referee found that Claimants disability resulting from the wheelbarrow incident ceased on July 19, 1983 when the ulcer had completely healed and he was able to resume his regular work without a loss of earning power. As a result, the referee terminated benefits. The Board, without taking any additional testimony, adopted the referees findings regarding the fact that Claimants disability had ceased. However, because of the evidence “regarding lingering and continuing pain, and regarding future susceptibility to episodes of recurrence of ulceration,” the Board modified the referees decision to a suspension of benefits rather than termination. Claimant contends that the referee erred as a matter of law in terminating his benefits or that the findings of fact are not supported by substantial evidence. Employer appeals the Boards modification. In a proceeding to suspend or terminate workmens compensation benefits, an employer has the burden of showing that the employes disability has ended or been reduced and that the employe is capable of returning to work. Bush v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 289, 438 A.2d 660 (1981). Thus, the initial issue is whether the testimony of Dr. Quinlin is unequivocal and therefore constitutes substantial evidence to support the referees determination that Claimants disability had ceased, such issue being a question of law for review by this Court. Lewis v. Workmen's Compensation Appeal Board, 508 Pa. 360, 498 A.2d 800 (1985). In the case at bar, the referee found that Claimants disability stemmed from the ulceration of his leg because of the wheelbarrow incident at work on September 19, 1982 and that the slow healing process of the ulcer resulted from Claimants pre-existing chronic venous insufficiency. Finally, the referee found that: “All of claimants disability resulting from said injury terminated on July 19, 1983, when said ulcer completely healed and he was able to resume his regular work without a loss of earning power.” As stated above, Dr. Quinlin testified that as of his examination in March of 1983, the ulcer had completely healed and that when he examined Claimant on July 19, 1983, he could find no medical explanation for Claimants complaints of pain other than that which goes along with Claimants venous insufficiency condition. In his opinion, the doctor concluded, Claimant was able to return to his work. The referee accepted and relied upon Dr. Quinlins testimony in finding that the Employer had sustained his burden of proof. Such credibility determinations are within the province of the referee. Yockey v. Workmen's Compensation Appeal Board, 79 Pa. Commonwealth Ct. 250, 468 A.2d 1199 (1983). By a reading of the rec ord, it is apparent that Dr. Quinlins testimony unequivocally establishes that as of July 19, 1983, Claimants disability resulting from the wheelbarrow incident had ceased. Claimant asserts that he presented uncontradicted medical testimony that, at some point later than Dr. Quinlins last examination, his ulcer reopened causing recurrence of his disability. Therefore, Claimant argues, the referees determination was not supported by substantial evidence. We disagree. The referee, expressly relying on Dr. Quinlins unequivocal testimony, determined that Claimants disability had ceased as of July 19, 1983, the date of Dr. Quinlins last examination. Thus, the fact that Claimant may have suffered a later recurrence of his disability has no bearing on the referees conclusion that Claimants disability had ceased as of that date. This brings us to Employers cross appeal. The Board, upon review of the referees decision, concluded that Dr. Quinlins testimony established that episodes of recurring ulceration were likely. Therefore, the Board modified the referees determination from termination of benefits to suspension. Employer contends that the Boards modification constitutes reversible error. Review of Employers contention requires a two-pronged analysis. The first issue is whether the Board has authority to issue its modification; the second is whether, as a matter of law, the Board properly decided to suspend rather than terminate Claimants benefits. Section 424 of the Act, 77 P.S. §855 requires the Board to grant a hearing whenever an appeal shall be based upon an alleged error of law. This section then states: “As soon as may be after such hearing, the board shall either sustain or reverse the referees award or dis-allowance of compensation, or make such modification thereof as it shall deem proper” 77 P.S. §855 (emphasis added). While findings of (act and credibility determinations are entirely within the province of the referee, Section 424 demonstrates the clear intent of the legislature to vest in the Board the final authority to make conclusions of law which are then subject to appeal to this court. Whether the facts found by a referee are sufficient to establish that the Employer has met his burden of proof in a termination or suspension proceeding are conclusions of law. Thus the Board is acting within its statutory authority in modifying a referees decision regarding termination or suspension of benefits. Having concluded that the Board has authority to modify a referees conclusions of law, we must now determine whether the Board properly held that, based on the factual determinations of the referee, Claimants benefits should be suspended rather than terminated. The Pennsylvania Workmens Compensation Act does not specifically define the alternative criteria necessary to establish grounds for termination vis-a-vis suspension of benefits. However, Section 413 of the Act, as amended, 77 P.S. §772 states: A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. . . . (Emphasis added.) It seems clear that, as a matter of statutory construction, a referees award may be modified by proof of increased or decreased disability, reinstated by proof of recurrence, or, more significantly, suspended or terminated depending on proof of temporary or final cessation of the compensable disability. Therefore, whether or not a claimants disability benefits are to be terminated or suspended upon proof by the party filing a petition under Section 413 depends upon whether the facts as determined by the referee establish that the disability has temporarily or permanently ceased. In the case at bar, the referee expressly stated that the Employers medical evidence (Dr. Quinlins testimony) was accepted and relied upon in finding that Claimants disability had ceased. The Board relied on Dr. Quinlins testimony in concluding that the referee should have awarded suspension rather than termination. Since Dr. Quinlins testimony evidences the likelihood of future susceptibility to recurrence of ulceration (bolstered by the uncontradicted testimony of Claimants physician that the ulcer had, in fact, reopened), we conclude that the Board was correct in its determination that the cessation of Claimants disability warranted suspension of benefits rather than termination. This conclusion best serves the remedial intent of the Act. As we stated in United States Steel Corporation v. Workmen's Compensation Appeal Board (Airgood), 62 Pa. Commonwealth Ct. 502, 506, 437 A.2d 92, 94 (1981): The purpose of workmens compensation is to provide benefits to employees who suffer work-related injuries resulting in a loss of earnings. If an employee does not incur an immediate wage loss for an observable physical disability, the protections granted by the Act can only be achieved by issuing a suspension order, which allows the employee up to 500 weeks in which to monitor the course of his disability. Accordingly, the decision of the Board is affirmed. Order And Now, June 26, 1987, the decision of the Workmens Compensation Appeal Board in the above-captioned matter is affirmed. Deposition of Robert F. Quinlin, M.D. at 11-12, R.R. at 76a-77a. Letter of Robert F. Quinlin, M.D. to Palma Kokowski, R.N. of Champion Claim Service dated September 12, 1983, R.R. at 101a-102a. Opinion of the Workmens Compensation Appeal Board, R.R. at 194a. Our scope of review is whether there has been a violation of constitutional right, error of law, or whether necessary facts are supported by substantial evidence. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Referees finding of feet # 7, R.R. at 181a. By Amendment in 1972, the Pennsylvania Legislature placed the role of factfinder and arbiter of credibility exclusively on the referee and not the Board. See Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Universal Cyclops Steel Corporation v. Workmen's Compensation Appeal Board (Krawczynski), 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1983).

Opinion by Judge Barry, This appeal results from an order of the Workmens Compensation Appeal Board (Board) which affirmed a referees decision denying the claim petition of Joseph Fritz (claimant). Claimant was employed with the defendant, Kim Manufacturing Co. (employer) from September, 1948 to November, 1977 in a variety of capacities, concluding his employment as the plant supervisor in Downing-town. On April 24th, 1980, claimant filed a claim petition alleging “[l]iver damage and cancer of kidney [sic] resulting from exposure to Tricholorethylene, Perchloroethylene, Phosgene, and Hydrocarbon Chloride.” The further allegation was made that claimant was exposed to these chemicals while employed with the Kim Manufacturing Co. (the employer), and that as a result of his injury he had been disabled from November 14, 1977 to the present. A responsive answer was filed denying the allegations. At hearings claimant appeared and testified that he had been exposed to the hazardous chemicals recounted above. He also testified, however, that he was currently employed on a full-time basis. A continuance was then agreed upon in order for medical testimony to be adduced. Over the next two years, however, claimant requested fourteen more continuances in order for this testimony to be obtained. After claimant was advised by the referee that the record would be closed, the referee finally did so in October, 1982. The referee thereupon denied the claim, finding that the claimants testimony was not competent to establish exposure to an occupational disease hazard, and concluding also that proper notice of injury, even under the discovery rule was not timely communicated to the employer. The claimant appealed but the Board affirmed on the same grounds. The Board did not, however, rule on the employers motion to quash the appeal on the grounds of untimeliness. The claimant then brought the present petition for review. Although the claimant raises a number of issues with respect to the referees decision, we need not address them. The record reveals that claimant did not appeal the referees decision until December 19, 1982, a point far beyond the twenty-day limit which commenced on November 3, 1982, the day on which the referees decision was mailed to the claimant. That twenty-day limit, codified in Section 423 of the Act, 77 P.S. §853, has long been held jurisdictional,* ** and once the time limit expired the referees decision became final. Consequently, that decision was beyond the review of the Board. Further, claimant has alleged no conduct on the part of the employer or of any administrative official which would allow an appeal nunc pro tunc, nor has he alleged any third-party conduct which might make a tardy appeal reviewable under the doctrine established in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). Claimant only alleges—as explained in a letter to the Board in which he admits the tardiness of his appeal—that he was “not skilled in the law. . . .” Such excuses are not, however, sufficient to overcome the jurisdictional bar of Section 423. Workmen's Compensation Appeal Board v. Gaines, 24 Pa. Commonwealth Ct. 307, 308-09, 355 A.2d 595, 596 (1976) (“Mere hardship is insufficient cause.”) It is well recognized that this Court may affirm an order of an administrative tribunal where grounds for affirmance exist, even if the reasons relied upon by that tribunal in reaching its decision were incorrect. Gregorious v. Workmen's Compensation Appeal Board, 87 Pa. Commonwealth Ct. 86, 486 A.2d 564 (1985). Here the Board affirmed the referees decision on the merits when it lacked jurisdiction to entertain that appeal; the appeal should have been quashed. In any event, the decision of the referee should stand and for that reason, we will affirm the Boards order. Affirmed. Order Now, June 29, 1987, the order of the Workmens Compensation Appeal Board, dated April 12, 1984, at No. A-85102, is affirmed. Section 311 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 (Act), 77 P.S. §631. See id. And see Republic Steel Corp. v. Workmen’s Compensation Appeal Board, 47 Pa. Commonwealth Ct. 74, 77, 407 A.2d 117, 118 (1979). Our review is, of course, limited to a determination of whether an error of law has been committed, whether constitutional rights have been violated, or whether the findings of fact are supported by substantial evidence. See Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). See, e.g., Washington v. Workmen’s Compensation Appeal Board (Harrisburg Hospital), 69 Pa. Commonwealth Ct. 255, 257, 450 A.2d 803, 804 (1982). See Dinges Transfer v. Workmen’s Compensation Appeal Board, 15 Pa. Commonwealth Ct. 468, 471, 326 A.2d 668, 669 (1974). See Wise v. Borough of Cambridge Springs, 262 Pa. 139, 144, 104 A. 863, 864 (1918). See also Drafts v. Shelburne Co., 26 Pa. Commonwealth Ct. 76, 362 A.2d 464 (1976). In Bass, the Court declared that a nunc pro tunc appeal would lie where a showing was made that the non-timely filing was the result of “non-negligent failure[, which] was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal.” Id. at 260, 402 A.2d at 1135-36. For its application to Section 423 of the Act, see Tony Grande v. Workmen’s Compensation Appeal Board (Rodriguez), 71 Pa. Commonwealth Ct. 566, 568, 455 A.2d 299, 300 (1983).

Opinion by Senior Judge Barbieri, Before this Court are the applications of Meridian Bank (Meridian) and the Department of Insurance (Department) for the issuance of a permanent injunction against certain creditors of Transportation Mutual Insurance Company (Transportation Mutual). Meridian and the Department seek to permanently enjoin creditors of Transportation Mutual who hold standby letters of credit issued by Meridian pursuant to policies of reinsurance with Transportation Mutual from presenting drafts or otherwise drawing down those letters of credit beyond their respective commuted claims against Transportation Mutual as set forth in the Plan of Rehabilitation approved by this Court on March 19, 1987. See Muir v. Transportation Mutual Insurance Company, 105 Pa. Commonwealth Ct. 156, 523 A.2d 1190 (1987). Hearings were held before the undersigned on May 11, 1987, and May 21, 1987, on the applications. A hearing on the Plan of Rehabilitation itself was held before the undersigned on February 12, 1987. Based upon the evidence submitted before it, the Court finds the following facts. Atlanta International Insurance Company (Atlanta) is a creditor of Transportation Mutual who purchased a policy of reinsurance from Transportation Mutual in 1983. Pursuant to that policy of reinsurance, Transportation Mutual arranged with Central Penn National Bank, now Meridian through merger, to issue an irrevocable letter of credit to Atlanta on December 31, 1983 in the amount of $45,659.00. The letter of credit provided that it would automatically renew lor successive one year terms unless Meridian notified Atlanta by registered mail thirty days prior to the expiration date that Meridian would not renew the letter of credit. On February 25, 1985, the Department suspended Transportation Mutual from doing business in this Commonwealth. N.T. (2/12/87) 6-7. Thereafter, the Department instituted liquidation proceedings against Transportation Mutual that were suspended pending rehabilitation proceedings. N.T. (2/12/87) 8-9. In November, 1985, the Insurance Commissioner appointed Bruce M. Eckert as Deputy Rehabilitator and a Plan of Rehabilitation was forwarded to all creditors of Transportation Mutual on September 19, 1986. N.T. (2/ 12/87) 21. Atlanta received a copy of the Plan of Rehabilitation on September 23, 1986, as evidenced by a certified mail return receipt card. N.T. (5/11/87) 12; N.T (5/21/87) 6. Under the Plan of Rehabilitation, Atlanta’s claim against Transportation Mutual under its policy of reinsurance was commuted as of March 31, 1985, to the amount of $19,387.05. N.T (5/21/87) 37; Plan of Rehabilitation, Schedule C. Atlanta approved of the Plan of Rehabilitation by failing to return the ballot enclosed with the Plan. N.T (5/21/87) 6-8. On November 24, 1986, Atlanta attempted to draw down its letter of credit with Meridian the full face amount of $45,659.00. N.T (5/21/87) 24-26. Meridian returned the draft to Atlanta and Atlanta resubmitted a new draft in the amount of $19,387.05 to Meridian in January, 1987. N.T (5/21/87) 26-28. On March 19, 1987, this Court approved the Plan of Rehabilitation for Transportation Mutual. Muir. On May 4, 1987, Atlanta presented another sight draft to Meridian in the amount of $23,262.93 against the letter of credit. N.T (5/21/87) 35-37; Petition for Preliminary or Special Injunction, Exhibit 4. Meridian then petitioned this Court for preliminary or special relief in the nature of an injunction restraining Meridian, successor by merger to Central Penn, from paying the draft submitted by Atlanta. The Department subsequently petitioned for a permanent injunction seeking to enjoin Atlanta and other holders of letters of credit issued under policies of reinsurance with Transportation Mutual from drawing down or attempting to draw down those letters of credit beyond the commuted claims contained in the Plan of Rehabilitation. This Court granted a preliminary injunction on May 7, 1987. The applications of Meridian and the Department, as well as the responses thereto by Atlanta, place the following issues before this Court: (1) whether this Court has jurisdiction over the claim of Atlanta to draw down its letter of credit issued by Meridian; (2) whether the Plan of Rehabilitation of Transportation Mutual provided for a commuted amount to the letters of credit issued by Meridian at the behest of Transportation Mutual; whether Atlanta’s attempted draw down of its letter of credit in an amount in excess of its commuted claim against Transportation Mutual constitutes a preference under the Plan of Rehabilitation. We shall discuss these issues in the order stated. With respect to the issue of this Courts jurisdiction. We initially note that since the conclusion of evidentiary hearings on May 21, 1987, Atlanta has filed preliminary objections to the applications for injunctive relief. While those preliminary objections are to be heard by a three-judge panel of this Court, we shall nevertheless discuss the question of our jurisdiction in the context of the immediate issues before us. The gravamen of Atlanta’s jurisdictional argument is that its letter of credit issued by Meridian does not in volve estate of Transportation Mutual. Since the estate of Transportation Mutual is not directly involved in the dispute between Atlanta and Meridian, we have no jurisdiction, under Section 516(d) of the Insurance Department Act of 1921 (Act), Act of May 17, 1921, EL. 789, added by the Act of December 14, 1977, P.L. 280, 40 P.S. §221.16(d), pertaining to this Courts approval of insurance company rehabilitation plans. Preliminarily, for purposes of Meridians request for a preliminary injunction, we reject this argument and assert that we do have jurisdiction over the dispute between Atlanta and Meridian. The letter of credit issued by Meridian to Atlanta was issued at the behest of Transportation Mutual as part of its reinsurance contract with Atlanta. Atlanta required the letter of credit since Transportation Mutual was not admitted in the State of New York, under whose laws Atlanta is incorporated. The rehabilitation plan for Transportation Mutual that was approved by this Court on March 19, 1987, recognized the existence of these letters of credit issued by Meridian to the reinsureds. Section 3.3(a) of the Plan of Rehabilitation provides, in pertinent part, that “no claim shall be paid to the extent any claimant collects on a letter of credit from the [Meridian] Bank with respect to any such claim.” Section 3.3(b) of the Plan of Rehabilitation further provides: (b) Payments made to the [Meridian] Bank shall be based on the full amount of the letters of credit actually paid, but the sum of Two Hundred Thousand Dollars ($200,000.00) (the amount of Transportation bank account taken by the Bank) plus interest thereon, at the Transportation Rate from February 22, 1985, the date on which the Bank took the account until the date of the first payment authorized by this Section shall be treated as an advance payment to the Bank. The amount of the Bank’s claim for determining the first payment shall be estimated at Three Million Four Hundred Thousand Dollars ($3,400,000.00). Further payments to the Bank shall be based on letters of credit actually cashed, but in no event shall any payment to the Bank with respect to a letter of credit be made later than two years after connsumation [sic] date. The Bank and the Insurance Department will endeavor to limit payments under letters of credit only to claims which would have been included under the Plan had they been brought directly against Transportation. (Emphasis added.) By its clear terms, the outcome of this dispute over Atlanta’s letter of credit could impact upon the rehabilitation estate of Transportation Mutual by increasing the claim of Meridian against the estate and eliminating the claim of Atlanta against that estate. The Court thus finds a sufficient nexus between the letter of credit issued to Atlanta by Meridian to the rehabilitation process of Transportation Mutual to convey jurisdiction upon this Court to hear Meridian’s application. We now turn to the issue of what effect, if any, the Plan of Rehabilitation of Transportation Mutual had upon the letter of credit issued by Meridian to Atlanta. We initially recognize that the letter of credit represents the obligation of Meridian to Atlanta in the full amount of the letter. Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316 (1975). Under Section 5103 of the Commercial Code, 13 Pa. C. S. §5103, pertaining to definitions used with letters of credit, Meridian is the “Issuer,” Atlanta is the “Beneficiary,” and Transportation Mutual is the “Customer.” Section 5106(b) of the Commercial Code, 13 Pa. C. S. §5106(b), provides that, unless otherwise agreed, once an irrevocable credit has been established with regard to the beneficiary, it can only be modified or revoked with the beneficiary’s consent. The question we must answer is whether Atlanta, by failing to object to the Plan of Rehabilitation in which it agreed to commute its claim against Transportation Mutual to $19,387.05, consented to the modification of the terms of its letter of credit issued by Meridian to reflect a decrease in the face amount of the credit to from $45,659.00 to $19,387.05. Our review of the Plan of Rehabilitation convinces us that Atlanta at no time agreed to modify the terms of the irrevocable letter of credit issued to it by Meridian. The Outline of the Plan of Rehabilitation, that accompanied the Plan when it was sent out to the various creditors of Transportation Mutual, Paragraph 3(h) provides: 3. The Reinsureds This category comprises those claimants to whom Transportation [Mutual] provided reinsurance. . . . * * * The compromises embodied in the Plan are as follows: * * * (h) Letters of credit held by the reinsureds shall be drawn in accordance with any agreement in effect between the [Meridian] Bank and any holder of any such letter at the time of approval of the Flan. The Bank and the Insurance Department will endeavor to limit payment under letters of credit only to claims which would have been included under the Plan had they been brought directly against Transportation. (Emphasis added.) That language, coupled with the provisions of Sections 3.3(a) and (b) of the Plan of Rehabilitation, satisfy us that Atlanta at no time agreed to modify the terms of the irrevocable letter of credit issued by Meridian. As the parties agree that this letter of credit was extant at the time of the approval of the Plan and remains extant up to and including the present time, the face amount of the letter of credit remained at $45,659.00 and the available credit, since Atlanta had drawn down the credit in January, 1987, in the amount of $19,387.05, the remaining credit, by the terms of the letter of credit, stands at $26,271.95. As this obligation was the independent obligation of the Bank, Atlanta was within its rights to present its draft of May 1, 1987, in the amount of $23,262.93, to Meridian and expect payment under Section 5114(a) of the Commercial Code, 13 Pa. C. S. §5114(a). See also Lantz International Corp. v. Industria Termotechnica Campana, S.p.A., 358 F. Supp. 510 (E.D. Pa. 1973). In order to be entitled to the grant of a preliminary injunction, one of the requirements Meridian must satisfy is that its right to relief is clear. See T.W. Phillips Gas and Oil Co. v. Peoples National Gas Co., 89 Pa. Commonwealth Ct. 377, 492 A.2d 776 (1985). Meridian and the Department have failed to show that their right to relief is clear. To the contrary, this Court is convinced that the Plan of Rehabilitation had no effect upon the letters of credit issued by Meridian to the reinsureds of Transportation Mutual. Whether the Department has the power and ability, under the rehabilitation provisions of the Act, to modify an irrevocable letter of credit without the consent of the credits beneficiary is not before this Court and we express no opinion thereon. We hold only that the Plan of Rehabilitation approved by this Court on March 19, 1987, did not purport to modify the letters of credit issued to the reinsureds of Transportation Mutual nor did those reinsureds, such as Atlanta, consent to a modification of those letters of credit. The Department also argues, in support of its application for an injunction against all creditors of Transportation Mutual holding letters of credit, that if those creditors are permitted to draw down those letters beyond their commuted balances contained in the Plan of Rehabilitation, that will threaten the integrity of the Plan by allowing Meridian to increase its claim against the rehabilitative estate. We disagree. The Plan of Rehabilitation specified that the initial payment to Meridian would be based upon the letters of credit drawn down by creditors as of March 31, 1985. Further payments to Meridian under the Plan of Rehabilitation would be based upon the actual payments made by Meridian under the letters of credit. This language merely recognizes that under the Plan of Rehabilitation, the reinsureds who held letters of credit were permitted to satisfy their claims against Transportation Mutual either from the rehabilitative estate or from the letter of credit. Naturally, it was recognized that most of the reinsureds would opt to utilize the letters of credit whereby they would obtain one hundred cents on the dollar on their claims rather than under the Plan of Rehabilitation whereby they would only receive approximately seventy-two cents on the dollar on their claim. The Plan does not, however, permit Meridian to increase its claim against the rehabilitative estate of Transportation Mutual, beyond the commuted claims of the reinsureds holding letters of credit. While the outline of the Plan of Rehabilitation states that this is Meridians position, the Plan itself does not so provide. To hold otherwise would be to grant Meridian an unfair preference over other creditors of Transportation Mutual who had their claims commuted as of March 31, 1985. In view of the foregoing, we shall deny the applications for a preliminary injunction and dissolve this Courts order of May 7, 1987. In view of the preliminary objections filed by Atlanta that must be addressed by a three-judge panel of this Court, we shall retain jurisdiction. Order Now, June 25, 1987, following evidentiary hearings and upon consideration of the arguments and briefs of counsel, the applications of Meridian Bank and the Insurance Department of the Commonwealth of Pennsylvania for an injunction enjoining the payment to any creditor of Transportation Mutual Insurance Company holding a letter of credit issued by Meridian in an amount greater than the creditors commuted balance under the Plan of Rehabilitation approved by this Court on March 19, 1987, are hereby denied. The Order of this Court dated May 7, 1987, enjoining Meridian Bank from honoring a draft presented to it dated May 1, 1987, by Atlanta International Insurance Company, in the amount of $23,262.93, is hereby dissolved. Costs shall be borne by Meridian Bank. Jurisdiction retained. The letter of credit issued by Meridian to Atlanta pursuant to Atlanta’s reinsurance agreement with Transportation Mutual reads as follows: Gentlemen, We have established this irrevocable STandby [sic] Letter of Credit in your favor for drawings up to US$45,659.00, Forty Five Thousand Six Hundred Fifty Nine and 00/100 U.S. Dollars. Effective immediately and expiring at our counters at 1700 Arch St., Philadelphia, PA 19103 with our close of business on December 31, 1984. We hereby undertake to promptly honor your sight draft(s) drawn on us indicating our Credit No. 22644, for all or any part of this Credit if presented at 1700 Arch St., Philadelphia, PA 19103, on or before the expiry date or any automatically extended date. Except as stated herein, this undertaking is not subject to any condition or qualification. The obligation of the Bank under this Letter of Credit shall be the individual obligation of the Bank, in no way contingent upon reimursement [sic] with respect thereto. It is a condition of this Letter of Credit that it shall be deemed automatically extended without amendment for one year from the expiry date hereof, or any future expiration date, unless thirty days prior to any expiration date we shall notify you by Registered mail that we elect not to consider this Letter of Credit renewed for any such additional period. Should you have occasion to communicate with us regarding this credit, kindly direct your communication to the attention of our Letter of Credit Department, making specific reference to your Credit No. 22644. Each draft must state that it is “Drawn under letter of credit of Central Penn National Bank, Philadelphia, PA., No. 22644 dated December 31, 1983”, and the amount endorsed on this letter of Credit. This credit must accompany any draft which exhausts the credit. Except so far as otherwise expressly stated, this credit is subject to the “Uniform Customs and Practice for Documentary Credits (1974 Revision), International Chamber of Commerce Publication No. 290”. (Emphasis added.)

Opinion by Judge Craig, In Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 412 A.2d 169 (1980), this court affirmed an order of the Court of Common Pleas of Chester County denying Mr. and Mrs. Overstreet a zoning variance to expand their mobilehome park into the eastern portion of their property. Despite the order of the court of common pleas, the Overstreets expanded their mobilehome park. Consequently, Schuylkill Township brought this action in equity to enjoin the Overstreets from maintaining a mobilehome park on that section of their land. The Overstreets appeal from an order of the Court of Common Pleas of Chester County requiring some of the park residents to vacate the land and the Overstreets to pay a penalty to the township. Certain park residents also appeal from the same order, and the township has appealed from the trial judges refusal to apply the vacation order to tenants who resided on the eastern portion of the property on or before August 1, 1983. Jurisdiction The Overstreets first contend that the court of common pleas lacked jurisdiction to enter an order enjoining their use of the eastern portion of the property as a mobilehome park because the township did not join all of the residents of the park as co-defendants. The townships initial complaint named only the Overstreets as the defendants in the case. Judge Lawrence E. Wood ordered that the township join the park tenants who would be affected by the injunction sought. This court affirmed Judge Woods order on interlocutory appeal because the park tenants were indispensable parties whose rights would be adversely affected by the injunction sought by the township. Schuylkill Township v. Overstreet, 71 Pa. Commonwealth Ct. 348, 454 A.2d 695 (1983). The township amended its complaint to join the tenants of lots 52 through 97 and 99 through 121 with the Overstreets as co-defendants. In the Overstreets’ answer to the amended complaint, they identified 29 in stances in which the tenants identified in the amended complaint were not the actual tenants of the lots in question. Our comparison of the lists reveals that, in most instances, the townships complaint had merely failed to identify or delete names of tenant spouses in instances where the marital status of a tenant had changed over the course of the litigation. However, the townships answer also acknowledges that certain tenants were never joined as co-defendants with the Over-streets. The Overstreets contend that the townships failure to join those tenants, as indispensable parties, deprives the court of jurisdiction over the entire proceeding. A court in equity cannot grant relief without the joinder of indispensable parties. Columbia Gas Transmission Corporation v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975). A party is indispensable when his rights are so connected with the claims of the litigants that no decree can be fashioned between them without impairing those rights. Reifsnyder v. Pittsburgh Outdoor Advertising Co., 396 Pa. 320, 152 A.2d 894 (1959); Hartley v. Lang Kamp & Elder, 243 Pa. 550, 90 A. 402 (1914). We earlier held that tenants were indispensable parties because the court of common pleas could enter no decree enjoining the use of the land without affecting the rights of at least some of the tenants. Schuylkill Township. In the present case, however, the township joined the majority of the tenants as parties to the action. Thus, it is possible for the court to enter a decree affecting the rights of those tenants joined as parties as long as the rights of those tenants who were omitted as co-defendants are undisturbed. As the township argues, for this court to halt the entire proceeding because the township failed to amend its complaint every time a tenant moved into or out of the eastern portion of the mobilehome park would effectively deprive the township of a forum and would cause further expense and delay in a controversy that has already lingered for too many years. We therefore conclude that the court of common pleas had jurisdiction to enter its decree as to those tenants or tenant spouses named as co-defendants on the townships amended complaint, but we must reverse the order to the extent that it would apply to any tenant who was not served with the townships amended complaint as a co-defendant. Estoppel—Vested Right The tenants and the Overstreets argue that the township is estopped from seeking equitable relief because its conduct over the last 20 years led the tenants to believe that the mobilehome park was a permitted use and the Overstreets to believe that the township would acquiesce in their expansion of the nonconforming use of their land. Judge Wood made the following findings of fact: 4. In March, 1967, Defendant James Overstreet was ‘cited’ by the Township for moving trailers into the Eastern section of the tract. The record is not clear as to the ultimate outcome of the citation proceeding. 5. In the late 1960s the Township approved sewage facilities serving the eastern portion of the park. 6. In the summer of 1968, the Overstreets filed an application for an expansion of the park to the eastern portion of the tract, known as the area east of Park Drive. 7. The Township Zoning Hearing Board denied that application in 1969, finding the proposal to be an unlawful expansion of what was already a nonconforming use. That decision was affirmed by this Court in 1978 and ultimately by the Commonwealth Court in 1980: Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Cmwlth. Ct. 397, 412 A.2d 164 (1980). The Supreme Court of Pennsylvania denied a petition for allowance of appeal from the Order of the Commonwealth Court. 8. In disregard of the Boards decision, the Overstreets continued to expand the park into the eastern section of the parcel throughout the entire history of the zoning litigation in this matter, installing mobile home pads, roads, curbs, water lines, a sewage plant, electrical lines and 'lights in accordance with the plan rejected by the Board. 9. The Overstreets have sold mobile homes for placement in the eastern section since 1969, have leased mobile home spaces therein to such purchasers, and have collected rents therefrom. They continue to do so to the present. The occupants of that area constitute the remaining Defendants in this matter. 10. Other than this litigation, the 1967 citation and the above-mentioned zoning appeals, the Township had done nothing to rid itself of the illegal development. Rather, it has sat by while more and more residents made their homes in the eastern portion of the park and have expended considerable sums in improvements to their trailers and lots. 11. During this entire period the Township has provided municipal services to the eastern section and has collected real estate taxes and an earned income tax from the residents. Since 1969 the real estate taxes have even increased based upon an assessment made as a result of road installation and other improvements to that section of the park. 12. Prior to the service of the Townships Amended Complaint in this matter in July of 1983, the Township did not provide the residents of the eastern section with formal notice that their presence there was contrary to the applicable zoning laws and the decisions of the Zoning Hearing Board and Courts of Appeals. 13. None of the residents of the eastern section were parties to the zoning litigation. The parties do not contest the validity of the findings. Our scope of review, therefore, is limited to a question of whether Judge Wood’s crucial Finding of Fact No. 10, in light of the history of the Overstreets’ development, supports the legal conclusion that the park tenants who resided on the eastern portion of the property on or before August 1, 1983 are entitled to a status vested by estoppel but that the Overstreets are not so entitled. Although municipal inaction alone is not sufficient, Lennox v. Zoning Board of Adjustment of Pittsburgh, 67 Pa. Commonwealth Ct. 417, 447 A.2d 1049 (1982), Ignelzi v. Zoning Board of Adjustment of Pittsburgh, 61 Pa. Commonwealth Ct. 101, 433 A.2d 158 (1981), “[w]here municipal inaction is compounded by facts which create a strong equity in the owner, the decision of the Supreme Court in Sheedy v. Philadelphia Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963), indicates that relief is possible.” R. Ryan, Pennsylvania Zoning Law and Practice, §8.3.5 (1970). In Caporali v. Ward, 89 Pa. Commonwealth Ct. 621, 493 A.2d 791 (1985), we established three prerequisites to receiving the benefit of an estoppel: (1) municipal failure to enforce the law over a long period of time or some form of “active” acquiescence of the illegal use; (2) good faith throughout the proceedings by the property owner; and (3) innocent reliance evidenced by substantial expenditures. Id. at 625, 493 A.2d at 793-94 (citing Sheedy; Lebovitz v. Zoning Board of Adjustment of Pittsburgh, 87 Pa. Commonwealth Ct. 200, 486 A.2d 1061 (1985); Knake v. Zoning Hearing Board of Dormant, 74 Pa. Commonwealth Ct. 265, 459 A.2d 1331 (1983)). As to the Overstreets, Judge Wood rejected their claim “because they knew all along that their proposed expknsion was illegal and deliberately violated both the zoning ordinance and the orders of all the tribunals which heard the zoning matter.” Judge Woods conclusion is supported by Findings of Fact Nos. 8 and 9 and the fact that the Overstreets’ conduct foils to satisfy the second leg of our Caporali test which requires good feith by the property owners. As to the tenants, Judge Wood granted vested status to those tenants who were in residence on the eastern portion of the property on or before August 1, 1983—the date on which the township served its amended complaint on the tenants. Findings of Fact Nos. 9 through 13 evince the townships “active acquiescence” toward the tenants’ illegal use of the property, substantial expenditures by the tenants based on innocent reliance on the township’s inaction, and lack of any formal notice to the tenants that their use of the land violates a township ordinance. We therefore affirm the court of common pleas order exempting the tenants residing on the eastern portion of the park on or before August 1, 1983, while not doing so as to the Over-streets. Judicial Notice of Ordinance The Overstreets next contend that the record in the present case is insufficient to support the grant of an injunction because, lacking evidence or proper judicial notice of the zoning ordinances in question, the township has failed to prove that the Overstreets use their land in an illegal manner. This contention overlooks the feet that the same parties adjudicated the issue of the Overstreets’ compliance with the Schuylkill Township Zoning Code in an earlier proceeding. In Overstreet v. Zoning Hearing Board of Schuylkill Township, we affirmed the Chester County Court of Common Pleas’ order which concluded, based on a referee’s study of the Schuylkill Zoning Code, that the Overstreets could expand the mobilehome park into the eastern portion only by way of a variance and that such a variance was unjustifiable. The premise to that conclusion is that the Overstreets’ proposed expansion does not conform to the existing code. Because the Over-streets foiled to challenge that premise in the variance proceedings, collateral estoppel precludes litigation of that issue in the current enforcement proceeding. See Baker v. Pennsylvania Human Relations Commission, 75 Pa. Commonwealth Ct. 296, 462 A.2d 881 (1983), modified on appeal, 507 Pa. 325, 489 A.2d 1354 (1985). Penalty Assessment Although the townships amended complaint did not request the court to assess a penalty against the Over-streets, Judge Wood nonetheless directed the Over-streets to pay the township 20% of the gross lot rentals collected since August 1, 1983 from those persons who are entitled to remain on the premises because of the variance by estoppel. In his supplemental opinion, Judge Wood justifies the penalty as a “prophylactic device designed to bring the property into compliance with the zoning ordinance” under section 617 of the Pennsylvania Municipalities Planning Code. This court has upheld equity adjudications in which the chancellor granted an injunction while also imposing a civil fine for violation of a zoning ordinance. Babin v. City of Lancaster, 89 Pa. Commonwealth Ct. 527, 493 A.2d 141 (1985); City of Philadelphia v. Stradford Arms, Inc., 1 Pa. Commonwealth Ct. 190, 274 A.2d 277 (1971). The Overstreets contend, however, that the court should refrain from assessing a penalty when the township did not request such relief in its pleadings. The general policy of our courts is to limit equitable relief to that which is prayed for. Christian v. Johnstown Police Pension Fund Association, 421 Pa. 240, 218 A.2d 746 (1966). Although section 617 authorizes “an officer of the municipality” to “institute in the name of the municipality any appropriate action or proceeding to prevent, restrain, correct or abate” zoning ordinance violations, it does not authorize the chancellor sua sponte to impose fines against the ordinance violator. A review of. Babin and City of Philadelphia reveals that the municipalities in both instances specifically prayed for penalties in their pleadings. We, therefore, reverse Judge WOODS order to the extent that it imposes a penalty on the Overstreets. If the injunction is disobeyed, the contempt remedies, enforceable by fines, are available. Order in 1364 C.D. 1986 Now, July 21, 1987, the order of the Court of Common Pleas of Chester County, entered April 10, 1986, is affirmed to the extent that: (1) the Overstreets are directed to remove all improvements related to mobile-home use from vacant lots, and lots vacated under this courts order, in the eastern section of their property;. (2) the Overstreets are enjoined from leasing or releasing any vacated lots for mobilehome use in the eastern section of their property; and, (3) tenants who have been joined as parties in this case and who did not reside at the Overstreet mobilehome park before August 1, 1983, are directed to vacate their respective lots. The trial courts order is reversed insofar as it would have: (1) directed the Overstreets to pay the township a penalty; and (2) directed tenants, if not named as defendants in this case, to vacate their lots in the eastern section of the property. Order in 1429 C.D. 1986 Now, July 21, 1987, the order of the Court of Common Pleas of Chester County, entered April 10, 1986, is affirmed to the extent that: (1) the Overstreets are directed to remove all improvements related to mobile-home use from vacant lots, and lots vacated under this courts order, in the eastern section of their property; (2) the Overstreets are enjoined from leasing or releasing any vacated lots for mobilehome use in the eastern section of their property; and (3) tenants who have been joined as parties in this case and who did not reside at the Overstreet mobilehome park before August 1, 1983, are directed to vacate their respective lots. The trial courts order is reversed insofar as it would have: (1) directed the Overstreets to pay the township a penalty; and (2) directed tenants, if not named as defendants in this case, to vacate their lots in the eastern section of the property. Order in 1493 C.D. 1986 Now, July 21, 1987, the order of the Court of Common Pleas of Chester County, entered April 10, 1986, is affirmed to the extent that: (1) the Overstreets are directed to remove all improvements related to mobile-home use from vacant lots, and lots vacated under this courts order, in the eastern section of their property; (2) the Overstreets are enjoined from leasing or releasing any vacated lots for mobilehome use in the eastern section of their property; and, (3) tenants who have been joined as parties in this case and who did not reside at the Overstreet mobilehome park before August 1, 1983, are directed to vacate their respective lots. The trial courts order is reversed insofar as it would have: (1) directed the Overstreets to pay the township a penalty; and (2) directed tenants, if not named as defendants in this case, to vacate their lots in the eastern section of the property. During the trial, counsel for the township elicited testimony from an associate of his firm on how the associate determined the names of the tenants on the eastern portion of the Overstreet mobilehome park to join as co-defendants. The Overstreets object to the attorneys testimony on the ground that it violates DR 5-102 which requires an attorney to withdraw from a case if he or another attorney in his firm is likely to be called to testify in the case. We affirm Judge Wood’s overruling of the objection because the associate’s testimony fells within exception (B)(2) of the rule—testimony relating solely to a matter of formality—and exception (B)(3), testimony relating to the nature of legal services provided. The Overstreets also contend that they are entitled to continue their present use of the property because of laches on the part of Schuylkill Township. We need not analyze this claim because it duplicates their claim as to estoppel. The authorities cited by the Overstreets to support their claim of laches, Heidorn Appeal, 412 Pa. 570, 195 A.2d 349 (1963) and Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326, 328 A.2d 878 (1974), are distinguishable on the basis of the Overstreets’ knowing violation of the township’s ordinance. We note the Overstreets’ argument that the variance adjudication was based on the 1955 version of the township’s zoning code which has since been amended. We also note from the pleadings, however, that the Overstreets foil to aver that their use of the eastern portion of the property is in any way authorized by the amended code. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617.

Opinion by Senior Judge Barbieri, This is an appeal by several officials of the City of Philadelphia, Appellants, who appeal an order of the Court of Common Pleas of Philadelphia County directing the Appellants to consider the Appellees, certain Sergeants of the Philadelphia Police Department, eligible to take a Lieutenants promotional examination given on February 8, 1986. The common pleas court found the City Personnel Director abused his discretion in refusing to allow the Appellees to anticipate eligibility so they could take the Lieutenants examination. The essential facts are undisputed. On December 19, 1985, the Philadelphia Police Department announced that an examination for promotion to the rank of Lieutenant would be given on February 8, 1986. The examination announcement stated that applications to sit for the examination must be filed no later than January 15, 1986, and that candidates must meet eligibility requirements for Lieutenant within thirty days of the closing date of the announcement. For the Lieutenants examination, a candidate must (1) be presently employed in the Philadelphia Police Department with a permanent Civil Service status in the City of Philadelphia with a satisfactory performance rating; (2) have one year of permanent Civil Service Status as a Police Sergeant; and (3) have successfully completed the Recruit Training Course given by the Philadelphia Police Department. The thirty-day requirement is imposed by the City’s civil service regulations. The Appellee-Sergeants, all of whom would not have completed one year of permanent Civil Service Status as Sergeant until June 12, 1986, four months after the cut-off date, sought to have the city Personnel Director waive the eligibility requirements for the examination as granting such a waiver was within the Personnel Directors discretion. If the Personnel Director would have granted the waiver and allowed the Appellees to anticipate their eligibility, they would have been able to sit for the Lieutenants examination but would not be eligible for promotion to Lieutenant until they had met the eligibility requirements. The Personnel Director refused to anticipate eligibility and the Appellees brought suit in common pleas court for an injunction allowing them to sit for the examination. On February 5, 1986, Judge Thomas A. White issued an order allowing Appellees to take the Lieutenants examination pending resolution of the matter. Following a hearing, Judge White granted the Appellees Motion for Injunction on March 14, 1986. This appeal followed. Before this Court, Appellants contend that (1) the Personnel Director did not abuse his discretion in refusing to allow Appellees to anticipate their eligibility for the Lieutenants examination; and (2) the Appellees did not satisfy the requirements for injunctive relief. We shall address those issues in the order stated, ever mindful that our limited scope of review requires us to affirm the common pleas court unless that court abused its discretion or committed an error of law. City of Philadelphia v. Nationwide Insurance Co., 92 Pa. Commonwealth Ct. 20, 498 A.2d 462 (1985). All parties agree that the City Personnel Director has the discretion to schedule Police Department promotional examinations. It is a well-settled principle that equity will not interfere with the exercise of a public officials discretionary powers absent an arbitrary or fraudulent abuse of that discretion or a mistake in law. Coleman v. Board of Education of School District of Philadelphia, 477 Pa. 414, 383 A.2d 1275 (1978). Coupled with that equitable principle is the equally well-established principle of administrative law that a court will not substitute judicial discretion for administrative discretion unless the agency or official acted in bad faith, fraudulently, capriciously, or committed a manifest abuse of power. See e.g., Pennsylvania State Association of Township Supervisors v. State Ethics Commission, 92 Pa. Commonwealth Ct. 544, 499 A.2d 735 (1985); Guers Dairy, Inc. v. Milk Marketing Board, 90 Pa. Commonwealth Ct. 268, 494 A.2d 888 (1985), peti tion for allowance of appeal denied, No. 192 M.D. Appeal Dkt. 1985 (Pa., filed March 7, 1986). The common pleas court concluded that the City Personnel Director abused his discretion on two occasions concerning the Lieutenants promotional examination: on the first occasion when he chose the date of the examination and excluded the Appellees from eligibility; and on the second occasion when he refused to allow the Appellees to anticipate eligibility and sit for the Lieutenants examination. Insofar as the Personnel Directors discretionary act in setting the examination date, the common pleas court found he abused his discretion by not considering the effect of the chosen date upon the Appellee class of Sergeants who would not be eligible to take the examination. The common pleas court found the choice of the examination date was “fundamentally unfair” and that he had no reasonable explanation for his choice of the February 8, 1986 date. Slip op. at 3. We respectfully disagree with the common pleas court that the Personnel Director abused his discretion in choosing the February 8, 1986, examination date. The Personnel Director testified that the Lieutenants examination was scheduled in February, 1986, due to a need in the Police Department for Lieutenants and the examination was scheduled to provide for that need in a timely manner. He approved the recommendation of a subordinate, a “Professional Technician IV,” and the workload of the department was taken into consideration. R. 171-180. These facts do not support the common pleas courts finding that the Personnel Director abused his discretion in choosing February 8, 1986, as the date for the Lieutenants examination. Likewise, his failure to move the examination back several months so as to allow the Appellees to qualify to sit for the examination does not constitute an abuse of discretion since the eligibility rules of the City’s Civil Service Regulations recognize that eligibility cut-offs will be established by examination dates and application deadlines. The Personnel Director does not abuse his discretion when he fails to schedule a promotional examination so as to allow the greatest number of applicants to take it. There are a number of considerations which go into the decision as to when to schedule a promotional examination and the number of qualified applicants is only one of them. The common pleas court erred, therefore, when it found the Personnel Director abused his discretion when he set February 8, 1986, as the date for the Lieutenant’s examination. The other instance of the Personnel Directors alleged abuse of discretion is more difficult. The City concedes that in the past police officers were regularly permitted to anticipate eligibility in order to sit for promotional examinations for which they would not otherwise be eligible under the Civil Service Regulations. As a result, police officers would be eligible for promotion earlier than would be the case if eligibility for promotion was not anticipated. We do not, however, agree with the common pleas court that this past course of conduct on the part of the City gives rise to a protected expectation or vested right in the police officers to have their eligibility anticipated in future promotional examinations. While there is no question that in the past eligibility to take promotional examinations was routinely anticipated in the Philadelphia Police Department, that course of conduct occurred under a prior administration and under a prior Police Commissioner. A public official is not required to exercise his or her discretion in exactly the same manner as did his or her predecessor. To hold otherwise would emasculate almost completely the discretion granted to such officials. On the other hand, public officials are not free to change established and recognized courses of conduct without some kind of notice to those affected by the impending change. Cf. Butler County Memorial Hospital v. Heckler, 780 F.2d 352 (3d Cir. 1985) (Agency is entitled to change course and, as long as it adequately explains its new position, that view will be accorded deference). Such implied notice was given here when the Personnel Director refused to anticipate eligibility on the Lieutenants examination immediately preceding the one given on February 8, 1986. We thus respectfully disagree with the common pleas courts finding that the Personnel Director abused his discretion when he refused to allow the Appellees to anticipate their eligibility. Plaving found that the Personnel Director did not abuse his discretion in fixing the examination date or refusing to allow the Appellees to anticipate their eligibility, we must also conclude that the common pleas court erred as a matter of law in finding that the Appellees were entitled to anticipate their eligibility and sit for the Lieutenants examination. Therefore, the grant of a permanent injunction was improper. In view of the foregoing, we will reverse the order of the common pleas court and dissolve the injunction issued on March 14, 1986. Order Now, April 10, 1987, the Order of the Court of Common Pleas of Philadelphia County at Docket No. 617 February Term, 1986, dated March 14, 1986, is hereby reversed and the injunction issued as a part of that Order is hereby dissolved. Opinion by Judge MacPhail, July 10, 1987: On April 10, 1987 this Court filed an opinion and order which reversed an order of the Court of Common Pleas of Philadelphia permitting Sergeants of the Philadelphia Police Department to sit for an examination for promotion to Lieutenant even though such persons would not have the required one-year of permanent Civil Service status as of the date the examination was to be given. The factual background of the case is more fully set forth in our previous opinion. An application for reargument was timely filed together with a petition for a stay whereupon we entered an order granting the stay and the application for reargument but restricting reargument to the issue of whether the injunction issued by the court of common pleas should be dissolved prospectively or retroactively. From the briefs of the litigants and amici we ascertain that a Lieutenant eligibility list of 236 names was certified as a result of the examination given pursuant to the order of the court of common pleas. That list included 49 Sergeants who did not have the requisite time in grade to sit for the examination. There have been 44 promotions from the list including 7 Sergeants who would not have been on the list absent the trial courts order. None of the briefs cite any legal authority in support of the views of the litigants as to how the issue before us should be resolved. In Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986), we outlined the legal principles usually applicable in determining whether a new decision should be given prospective or retroactive effect. We doubt that those principles are applicable here, however, since our decision did not establish a new principle of law. We were merely called upon to determine whether the trial court erred as a matter of law when it held that certain Sergeants were permitted to anticipate eligibility in order to take the examination, contrary to the instructions of the Personnel Director. We, therefore, as did the litigants, resort to a balancing of the equities in the interest of fairness and justice. On the one hand, those Sergeants, who did qualify with time in grade at the time the examination was given, argue that those who should not have taken the examination pursuant to this Courts decision, should not now be permitted to benefit from the trial courts error and that to hold that our order is prospective only would perpetuate an unfortunate wrong to them and their careers. On the other hand, those Sergeants who took the examination because the trial court ordered that they may do so, contend that to make the order retrospective would cause demotions in the case of the seven already promoted and result in having less than the best qualified people on the promotion list. Needless to say, there is merit in both arguments and we are sensitive to the need to maintain morale and efficiency in the Philadelphia Police Department. After carefully weighing all of the circumstances, we have concluded that our order should be prospectively applied only to those Sergeants who have already been promoted to Lieutenant. As to all others who are on the certified list but who were not eligible to take the examination according to our decision, the order shall be retroactive. We have come to that conclusion because we believe that the seven who have already been promoted should not be reduced in rank because of judicial error. As to the remaining 42, nothing has occurred which will need to be undone other than to remove them from the eligibility list. Inasmuch as they should not have been on that list in the first place, we do not perceive this as a severe penalty. The removal of those names then permits the addition of those Sergeants who did have the necessary time in grade to the eligibility list. It will be so ordered. Order The order of this Court entered April 10, 1987 is affirmed and shall be applied prospectively only with respect to those Sergeants promoted to Lieutenant prior to April 10, 1987 from the eligibility list certified following the examination given February 8, 1986. In all other respects, the order of this Court entered April 10, 1987 shall be applied retroactively. The named Appellants are the Honorable W. Wilson Goode, Mayor of Philadelphia; Orville W. Jones, Director of the Philadelphia Personnel Department; and James S. White, Managing Director of the City of Philadelphia. Our scope of review in equity matters, including the grant of a permanent injunction, is limited to determining whether the chancellors findings are supported by substantial evidence, an error of law committed, or whether the chancellor abused his discretion. Babin v. City of Lancaster, 89 Pa. Commonwealth Ct. 527, 493 A.2d 141 (1985); Groff v. Borough of Sellersville, 12 Pa. Commonwealth Ct. 312, 314 A.2d 328 (1974). Jones v. Bonner, 107 Pa. Commonwealth Ct. 283, 523 A.2d 849 (1987). ‘[T]he threshold test in deciding whether a new decision might be given prospective application only is whether the decision establishes a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed.’ Schreiber v. Republic Intermodal Corporation, 473 Pa. 614, 622, 375 A.2d 1285, 1289 (1977). Where an appellate decision interprets legislative intent such interpretation is regarded as part of the statute under consideration from the time the statute was enacted. Daniels v. State Farm Mutual Insurance Company, 283 Pa. Superior Ct. 336, 423 A.2d 1284 (1980); Harry C. Erb, Inc. v. Shell Construction Co., Inc., 206 Pa. Superior Ct. 388, 213 A.2d 383 (1965). 96 Pa. Commonwealth Ct. at 428, 507 A.2d at 937.

SMITH, Judge. This case is before the Court on remand by order of the Pennsylvania Supreme Court. The Supreme Court reversed this Court’s decision to reverse the order of the Berks County Court of Common Pleas affirming an order of the Human Relations Commission of the City of Reading (HRC). The HRC held that Appellant Augustus Riedel engaged in a “discriminatory housing practice” in violation of Section 155.07(£) of the City of Reading’s Human Relations Ordinance (Ordinance) by making repeated obscene, hostile and derogatory remarks to Millicent Ferrer and her two children. The issues presented are whether Riedel’s conduct violated Section 155.07(i) of the Ordinance; whether the HRC’s determination that Riedel’s conduct was threatening or coercive toward Ferrer was supported by substantial evidence; whether Riedel’s constitutional rights were violated when only two of the four HRC commissioners who signed the decision were present at the hearing; and whether the $500 fine imposed by the HRC was punitive and unjustified. I Ferrer, a Puerto Rican, resided with her two children aged 13 and 9 in a second-floor apartment on North Tenth Street in the City of Reading from September 1992 to November 1994. During that time Rie-del, a Caucasian, lived in an apartment immediately below Ferrer’s apartment. In December 1993 the relationship between Riedel and Ferrer became unfriendly, and on March 9, 1994 Ferrer filed a complaint with the HRC alleging that Rie-del had harassed her and her children by making derogatory, obscene and hostile remarks to them. After an investigation, the HRC concluded that probable cause existed to support Ferrer’s allegations. On January 23, 1996, two of the five HRC commissioners conducted a public hearing on the complaint. Ferrer testified that Riedel made repeated obscene and hostile remarks to her and her children, that he would yell these remarks from his apartment or from the hallway outside of his apartment, that he would pound on the walls and ceiling of his apartment and that she and her children vacated their apartment in fear of Riedel. Ferrer stated that Riedel made denigrating references to her Puerto Rican origin and told her that she did not belong in this country and that she should stop receiving public assistance. Joseph Santana, a friend of Ferrer’s, gave the following testimony: “I personally heard Mr. Reidel (sic) address Mrs. Ferrer as an F-ing Puerto Rican whore on many occasions, you need to get your f_ing ass out of here. This is America. This is not a place for you. Go back to where you came from.” N.T., 1/23/96, at 45. Santana heard Riedel make other derogatory and offensive statements to Ferrer’s son. Riedel testified that he lived with and cared for his elderly father and that his remarks to Ferrer and her children were in response to the excessive noise which came from Ferrer’s apartment and which aggravated his father’s condition. Riedel stated that Ferrer’s son made obscene remarks to him, called him among other things a “f_ing whitey” and told him that he could perform certain obscene acts. N.T., 1/23/96, at 71-72. Riedel also stated that he never used racial slurs and that he was not biased against Latinos or people on public assistance. The HRC decision, signed by four of the five commissioners, found that Riedel made derogatory, obscene and hostile remarks to Ferrer and her children; that the remarks were of a threatening nature and intended to force them to move from the apartment; that the Ferrer family was intimidated by the remarks and, on more than one occasion, temporarily vacated the apartment; and that the harassment continued until the Ferrer family moved away in November 1994. The HRC concluded that Riedel’s conduct interfered with Ferrer’s right to the quiet enjoyment of her apartment and that this conduct violated Section 155.07(1)© of the Ordinance. The HRC ordered Riedel to pay a penalty of $500 to the HRC and to write a letter of apology to Ferrer. Riedel appealed to the court of common pleas, which affirmed. This Court reversed after it sua sponte addressed whether the HRC had the authority to enforce Section 155.07(1)© the Ordinance when no corresponding provision proscribing similar conduct exists in the Pennsyl vania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963. See Riedel v. Human Relations Commission of City of Reading, 703 A.2d 1072 (Pa.Cmwlth.1997) (Riedel I). The Court held that local commissions, such as the HRC, only have the authority to proscribe discriminatory conduct that is unlawful under the PHRA and that the PHRA does not proscribe interference with a person’s quiet enjoyment of his or her apartment even if accompanied by racial epithets. The HRC appealed to the Pennsylvania Supreme Court, which reversed. See Riedel v. Human Relations Commission of City of Reading, 559 Pa. 34, 739 A.2d 121 (1999). The Supreme Court held that, although a court may at any time raise and address the issue of an agency’s jurisdiction, the issue addressed sua sponte by this Court did not involve the HRC’s jurisdiction but rather involved its authority to enforce Section 155.07(1)© of the Ordinance. The Supreme Court explained the differences between an agency’s jurisdiction and authority to act and then concluded that the HRC had jurisdiction over the subject matter of the case, viz, whether an unlawful housing practice had been committed. The Supreme Court determined that this Court improperly raised and addressed whether the HRC had the authority to proscribe Riedel’s conduct because it was not also proscribed by the PHRA. Because Riedel did not raise the issue before the trial court, it was deemed waived. The case was accordingly remanded to this Court to consider the issues that Riedel properly preserved for review. II This Court’s review of the HRC’s decision is limited to determining whether it committed a constitutional violation or an error of law or whether its relevant findings of fact were supported by substantial evidence. City of Pittsburgh v. Commission on Human Relations of City of Pittsburgh, 65 Pa.Cmwlth. 610, 444 A.2d 182 (1982). Riedel first argues that the HRC erred in finding that he committed a violation of Section 155.07(1)© of the Ordinance because he took no action that constituted a discriminatory housing practice. Specifically, Riedel argues that the right to quiet enjoyment of one’s apartment is not enumerated in the Ordinance and therefore cannot be protected and, moreover, that this right is held only by a tenant against a landlord pursuant to a lease and not held between two tenants who are not contractually bound. Neither the Ordinance nor the PHRA specifically addresses the right to reside in housing free from discriminatory conduct of others. Riedel I. Rather, the Ordinance and the PHRA proscribe discriminatory conduct during the search, application, financing, sale or rental of housing. Similarly, the Federal Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3631, prohibits discrimination in the context of the listing, financing, sale or rental of housing. Unlike the PHRA, Section 3617 of the FHA, 42 U.S.C. § 3617, is virtually identical to Section 155.07(1)© of the Ordinance and has been interpreted by federal courts as prohibiting discrimination against persons who have exercised their fair housing rights. See, e.g., Congdon v. Strine, 854 F.Supp. 355 (E.D.Pa.1994); Ohana v. 180 Prospect Place Realty Corp., 996 F.Supp. 238 (E.D.N.Y.1998); Stackhouse v. DeSitter, 620 F.Supp. 208 (N.D.Ill.1985). The HRC argues that, because no Pennsylvania cases exist discussing Section 155.07(1)© of the Ordinance and because that section and Section 3617 of the FHA are substantially similar, the Court should adopt the federal courts’ interpretation of Section 3617 as the proper interpretation of Section 155.07(l)ffl. The HRC cites Stackhouse to support its contention that Section 155.07(1)© prohibits the conduct perpetrated by Riedel. In Stackhouse a white resident firebombed an automobile owned by a black resident with the intention of driving him from a previously all-white neighborhood. The court noted that the sections enumerated in Section 3617 did not specifically proscribe the conduct at issue, but it concluded nonetheless that the “broad and inclusive language” of the FHA and of Section 3617 protect against coercive acts taken against those who have already exercised their fair housing rights. The purpose behind the enactment of Section 155.07(1)© was to outlaw not only discriminatory practices related to the search, financing, sale or rental of housing but also to outlaw discriminatory conduct designed to interfere with the quiet enjoyment of one’s residence. The HRC found that Riedel made repeated obscene and hostile remarks to Ferrer and her children, that the remarks included derogatory references to their Puerto Rican origin and that the remarks were threatening in nature and forced Ferrer and her family to vacate their apartment on more than one occasion. Under these circumstances, the HRC did not err in concluding that Riedel’s conduct constituted a violation of Section 155.07(1)©. Riedel next argues that the HRC’s finding that his conduct was threatening or coercive was not supported by substantial evidence. Riedel maintains that there was no testimony that he made threatening gestures, blocked a doorway or brandished an object in a threatening way. He argues as well that the Ordinance does not define “threatening” and “coercive” and that his conduct would not constitute “harassment” under Section 2709 of the Crimes Code, 18 Pa.C.S. § 2709, and only rose to the level of a “minor annoyance.” Although the Ordinance does not define the terms “threatening” or “coercive,” the Court concludes that the HRC did not misapply those terms as they are commonly construed. See Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a). Moreover, federal courts have held that acts of coercion or intimidation need not be violent or threaten violence to constitute a violation of Section 3617 of the FHA. See, e.g., Fowler v. Borough of Westville, 97 F.Supp.2d 602 (D.N.J.2000); People Helpers Foundation, Inc. v. City of Richmond, 781 F.Supp. 1132 (E.D.Va. 1992). Riedel contends that his constitutional rights were violated because two of the HRC commissioners who signed the decision were not present at the hearing. Riedel argues that Section 155.12(1)© of the Ordinance requires that all of the commissioners who decide a case must review the transcript and discuss the case before signing a decision and that this procedure was not followed. It is well settled that when authorized machinery exists to permit fewer than all members of an administrative agency to hear and receive evidence all of the decision-makers are not required to participate in the evidentiary proceedings. FR & S, Inc. v. Department of Environmental Resources, 113 Pa.Cmwlth. 576, 537 A.2d 957 (1988). Absent evidence to the contrary, a reviewing court may conclude that agency members gave full consideration to the record prior to issuing a decision. Foley Brothers, Inc. v. Department of Highways, 400 Pa. 584, 163 A.2d 80 (1960). Because Riedel failed to prove that two of the commissioners did not give full consideration to the record, the Court rejects Riedel’s constitutional claim. Lastly, Riedel argues that the HRC decision was punitive and unjustified and that the $500 fine was excessive because his only source of income was from public assistance. The primary purpose of a fíne or penalty is to punish violators and to deter future or continued violations. Commonwealth v. Church, 513 Pa. 534, 522 A.2d 30 (1987). Section 155.14 of the Ordinance provides that the HRC may impose a penalty of up to $10,000 if a person is found to have committed an unlawful discriminatory housing practice. The HRC imposed a fine well below the amount authorized by Section 155.14, and considering Riedel’s conduct a higher penalty could have been justified under the circumstances. The Court therefore concludes that the fíne was neither excessive nor unreasonable. The Court does not address whether the HRC had the authority to order Riedel to write a letter of apology to Ferrer. Riedel did not raise this issue on appeal. For the foregoing reasons, the order of the court of common pleas is affirmed. ORDER AND NOW, this 17th day of July, 2000, the order of the Berks County Court of Common Pleas is affirmed. Judge PELLEGRINI concurs in the result only. . Section 155.07(7) makes it unlawful: “For any person to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by this Ordinance.” Section 155.03(f) of the Ordinance defines a "discriminatory housing practice” as: "[A]n act that is either unlawful under the provisions of this Ordinance or is unlawful under section 804, 805, 806, or 818 of the Federal Fair Housing Act [42 U.S.C. §§ 3604, 3605, 3606 or 3617] or section 955 or 955(h) of the Pennsylvania Human Relations Act [Section 5 of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955].” . 42 U.S.C. § 3617 provides: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603 [effective dates of certain prohibitions], 3604 [discrimination in the sale or rental of housing and other prohibited practices], 3605 [discrimination in residential real estate-related transactions], or 3606 [discrimination in the provision of brokerage services] of this title. . When there is little or no Pennsylvania case law discussing a statute, a court may look to federal case law for guidance. See, e.g., Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860 (1980); Kryeski v. Schott Glass Technologies, Inc., 426 Pa.Super. 105, 626 A.2d 595 (1993). . Section 155.12(1)(Z) of the Ordinance provides: "Subsequent to the public hearing, a transcription of the testimony shall be ordered and, when completed, distributed to the Commissioners for review. Upon review, the Commissioners shall meet to discuss and decide the case. A vote by a majority of the Commissioners shall be necessary to find that the respondent has engaged in an unlawful practice.” Also, Section 155.12(i) provides: "Where a public hearing is ordered, the Commission shall designate one or more members or a hearing examiner to conduct such a hearing.”

LEADBETTER, Judge. Christopher Frazier appeals from an order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of the City of Philadelphia. Upon consideration, we affirm. On June 22, 1991, Terrance Hawkins, an off-duty Philadelphia police officer, shot Christopher Frazier following an argument concerning Hawkins’ former girlfriend, Anita Burton. Ms. Burton had unilaterally ended her relationship with Hawkins, which triggered a string of incidents culminating in the shooting at issue. On June 17, 1991, Ms. Burton filed a complaint against Hawkins with the Philadelphia police department alleging that he had twice slashed the tires on her car in retaliation for their breakup. On the day of the incident, Frazier was helping Ms. Burton change the slashed tires on her car when he saw Hawkins watching from his personal vehicle. Hawkins was off-duty at the time and was wearing civilian clothing. After Frazier finished changing the tires, he drove away in his own vehicle. Hawkins then followed Frazier and pulled beside his car at a stoplight where he asked Frazier to pull over. Frazier ignored Hawkins and proceeded forward when the light changed. Hawkins became agitated and pulled in front of Frazier’s car at the next light, effectively cutting him off. Hawkins got out of his car and approached Frazier, who noticed that Hawkins was carrying a gun. Hawkins repeatedly asked Frazier who he was and what he was doing with his girlfriend. However, Frazier continued to ignore Hawkins. Hawkins then fired four shots at Frazier’s vehicle, striking him once in the leg. Hawkins shot Frazier with his personal weapon, a .45 caliber handgun that he carried when off-duty. Hawkins was arrested, tried and convicted of aggravated assault, possession of an instrument of crime and reckless endangerment. Hawkins was subsequently discharged from the Philadelphia police force. On November 5, 1992, Frazier filed a complaint against Hawkins and the City of Philadelphia alleging a civil rights violation under 42 U.S.C. § 1983, asserting that the policies and practices of the City related to hiring, training and supervision of police officers caused Hawkins, acting under the color of state law, to deprive Frazier of constitutional rights. The City answered and filed a motion for summary judgment, which the trial court granted. On November 14, 1995, Frazier filed a notice of appeal, which this court quashed as interlocutory because the suit against Hawkins still remained. On April 7, 1997, default judgment was entered against Hawkins; however, Frazier did not file his notice of appeal until November 10, 1997. The City moved to quash the appeal as untimely and we granted the motion. Frazier then appealed to the Supreme Court, which reversed and remanded the matter for our review of the grant of summary judgment in favor of the City. Initially, we note that summary judgment may properly be granted where the moving party establishes that (1) there is no genuine issue of material fact that could be established by additional discovery or expert report and based upon the undisputed evidence, the movant is entitled to judgment as a matter of law, or (2) there is insufficient evidence to permit a jury to find a fact essential to the cause of action or defense. Schnupp v. Port Auth. of Allegheny County, 710 A.2d 1235, 1237 (Pa.Cmwlth.1998). Upon reviewing the record, the fact-finder must view the evidence in the light most favorable to the non-moving party. Id. In determining whether a Section 1983 action has been stated the inquiry must focus on whether the two essential elements of the action are present: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of lights, privileges, or immunities secured by the Constitution or laws of the United States. Costa v. Frye, 138 Pa.Cmwlth. 388, 588 A.2d 97, 99 (1991), citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). A local municipality is a “person” who may be directly liable under Section 1983. Costa, 588 A.2d at 99, citing Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Section 1983 imposes liability on a municipality when an official policy of the municipality causes an employee, acting under the color of law, to violate another’s constitutional rights.” Id. The threshold inquiry in a Section 1983 action is whether the conduct in question was committed by a person acting under color of state law. Costa, 588 A.2d at 99. Frazier first contends that Hawkins, despite his off-duty status, civilian clothing and personal weapon, was acting under color of state law when he fired four shots at Frazier’s vehicle striking him once in the leg. Frazier contends that his knowledge of Hawkins’ status as a police officer combined with Hawkins use of police-like commands when asking him to pull over as well as his use of police driving maneuvers led Frazier to treat him like a “rogue” cop. However, to be under color of state law, the actor must have exercised “power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id., citing West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). A review of the facts asserted by Frazier reveals that Hawkins was participating in a private argument about his prior girlfriend, Ms. Burton. Hawkins’ acts of violence were of a purely private nature and were not furthered by any actual or proposed state authority. The instant matter is closely akin to the facts presented in Costa where an off-duty police officer became engaged in a fight over the use of a video poker machine. As the argument escalated, the officer drew his weapon which discharged during the altercation. Costa, 588 A.2d at 98. However, the fact that the argument resulted in violent behavior where the officer drew a weapon failed to transform the incident into a police matter such that the officer could be considered to be acting under the color of state law for purposes of Section 1983. Id. at 99. This rationale is equally applicable to the case at hand and is buttressed by the fact that Hawkins was off-duty, dressed in civilian clothing and carrying a private weapon. As we concluded in Costa, the conduct engaged in by Hawkins cannot be fairly attributed to the City and will not support a finding of liability under Section 1983. Therefore, we conclude that the trial court properly granted summary judgment in favor of the City because Hawkins was not acting under color of state law at the time of the incident. Alternatively, Frazier contends that the City can be held liable for a deprivation of Frazier’s constitutional rights absent a finding that Hawkins was under color of state law, based upon the alleged existence of municipal policies and customs which led to the violation of Frazi- ers constitutional rights. Citing Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir.1994), Frazier attempts to fashion a theory of recovery under Section 1983 where the City could be held liable for a violation of civil rights where no agent of the state perpetrated the harm in question. However, Fagan in no way serves to abrogate the well-established requirement that an employee acting under color of state law must perpetrate the harm in question. Fa-gan simply imposes liability on a municipality where an official policy of the municipality is being effectuated by a state actor whose actions cause harm but fail to rise to the level necessary to shock one’s conscience so as to hold the officer individually liable under Section 1983. However, in cases in which the harm is not caused by a state actor, no claim will lie under Section 1983 no matter what alleged customs or policies the municipality may have in place. Under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), a municipality has no duty to protect individuals who are not in their custody from violent acts of third persons, i.e., off-duty police officers who are not acting under color of law. To extend the rationale of Fagan as Frazier suggests would bring that case into direct conflict with DeShaney. Therefore, under the facts before us, there is no state action and no constitutional violation making it impossible for Frazier’s Section 1983 action to survive the City’s motion for summary judgment. Accordingly, we affirm. ORDER AND NOW, this 26th day of April, 2000, the order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of the City of Philadelphia in the above captioned matter is hereby affirmed. . Section 1983 of the Civil Rights Act states in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunizes secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983 (1994). . Frazier also alleged several causes of action pursuant to Pennsylvania common law that are not at issue here. . As the United States Court of Appeals for the Third Circuit has noted, "absent the conscious decision or deliberate indifference of some natural person, a municipality, as an abstract entity, cannot be deemed to have engaged in a constitutional violation by virtue of a policy, a custom, or a failure to train.” Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir.1991). . Finally, Frazier argues for the first time on appeal that the City can be held liable under the "state-created” danger theory for the harm inflicted by a private actor. For purposes of our review, Frazier's argument based on the state created danger theory has been waived. Moreover, even should we follow those courts which have adopted the doctrine, we find it inapplicable to the facts at hand. "We read the post-DeShaney decisions to frame the [state-created danger] inquiry as 'whether the state actors involved affirmatively acted to create plaintiff's danger, or to render him or her more vulnerable to it.’ ” Kneipp v. Tedder, 95 F.3d 1199, 1207 (3d Cir.1996), quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1373 (3d Cir.1992).

EAKIN, J.: ¶1 Appellee and two little dogs were walking down the street, tending to business as they went, but soon they were to meet ¶ 2 Appellant, who this wintry day was driving toward the pair; their mistress reined them to a stop along the thoroughfare. ¶ 3 Angel and Autumn were their names, one white, one apricot; to walk beside her on a leash was their happy lifelong lot. ¶ 4 The poodles waited for the car, and watched as it drew near, thinking there was naught at all to cause them any fear, ¶ 5 For often cars would pass them by, but this was no wayfarer - the car begin to veer toward them and caution turned to terror. ¶ 6 The car was coming much too close, something inside told her; the next thing Mrs. Zangrando knew, a poodle flew over her shoulder. ¶ 7 To appellee this was nothing short of an unmitigated disaster; the wingless Angel’d taken flight and ascended quickly past her. ¶ 8 In this brace of miniature poodles, neither one wide nor tall, one may have been named Autumn, but ‘twas Angel took the fall. ¶ 9 The impact could have killed the pup but Angel would survive; a doctor of the veterinary kept the dog alive. ¶10 The bill for Angel’s treatment, though, was anything but small, and appellee felt that in the end, appellant should pay it all, ¶11 So she filed this civil action in Allegheny county court seeking eleven hundred fifty-five dollars for the nearly fatal tort. ¶ 12 The court sat with no jury, and after expeditious trial, held appellee was right, which caused the court to promptly file ¶ 13 The order which appellant claims was entered quite in error; he suggests the trial judge should have treated him much fairer. ¶ 14 Four issues now he raises, as he asks us to abort the finding of the learned and distinguished county court. ¶ 15 When looking at a trial court’s verdict, our standard of review requires we find legal error before granting trial anew, ¶ 16 Or find abused discretion that is clear and manifest; with this unquestioned ruler we put his issues to the test. ¶ 17 First he says that appellee was standing in the road in blatant violation of this Commonwealth’s Vehicle Code, ¶ 18 So contributory negligence the trial court should have found precluding his obligation to pay for damaging the tiny hound. ¶ 19 Appellant points us to Code Section 3544, which provides, indeed, pedestrians are required to do more ¶ 20 Than choose just any path while they are going down the way; when in the street one must walk the left, and off the road should stay. ¶ 21 But appellee gave testimony she walked upon the “berm,” and while the Vehicle Code has not defined that term ¶ 22 The eases hold a berm is not highway or street per se; it’s a border visibly distinct from the remainder of the way. ¶ 23 Appellee was toward the left side curb, and just about as far as she could be from the center of the roadway and the car. ¶ 24 We find that being on the berm, when she could do no more does not make a violation of 3544. ¶ 25 We find no negligence in staying off the neighbor’s grass; the road was fifteen feet in width, with room to safely pass. ¶ 26 Absent violation of this cited traffic section we agree with the refusal of the judge to make a connection ¶ 27 Between her fixed location and per se contributory negligence, notwithstanding appellant’s version of the story. ¶ 28 Appellant however argues that because he hit the dog while driving in the roadway, Angel must be the road hog. ¶ 29 But he didn’t testify he saw the dog dash to the street, yet he’d have this Court assume such caused the dog and car to meet. ¶ 30 Even if the poodle strained to reach the leashes’ end, appellant veered toward Angel, testimony we may not amend. ¶ 31 It’s a credibility finding, and we are an appellate court; such findings, if supported, bind us, despite his strong retort. ¶ 32 If one looks very closely, the sum of appellant’s dissembling is he saw no impact ‘til Angel rose, an extra point resembling. ¶ 33 The collision he says he didn’t see, a fact there’s no denying, so he can’t tell if Angel moved before he sent her flying. ¶ 34 Appellant next suggests the court in error applied the rule of assured clear distance to find that he was fully liable ¶ 35 This is a venerable doctrine that is very far from moot, and quite appropriate to the facts giving rise to this dispute. ¶ 36 The court gave to this principle its proper application; the issue raised, we find, lacks a meritorious foundation. ¶ 37 Besides, we can’t find where he’s raised this in a post-trial motion; the issue’s waived, no matter how appealing the notion. ¶ 88 Next, he claims he was the victim of a sudden emergency, a doctrine which absolves some torts, and he should be set free ¶ 39 Of any obligation for the money owed the vet, but the record shows the elements of this concept are not met. ¶ 40 This doctrine’s application is with unforeseen events when normal care’s impossible in any real sense. ¶ 41 Unexpected perils do from time to time arise whose suddenness may obviate the fault in our law’s eyes. ¶ 42 But while appellant touts this rule, no matter how it’s styled he needs to have us find the dog was like the darting child, ¶ 43 And there simply is no evidence that Angel did such darting before the car ran into her, trajectory imparting. ¶ 44 The poodles were not proved the source of sudden immediate peril; their actions did not put him over any decisional barrel. ¶ 45 The poodles and the appellee had surely come to a halt; they didn’t appear suddenly; the impact wasn’t their fault. ¶ 46 This claim of exigency he makes further begins to unravel when one but thinks about appellant’s stated rate of travel. ¶ 47 15 miles an hour he claims as his maximum rate of speed, quite a cautious, prudent rate, not very fast indeed, ¶ 48 Not fast enough to trouble him or force a quick decision; it shows, had he been paying heed, there’d have been no collision; ¶ 49 For he admits he saw the dogs as he approached the scene, and didn’t know he’d struck a pup ‘til Mrs. Zangrando keened. ¶ 50 It’s also hard to quarrel here with what the trial court said: That speed’s not fast enough to launch a poodle overhead. ¶ 51 The doctrine’s just not applicable, factually, in this case; Thus the dependent argument is similarly off base. ¶ 52 In sum, assured clear distance creates duty when one drives; the emergency doctrine excuses it should sudden peril arise. ¶ 58 Appellant would skip the former rule, and apply only the latter, which seems to us as illogical as dieting to get fatter. ¶ 54 This argument is not so far from the dog in the fabled manger; were we to find as appellant asks, we would create a danger ¶ 55 For everyone who find the needs of their beloved pet makes them walk within the confines of their street, and yet ¶ 56 They cannot be fair game for cars that drive that very street (and cars will always win the ties, when pedestrian and auto meet). ¶ 57 Be it interstate or neighborhood, drivers get no free shot at things they may encounter, whether in the street or not. ¶ 58 So while counsel raises issues that are worthy and well taken in the end we find the effort to apply them here’s mistaken. ¶ 59 We must conclude the issues raised do not warrant a new trial and all that we may offer now is this respectful rhymed denial. ¶ 60 Judgment affirmed. . Stonehedge Square Ltd. Pshp. v. Movie Merchants, 454 Pa.Super. 468, 685 A.2d 1019, 1022 (1996), alloc. granted in part, 548 Pa. 228, 696 A.2d 805 (1997). . 75 Pa.C.S. § 3544(b)-(c). . Masters v. Alexander, 424 Pa. 65, 225 A.2d 905, 910 (1967). . Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220, 1224 (1997). .Lockhart v. List, 542 Pa. 141, 665 A.2d 1176, 1180 (1995). . Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa.Super.1998). . Levey v. DeNardo, 555 Pa. 514, 725 A.2d 733 (1999).

MIRARCHI, Jr., Senior Judge. Eileen Dempsey, by her husband and guardian ad litem, Edward Dempsey, petitions this Court to review a final administrative order of the Pennsylvania Department of Public Welfare (DPW) affirming a hearing officer’s denial of her appeal from a decision of the County Assistance Office (CAO). The CAO denied Mrs. Dempsey’s application of medical assistance (MA) benefits for nursing home care. We affirm. Mrs. Dempsey, who apparently suffers from symptoms of Alzheimer’s Disease, was admitted to the Middleton Nursing Home in December 1996. In January 1997, the CAO completed a resource assessment for the Dempseys. This assessment placed the Dempseys’ countable and verifiable resources at $404,630 at the time of Mrs. Dempsey’s admission to the nursing home. In January 1998, Mr. Dempsey transferred $340,000 of these assets to purchase a single premium, irrevocable annuity that would pay him (as sole payee) income of $6,300 per month for five years. Two months later, Mr. Dempsey bought a similar annuity for $25,000 that would pay him (as sole payee) income of $730 per month for five years. Three months later, Mrs. Dempsey, through her husband as guardian ad litem, applied for MA to pay for her nursing home costs. The CAO responded with a letter asking Mr. Dempsey why he had transferred $365,000 of their joint assets immediately before applying for MA, for what the CAO considered less than fair market value. Mr. Dempsey responded by letter stating that he transferred the funds as an investment strategy. In particular, he stated that he was professionally advised that for a person of his age (seventy years), it was more prudent to place the assets where he could obtain a fixed income rather than expose them to the volatility of the stock market (where the Dempseys’ assets had apparently been invested). Further, he stated that the transfer would also reduce the Dempseys’ taxes. The CAO requested proof of these assertions, and Mr. Dempsey provided certain documentation. After receipt of this documentation, the CAO denied Mrs. Dempsey’s application for MA and further determined that she would be ineligible for MA until August 2004 as a result of what the CAO presumed was a transfer of $365,000 of countable assets for less than fair market consideration and for the impermissible purpose of qualifying for MA. The Demp-seys appealed, and a hearing officer held a hearing, at which Mr. Dempsey and an income maintenance casework supervisor for DPW testified. The hearing officer concluded that the Dempseys failed to rebut DPW’s presumption that they had transferred assets for less than fair market value and for the purpose of qualifying Mrs. Dempsey for MA. Accordingly, the hearing officer determined that Mrs. Dempsey was ineligible to receive MA for a period commensurate with the number of months of nursing home care that could be purchased by $365,000. The Secretary of DPW affirmed, and this petition for review followed. This Court’s scope of review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether constitutional rights were violated. Oriolo v. Department of Public Welfare, 705 A.2d 519 (Pa.Cmwlth.1998). The Dempseys argue that DPW erred by presuming that the transfer of their assets to the annuities was a disqualifying event when the annuities were actuarially sound in accordance with relevant federal guidelines. The Dempseys also argue that DPW erred by failing to make a finding regarding the actuarial soundness of the annuities. Finally, the Dempseys argue that the case law relied upon by DPW is inapplicable to the factual situation present in this case. In support of their argument, the Demp-seys rely upon a single guideline of the Health Care Financing Administration (HCFA) of the United States Department of Health and Human Services set forth in the State Medicaid Manual. Section 3258.9(B) of the State Medicaid Manual, HCFA, No. 45-3, Transmittal No. 64 (Nov. 1994), provides in relevant part: Annuities, although usually purchased in order to provide a source of income for retirement, are occasionally used to shelter assets so that individuals purchasing them can become eligible for Medicaid. In order to avoid penalizing annuities validly purchased as part of a retirement plan but to capture those annuities which abusively shelter assets, a determination must be made with regard to the ultimate purpose of the annuity (i.e., whether the purchase of the annuity constitutes a transfer of assets for less than fair market value). If the expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary, the annuity can be deemed actuarially sound. To make this determination, use the following life expectancy tables, compiled from information published by the Office of the Actuary of the Social Security Administration. The average number of years of expected life remaining for the individual must coincide with the life of the annuity. If the individual is not reasonably expected to live longer than the guarantee period of the annuity, the individual will not receive fair market value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place, subjecting the individual to a penalty. The penalty is assessed based on a transfer of assets for less than fair market value that is considered to have occurred at the time the annuity was purchased. For example, if a male at age 65 purchases a $10,000 annuity to be paid over the course of 10 years, his life expectancy according to the table is 14.96 years. Thus, the annuity is actuarially sound. However, if a male at age 80 purchases the same annuity for $10,000 to be paid over the course of 10 years, his life expectancy is only 6.98 years. Thus, a pay out of the annuity for approximately 3 years is considered a transfer of assets for less than fair market value and that amount is subject to penalty. The Dempseys argue that because Mr. Dempsey had a life expectancy of 11.35 years at the time of purchase, according to the applicable tables, the two five-year annuities at issue must be considered actuar-ially sound and not subject to penalty. The Dempseys thus argue that Section 3258.9(B) of the State Medicaid Manual is conclusive, that it prohibits DPW from making a presumption that their assets were transferred for less than fair market value, and that all other considerations surrounding the transfer of assets are subordinate to the fact that the annuities appear to be actuarially sound under these provisions. In the recent decisions of Bird v. Department of Public Welfare, 731 A.2d 660 (Pa.Cmwlth.1999); Ptashkin v. Department of Public Welfare, 731 A.2d 238 (Pa.Cmwlth.1999); and Pyle v. Department of Public Welfare, 730 A.2d 1046 (Pa.Cmwlth.1999), however, we emphasized several matters regarding the construction of Medicaid law overlooked by the Dempseys in their argument. Moreover, we determined in those cases, contrary to the Dempseys’ argument, that the “actuarial soundness” of an annuity in accordance with life expectancy tables as described in the State Medicaid Manual does not render a transfer of assets to such an annuity a matter beyond the review of DPW in its determination of whether a MA application for nursing home care should be granted or denied. First, we again emphasize the obvious: The Medicaid Act contains complex, interrelated provisions, and it would be foolhardy to impute a plain meaning to any of its provisions in isolation. A statute must be read as a whole; words depend upon context; ‘they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used... Bird, 731 A.2d at 666 (quoting Cleary v. Waldman, 959 F.Supp. 222, 228-29 (D.N.J. 1997)) (citation omitted). As pertaining to the eligibility requirements of an institutionalized applicant for MA who has a spouse remaining in the community, as is the present case, the provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA), as amended, 42 U.S.C. § 1396r-s, must be particularly examined. We refer to Bird, Ptashkin, and Pyle for a more thorough explanation of the MCCA, i ie history behind this legislation and the Medicaid program generally, and the regulatory scheme promulgated by DPW to implement the provisions and mandates of this federally financed state assistance program. For purposes of our review, a summary shall be sufficient. DPW’s duly promulgated regulations provide that an applicant is eligible for medically needy MA benefits if the applicant has available resources of $2400 or less. 55 Pa Code § 178 (App.A). Where the applicant is institutionalized and leaves a spouse remaining in the general community, DPW is required to calculate the total amount of the couple’s resources at the time one spouse is admitted into a nursing facility. 55 Pa.Code § 178.121(g). The spouse remaining in the community is permitted to keep one-half of the total resources owned by the couple without rendering the institutionalized spouse ineligible for MA. There is, however, a minimum community spouse requirement and a maximum cap regardless of the amount constituting one-half of the couples’ resources. 42 U.S.C. § 1396r-5(c), (f). At the time Mrs. Dempsey applied for MA, the maximum community spouse resource allocation (CSRA) was $76,740. 42 U.S.C § 1396r-5(f)(2). The amounts are adjusted annually. The CSRA is considered a “protected resource” that does not affect the eligibility of the institutionalized spouse to receive MA. 42 U.S.C. § 1396r-5(c), (f). Additionally, a community spouse is able to receive a certain monthly income without rendering the institutionalized spouse ineligible for MA. 42 U.S.C. § 1396r-5(d). Should this income be insufficient to maintain the community spouse above the federal impoverishment limits, either the income may be augmented by a sufficient portion of the institutionalized spouse’s income, or the CSRA may be adjusted upward to the extent that sufficiently extra interest income is generated. See 55 Pa. Code § 178.124(b). This computation of protected resources controls how much of the couple’s total resources that the spouse may retain. Bird. Any non-protected resources are considered available to the institutionalized spouse and must be spent down to $2400 before the institutionalized spouse may become eligible for MA. 55 Pa.Code § 178.1 (Append.A). Other regulations provide that transfers of assets by the applicant or his or her spouse made within the prescribed look-back period (generally thirty-six months from the date the applicant is both institutionalized and has applied for MA) will render the applicant temporarily ineligible for MA if the assets were transferred for less than fair market value. 55 Pa. Code § 178.104. The length of the ineligibility shall be the equivalent of the number of months that the transferred assets could purchase the average nursing home care in the Commonwealth. Bird. Implicit in the regulations set forth at Section 178.104, however, is that a transfer of assets made by the applicant or spouse for fair market value within the look-back period will not result in ineligibility. As we discussed in Bird, however, the MCCA provides that its provisions establishing the CSRA with its maximum cap, as well as the prescribed monthly allowances for the community spouse, supersede any other provision of Medicaid law, including those provisions set forth at 55 Pa.Code § 178.104. 42 U.S.C. § 1396r-5(a)(l). Moreover, DPW is the payer of last resort. 55 Pa.Code § 178.6(a). DPW regulations provide that the applicant shall identify third party sources that are available to pay for medical services, including the spouse, and “that these shall be used to the fullest extent possible before payment is made by MA.” Id. The regulations further create a presumption that property owned solely or jointly by the applicant is available for payment of medical services. 55 Pa.Code § 178.4. DPW, when reviewing an application for MA, may apply these presumptions and may also presume that disposed-of assets (made during the look-back period) were transferred with the improper intent to qualify for MA. 55 Pa.Code § 178.105. As always, the burden of proving eligibility for MA is on the applicant. Bird; Ptashkin; Pyle. DPW is empowered to presume that a transfer of assets within the applicable period has been made in contravention of the Medicaid laws, and it is then the burden of the applicant to rebut this presumption at a hearing if not before. Ptashkin. Here, Mr. Dempsey transferred $365,000 of joint assets into irrevocable annuities immediately before he applied for MA on behalf of his wife. These annuities would bring Mr. Dempsey far in excess of the maximum monthly income allowance for a community spouse under the MCCA and would further serve to effectively shelter assets far in excess of the CSRA and the $2400 allowable to Mrs. Dempsey. Therefore, granting Mrs. Dempsey MA from scarce resources would appear to be a gross violation of the MCCA in light of Mr. Dempsey’s transfers. Moreover, the transactions do not appear to have conferred any tangible benefit upon Mrs. Dempsey at all. DPW accordingly correctly presumed that the transactions were made for less than fair market value and for the impermissible purpose of qualifying for MA. It was the Dempseys’ obligation to rebut this presumption at the hearing. Mr. Dempsey testified that he made the transactions as an investment strategy to avoid the volatility of the market, to insure a fixed income for himself, and to take advantage of certain tax benefits. Mr. Dempsey did not, however, testify that he could only achieve these goals by rendering the assets unavailable for use towards his wife’s nursing home care. That is, Mr. Dempsey did not set forth evidence that circumstances required the placement of substantial assets in irrevocable instruments. Suffice it to say, the Medicaid laws and the MCCA in particular do not provide that otherwise available assets may be rendered unavailable by placing them in the service of investment strategies and tax benefits. Further, Mr. Dempsey failed to even provide evidence regarding the transactions themselves. No agreement or instrument detailing the full terms of the annuities was introduced into evidence. Therefore, on the most fundamental level, Mr. Dempsey failed to establish that the assets were exchanged for fair market value after an arms-length transaction. The Dempseys simply rely on the fact that the annuities appear to be actuarially sound in accordance with Section 3258.9(B) of the State Medicaid Manual, a federal guideline. A federal guideline, however, cannot overturn the provisions of a federal statute, particularly one that specifically provides that it is to take precedence over every other provision of the Medicaid laws. The provisions of the MCCA establishing the CSRA and the maximum monthly income levels for the community spouse, by expressly stated intent, take precedence. Moreover, Section 3258.9(B) of the State Medicaid Manual does not itself provide that a transfer of assets to an aetuarially sound annuity establishes that the transfer may not under any circumstances render ineligible an ap plicant for MA. As we read the provision, it is simply a guideline to aid caseworkers in determining whether or not an annuity appears on its face to be a legitimate instrument as opposed to an abusive shelter for assets. This does not mean that the purchase of a legitimate instrument from available assets must, in all circumstances, render those assets unavailable for purposes of determining MA eligibility. In sum, the Dempseys’ reliance upon a single guideline in isolation may not render the remaining provisions of the Medicaid laws and the essential and precedential provisions of the MCCA meaningless. The final administrative order of DPW is therefore affirmed. ORDER AND NOW, this 15th day of May, 2000, the order of the Pennsylvania Department of Public Welfare in the above-captioned matter is hereby affirmed. . The regulations set forth at 55 Pa.Code § 178.104 mirror federal provisions of the Medicaid law set forth at 42 U.S.C. § 1396p. . Obviously, if this were true, the federal mandate that MA is reserved for "needy persons” would be completely erased.

ORDER PER CURIAM: AND NOW, this 16th day of June, 2000, The Report and Recommendations of The Disciplinary Board of the Supreme Court of Pennsylvania dated May 23, 2000, are approved and IT IS ORDERED that TARA L. FLYNN, who has been on inactive status, has never been suspended or disbarred, and has demonstrated that she 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.

OLSZEWSKI, J.: ¶ 1 Albert Butler appeals the Post-Conviction Relief Act (PCRA) court’s dismissal without a hearing of his PCRA petition. We affirm. ¶ 2 The PCRA court aptly summarized the facts: 1. On November 17, 1995, following a jury trial, [appellant] was convicted of first degree murder, robbery and conspiracy. [Appellant] was represented by Eugene Tinari, Esquire. Judge Eugene H. Clarke, Jr. presided. 2. The Commonwealth presented evidence that on August 3, 1994, two men entered the Sugar Ship Bar in Philadelphia. One of the men asked Calvin Edwards, the manager of the bar, if he knew what time it was. Mr. Edwards responded that it was 12:30 a.m. [Appellant] then told Mr. Edwards that that was not the correct time, but rather it was “time to give up the money.” [Appellant] was armed with a silver revolver and pointed it at Mr. Edwards’ head. He then fired the gun, causing a gunshot wound to Mr. Edwards’ head which killed him. 3. On September 4, 1996, [Appellant] was sentenced to life in prison for the first degree murder conviction. He was also sentenced five to ten years for the robbery conviction and five to ten years for the conspiracy conviction, each to run concurrent to the life sentence. Following sentencing, Mr. Tinari withdrew as counsel and Jack McMahon, Esquire, filed an appeal to the Superior Court of Pennsylvania. The Pennsylvania Superior Court affirmed both the conviction and the sentence in an unpublished memorandum opinion on December 31,1997. [Commonwealth v. Butter, No. 3353 Philadelphia 1996, unpublished memorandum (Pa.Super. filed Dec. 31, 1997).] [Appellant] did not seek alloca-tur. 4.On February 26, 1998, [appellant] filed a pro se PCRA petition. Thereafter, Patrick Egan was appointed to represent him and filed an amended petition. On February 3, 1999, the Commonwealth filed a motion to dismiss. Subsequently, on May 11, 1999, [appellant’s] amended petition was dismissed without a hearing, [the PCRA court] having determined that a decision could be made from the existing record. PCRA Court Opinion, 7/20/99, at 1-2 (footnote omitted). Appellant then filed a notice of appeal, and the PCRA court ordered him to submit a Pa.R.A.P.1925(b) statement. Appellant did not do so; thus, the PCRA court’s opinion addressed only the issues appellant raised in his amended PCRA petition. ¶ 3 On appeal, appellant raises the same issues he raised in his amended PCRA petition: A. Was Appellant denied his constitutional right to effective assistance of counsel at trial and post-trial stages due to the failure of counsel to: 1. Object to the Trial Court’s [inadequate [instructions on [incorrect [e]yewitness [identification. 2. Object to the Trial Court’s [i]nad-equate instructions on impeachment of witnesses. 3. Object to the trial court’s defective alibi instruction. 4. Adequately and fully investigate and prepare for trial and [p]rovide even a minimal defense to the extent that the trial performance was deficient by constitutional standards. B. Was Appellant’s conviction obtained in violation of his constitutional rights under Article I Section 9 and pursuant to Brady v. Maryland ? Brief for Appellant at 4. Before we address the merits, however, we must determine whether appellant has waived the issues. ¶4 As noted above, the PCRA court ordered appellant to file a Rule 1925(b) statement, see PCRA court order, 6/25/99, at 1, but appellant failed to do so. Without the benefit of appellant’s statement, the PCRA court then issued an opinion on July 20, 1999, discussing in detail the issues appellant had raised in his amended PCRA petition. See PCRA Court Opinion, 7/20/99, at 2. We are aware of no case specifically dealing with the issue of whether a PCRA petition may serve as a substitute for a Rule 1925(b) statement and, thus, now address this issue for the first time. ¶ 5 Our Supreme Court addressed Rule 1925(b) in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). In Lord, the Court held that “from this date forward, in order to preserve them claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Id. at 309. Our own Court has addressed Lord several times. See, e.g., Commonwealth v. Steadley, 748 A.2d 707, 708 (Pa.Super.2000); Giles v. Douglass, 747 A.2d 1236, 1236 (Pa.Super.2000); Commonwealth v. Ortiz, 745 A.2d 662, 663 (Pa.Super.2000); Commonwealth v. Overby, 744 A.2d 797, 798 (Pa.Super.2000). ¶ 6 In Steadley, the appellant failed to file a Rule 1925(b) statement but the trial court drafted an opinion addressing what it assumed the appellant might appeal. See Steadley, 748 A.2d at 709. This Court held that “appellant has waived the claim ... because she neglected to file a Rule 1925(b) statement,” reasoning that allowing “the trial judge [to] determine[ ] which issues an appellant could raise” would be detrimental to appellants. Id. In Giles, the appellant failed to file a Rule 1925(b) statement, and, just like in Steadley, the trial court issued ah opinion attempting to address the appellant’s issues, though it noted that it was unaware of the appellant’s specific issues. See Giles, 747 A.2d at 1237. Our Court held that the appellant had waived his issues on appeal because when the trial court has “to guess what issues [an appellant is appealing], that is not enough for meaningful review.” Id. In Overby, the trial court ordered the appellant to file a Rule 1925(b) statement on December 11, 1998. See Overby, 744 A.2d at 797. When the appellant had not done so by March 25, 1999, the trial court issued an opinion urging this Court to waive the issues on appeal. See id. This Court agreed and held that the appellant had indeed waived his issues on appeal for failing to file a Rule 1925(b) statement. Thus, this Court has established a pattern for 1925(b) cases. ¶ 7 The only deviation from that pattern is Ortiz. See Ortiz, 745 A.2d at 662. In Ortiz, the appellant filed his Rule 1925(b) statement two weeks late. See id. at 663. The trial court subsequently issued an opinion discussing the appellant's sole issue on appeal. See id. A panel of this Court held that “the trial court’s subsequent opinion discussed the sole issue raised therein and, thus, there is no impediment to our meaningful review.” Id. at 664 n. 3. It is with these cases in mind that we turn to the case at hand. ¶ 8 The case before us is more similar to Steadley, Giles, and Overby than Ortiz. Here, the court never had the benefit of a Rule 1925(b) statement, as the court did in Ortiz, 745 A.2d at 663. While the PCRA court did have the benefit of appellant’s amended PCRA petition, it still had to guess what issues appellant would raise on appeal. Of course, a PCRA court would perhaps be more likely than the trial court to be aware of potential issues on appeal because of the PCRA petition, but the PCRA court would still be guessing. Had the PCRA court guessed incorrectly that appellant only wanted to raise two of the above issues instead of five, appellant would have been restricted to those two issues. Further, appellant could have wished to appeal the fact that he did not receive a hearing on his PCRA petition. As the PCRA court did not address that in the opinion, appellant would be precluded from raising that claim. Again, the PCRA court would be determining what issues the appellant could appeal, and we cannot conduct meaningful review where the PCRA court defines the appellant’s issues. We can only conduct meaningful review where the appellant writes a Rule 1925(b) statement and the court below, be that a trial court or a PCRA court, responds to those issues in its opinion. Moreover, it is contrary to our system of justice to allow the court rather than the appellant to frame the issues. Indeed, this would “severely limit[ ] the types and nuances of arguments that [an] appellant [could] raise on appeal.” Steadley, 748 A.2d at 710. While it may appear to punish appellant in this particular case, it will also allow future appellants to frame their own issues. Further, it again serves as notice to appellants: when a trial court or a PCRA court orders a Rule 1925(b) statement, the appellant must comply or risk waiver. ¶ 9 Order affirmed. .¥ Pa.R.A.P. 1925(b) permits the court to "enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order.” Pa.R.A.P. 1925(b).

EAKIN, J.: ¶ 1 Paul David Weimer appeals pro se from the order denying his petition to reinstate appellate rights nunc pro tunc, three motions to correct illegal sentence and his petition for writ of habeas corpus. ¶ 2 Charged with involuntary deviate sexual intercourse, corruption of a minor, indecent assault and criminal solicitation, appellant entered a negotiated plea of nolo contendere to two counts of corruption of a minor; the remaining charges were dismissed January 26, 1990. His sentence was two concurrent five-year terms of probation. No motions were filed after sentencing and no appeal was taken. ¶ 8 Following a revocation hearing, appellant was resentenced June 24, 1993, to an aggregate of five to ten years. A court-appointed public defender filed a petition to reinstate appellate rights November 15, 1993, indicating that by the time the order appointing counsel was entered, the time for appeal had expired. The record does not reflect any disposition of this petition. ¶ 4 Appellant had previously filed a pro se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in early 1992. Counsel was appointed, and filed an amended petition May 25, 1994, alleging plea counsel’s ineffectiveness in failing to object to a defective plea colloquy, failing to move to withdraw the plea and advising appellant to enter the plea. The petition was denied July 13,1995; this Court affirmed the denial January 15, 1997. The Supreme Court denied appellant’s petition for allowance of appeal June 25.1997. ¶ 5 Between May 6, 1998 and November 17.1998, appellant filed a pro se petition to reinstate appellate rights nunc pro tunc, three pro se motions to correct an illegal sentence based upon want of allocution, and a pro se petition for writ of habeas corpus. All were deemed without merit and denied January 11, 1999. This appeal followed, in which three issues are raised: 1)Whether the trial court erred by not allowing appellant the right to allocution prior to the imposition of sentence at his revocation hearing; 2) Whether the trial court erred in imposing a sentence greater than the maximum originally imposed, in breach of the original plea agreement, when appellant was sentenced to consecutive terms following a revocation hearing; and 3) Whether trial counsel was ineffective in failing to object to the trial judge in denying appellant the right to allo-cution prior to imposing the sentence and failing to object to the imposition of a sentence twice the length of the originally imposed negotiated sentence. ¶ 6 Before we address the merits, we note that although appellant’s pro se petitions were couched in terms of habeas corpus, illegality of sentence and reinstatement of direct appellate rights, the relief he sought was available under the PCRA. In Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), the Supreme Court held that where a habeas corpus petitioner alleged violations which undermined the truth-determining process, such claims were cognizable under the PCRA; therefore, the petition would be treated as a PCRA petition. The Court noted the PCRA subsumed the remedy of habeas corpus, unless there was no remedy under the PCRA. See id., at 640; see also Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223-24 (1999) (where PCRA petition was untimely, habeas corpus was not available as a separate remedy because petitioner’s claims of illegal sentence and ineffectiveness of counsel were covered under the PCRA); Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa.Super.1999) (since common law remedy of habeas corpus was subsumed under the PCRA, habeas corpus petition was treated as PCRA petition); Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 288, 288 (1997) (untimely motion to modify illegal sentence treated as PCRA petition, since issues relating to legality of sentence are cognizable under PCRA). Here, the issues raised by appellant address the legality of his sentence and the ineffectiveness of counsel, which are both covered by the PCRA. ¶ 7 In Fahy, supra, the Supreme Court rejected the assertion the time requirements of the PCRA are impermissibly retroactive. The Court held the 1995 amendments “do not act as a retroactive denial of rights,” as the appellant was not deprived of the opportunity to seek collateral relief; in fact, he had done so on three prior occasions. Id., at 220. Moreover, if the appellant had not previously filed a petition for collateral relief, the amendments provided him a one-year window, from the effective date of the amendments, within which to do so. Id. ¶ 8 In Commonwealth v. Priovolos, 746 A.2d 621 (Pa.Super.2000), our Court held the appellant’s petition for a PCRA rehearing nunc pro tunc was a second PCRA petition subject to the time restrictions of the 1995 PCRA amendments after the appellant was denied relief in his first petition. “[W]here a petitioner has had the benefit of one effectively-counseled petition for collateral relief, our supreme court has held that a subsequent petition should be treated as a second petition under the PCRA.” Id., at 624 (citing Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 586 (1999)). ¶ 9 For these same reasons, we conclude appellant’s petitions should be treated collectively as a second PCRA petition. Appellant had the opportunity to seek collateral relief, and in fact did so in his first counseled PCRA petition, which was denied July 13, 1995. The present petition, deemed appellant’s second one, is therefore subject to the time restrictions of the 1995 amendments to the PCRA, which provide that a second or subsequent petition must be filed within one year of the date the judgment of sentence becomes final, unless one of three statutory exceptions at Section 9545(b)(1) apply. Yarns, at 586; 42 Pa.C.S. § 9545(b)(1). ¶ 10 Appellant’s judgment of sentence became final on or about July 24, 1993, upon the expiration of the thirty-day period for seeking direct appellate review. Pa. R.A.P. 903. The PCRA required him to file his second petition one year later; however, the instant petition was not filed until 1998, five years later. Appellant did not allege in his petition, nor does he raise on appeal, any of the three timeliness exceptions. As appellant has failed to satisfy the PCRA’s time requirements, he is not entitled to relief. ¶ 11 Order affirmed. . Appellant incorrectly characterizes this as a direct appeal from the judgment of sentence. . Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), held the PCRA is the proper vehicle for obtaining a direct appeal nunc pro tunc. However, appellant filed his petition for reinstatement of appellate rights May 6, 1998, prior to the decision in Lantzy, and this Court has held Lantzy is not to be applied retroactively. See Commonwealth v. Garcia, 749 A.2d 928 (Pa.Super.2000), Commonwealth v. Hitchcock, 749 A.2d 935 (Pa.Super.2000). . Section 9545(b)(1) provides in pertinent part: (b) Time for filing petition.'— (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i)the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United- States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

ORDER PER CURIAM AND NOW, this 4th day of June, 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 Fayette County consistent with this Court’s opinion in Jacobs v. Halloran, — Pa. -, 710 A.2d 1098 (Pa.1998), Marino v. Hackman, — Pa. -, 710 A.2d 1108 (Pa.1998) and Shope v. Eagle, 1998 WL 149458, — Pa. -, 710 A.2d 1104 (Pa.1998).

Mr. Justice Trunkey delivered the opinion of the Court, To defeat the plaintiff’s recovery the defendant adduced the Ordinance Book wherein is recorded the ordinance empowering the Board of Water Commissioners to lay the water main. He also gave in evidence the journals which show that the ordinance was finally passed by the common council on January 2d, 1883, and by the select council on the 16th day of the same month. In proper order the ordinance was signed by the president and clerk of each branch of the council, and following their signatures is indorsed: “Approved January 10th, 1883, E. G. Martin, Ma3ror.” No oral evidence was offered to show that the ordinance had not been duly passed by councils before it was presented to the mayor for his approval, and all testimony offered by the plaintiff to show that the approval was subsequent to the final action of the select council, upon the defendant’s objection, was excluded. That the ordinance was legally passed by both branches of council, and was presented to the mayor and approved by him, affirmatively appears. Allentown is a city of the third class, and the statutory provisions relative to legislation by cities of that class, were complied with to the exactness of their letter. No requisite was omitted. The mayor ought to have affixed the date of his approval and in attempting to do so inserted a false date, but the statute does not expressly require him to affix the date. After he had approved the ordinance there was nothing to be done by the councils to give it validity. Had he not approved it, nor returned it to councils with his objections, it would have become valid under the 29th section of the Act of May 2Sd, 1874, which provides that “every ordinance which the mayor shall not return within fifteen days shall have the same force and effect as if it had been approved by the said mayor.” The journals taken in connection with the ordinance reveal a mistake in the date of approval, not illegality or irregularity in the procedure. Had the mayor approved without writing any date would the mistake have been fatal? If the date as written be obviously false, is not the effect the same as if none were written ? When the ordinance is approved it need not be returned to councils, for upon approval it becomes a law. If neither approved, nor returned to councils with his objections, within fifteen days, it shall have force as if approved. Then if the approval be without date, or with a date manifestly untrue, in absence of legal evidence of its true date, why should not the ordinance be deemed in force from the expiration of the fifteen days during which the mayor could hold it under advisement? No presumption could be made that it was subsequently approved. Where the mistaken date is patent and not prejudicial to any public or private interests, there is no reason why it should destroy the ordinance. The interpretation or construction is unaffected by the erroneous d'ate. The only question that might arise, affecting the city or individuals, is when the ordinance became operative, or took force and effect. A statute which provides that appeals from the decisions or orders of two justices, shall be decided on the facts and merits only, has been held to apply to appeals from the judgment of one justice, on the ground that the word “ two ” was inserted by mistake which plainly appears from the whole tenor of the Act: Comfort v. Leland, 8 Whar., 81. A strict adherence to the letter would have thwarted the legislative intent. With like good reason an ordinance should not be nullified by sticking to an obviously false date. The fourth assignment of error is sustained. It is, therefore, unnecessary to consider the questions presented in the other assignments. Judgment reversed, and venire facias de novo awarded.

ORDER PER CURIAM: AND NOW, this 18th day of May, 1998, we AFFIRM the Order of the Court of Common Pleas of Philadelphia County on the basis of our Opinion in Sullivan v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, — Pa.-, 708 A.2d 481 (1998), and without regard to the constitutionality of Article IV of the Driver License Compact of 1961.

AND NOW, this 15th day of April, 1998, the Order of the Superior Court is reversed. Pa.R.Civ.P. 227.1 requires parties to file post-trial motions in order to preserve issues for appeal. If an issue has not been raised in a post-trial motion, it is waived for appeal purposes. See Benson v. Penn Central Transportation Company, 463 Pa. 37, 342 A.2d 393 (1975) and Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125 (1993). This matter is remanded to the trial court for reinstatement of the verdict.

Mr. Justice Clark delivered the opinion of the court, The only question raised by the several assignments of error, in this case, is whether or not, in the distribution of the assets of the Penn Fire Insurance Company of Philadelphia, in the hands of an assignee, the appellants are entitled to any preference over the general creditors of the company. The preference claimed is as to the fund of $6000 received on set- , tlement or compromise, with the French corporation known as “La Caisse Générale des Assurances Agricoles et contre l’lneendie.” It is unfortunate, perhaps, that the formal policy provided for .in the agreement, between the Caisse Générale &c. and the Penn Company was never issued, as the true intent of the contracting parties would doubtless have been therein more fully disclosed ; but this was not done, and we must learn that intent and determine the rights of the contending parties, upon the fair “reading and construction of the executory contract, evidenced by the writings of 26th and 28th February, 1876.” In the agreement of 26th Februaiy, 1876, the receipt of $10,000 is acknowledged; in consideration of which “a policy of insurance ” is to be issued by La Caisse Générale &c., “re-insuring the outstanding risks of the Penn Fire Insurance Company ” &c; “ the amount over and above $10,000, ■necessary to ‘re-insure’ its outstanding risks to be paid” &c. In the more full and formal contract, made two days later, it is provided that the “policy of re-insurance” to be issued shall be subject to certain conditions, &c. Re-insurance is properly applied to an insurance effected by one underwriter with another, the latter wholly or partially indemnifying the former against the risks which he has assumed ; that is to say, after an insurance has been effected, the insurer may have the subject of insurance re-iusured to him by some other. There is in such case, however, no privity between the original insured and the re-insurer ; the latter is in no respect liable to the former, as a surety or otherwise, the contract of insurance and of re-insurance being totally distinct and disconnected. But whilst the contract is one of indemnity simply, in which the insurer is to be protected to the extent of his loss, when ‘the loss is incurred and ascertained, the re-insurer must pay the amount. The insurer may at once, without payment to the original assured, resort to his action: Fame Ins. Co.’s Appeal, 83 Penn. St., 396. Even if the insurer fail, or become insolvent so that his insured receives only a dividend however small, the re-insurer can gain nothing by this, but must pay the amount of the loss to the first insurer: Hastie v. De Peyster, 3 Caines, 190; Hone v. Mut. Saf. Ins. Co., 1 Sand. Sup. Ct. N. Y., 137, affirmed in Court of Appeals, sub nom. Mut. Saf. Co. v. Hone, 2 Comst., 235 ; 3 Kent Com., 279; Marshall on Ins., 143. So in Herckenrath v. Am. Ins. Co.. 3 Barb. (N. Y.) Ch., 63. Chancellor Walworth decided that where an insurance company has underwritten a policy, and afterwards causes itself to be re-insured, and after the loss of the property insured, such company becomes insolvent, the person originally insured has no equitable lien upon the sum of money due on the contract of re-insurance ; but the fund belongs to all the creditors of the insolvent company ratably.” These are familiar principles of insurance law, and are not now any where doubted. If therefore the contract between La Caisse Générale &c. and the Penn Fire Insurance Company was for a policy of reinsurance, properly so called, the appellants could have no preferable claim or lien upon the fund in question, although the Penn Company was admittedly and hopelessly insolvent. It is contended, however, by the appellants, that the contract in question, when read in the light of the facts attending its execution, cannot in any strict sense be considered a contract for re-insurance ; that it was not intended to provide indemnity to the company, but to the individual policy-holders, and that the policy-holders can claim the advantage of this so-called reinsurance for themselves, directly and exclusively; that the term, “re-insurance” was not used in its legal or technical sense but in a different sense, defined by the particular facts which induced the creation of the contract, and that the reinsurance by the Caisse Générale &e., was in fact, although not so expressed, a conditional assumption of the business of the Penn Company. It was competent, we think, for the Penn Company acting in the interest of its general policy-holders with or without authority, in view of insolvency and without fraud, to effect an indemnity for their individual protection, in case of loss, (Glen v. Hope Mut. Co., 56 N. Y., 379 ; Fischer v. Same, 69 N. Y., 161) which, even after loss, they might ratify and approve, (Fleming v. Mar. Ins. Co., 4 Wh., 59; Stillwell v. Staples, 19 N. Y., 405 ; 1 Amer. Lead. Cas., 844); and, if the insurance was in their interest, directly for their benefit, and free from any additional burden or obligation on their part, ratification might be presumed. But we fail to find anything in the words of the contract, in the special circumstances attending its creation, in the nature of the transaction itself, or in any rule of public policy, that would justify us in saying that the contract was any other than a contract of re-insurance, in the proper sense of that term. The contract was written by and between persons on both sides, actually engaged in the business of insurance, persons conversant doubtless with the meaning of terms employed in the practice of insurance, and the presumption is a fair and reasonable one, that words of technical or special import were by them properly applied. The words “re-insure” and “re-insurance” would therefore seem in the first instance at least to characterize the contract and to point out the object and purpose of the parties. The proper signification of these terms would, of course, vary with the clearly manifested intention of the parties. But the contract is with the Penn Company, for a consideration moving from it providing for a policy to the Penn Company, to re-insure its risks. There is no provision whatever, expressed in the contract, for the individual indemnity of the policy-holders nor ■for the insurance of their property for them ; the re-insurance is expressly upon the “ outstanding risks ” of the company. The contract of re-insurance, in some sense perhaps operates upon the property itself rather than the risk, but the fact that ■the policy was to be -upon the “ risks,” indicates that it was .the company’s insurable interest in the property, which formed the basis of the insurance. It is true, that except for the appellant’s losses by fire, the ■fund of $6000 would not have been realized, but this is incident to all cases of re-insuz’ance. It is true, also, that the reinsurance was of all the outstanding risks of the company, and not as is usually the case, of any particular part of them ; but whether a compare shall re-insure tlie whole or only a part of its risks, is a question of policy for the company, dependent upon its purposes for the future, or its circumstances. If the underwriter wishes to change his business, or to quit the country, or to avert insolvency, he may choose to re-insure the whole ; under different circumstances he may choose to indemnify himself as to part only. The provisions that the Penn Company “will turn over to the Caisse Générale its original registers, hooks, reports, and other papers, in any way relating to the policies thereby insured,” and, “that the Caisse Générale will assume the care and expense of tlie adjustment of all losses which may occur under the policies of the said Penn Fire Insurance Company, which are thereby to be re-insured,” are consistent, wo think, with either theory of the case — as consistent with one as with the other; and they, therefore, prove nothing either way. Such a course of proceeding may be rare, but cases are rare perhaps when the re-insurance is upon the whole list of the underwriters’ risks, and where this is the case there can certainly be nothing unreasonable in the provision. We think there is nothing on the face of the contract itself, to give it the effect claimed for it, and we can discover nothing in the facts which led up to its execution, which would evidence any intention of the parties different 1'rom what is plainly expressed. The inducing cause of the contract, doubtless, was the proceeding instituted by tlie Attorney General, at tlie instance of the Insurance Commissioner. After the order to suspend business, the company was permitted to effect a re-insurance of its outstanding policies, &c., for sixty days, with the hope that its available funds would prove sufficient to complete the re-insurance, at the expiration of that time. Had these hopes been realized, it is probable that the decree of dissolution, during the period of re-insurance at least might not have been entered. The commissioner, in his report refers, it is true, to this contract as an effort of the company to “ secure its policy-liolders by re-insurance,” but if the contract were, in fact, otherwise, the report of the commissioner, subsequently made, could not change its provisions, or alter its effect. The Caisse Générale, &c., in paying certain of the losses directly to the policy-holders, would seem, subsequently to have put a construction on the contract, conformable to the appellants’ claim; but the effect of this is certainly overcome by the fact that the Penn Company repudiated this payment by bringing suit against the Caisse Générale &c., and tlie fund now for distribution is the result of that action. To sustain the appellants’ contention in this case, the fact should clearly appear, either by the contract, or otherwise in the transaction, that the indemnity provided was to the policyholders directly, and in the absence of such proof their claim of preference must be disregarded. The case of Glen v. Hope Mut. Ins. Co., supra, is greatly relied on by the appellants, but that case is materially different from this. By a contract duty executed, the Hope agreed to re-insure the Craftsman Company, on all risks for which its policies were outstanding; and, also, to assume all such policies, and to pay the holders thereof all such sums as the Craftsman might, by force of such policies, become liable to pay. The engagement to the policy-holders was direct and express, and the liability was therefore direct and exclusive. This case was followed by Eischer v. Hope Mut. Ins. Co., supra, which was another action on the same contract, and the rulings in the former case were in the latter recognized and approved. The decree of the Court of Common Pleas is affirmed, and the appeal is dismissed at the costs of the appellant.

HUDOCK, Judge: On December 14, 1993, Clarence Thomas Payton (Appellant) was severely and permanently injured in a workplace accident. At the time of the accident, Appellant was employed as a long wall maintenance foreman for Cyprus Cumberland Resources Group (Cyprus) at its Cumberland County mining site. With the aid of a chain sling, Appellant was attempting to help several other Cyprus employees dislodge a bent taildrive spoeket guard from a mine shaft. While the chain sling was being tightened, the metal capacity rating tag affixed thereto broke loose and struck Appellant in his left eye. As a result, Appellant sustained permanent vision loss in his left eye as well as difficulty with night vision and depth perception. Due to his injuries, Appellant did not return to work until September 19, 1994. At that time, Appellant met with Cyprus’ mine manager, Mr. Zobrosky. Mr. Zobrosky told Appellant that he had retained the remaining portion of the metal capacity rating tag which had struck Appellant during the accident. Appellant then briefly inspected the tag, noted that it had some writing or stamping on it, and returned the tag to Mr. Zobro-sky. By this time, the actual chain sling from which the rating tag detached during the accident had been lost, misplaced, or put to use in another part of the mine. Some time later, Cyprus’ safety manager, Robert A. Bohach, told Appellant that, while moving office furniture, the rating tag had been lost. At this time, then, Appellant did not have, and could not obtain possession of, either the subject chain sling or the rating tag. On December 13, 1995, Appellant filed a complaint against the original defendant in this case, Pennsylvania Sling Company (Pennsylvania Sling). Therein, Appellant averred that Pennsylvania Sling was a distributor of Acco chain slings including, specifically, a “5/8” x 5’ type SOS ADJ with a clevis sling with a mechanical hook on one end, such as the one involved in the accident resulting in injuries to [Appellant.]” Complaint at 3. Further, Appellant asserted that Pennsylvania Sling negligently tested and certified the chain sling and negligently designed and/or utilized the metal capacity rating tag affixed to the chain sling. In response thereto, Pennsylvania Sling filed a praecipe to join Acco Chain and Lifting Products, Inc. (Acco) as an additional defendant. Following the joinder, Pennsylvania Sling filed an answer with new matter in which it admitted distributing the type of chain sling at issue but specifically denied that it did so negligently. Aceo likewise filed a timely answer in which it denied any negligence in the design and/or manufacturing of its chain slings. In early July of 1997, Pennsylvania Sling and Aceo filed separate motions for summary judgment pursuant to Pa.R.C.P. 1035.2(2), 42 Pa.C.S.A. Therein, both defendants argued that Appellant failed to produce sufficient evidence to prove a prima facie ease of negli gence and that the defendants were, therefore, entitled to judgment as a matter of law. Specifically, the defendants averred that Appellant had not proffered sufficient direct or circumstantial evidence of the identity of the subject chain sling’s manufacturer and/or distributor. In support of their assertion that Appellant could not prove the identity of the chain sling’s manufacturer and/or distributor, Pennsylvania Sling and Acco offered the following facts: In March of 1998, when Appellant began working at the Cumberland Mine, the mine was owned by USX Corporation. Shortly thereafter, on June 7,1993, the Cumberland Mine was sold to Cyprus. This sale encompassed both the minesite’s real property as well as the mining equipment in use thereon. Appellant’s accident occurred approximately six months later, on December 14,1998. In an attempt to establish the identity of the chain sling’s manufacturer and/or distributor, Pennsylvania Sling served a subpoena duces tecum upon Cyprus. Therein, Pennsylvania Sling requested, inter alia, that Cyprus produce all documents relating to all products purchased from Pennsylvania Sling from 1980 until the present time. The subpoena also requested that Cyprus reveal all documents relating to all chain sling purchases from any manufacturer and/or distributor during the same time period. In response to the subpoena, Cyprus’ safety manager, Robert A. Bohach, filed a sworn affidavit in which he stated that, following the sale of the Cumberland Mine from USX to Cyprus, USX retained all of its purchasing and product information. Cyprus, therefore, was only able to' produce information relating to purchases which occurred after the June 7, 1993, sale. Bohach then stated that Cyprus’ records revealed that from June 1993 to the present, Cyprus purchased chain slings only from Pennsylvania Sling. Bohach further stated, however, that he did not know whether the chain sling involved in Appellant’s accident was bought by Cyprus after the sale or was purchased by USX prior to the sale and then transferred to Cyprus. In addition to the Bohach affidavit, Pennsylvania Sling and Acco proffered Appellant’s deposition testimony. Therein, Appellant testified that, while the rating tag had identifying letters or partial words when he saw it in September of 1994, he could not remember what they were. Appellant also stated that, to the best of his knowledge, there were no pictures or other memorialization regarding the tag’s characteristics. For example, Appellant did not take any notes following his meeting with Mr. Zobrosky. Further, Appellant conceded that a chain sling could remain operable for a number of years and that he had no idea whether USX or Cyprus purchased the chain sling at issue. Finally, Appellant confessed that he had no information relating to USX’s purchasing practices or records. Based upon this information, Pennsylvania Sling and Acco argued, Appellant’s purported identification of them as the chain sling’s distributor and manufacturer, respectively, was entirely too speculative. Indeed, the parties argued, Appellant’s circumstantial identification theory was wholly premised upon the unsubstantiated assumption that the chain sling was purchased by Cyprus after the June 1993 sale. Therefore, because Appellant could not identify the ostensible negligent parties with sufficient certainty, Pennsylvania Sling and Acco asserted that they were entitled to judgment as a matter of law. Pursuant to Pa.R.C.P. 1035.3(a)(2), Appellant filed a timely response to Pennsylvania Sling’s motion for summary judgment in which he argued that, based upon the established record, “there is sufficient evidence for a jury to conclude that Pennsylvania Sling Company provided the chain sling to Cyprus Cumberland.” Response Brief to Motion for Summary Judgment at 5-6. While acknowledging that “purchase records prior to June, 1993, are not available due to prior ownership by USX,” Appellant relied upon the Bohach affidavit to establish that, following the sale, Pennsylvania Sling was the sole supplier of chain slings to Cyprus. Included in his response’s “Statement of the Case,” Appellant explicitly established that he would not reply to Acco’s motion for summary judgment. Specifically, Appellant stated that he “takes no position -with regard to the Defendant Aeco’s Motion for Summary Judgment, and files no response thereto. [Appellant] files this brief in response to the Defendant Pennsylvania Sling’s Motion for Summary Judgment.” Response Brief to Motion for Summary Judgment at 3. On July 31, 1997, the parties presented their respective positions at oral argument before the Honorable H. Terry Grimes. Thereafter, by court order dated August 1, 1997, Pennsylvania Sling’s and Aceo’s motions for summary judgment were granted. This appeal followed. When reviewing the propriety of a trial court’s entry of summary judgment, this Court’s scope of review is plenary. That is, we must review the record in the light most favorable to the adverse party and determine whether the moving party has established that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Since an order favorable to the moving party will prematurely end an action, summary judgment is appropriate in only the clearest of eases. See, e.g., Leonelli v. McMullen, 700 A.2d 525, 527 (Pa.Super.1997); Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa.Super.1997). In the instant appeal, Appellant argues that the trial court erred as a matter of law in determining that Appellant could not identify the chain sling’s manufacturer and/or distributor with sufficient specificity. Rather, Appellant avers, the record contains adequate circumstantial evidence of identity from which a jury could reasonably conclude that the named parties manufactured and distributed the subject chain sling. In the alternative, Appellant contends that summary judgment was improper because, at the time the court entered its order, there were outstanding discovery matters which, if resolved, may have yielded additional evidence of identity. Prior to reaching the merits of Appellant’s main issue, we must dispose of a preliminary matter. In this appeal, Appellant objects to the court’s order granting judgment in favor of both Pennsylvania Sling and Acco. As previously stated, however, Appellant chose not to respond to Aeco’s motion for summary judgment. This decision was made notwithstanding the fact that Pa.R.C.P. 1035.3(a) plainly requires the adverse party to a summary judgment motion to respond thereto. We recognize, however, that the failure to respond appropriately permits the entry of judgment in favor of the moving party, but does not require such. See, e.g., Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa.Super.1998) (trial court may, at its discretion, enter judgment against a party that fails to respond to a summary judgment motion). Since both Acco and the trial court focused upon the merits of the identification issue, we must conclude that Acco waived its right to object to Appellant’s non-compliance with our Rules. We will, therefore, review the substance of Aceo’s motion to determine whether the trial court correctly held that Acco was entitled to judgment as a matter of law. Turning now to the merits of Appellant’s first issue, we must decide whether Appellant proffered sufficient evidence that Pennsylvania Sling and Acco distributed and manufactured, respectively, the subject chain sling. In the recent case of O’Donnell v. Big Yank, Inc., 696 A.2d 846 (Pa.Super.1997), this Court addressed the question of, inter alia, what quantum of identification evidence a plaintiff must offer prior to trial in order to justify allowing the issue to be submitted to a jury. Therein, we held that, in cases in which the allegedly defective product is not available, a plaintiff may prove identification through circumstantial evidence. • That is, the failure to produce the product and, thus, offer direct evidence of the manufacturer’s identity does not automatically bar a plaintiff’s recovery. The determination of whether a plaintiff has produced sufficient circumstantial identification evidence is factual and, thus, case-specific. O’Donnell, 696 A.2d at 849. For example, in O’Donnell, this Court held that the plaintiff had, in fact, offered sufficient evidence of the allegedly defective product’s manufacturer and distributor to warrant submission to a jury. After being severely burned in an accident in which his work pants caught on fire, the O’Donnell plaintiff commenced a products liability action against Big Yank, Inc., and K-Mart Corporation. Since the plaintiff did not dispute that his wife had discarded the charred pants, the defendants moved for summary judgment asserting, inter alia, that the plaintiff could not sufficiently prove that the defendants manufactured and sold the pants. Upon review, we declined to hold that the failure to produce the product at issue worked, per se, to bar the appellant’s claim. Indeed, after reviewing the appellant’s factual proffer, we held that the trial court should have permitted the identification issue to be submitted to the jury. In particular, we noted that the record contained deposition testimony of the appellant’s wife in which she averred that she bought several work outfits manufactured by Big Yank at K-Mart. Following the accident, the remaining outfits were turned over to appellant’s counsel. At her deposition, Mrs. O’Donnell swore that the outfits in counsel’s possession were “exactly the same make as the ones [Mr. O’Donnell] wore that night.” Id. This evidence, we held, sufficiently, albeit circumstantially, identified the appellees such that the matter should have been decided by a jury. Specifically, we stated as follows: Because there was evidence offered identifying Appellees as the manufacturer and seller of the pants, it was inappropriate for the court to enter summary judgment. At trial Appellees can offer a defense which seeks to prove that Mrs. O’Donnell has misidentified them as responsible parties. They can question Mrs. O’Donnell, as they did during her deposition, about whether she retained any store receipts, any tags from the clothing or how specifically she or her husband can describe the clothing he was wearing at the time of the accident. This evidence can all be presented before a jury, which can accept or reject it. Appellants cannot, however, be deprived of the opportunity to present their case before a jury under these circumstances. Id. at 850 (emphasis added). In holding as we did in O’Donnell, we distinguished this Court’s earlier decision in DeWeese v. Anchor Hocking, 427 Pa.Super. 47, 628 A.2d 421 (1993). Factually, DeWeese involved a situation in which a country club employee was injured when a glass pitcher filled with hot water spontaneously exploded. Following the accident, the pitcher’s shattered remnants were discarded by dub employees. During pre-trial discovery, the defendants, Anchor Hocking Consumer and Industrial Products Group and Lewis Brothers and Sons, Inc., deposed the plaintiff and the country club’s general manager. As a whole, their testimony established that the club purchased glass pitchers manufactured by several companies from a variety of distributors. It was also established that the club did purchase several Anchor Hocking pitchers from Lewis Brothers and that, therefore, the plaintiff could have been injured by the defendants’ product. Since the plaintiff could not describe the type of pitcher he was using on the day in question, however, this Court held that the plaintiff’s identification evidence was too speculative. We, therefore, affirmed the trial court’s order granting summary judgment in favor of the defendants. In so doing, we stated as follows: The only conclusion one can draw, when viewing the depositions and answers to interrogatories submitted in this ease most favorably to DeWeese, is that the club purchased several Anchor Hocking pitchers from Lewis Brothers. There is no testimony or reliable document, however, which tends to establish that DeW-eese was injured by one of those pitchers.... DeWeese, 628 A.2d at 424 (emphasis added). With this standard in mind, we have reviewed the factual record established below. After careful consideration, we must conclude that, as a matter of law, Appellant has failed to establish with sufficient specificity that Pennsylvania Sling and Acco distributed and manufactured the chain sling at issue. We, therefore, affirm the trial court’s order granting summary judgment. See, e.g., Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 616 A.2d 657, 659 (1992) (before liability will attach, products liability plaintiff must establish that the injuries sustained were caused by the product of a particular manufacturer or supplier). Viewing the evidence in the light most favorable to Appellant, one can reasonably conclude that Pennsylvania Sling was Cyprus’ sole supplier of chain slings. Therefore, if there was evidence tending to show that Cyprus bought the chain sling, we would not hesitate to conclude that Appellant proffered sufficient circumstantial identification evidence. This, however, is not the case. Indeed, both Appellant and Cyprus’ safety manager testified that there is no evidence as to whether Cyprus or its predecessor, USX, bought the chain sling. Moreover, both Appellant and Cyprus stated that there is no evidence regarding USX’s purchasing practices or records. Appellant’s identification is, thus, entirely premised upon the assumption that Cyprus bought the chain sling. Since there is no evidence of record substantiating this supposition, we must conclude that Appellant’s circumstantial identification is too speculative to be submitted to a jury. In the alternative, Appellant argues that the trial court improperly granted summary judgment at a time when there was outstanding discovery which, if completed, may have buttressed the identification of Pennsylvania Sling and Aceo. This argument is flawed in several respects and cannot afford Appellant relief. Asserting that Appellant failed to establish an essential element of his cause of action, both Pennsylvania Sling and Acco premised their summary judgment motions upon Pa. R.C.P. 1035.2(2). That is, the parties argued that Appellant had not proven the identity of the chain sling’s manufacturer and distributor. Pursuant to Pa.R.C.P. 1035.3, the adverse party may respond to such a challenge in two ways. First, the party opposing judgment may identify “evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa.R.C.P. 1035.3(a)(2). In the alternative, the “adverse party may supplement the record or set forth reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.” Pa. R.C.P. 1035.3(b). Taking the position that “there is sufficient evidence for a jury to conclude that Pennsylvania Sling Company provided the chain sling to Cyprus Cumberland,” Appellant chose to rely upon subsection (a)(2) of the Rule. Response Brief to Motion for Summary Judgment at 5-6. At no time did Appellant evoke subsection (b) of the Rule by stating that he wished to supplement the record or that outstanding discovery could yield additional helpful information. Since Appellant failed to raise this issue in the court below, we hold that he has waived the claim for purposes of appellate review. Moreover, even assuming that Appellant preserved this claim at the trial court level, our review of its substance reveals that it is without merit. Appellant correctly states that there were depositions scheduled for several Cyprus employees for August 6 and 7, several days before the August 11 trial date. Appellant fails to reveal, however, that Pennsylvania Sling scheduled these depositions and that, in fact, all of the discovery below was initiated and conducted by Pennsylvania Sling and Acco. In point of fact, Appellant did not propound any discovery requests during the entire pre-trial period. It is, therefore, disingenuous to intimate that Appellant had outstanding discovery requests at the time when the trial court entered judgment. Finally, Appellant has made no attempt to identify the substance of the Cyprus employees’ proposed testimony. Instead, Appellant merely speculates that “said depositions could have possibly provided additional information about the tag’s whereabouts.” Appellant’s Brief at 8. Again, if Appellant believed that the Cyprus employees had information regarding the equipment’s whereabouts, manufacturer and/or distributor, Appellant could have deposed these individuals during discovery. Alternatively, Appellant could have requested that the trial court delay its ruling until after the scheduled depositions were completed. Appellant cannot, however, present this Court with a vague and made- quate proffer in order to effectively argue that summary judgment was improperly granted. Order affirmed.

FRIEDMAN, Judge. Interstate Container Corporation (Employer) appeals from an order of the Workers’ Compensation Appeal Board (WCAB) affirming a decision of the workers’ compensation judge (WCJ) to deny Employer’s petition to modify Douglas Keim’s (Claimant) benefits. We affirm. Claimant, a union employee, was injured on July 25, 1992 while in the course of his employment with Employer. Through a Notice of Compensation Payablfe, dated June 4, 1998, Employer acknowledged liability for Claimant’s right shoulder tom rotator cuff, and Claimant began receiving total disability benefits. On June 2, 1994, Claimant’s treating physician released Claimant for light duty work. (R.R. at 173a.) On December 1, 1994, Kenneth Mason, Employer’s Manager of Human Resources, offered Claimant a non-union janitorial position at Employer’s box plant and requested that Claimant respond to the offer by December 8, 1994. In his response, by letter dated December 22,1994, Claimant indicated that he would be unable to accept the position because it would require him to lose his union benefits and seniority. In addition, Claimant implied that the position was not within the limitations of his medical restrictions, and therefore, he was not capable of performing the job. On January 3, 1995, in response to Claimant’s letter refusing Employer’s offer of the non-union janitorial position, Employer filed a petition to modify Claimant’s compensation benefits based on Claimant’s refusal to accept the offered job. Claimant filed a timely answer to Employer’s petition, alleging that the janitorial piosition was unavailable because accepting the offered position would require Claimant to leave the collective bargaining unit and lose seniority rights and other union-related benefits. Claimant further alleged that the offered position was not within his physical capabilities. At hearings held before the WCJ, Employer presented the deposition testimony of Mason in support of its petition. Mason stated that he received a Work Ability report indicating that Claimant was capable of light duty work and, based on that report, offered Claimant the light duty job of janitor at the box plant on December 1, 1994. (R.R. at 12a-14a, 40a, 55a.) Mason further testified that he provided Claimant with a description of the duties required of the position along with the hours, pay rate and start date. According to Mason, Claimant was informed that he would not be expected to be on the plant floor and would only be working in the plant’s lunchroom, rest rooms, locker rooms and in an office building attached to the plant. (R.R. at 26a.) Mason mentioned that the temperature in those areas varied, so that it could be cold and damp or it could be warm. (R.R. at 27a.) Mason further testified that the job offer included a provision that, if Claimant were able to establish that a particular duty was not within Claimant’s medical restrictions, Claimant would not be required to perform it. (R.R. at 194a, 55a.) With regard to Claimant’s union status, Mason stated that he would not have opposed any argument from the union that the janito rial position was work “in the plant” because Claimant would have been working in the lunchroom and locker rooms that are located within the plant. (R.R. at 20a.) Mason’s testimony also reflects that he informed Claimant that if Claimant accepted the janitor position, he might not lose his seniority, but Mason was unsure of what other benefits Claimant would lose. (R.R. at 28a.) In opposition to Employer’s petition, Claimant testified on his own behalf and presented the deposition testimony of Stephen F. Latman, M.D. In addition to describing his physical problems, Claimant testified that acceptance of the janitorial position would require him to lose his seniority along with other union benefits because the offered position was not under the collective bargaining agreement. After considering the evidence, the WCJ found that the janitorial position was not actually available to Claimant because accepting it would have resulted in a loss of union benefits. The WCJ also held that Employer failed to meet its burden of proving that Claimant was capable of performing the duties of the janitorial position based upon the credible testimony of Claimant’s medical witness, Dr. Latman. The WCAB affirmed, and Employer now appeals to this court. On appeal, Employer first argues that the WCAB erred in affirming the WCJ’s decision that the janitorial position was not available to Claimant because there was no evidence of record establishing that Claimant would sacrifice any union status or associated benefits by accepting the position. We disagree. The Supreme Court of Pennsylvania, in Kachinski v. Workmen’s Compensation Appeal Bd. (Vepco Construction Co.), 516 Pa. 240, 532 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. An employer who seeks to modify a claimant’s benefits must initially establish that there has been a change in the claimant’s condition. To meet the second prong of Kachinski, an employer must establish that the job to which a claimant was referred to is “actually available.” 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). For purposes of an employer’s petition to modify compensation, our courts have held that an offered alternative position will not be “actually available” if it requires a claimant to forfeit his union benefits gained from the former position. St. Joe Container Co. v. Workmen’s Compensation Appeal Bd. (Staroschuck), 534 Pa. 347, 633 A.2d 128 (1993); Fledderman v. Workmen’s Compensation Appeal Bd. (Stackpole Carbon Corp.), 93 Pa.Cmwlth. 44, 500 A.2d 215 (1985). Employer maintains that St. Joe Container and Fledderman are inapplicable. Employer points out that in St. Joe Container and Fledderman, the claimants worked for their respective employers for a substantial period of time, as opposed to Claimant here, who only worked for Employer for three years. Employer claims that because the magnitude of the claimants’ sacrifices, in terms of union benefits that accumulated over three decades, was pivotal to the decisions in those cases, the holdings in those cases do not govern this situation. Although we recognize that the duration of Claimant’s union position with Employer was short in comparison to the duration of the claimants’ positions in St. Joe Container and Fledderman, we cannot agree that Claimant’s sacrifice of his union standing is any less significant. Therefore, if the janitorial position requires Claimant to sacrifice his valuable union benefits, that job is not actually available to Claimant. St. Joe Container, 633 A.2d 128; Fledderman, 500 A.2d 215. In this regard, Employer specifically challenges the WCJ’s findings that, by accepting the janitorial position, Claimant would lose union benefits, claiming that this finding is unsupported by evidence in the record. However, here, Claimant testified that the janitorial position offered to him was not within the collective bargaining agreement and as a result, he would lose his seniority rights and other union benefits if he accepted the non-union position. In fact, Mason acknowledged that the position fell outside of the collective bargaining agreement and that Employer refused to put the position under the agreement. (R.R. at 17a.) Further, although Mason testified that he did not believe Claimant would lose his seniority rights by accepting the position, Mason acknowl edged that he did not know what other union benefits Claimant would lose. (R.R. at 17a-18a, 28a.) This testimony provides substantial evidence to support the WCJ’s findings that Claimant would lose his union benefits if he accepted the janitorial position, thereby making that position unavailable to Claimant. Because Employer failed to meet its burden of establishing that work was available to Claimant, and because there was substantial evidence to support the WCJ’s findings, the WCAB did not err in affirming the WCJ’s denial of Employer’s petition to modify Claimant’s benefits. Accordingly, we affirm. ORDER AND NOW, this 14th day of April, 1998, the order of the Workers’ Compensation Appeal Board, dated August 12,1997, is hereby affirmed. . Prior to Claimant’s release to light duty work, Claimant was restricted to sedentary work as of May 11, 1994. On January 27, 1995, due to a’ reaction to medication, Claimant was again totally disabled until March 10, 1995 when he was released for sedentary work. (R.R. at 173a-74a.) . Mason testified that the job description was that of janitor with the performance of light office work. The janitorial job duties assigned to the position included, but were not limited to running a sweeper, dusting, emptying trash cans in the general offices, a general cleanup of the outside area where employees eat lunch and the cleaning of the restrooms, locker rooms and lunch room. Mason testified that the light office work included making copies, distributing interoffice memos, placing paychecks in envelopes and assisting with the switchboard when needed. (R.R. at 15a, 55a.) .As part of Claimant’s medical restrictions. Claimant was to avoid cold and damp environments. (R.R. at 176a.) . A provision in the collective bargaining agreement required a union employee to work "in the plant” to retain seniority rights. If a union employee did not work in the plant for more than two years, the employee would lose seniority. (R.R. at 66a.) . Employer also presented the deposition testimony of Mark W. Scinico, M.D., a board certified internist. Dr. Scinico testified that Claimant would be able to perform the janitor position in the box plant, but with certain limitations. (R.R. at 149a, 170a.) . Dr. Latman, a board certified orthopedic surgeon, testified that Claimant was released for light duty work on June 2, 1994 with a medical restriction to avoid damp and cold environments. Dr. Latman further testified that, as of January 27, 1995, Claimant was again totally disabled and incapable of performing the janitorial job. (R.R. at 173a-74a.) . Claimant testified that his right shoulder causes him constant pain along with numbness that extends down from the neck into the right arm. Claimant also stated that, as a result of his condition, he could barely lift anything and is unable to push a mop or sweeper without the arm or hand becoming numb; Claimant noted that he is capable only of doing light dusting around the house with his left hand. (R.R. at 205a-06a, 210a, 216a.) . Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Russell v. Workmen’s Compensation Appeal Bd. (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (1988). Substantial evidence is such evidence a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). . Here, the first prong of Kachinski is satisfied because medical evidence of a change in Claimant's condition was produced. Dr. Latman testified that Claimant was released for light duty work as of June 2, 1994. (R.R. at 176a.) . In determining whether certain alternative employment is actually available to a claimant, the extent of a claimant's injury is a primary consideration. The extent of the injury caused in the workplace may reasonably include the benefits associated with the former position. As a result, a union employee need not accept a nonunion position that would require forfeiture of union benefits. St. Joe Container Co. v. Workmen’s Compensation Appeal Bd. (Staroschuck), 534 Pa. 347, 633 A.2d 128 (1993). . Indeed, in St. Joe Container, our supreme court specifically declined to "recognize ‘degrees of harshness' with respect to the forfeiture of union status.” St. Joe Container, 633 A.2d at 131. Although Claimant has been a union employee for only three years, Claimant has still received job security and vacation and holiday pay as benefits of his past position under the collective bargaining agreement, all of which Claimant would be in danger of losing if he accepted the janitorial position. . Specifically, Employer challenges Findings of Fact 8 and 9, which state: "the position being offered as janitor in the box plant was outside the collective bargaining unit,” and “if Claimant were to have accepted the offered position of janitor for the box plant, he would have been at risk to lose seniority rights, and would have lost all union benefits, including health and welfare coverage.” (WCJ’s Findings of Fact, Nos. 8 and 9.) . In this regard, Employer makes the argument that, because the seniority provision in the collective bargaining agreement does not address what happens when a union employee accepts a non-union position, acceptance of a non-union job would entail no sacrifice of union benefits. However, this argument is meritless. Clearly, a collective bargaining agreement is intended to address only union positions. Thus, the fact that the seniority provision does not address acceptance of non-union positions is only to be expected and means nothing with regard to the issue before us here. . Employer also argues that the WCAB erred in affirming the WCJ's decision that Claimant was not capable of performing the janitorial job because that decision was based on equivocal medical testimony of Claimant’s treating physician, Dr. Latman. However, we need not address this additional argument because we have already determined that the janitorial position was unavailable to Claimant because of the forfeiture of union benefits.

ORDER PER CURIAM: AND NOW, this 15th day of May, 1998, on certification by the Disciplinary Board that the respondent, JOSEPH T. MARGRABIA, JR., who was suspended by Order of this Court dated December 16, 1997, for a period of three months, 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, JOSEPH T. MARGRABIA, JR. is hereby reinstated to active status, effective immediately.

DOYLE, Judge. Before this Court is the appeal of the Township and School District of Upper St. Clair and Douglas A. Watkins, the Township Manager, (collectively, Upper St. Clair) and the cross appeal of James A. Newbrey the June 24,1997 order of the Court of Common Pleas of Allegheny County. Newbrey appeals from that part of the court’s order which denied him counsel fees for the allegedly obdurate and vexatious conduct of Upper St. Clair during the proceedings. Upper St. Clair appeals from that part of the court’s order which sustained Newbrey’s appeal, concluding that the appreciation in the value of the stocks encompassed by Newbrey’s non-qualified stock options was investment income, and, therefore, was not subject to Upper St. Clair’s earned income tax. The facts of this case, as they relate to the applicability of the earned income tax to non-qualified stock options are very similar to those in Marchlen v. Township of Mt. Lebanon, 707 A.2d 631 (Pa.Cmwlth.1998), and those facts require us to determine this appeal in a similar fashion. The parties have stipulated to the essential facts underlying this appeal. Newbrey is an employee of PPG Industries, Inc. (PPG) and a participant in PPG’s employee stock option plan. The plan is administered by the Officers-Directors Compensation Committee (Committee) which awards both non-qualified and incentive stock options to those which it considers to have the ability to contribute to the growth and success of PPG or its subsidiaries. An employee who receives a non-qualified stock option must wait at least one year after the date on which the option is awarded to exercise the option, and after ten years the option expires. The option itself is not traded on a public exchange and may not be sold privately. In addition, the option is nontransferable except by a deceased employee’s last will and testament or through the intestate laws of descent and distribution. As a result of these restrictions on its transfer, the option itself has no ascertainable market value. To exercise an option, the employee must pay PPG the stated amount per share that is set by the Committee at the time the option is awarded. The price per share can be no lower than the fair market value of the stock at the time the option is awarded. In addition, the Committee may also grant a “restored option.” A restored option is a non-qualified option which is granted to an optionee who exercises a new stock option using previously-owned shares of PPG stock. These options are granted for an identical number of shares that are surrendered to PPG in order to exercise the original option. During the period from 1987 to 1993, New-brey was awarded a total of thirteen non-qualified stock options which he ultimately exercised during random periods from 1992 to 1994. The number of shares, the date on which the option was granted, the date on which the option was exercised, the option price, and the fair market value at the date of exercise (FMV) are as follows: Option Grant Exercise Number Option Price FMV Number Date Date of Shares_ 1 2/11/90 3/19/92 , 2,500 $ 98,750 $147,789 2 2/16/89 5/20/92 1,600 $ 69,600 $103,898 3 2/17/87 12/09/92 1,050 $ 45,806 $ 67,594 4 2/19/91 6/23/93 3,400 $185,300 $233,750 5 2/18/92 12/23/93 12,650 $208,798 $266,106 6 2/18/92 2/9/94 5,000 $293,750 $395,000 7 2/17/93 6/30/94 5,000 $165,000 $187,500 8 12/9/92 6/30/94 1,650 $ 53,212 $ 61,875 9 2/18/92 8/23/94 8,192 $240,640 $323,079 10 02/17/93 12/30/94 7,368 $252,054 $283,041 11 2/17/93 9/15/95 762 $ 25,146 $ 35,528 12 12/30/94 9/15/95 2,614 $ 97,045 $121,877 13 6/23/93 9/15/95 5,874 $201,919 $273,877 All of the above options were non-qualified stock options. In addition, option numbers 3, 4, 5, 7, 8, 10, 11, 12, and 13 were restored options. Thus, Newbrey surrendered old shares of PPG stock in exchange for an identical number of PPG shares encompassed by the new options. At all relevant times, Newbrey resided in the Township of Upper St. Clair. Pursuant to the authority of the Local Tax Enabling Act (LTEA), Upper St. Clair imposes an earned income tax upon its residents! ' If the tax is not withheld by an employer, the taxpayer is required to file an earned income tax return indicating the amount of salary, wages, and compensation that he received which is subject to the tax. In tax years 1992 through 1995, Newbrey included the “spread” of each of the options listed above. In 1996, Newbrey timely filed an amended earned income tax return with Upper St. Clair for the tax years 1992, 1993, 1994, and-. 1995 in which he sought a refund of the tax attributable to the tax on the increase in value of the stocks encompassed by the above-listed stock options from the date on which they were awarded until Newbrey exercised them. On August 16, 1996, Upper St. Clair issued a determination which denied Newbrey’s request for a refund and concluded that the increase in the value of the stocks encompassed by Newbrey’s stock options was earned income, and, thus, was subject to taxation under LTEA. On September 12, 1996, Newbrey requested a hearing before the Township Manager. Oh November 7, 1996, a hearing was held before the Township Manager, and New-brey’s counsel argued that Upper St. Clair’s definition of earned income exceeded the scope of the definition in LTEA, Additionally, he argued that the increase in the value of the stocks encompassed by Newbrey’s options was not earned income, but rather was investment income. In a January 22, 1997 letter, the Township Manager rejected New-brey’s arguments, and Newbrey appealed that determination to the Court of Common Pleas of Allegheny County. On appeal to the Court of Common Pleas, the court scheduled a conference several days after the court issued a decision in the case of Marchlen v. Township of Mt. Lebanon, in which the court concluded that the increase in the value of non-qualified stock options did not constitute earned income subject to Mt. Lebanon’s earned income tax, which is, in the ordinance adopting the earned income tax, essentially identical to Upper St. Clair’s tax ordinance. Although Upper St. Clair could not distinguish its case from the Marchlen case and apparently was not prepared to offer new arguments, it nonetheless requested to file a supplemental brief rather than permit the court to rely solely on the materials filed by the parties with the Township Manager. As a result of Upper St. Clair’s request, Newbrey requested reasonable counsel fees for Upper St. Clair’s allegedly obdurate and vexatious conduct during the proceedings. On June 24,1997, Common Pleas issued an opinion applying the holding of this Court’s decision in Pugliese v. Township of Upper St. Clair, 660 A.2d 155 (Pa.Cmwlth.1995), and reasoning that the non-qualified stock options in the present case were indistinguishable from the debentures at issue in Pugliese. The basis for this conclusion was that “[the debentures and the non-qualified stock options] grant an opportunity for the employee to participate in any appreciation in the value of the company's] common stock. Both give the employee the decision to invest ... which is separate from the receipt of compensation from the respective companies.” (Opinion of the Court of Common Pleas at 6.) Therefore, the court reversed the determination of the Township Manager and held that the spread from the non-qualified stock options was investment income rather than earned income and, thus, not subject to the earned income tax. However, the court denied Newbrey’s request for counsel fees. On appeal to this Court, Newbrey argues that the Court of Common Pleas correctly decided the substantive issue regarding the taxation of his stock options; however, he argues that counsel fees should have been awarded because of the obdurate and vexatious conduct of the Township during the proceedings. Specifically, Newbrey points out that Upper St. Clair continues to apply the identical expansive definition of earned income which this Court struck down in Pug-liese. In its cross appeal, Upper St. Clair argues that the Common Pleas Court incorrectly determined that the increase in value of the stocks encompassed by Newbrey’s stock options was not earned income. In addition, Upper St. Clair argues that an award of counsel fees in this case would be improper because the trial court did not make a specific finding of obdurate or vexatious conduct on the part of Upper St. Clair. Because the award of counsel fees is, at least in part, contingent upon our determination of the applicability of the earned income tax to Newbrey’s stock options, we will address Upper St. Clair’s appeal first. Upper St. Clair argues that Newbrey’s non-qualified stock options constitute earned income. Specifically, Upper St. Clair offers two bases for this conclusion: (1) the state revenue code treats the appreciation of such options as “compensation”; and (2) the options constitute compensation for services rendered such that they are earned income subject to taxation by Upper St. Clair. Section 13 of LTEA, 53 P.S. § 6913, authorizes political subdivisions of the Commonwealth to impose a tax on the earned income of its residents. This section defines earned income as follows: “Earned Income.” Salaries, wages, commissions, bonuses, incentive payments, fees, tips, and other compensation received by a person or his personal representative for services rendered, whether directly or through an agent, and whether in cash or in property.... 53 P.S. § 6913. The introductory language to this section provides as follows: The definitions contained in this section shall be exclusive for any tax upon earned income and net profits levied and assessed pursuant to this act, and shall not be altered or changed by any political subdivision levying and assessing such tax. Id. Thus, a political subdivision may not expand the definition of earned income. By ordinance, Upper St. Clair imposes an tax on “all earned income and net profits, as defined in Section 13 of the Local Tax Enabling Act (53 P.S. § 6913)....” Upper St. Clair Code § 118.17. By regulation, Upper St. Clair has adopted a definition of earned income identical to LTEA’s definition, but with the following additional language: Earned income includes any item that is currently reportable on the Commonwealth of Pennsylvania Department of Revenue Form PA 40 “Gross Compensation” line, any item that is correctly reportable on the “Wages, Salaries, Tips, Etc.” line of the IRC Form 1040 or any item that is correctly reportable on the “state wages, tips, etc.” box of IRC Form W-2 and that portion of distributed or distributable S Corporation income that represents compensation for services rendered. Examples include but are not limited to: income derived from exercising non-qualified stock options; financial counseling services reimbursement; excess life insurance; spouse’s travel reimbursement; moving expense reimbursement; and, mortgage differential. Township of Upper St. Clair Regulation 1.1.12. In support of a reversal of the trial court, Upper St. Clair cites several Pennsylvania Revenue Code sections which explicitly provide that stock options are a form of “remuneration” for services rendered.' This argument was also offered by Mt. Lebanon in the Marchlen case. Because the facts in this case are identical to those in Marchlen, with the only exception being that in this appeal Newbrey exercised several of his options by surrendering existing shares of PPG stock which he owned, we reach the same conclusion that the increase in the value of stock encompassed by a non-qualified stock option does not constitute earned income under LTEA and, therefore, is not subject to a political subdivision’s earned income tax. In doing so, we reiterate our observation that if the General Assembly wishes to include the increase in the value of stocks encompassed by a stock option as earned income under LTEA and, thus, broaden the definition of earned income to mirror the treatment of such property to that of the Commonwealth Revenue Code, it may do so, but it is not within the province of this Court to make such an amendment. Scott. Because we reach such a conclusion, we are obliged to review the trial court’s decision not to assess counsel fees under Section 2503 of the Judicial Code, 42 Pa.C.S. § 2503. Section 2503(7) provides that “[a]ny participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter” is entitled to counsel fees. It is, of course, well settled that the reasonableness of a refusal to grant counsel fees in a particular case rests Within the sound discretion of the trial court. West v. Hampton Township Sanitary Authority, 661 A.2d 459 (Pa.Cmwlth.1995). Therefore, this Court has refused to alter such a decision absent a showing of a clear abuse of discretion. Id. Moreover, in Township of South Strabane v. Piecknick, 546 Pa. 551, 686 A.2d 1297 (1996), our Supreme Court concluded that an award of counsel fees under Section 2503 is inappropriate absent a specific finding by the trial court that a party’s conduct was dilatory, obdurate, and vexatious. In the ease presently before us, the trial court did not make such a finding, and, therefore, counsel fees are inappropriate under Section 2503. However, although counsel fees in the present case are not appropriate at the trial court level, this Court may impose counsel fees if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule. Pa. R.A.P. 2744. This Court may impose counsel fees on an appellant on the motion of a party or sua sponte by the Court. Borough of Kennett Square v. Lal, 165 Pa.Cmwlth. 573, 645 A.2d 474, petition for allowance of appeal denied, 540 Pa. 618, 656 A.2d 119 (1994). We conclude that the Township’s conduct in appealing the trial court’s order in the present case compels us to impose counsel fees on Upper St. Clair. In Pugliese, this Court decided an issue which is identical to the position that Upper St. Clair once again presents to this Court. Pugliese involved an appeal where a taxpayer received deferred compensation which was put into convertible debentures. In essence, Pugliese purchased the debentures with the money that he deferred. Upper St. Clair sought to tax the increase in the value of the debentures, a practice which this Court specifically indicated was not within the authority granted by LTEA. Similarly, in the instant appeal, New-brey paid for several options with his own funds and did not receive the shares of stock as compensation. Moreover, in the case of the restored options, Newbrey relinquished previous investments in order to purchase the new shares. Upper St. Clair again presents an appeal where a taxpayer has paid for investment property with his own money and has benefited from the increase in value of that investment. In Pugliese we specifically held that Upper St. Clair, the appellant now before us, was not legally permitted to tax the increase in value of the debentures. Upper St. Clair nevertheless persists in arguing that it has the authority to tax an indistinguishable increase in value of the shares encompassed by the non-qualified stock options at issue in this case; and we further note that Upper St. Clair continues to assert its authority to tax this increase in value without proposing any new or additional legal justifications for doing so. Even more troubling is the fact that Upper St. Clair’s regulation which defines earned income is identical to the one that we specifically struck down as an impermissible expansion of LTEA’s definition of earned income in Pugliese. Apparently in defiance of this Court’s decision in Pugliese, Upper St. Clair continues to use this expansive definition of earned income, purportedly for “illustrative or descriptive purposes.” However, this description, which purports to provide specific examples of earned income, is not only misleading to the taxpayer, but is also contrary to existing case law, ie., Pugliese, litigation to which Upper St. Clair was a party. Consequently, we believe that this facet of the instant appeal, by itself, evinces such obdurate conduct that it more than adequately justifies the awarding of counsel fees. Therefore, in assessing counsel fees against Upper St. Clair, we now make abundantly clear that the definition of earned income contained in its regulation, insofar as it deviates from and expands the definition of earned income contained in LTEA, imper-missibly taxes the increase in value of investment income, whether it be in the form of debentures or non-qualified stock options. Accordingly, we affirm the trial court’s order in its entirety, but remand the case to the trial court for the calculation, after a hearing, of reasonable fees incurred by New-brey in this appeal to be paid by Upper St. Clair. ORDER NOW, March 24, 1998, the order of the Court of Common Pleas in the above-captioned matter is hereby affirmed. Further, the case is remanded to the trial court for calculation, after a hearing, of reasonable attorney’s fees incurred by Appellant New-brey in this appeal to be paid by Appellee Upper St. Clair. LEADBETTER, J., did not participate in the decision in this case. . A non-qualifled stock option plan is one that does not meet the requirements of Section 401 of the Internal Revenue Code, 26 U.S.C. § 401, and, accordingly, is not entitled to special tax treatment under the federal tax law. . The fair market value of the stock would be the closing price of PPG stocks on the New York Stock Exchange, where the stock is traded, on the date of award. . Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §§ 6901-6930.13. . The "spread” generally refers to the difference between two amounts. In the context of stocks, the spread is usually the difference between the bid and asking price of the stock. In the present case, the spread refers to the difference between the cost of purchasing the stock at the value established at the time the option was awarded and the value of the stock on the day that New-brey exercised his options; succinctly put, the "profit” realized between the cost of purchase and the value of the stock when the option is exercised. . Our standard of review in a tax appeal case is limited to whether the trial court abused its discretion, committed an error of law, or issued a decision unsupported by substantial evidence. Scott v. Hempfield Area School District, 164 Pa.Cmwlth. 588, 643 A.2d 1140 (1994). . Upper St. Clair’s tax ordinance, defined "earned income” as that term is defined in LTEA. However, by subsequent regulation, Upper St. Clair made part of Upper St. Clair’s Code by Section 118.18, the definition was expanded as noted in the above text. There is no dispute that the regulation quoted above is identical to the regulation quoted in Pugliese.

DOYLE, Judge. The Building Industry Association of Lancaster County (BIA) appeals from an order of the Court of Common Pleas of Lancaster County, dismissing BIA’s declaratory judgment action, challenging an ordinance of Manheim Township which imposed an impact fee on developers. Manheim Township cross appeals from the order, challenging dicta in the common pleas opinion indicating that, if BIA had standing to bring its claim, common pleas would be inclined to rule in its favor. On December 9, 1991, Manheim Township enacted an impact fee ordinance (Ordinance) in accordance with the enabling section of the Pennsylvania Municipalities Planning Code (MPC). The Ordinance requires developers to pay a tax, based in part, on the amount of vehicular traffic a proposed development would generate. On October 14,1993, BIA filed a complaint against Manheim Township under the Declaratory Judgments Act seeking an order declaring that the Ordinance violates the MPC, as well as an order requiring a refund of all impact fees collected under the Ordinance. BIA’s complaint in Common Pleas made the following averments relating to its standing to represent its members: 1. Plaintiff Building Industry Association of Lancaster County is a Pennsylvania non-profit corporation with offices at 1794 Oregon Pike, Lancaster, Pennsylvania 17601. 2. Plaintiff is a trade association whose members include building contractors and real estate developers who do business throughout Lancaster County, including members who own real estate, develop land and build residential, commercial and industrial buildings in Manheim Township. 3. Members of Plaintiff are subject to the Manheim Township Impact Fee Ordinance and will be required to pay fees thereunder, have had fees calculated thereunder, and have paid fees thereunder. (Complaint at 1; Reproduced Record (R.R) at 4a.) (Emphasis added.) The complaint contained six legal issues upon which BIA’s demands were based: 44. The Manheim Township Impact Fee Ordinance, 1991-24, as amended, is invalid in that: A.The Land Use Assumptions were illegally modified by defendant by including growth which previously occurred, rather than limiting it to projected future growth as required by section 504r-A(c) of Act 209, 53 P.S. § 10504-A(c). B. The Roadway Sufficiency Analysis was not adopted by defendant by resolution as required by section 504-A(d)(2), 53 P.S. § 10504-A(d)(2), prior to the enactment of the Manheim Township Impact Fee Ordinance. C. The Roadway Sufficiency Analysis and the calculation of impact fees • fails to include the effect of ‘pass-through traffic’ as defined in section . 502-A of Act 209, 53 P.S. § 10502-A. D. The impact fee is calculated by including costs for improvements to state highways in excess of the amounts which can legally be spent on such projects pursuant to section 504-A(e)(2) of Act 209, 53 P.S. § 10504-A(e)(2). E. Ordinance 1991-24 is invalid to the extent it imposes or imposed impact fees on projects for which plats were submitted for preliminary or tentative approval prior to December 9,1991, the effective date of the ordinance. 45. The defendant’s application of the impact fee ordinance is illegal and invalid in that it requires that the impact fee per peak-hour trip generated by new development be multiplied by the number of average daily trips generated by new development in violation of section 505-A of Act 209, 53 P.S. § 10505-A. (Complaint at 7-8; R.R. at 10a-lla.) The Township answered paragraphs two and three of the Complaint as follows: 2. Admitted on information and belief that Plaintiff is a trade association whose members include building contractors and real estate developers. Manheim Township does not know the identities of the members of Plaintiff Association and, therefore, denies the allegations of doing business in Lancaster County and Man-heim Township. 3. Denied for the reasons set forth in answer to paragraph two. (Township’s Answer at 1; R.R. at 79a.) (Emphasis added.) The Township further asserted in New Matter that: (1) BIA lacked standing to challenge the ordinance because it had not paid any tax itself and was, therefore, not a real party of interest, (2) BIA faded to exhaust its administrative remedies by appealing any assessments to the Township Commissioners, and (3) the statute of limitations had expired as to both a challenge to the procedure by which the ordinance was enacted and any challenge to the amount of any assessment. After the pleadings were closed, the parties filed cross-motions for summary judgment and submitted supporting affidavits in support of their motions. Common Pleas granted Manheim Township’s cross motion for summary judgment concluding that: (1) the defense of laches barred the portion of BIA’s challenge to the ordinance seeking a refund of monies already paid; and (2) BIA lacked standing to challenge the legality of the ordinance because BIA was a non-profit organization that had not itself paid any impact fees and, therefore, did not suffer any direct, immediate and substantial injury. Notwithstanding these determinations, Common Pleas went on to opine that if BIA did have standing, it might be able to prevail in seeking a refund of the impact fees. This appeal followed. Our appellate review of an order granting summary judgment is limited to a determination of whether the trial court committed an error of law or abused its discretion. Rothermel v. Department of Transportation, 672 A.2d 837 (Pa.Cmwlth.1996). Of course, summary judgment may only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035(b). Therefore, we must view the record in a light most favorable to the non-moving party, in this case BIA, accepting as true all well-pled facts and inferences to be drawn from those facts. Rothermel. We first address the issue of BIA’s standing to challenge the validity of the ordinance. In a cursory manner, Common Pleas concluded that, because BIA had not paid any impact fees under the ordinance, BIA lacked standing to challenge the ordinance. Although it is certain that BIA did not pay any impact fees under the ordinance, we disagree with the notion thát that fact alone is dispositive on the issue of standing because it ignores the concept of organizational standing. BIA’s standing as an organization to challenge the ordinance requires a showing that its members have standing individually to challenge the ordinance. In essence, BIA must establish that at least one of its members has or will suffer a direct, immediate or substantial injury as a consequence of the challenged action. National Solid Wastes Management Association v. Casey, 135 Pa.Cmwlth. 134, 580 A.2d 893 (1990). Therefore, we must examine the standing of BIA’s individual members. The basic standing requirement is aggrievement. Although the term “aggrieved party” is not defined in the rules of civil procedure, we have required a party seeking relief before a court to demonstrate that he has suffered harm and that the relief sought is related to the harm suffered. This Court has stated that: One who seeks to challenge governmental action such as the validity of a statute or ordinance must show a direct and substantial interest and must show a sufficiently close causal connection between the challenged action and the injury. Drummond v. University of Pennsylvania, 651 A.2d 572, 577 n. 4 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995). Furthermore, the harm or injury complained of must be direct, immediate, and substantial. William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1976). Harm or injury is direct if it would result from the challenged action. South Whitehall Township Police Service v. South Whitehall Township, 521 Pa. 82, 555 A2d 793 (1989). Harm is immediate if there is a close nexus between the harm or injury and the challenged action. Id. Harm is substantial if its effect on the party challenging the action is greater that its effect on the public at large. Id. The present case involves a challenge to impact fees, which are defined by the MPC as: a charge or fee imposed by a municipality against new development in order to generate revenue for funding the costs of transportation capital improvements necessitated by and attributable to new development. 53 P.S. § 10502-A. Thus, an impact fee is a government charge or fee used to generate revenue; it is, therefore, a tax. The standing of a taxpayer to challenge a municipal tax is distinct from standing in other areas because taxpayers fall into a special class of parties that may have standing, even where their interests are arguably not substantial, direct, and immediate. Application of Biester, 487 Pa. 438, 409 A2d 848 (1979). In Biester our Supreme Court stated as follows: ‘[Although many reasons have been advanced for granting standing to taxpayers, the fundamental reason for granting standing is simply that otherwise a large body of governmental activity would be unchallenged in the courts.’ Biester, 487 Pa. at 445, 409 A.2d at 852 (quoting Faden v. Philadelphia Housing Authority, 424 Pa. 273, 278, 227 A.2d 619, 621-22 (1967)). Thus, as taxpayers, the constituent members of BIA fall into the special class outlined in Biester. As such, they have standing to challenge the validity of the ordinance, and, as a result, BIA also has standing as an Association to challenge the validity of the ordinance as well. Moreover, BIA has averred that builders and developers that are members of BIA have paid impact fees as a result of assessments made by the Township pursuant to the Ordinance. Because BIA has made an averment of cause and effect, which for purposes of summary judgment, we must accept as true, BIA has met the direct injury requirement set forth in William Penn Parking. The impact fees assessed pursuant to the Ordinance are paid directly by developers and builders, some of who are members of BIA BIA has averred a close nexus between the harm suffered by its members and the challenged action. Accepting this as true, the relationship between the harm and the challenged Ordinance meets the immediacy requirement set forth in William Penn Parking. Aso, BIA has averred that it represents builders and developers that do business within Manheim Township. Because the burden imposed under the Ordinance falls primarily on builders and developers, some of who are members of BIA the harm suffered by BIA members surpasses that of the public in general. Therefore, BIA also meets the substantial injury requirement set forth in William Penn Parking. Having determined that the harm suffered by BIA members meets the direct, immediate, and substantial requirements of standing, as well as falling into the special class outlined in Bies-ter, we conclude that the individual members of BIA are aggrieved and, therefore, have standing to challenge the Ordinance. Accordingly, BIA also has standing as an organization, and Common Pleas committed an error of law when it reached an opposite conclusion. We next examine whether BIA has standing to seek a refund of impact fees already paid by its members. At the outset, it is clear that BIA as an organization was not required to pay any monies to Manheim Township. Thus, as with the challenge to the validity of the ordinance, any standing that BIA has would be organizational standing by virtue of its relationship to its mem bers. However, in Worth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the United Supreme Court noted: in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents’ practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf. 422 U.S. at 515-16, 95 S.Ct. at 2214. Similarly in the present ease, BIA’s members have suffered individualized damages that are not shared in amount by all of its members. Therefore, each member would need to offer proof as to the amount of injury suffered by that particular member. As a result, each individual member needed to seek a refund of the impact fee, and BIA had no standing as an organization to do so on behalf of any of its members. Further support for this conclusion can be found in this Court’s opinion in National Solid Wastes Management Association v. Casey. In that case, then-Governor Casey issued an executive order which effectively placed a moratorium on resource recovery facility permits. The association sought a declaratory judgement that the Governor’s order constituted an unconstitutional commingling of the executive and legislative branches, as well as a mandamus to compel the Department of Environmental Resources to comply with the resource recovery facility application process. Both the Governor and the Department of Environmental Resources filed preliminary objections alleging in part that the association lacked standing to seek the requested relief. We concluded that, although the association had standing to seek a declaratory judgement on behalf of its members, it did not have standing to seek mandamus on behalf of its individual members, that is, to receive an order directing a particular permit to be issued. The critical distinction made by the Court was that mandamus is limited to compelling a public official to perform a non-discretionary act in relation to a specific event. Conversely, declaratory relief may encompass a series of events or a group of people. Therefore, the Association had pled sufficient harm to its members as a group for purposes of declaratory judgment, but did not have standing to seek mandamus because each of its members suffered individualized harm. Similarly, in this case, the harm alleged to BIA’s members is sufficient to establish its standing to seek declaratory relief, but because each member was not harmed to the same extent by the Ordinance, individualized proof would be necessary and, thus, BIA does not have standing to seek refunds on behalf of its members. For the above reasons, we conclude that Common Pleas correctly decided the standing issue as it relates to the refund of impact fees already paid. We note, however, that BIA’s lack of standing to seek a refund does not extinguish any entitlement to declaratory relief that BIA may have. Section 7532 of the Judicial Code, 42 Pa.C.S. § 7532. Because we conclude that BIA lacks standing to seek refunds on behalf of its members, we need not consider whether BIA is time barred from seeking this relief. Although we reverse Common Pleas on the issue of standing to challenge the validity of the ordinance, Common Pleas also granted summary judgment for the Township based on laches and statute of limitations. The equitable doctrine of laches bars an action when one party is guilty of want of due diligence which results in prejudice to another. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). To successfully assert the affirmative defense of laches, a party must demonstrate: (1) a delay arising from the petitioner’s failure to exercise due diligence; and (2) prejudice to the respondent resulting from the delay. Faculty Members v. Scanlon, 502 Pa. 275, 466 A.2d 103 (1983). As the party seeking to assert the defense of laches, the Township had the burden to show both undue delay and prejudice. Weinberg v. State Board of Examiners of Public Accountants, 509 Pa. 143, 501 A.2d 239 (1985). Clearly, the delay of 22 months from the time that BIA must have known of the enactment of the ordinance to the time it filed its complaint was an undue delay. However, as we noted above, undue delay is merely one of the two prongs that a party must satisfy. The party seeking to assert laches must also prove that it has been prejudiced by the delay. As the Supreme Court noted: The application of the equitable doctrine of laches does not depend upon the fact that a definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice_ The prejudice required is established where, for example, witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim. Class of Two Hundred Administrative Faculty Members v. Scanlon, 502 Pa. 275, 279, 466 A.2d 103, 105 (1983) (citations omitted). It is clear that, as to any challenge to the Ordinance, the Township did not allege any change in position that it undertook as the result of BIA’s delay in filing its complaint. Accordingly, because the Township did not demonstrate any prejudice as a result of the 22-month delay, we conclude that Common Pleas committed an error of law when it dismissed BIA’s complaint based on laches. Although Common Pleas incorrectly dismissed BIA’s complaint based in part on the doctrine of laches, it also did so based on statute-of-limitations grounds. Actions to challenge the method by which a municipal ordinance such as this one has been enacted must be filed within 30 days after the enactment of the ordinance. Section 5571(c)(5) of the Judicial Code, 42 Pa.C.S. § 5571(c)(5). BIA did not file the present action until 22 months after the enactment of the ordinance. Accordingly, BIA’s allegation of illegal modification of the land use assumptions contained in paragraph 44(A) of the complaint, as well as the allegation that the Township failed to adopt a Roadway Sufficiency Analysis prior to enacting the ordinance, alleged in paragraph 44(B), are time barred because they were not brought within the 30-day period following the enactment of the ordinance. Commonwealth v. Creighton, 163 Pa.Cmwlth. 68, 639 A.2d 1296 (1994). However, the remainder of BIA’s allegations pertaining to the validity and application of the ordinance under the General Assembly’s enabling statute are not otherwise time barred, and we remand the case to Common Pleas for a hearing on those issues. Next, we examine the Township’s cross appeal from the dicta in the opinion of Common Pleas that, if BIA had standing, portions of its claim would be viewed as having substance. The Township asserts that, although Common Pleas granted its motion for summary judgment, it nonetheless is an aggrieved party for appellate purposes and can appeal from the court’s decision because Common Pleas addressed the merits of the case after concluding that BIA lacked standing and its cause of action was barred by laches. At the outset, we note that, when Common Pleas determined that BIA lacked standing and the case was time barred, it no longer possessed jurisdiction over the case to address any of the merits. However, the Township argues that it has been aggrieved by the dicta in the opinion of the Common Pleas Court. In Mahanoy School District v. Budwash, 146 Pa.Cmwlth. 72, 604 A.2d 1156 (1192), this Court stated: Generally only an ‘aggrieved’ party has standing to appeal. Pa. R.AP. 501. Where a party is successful in the trial court, that party is not aggrieved and, therefore, has no standing to appeal.... We have specifically stated that ‘[m]ere disagreement with the ... legal reasoning [of the tribunal whose order is being reviewed] ... does not confer standing [to appeal]’. Mahanoy, 604 A.2d at 1159 (citations omitted). In the present case, it is clear that Manheim Township merely disagreed with the “opinion” of the Common Pleas Court regarding the merits of BIA’s complaint. Therefore, we hold that Manheim Township was not “aggrieved” for purposes of appellate review and accordingly dismiss the Township’s cross-appeal in this case. In sum, we affirm Common Pleas’ opinion insofar as it concludes that BIA lacked standing to seek a refund of fees paid by its members. In addition, Common Pleas correctly concluded that BIA’s challenge to the procedural enactment of the ordinance was time barred. However, we reverse its opinion as to the issues of laches and standing to challenge the validity of the Ordinance and remand the ease for further proceedings on the issue of the validity and application of the Ordinance under the General Assembly’s enabling statute. The Township’s cross-appeal is dismissed. ORDER AND NOW, April 14, 1998, the order of the Court of Common Pleas of Lancaster County is affirmed in part and reversed and remanded in part. It is further ordered that the cross-appeal of Manheim Township is hereby dismissed. Jurisdiction relinquished. . No. 1991-24, December 9, 1991. . Article V-A of the Pennsylvania Municipalities Planning Code (MPC), Act of December 19, 1990, P.L. 1343, No. 209, 53 P.S. § 10501-A., commonly referred to as “Act 209.” . Sections 7531-7541 of the Judicial Code, 42 Pa.C.S. §§ 7531-7541.

Mr. Justice Sterrett delivered the opinion of the court The Act of March 24th, 1852, incorporating the American Academy of Music, provides that after due notice given by the first five persons named in the letters patent, the subscribers to capital stock shall proceed to organize the corporation, and “then and there, in person or by proxy, choose by ballot or ticket in writing twelve suitable persons, members of the corporation, to be directors thereof for the year next ensuing, or until the next election.” After providing for the election of president and other officers of the board, the fourth section of the Act authorizes the board of directors “ to adopt such by-laws, rules and regulations, not' inconsistent with the laws of the Commonwealth, as may bo deemed expedient for the well being of the corporation.” and then gives them, generally all the authority, powers and privileges necessary and proper for the management of the affairs thereof.” The next section declares that “in all elections of directors, each stockholder shall have one vote for every share of stock which he may hold.” In the absence of any qualifying clause in tbe charter, the last quoted provision clearly empowers the holders of the major part of the stock, represented at any such election, to elect a full board of directors, composed entirely’ of persons selected by themselves. As was said in Hayes v. Commonwealth, 1 Norris, 518, “This was part of the contract under which they entered into the company and paid their money. The compact was that they should have the power to select those who should have the management and control of the” corporate funds and property’. For reasons given at length in that case, and which need not be now repeated, the authority thus conferred on the stockholders is a vested right, with which the Constitution of 1874 has not intended to interfere, except in the manner therein provided. But, on behalf of appellees, it is contended that the provisions of the new constitution were duly accepted by the board of directors and thus became substantially a part of the charter ; and, if there should be any doubt, as to the authority of the board to do what they did, their action in the premises was subsequent^ approved by a majority of the stockholders present at the last annual meeting in June, 1884. In view of the duties and powers of the directors, as specified in the charter, we have no hesitation in saying it was not within the scope of their authority to accept the provisions of the present constitution relating to the subject of cumulative voting. They had no power express or implied to surrender, as they undertook to do, the vested rights of their constituents. Their action was not only without authority, but it was manifestly designed to deprive the majority in interest, of the stockholders, of a right guaranteed to them by their charter. Directors clothed, as they were, merely with the ordinary powers of executive management are powerless to effect a radical change in the chartered rights of stockholders, contrary to the wishes and against the objection of a majority in interest. But, aside from all this, the Act of 1878, under which it is claimed the board of directors acted, was never intended to apply to such corporations as the Academy of Music. In very terms it is restricted to private corporations applying to the state for aid, and hence it embraces only charitable corporations which have no stockholders with vested property rights. The Act of 1876 had previously prescribed a mode of proceeding by which corporations for profit and having capital stock may adopt the system of cumulative voting. The acceptance required po be filed in the office of the Secretary of the Commonwealth, must not only be under the corporate seal, but it must also appear that the Act was duly authorized by a meeting of the stockholders called for that purpose. It is only by complying with this provision of the Act of 1876 that a regular and valid acceptance, of the cumulative sj'stem of voting, by the Academy of Music can be accomplished. If at a meeting duly called for that purpose, a majority, not in number but in interest of the stockholders present thereat in person or by proxy, authorizes such acceptance, then and not till then can the holders of the major part of the capital stock be stripped of their vested right to elect a full board of directors all of their own selection. A stock vote on the question of acceptance may undoubtedly be waived, but if demanded by stockholders they are entitled to it. The attempted acceptance by the board of directors was irregular and unauthorized, and the so called approval by vote of a majority, in number but not in interest, of the stockhold ers present at the last animal meeting was wholly ineffectual for the purpose of engrafting upon the charter of the Academy the provisions of the present constitution. It follows therefore that cumulative voting for directors at the last annual meeting was unauthorized, and so far as such votes affected the result of the election they should have been disregarded. The assignments of error are sustained. Decree reversed, at the costs of appellees, and it is now adjudged and decreed that Charles W. Potts, Charles Lenuig, George W. Biddle, Simon Gratz, Joshua Z. Gregg, Alfred G. Baker, George A. Hey], Francis P. Steel, Henry Budd, John Wright, Charles'W. Swain, Peter A. Keller, were duly elected and are the directors of the American Academy of Music for the vear ensuing after the annual election of 1884."

ORDER PER CURIAM. AND NOW, this 16th day of June, 1998, the Order of the Superior Court is reversed as to the proper valuation of appellant’s pension. See Gordon v. Gordon, 545 Pa. 391, 681 A.2d 732 (1996). This matter is remanded to the Delaware County Court of Common Pleas for recalculation of the value of the pension utilizing appellant’s salary on the date of separation. NEWMAN, J., did not participate in the consideration or decision of this case.

OPINION PER CURIAM: Petitioner, Mente Chevrolet, Oldsmobile, Inc., seeks review of the trial court’s refusal to amend its'order to include the prescribed language for interlocutory appeals as set forth by 42 Pa.C.S.A. § 702(b). For the following reasons, we quash the petition as untimely. The petitioner, Mente Chevrolet, brought this action against the respondent, Kenneth Swoyer, alleging violations of the Consumer Protection Law in connection with the transfer of title to an automobile. Specifically, Mente claims Mr. Swoyer certified false mileage and/or refused to disclose correct mileage on the transferred automobile. On May 28, 1997, Mente obtained a default judgment against Mr. Swoyer due to his failure to respond to Mente’s complaint. On July 29, 1997, Mr. Swoyer filed a petition to open/ strike the default judgment. By order dated November 3,1997, the trial court opened the judgment. Mente filed a motion for reconsideration which was denied on January 5, 1998. On January 29,1998, Mente asked the court to certify its order for interlocutory review pursuant to 42 Pa.C.S.A. § 702(b). The court denied this request on February 3, 1998, and Mente filed the instant petition for review in accordance with Pa. R.A.P. 1511. Pursuant to Pa. R.A.P. 1311(b), “[a]n application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b) shall be filed with the lower court ... within 30 days after the entry of such interlocutory order .. ,” . The rules dealing with review of interlocutory orders contain no specific provision for requesting reconsideration. However, it is true that a court may reconsider its own rulings. Atlantic Richfield Co. v. J.J. White, 302 Pa.Super. 276, 448 A.2d 634 (1982); 42 Pa.C.S.A. § 5505. It is also true that the thirty-day time limit for reconsideration imposed by 42 Pa.C.S.A. § 5505 applies only to final orders. Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280 (1992), appeal dismissed, 538 Pa. 484, 649 A,2d 435 (1994). Nevertheless, a trial court’s right to reconsider its orders must be reconciled with the time limitations imposed by the Rules of Appellate Procedure. In those situations involving final orders, it has been determined that the best procedure for a party seeking reconsideration of a final order is to file both a motion for reconsideration and a notice of appeal. If reconsideration is granted then the notice of appeal becomes inoperative, but if reconsideration is denied then the party has still preserved his appellate rights. Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). See also Pa. R.A.P. 1701(b)(3) and Notes following. We believe the same reasoning should apply when reconsideration and § 702(b) certification are sought for an interlocutory order. If the court were to grant reconsideration then there would be no need to certify the order at that time. If reconsideration were denied then the court could, within thirty (30) days of the original order, still certify the order under § 702(b). In the absence of certification, the party may file a petition for review under Chapter 15 of the Rules of Appellate Procedure. See Pa. R.A.P. 1311(b) and Notes following. By using this procedure, the trial court’s right to reconsider an interlocutory order would only be curtailed in the event interlocutory review is permitted in the Superior Court. See Pa.R.A.P. 1701(d)(filing petition for review will not affect power of trial court to proceed further). Instantly, Mente should have sought certification within thirty (30) days of the November 3, 1997 order opening judgment. By first seeking reconsideration and waiting for its denial, Mente’s request for § 702(b) certification in the trial court was rendered untimely. Therefore, we must quash the petition for review. Petition quashed. . We also note that Pa. R.A.P. 1311 does not require the § 702(b) certification within thirty days of the interlocutory order. Instead, the request must be filed within thirty days and granted within thirty days after the request is filed or it is deemed denied.

ORDER PER CURIAM: AND NOW, this 8TH day of MAY, 1998, the Petition for Allowance of Appeal is GRANTED but LIMITED to the following: Was the sentence illegal in that the Petitioner was sentenced to register with the Pennsylvania State Police pursuant to 42 Pa.C.S. § 9793, but said act was not effective at the time of the commission of the offenses to which Petitioner pled guilty?

AMENDED ORDER PER CURIAM: AND NOW, this 1st day of June, 1998, we GRANT the Petition for Allowance of Appeal and we REVERSE the order of the Superior Court. We REMAND the matter to the Court of Common Pleas of Erie County consistent with this Court’s opinion in Jacobs v. Halloran, — Pa. -, 710 A.2d 1098 (1998) and Marino v. Hackman, — Pa. -, 710 A.2d 1108 (1998). SAYLOR, J., did not participate in the consideration or decision of this matter.

Opinion by Mr. Justice Dean, In the year 1878, a building known as Casino Music Hah was erected by one Lauber on Broad street north of Columbia avenue, Philadelphia; afterwards, Francis Blackburn and James M. Hall, two of these defendants, became the owners of it, and they, on the 18th of June, 1886, leased it to Emil Baumblatt for a term of three years at an annual rental of $600 for the first year and $1,200 for each of the remaining two years. There is no covenant on part of lessee to build or improve. There is, however, this stipulation: “All improvements put upon said premises by the said lessee are to be left thereon upon the surrender of said premises, and are to become the property of the said lessor. But nothing herein contained is to be taken as rendering the said lessor of the said premises liable for such improvements or for such repairs.” After being in possession nearly a year under his lease, Baumblatt employed Charles M. Hall, plaintiff, to do some work at the building, which was done, and Hall, not being paid therefor, he, on November 23, 1887, filed a mechanic’s lien in the sum of $90.00 against the owners, joining with them Baumblatt as contractor. The bill of particulars appended to the lien avers, that Baumblatt contracted with Hall, “ to partition off by a wooden partition, eleven feet by eleven feet four inches from one of the rooms in the building on the premises, two hundred and sixty feet northward from the north side of Columbia avenue, a space of the foregoing dimensions for office purposes.” In his testimony, plaintiff says, that by a wooden partition eleven feet by eleven feet four inches he partitioned one of the rooms. The whole work was done by the plaintiff in one day. There was no evidence to contradict or in any way change or modify the statements in the lien or those made by plaintiff on the witness stand. On these facts, the learned judge of the court below submitted the case to the jury in the following charge: “ If the work done by the plaintiff was a part of the original building, your verdict should be for the plaintiff. If however it was simply repairs or alterations or an addition to tie original building, your verdict should be for the defendant.” The jury found for plaintiff and the owners appealed, assigning for error the submission to the jury to find a fact of which there was no evidence. Was there any evidence from which the jury could find the work was part of the original structure ? In Miller v. Hershey, 59 Pa. 64, it is said: “ The idea which runs throughout all the cases is newness of structure in the main mass of the buildin g — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered. This newness of structure must be in the exterior, the main plan of the building, and not in its interior arrangements.” This work, it seems to us, lacked every mark of being part of the original structure, and whether viewed as a whole or in its particulars, was a trival alteration; the finding was not only without evidence, but was in the face of the plaintiff’s own evidence. It was not alleged by plaintiff that he had brought himself within either of the acts authorizing a lien for alterations or repairs contracted for by a tenant with the consent of or notice to the owner. The owners, for purpose of discharging the lien, paid the amount of it into court to await determination of the issue on sei. fa. This, it is argued, was an acknowledgment of plaintiff’s right of action. Whatever may have been the legal consequence of such payment in ancient pleading, no such effect as is claimed here is longer given it. As is said by Sharswood, J., in Elliot v. Ins. Co., 66 Pa. 22: “ It waives the benefit of no defense, even if such defense be to the whole. It seems, therefore, that after payment of money into court, there may be nonsuit, a judgment as in case of a non-suit, a demurrer to evidence, or a plea of puis darrein continuance, in short, that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words, the defendant is not precluded by it from taking a defense which goes to the whole cause of action.” The judgment is reversed.

Opinion by Mr. Justice McCollum, It is conceded by the parties to this suit that prior to the 3d of November, 1872, Peter Pearsol was the owner of the land in dispute, but it is claimed by the plaintiff that on that day he conveyed the same to its lessor, The Pittsburg, Virginia & Charleston Railway Company. The defendants have possession of the land and claim title to it under Peter Pearsol’s will dated April 20, 1881, and probated July 7, 1887. While it is undisputed that Pearsol on the 3d of November, 1872, conveyed to the above mentioned railway company a strip of his land, of the width of sixty feet, from a point in the division line between him and W. Hodgson to a point in the division line between him and John Horne, the location of the land conveyed was not defined in his deed. There was nothing in it by which it could be ascertained on what part of either division line the land which was the subject of the grant abutted, and it was necessary therefore for the parties to look elsewhere for evidence to establish its location. The Pittsburg, Virginia & Charleston Railway Company commenced grading its road through the Pearsol lot sometime in the fall or early winter of 1872, and completed the same and laid a single track thereon in 1873, since which time there has been no material change in it at that point. The land in dispute lies between the railway tracks and the river and within thirty feet of the center of the former. The plaintiff bases its contention that this land is embraced in Pearsol’s grant to its lessor on the presumption in the absence of a designation of boundaries, that the center of the roadbed is the center of the strip of land conveyed by him. The learned court below conceded that “ in the absence of any testimony or facts or circumstances to the contrary” the presumption would entitle the plaintiff to a verdict for the land in suit, but thought there was evidence in the case from which the jury would be warranted in finding that it was not included in the Pearsol conveyance. The questions to be determined on this appeal are whether the evidence was admissible, and if so, whether it was sufficient to repel or overcome the presumption. The negotiations which resulted in the conveyance were conducted in behalf of the railway company by W. W. Martin, who was its vice president, and authorized to purchase lands and secure rights of way for its use in the construction and operation of its road. It was a suggestive fact, that while he was called by the plaintiff as a witness and testified that the right of way through the Pearsol lot was located by the company’s engineers before the agreement of May 20, 1872, was signed, he did not testify that the location as then made included the land in dispute, nor was his attention directed to this important matter by either parly. Another fact of considerable significance is that when it was discovered that the locar tion as made interfered to some extent with Pearsol’s kitchen, which stood at the back of his house and next to the railroad, he was allowed $100 to move it “ out of the way of the road.” The fair inference from Martin’s testimony is that a portion of the kitchen was within the right of way as located by the company’s engineers, and that the main building and a part of the kitchen were outside of it. This inference accords with the direct and positive testimony of Herman N. Snee in regard to the lower line of the right of way and the construction of a Avail upon it, and Avith the last clause of the agreement of May 20, 1872, which was Avritten and witnessed by Martin. The company built the wall in 1878 in accordance with the understanding between Pearsol and its representative, and it has not been changed since. There is nothing in the deed, nor in the negotiations or agreement which preceded it, which indicates that the dAvelling house was included in the sale. The allowance of compensation for the interference with the kitchen does not accord with the theory which carries the lower line of the right of way beyond it. If this line passed through or below the main building there could have been no occasion for a separate assessment of the damages arising from the encroachment upon the kitchen. As we understand the evidence, the new kitchen was erected about four feet from the line on which the wall Avas built, and upon the land described in the summons. The circumstances to which we have referred support the contention of the defendants and are opposed to that of the plaintiff. We think the testimony of Martin and Snee was relevant and competent, and that it had a decided tendency to discredit the claim that the land in suit was included in the sale to the railway company. We think also that this testimony was sufficient, if believed, to repel the presumption on which the contention of the plaintiff was based. It was not offered, admitted or used to set aside or modify a Avritten instrument, but to assist in ascertaining the location of the land conveyed, in regard to which the deed was silent. The cases which relate to the reformation of a written instrument by parol evidence of what occurred at the time of the execution of it are not applicable to the issue in the case before us. The specifications of error are overruled and the judgment is affirmed.

The opinion of the court was delivered Per Curiam. The rule in Walton v. Shelley, was adopted as sound law in this state nearly one hundred years ago. It has continued to be followed ever since. It was so held up to the passage of the Act of 1869 and was not changed by that Act. Even if it was a new question there is great force in declaring it would be bad policy to permit one, who by his indorsement, has put into circulation a commercial instrument, afterwards to aver there was a taint upon it at the time it passed through his hands. We still adhere to the rule. All the evidence given and offered is insufficient to lay any foundation for making Fitzpatrick competent to testify to the facts for which he was offered. Judgment affirmed.

Opinion by Mr. Justice Fell, The plaintiff’s. claim is for bricks .sold and delivered to the defendant between November 5 and November 12, 1894. It is stated in the affidavit of defense that the bricks purchased after November 6 were to have been delivered at a siding at Engleside station on or before November 9; but there is no distinct averment, except as to the last item of charge, of a breach of the agreement to deliver at the siding within the time named. It is said in the affidavit that the bricks sold on the 8th and 9th of November were not shipped to the defendant on or before the 9th, and that “ subsequent to the 9th of November, 1894, it transpired that certain bricks which ought to have been shipped to me were shipped to the said siding in the name of McKay & Co., but not in my name, and I Avas not able to obtain the same until about November 28, when I removed the same from the siding because of a notice that they were held at my risk, being my intention to save the cost of demurrage,” etc. As to the sale on November 12 the defendant says he received no notice of the arrival of the bricks, and that as far as he knows they have not been delivered to him in his name. The defense attempted to be set up is evidently based upon the fact that the brides were shipped in the name of the consignor. It does not appear that there was anything unusual or irregular in tins, or that the defendant was injured by reason thereof. If the shipment was made with notice to the carrier to deliver to the defendant, or with notice to him and evidence of title, he could have procured them as readily as if they had heen consigned to him. No reason is given vvhy he was unable to obtain them until the 28th. The defendant cautiously avoids saying that the shipment under date of November 12 was not delivered, and rests with the statement that he received no notice of the arrival of the bricks, and that as far as he knows they were not delivered in his name. In the preparation of the affidavit skillful use seems to have been made of the facts to which the defendant was able to swear, but it does not squarely meet the plaintiffs’ claim. Its guarded averments suggest a ground of defense, but the inferences to be drawn from them are quite as favorable to the plaintiffs as to the defendant. The plaintiffs were entitled to a distinct denial of the grounds of liability which appear in their statement of claim, and in case of doubt the construction should be against the party making the affidavit. If time was of the essence of the contract between the parties, and the defendant was not bound to accept bricks not delivered within the time specified, he cannot now avail himself of that ground of defense. He removed the bricks delivered after time from the cars to his oavu yard. If they were not shipped in his name he was not liable for demurrage, and was under no duty or constraint in respect of them. If his allegation is true, the time to rescind the contract for this breach was before he had hauled the bricks to his own yard and thus placed the plaintiffs in a different position. The judgment is affirmed.

Opinion by Mr. Chief Justice Sterrett, This case appears to have been taken up under the new equity rules and heard on bill, answer and proofs. The learned court, doubtless after due consideration, made “ the following finding, viz : That the evidence does not show that the plaintiff is entitled to the relief prayed for in his bill to wit; an account.” This remarkably brief finding of facts from the pleadings and the testimony, covering over seventy-five printed pages, is followed by the decree dismissing the bill with costs, etc. It is vei'y evident that there has been no such finding of facts and entry thereof on the record, in this case, as correct equity practice requires. It is always desirable that the trial court’s findings of fact and conclusions of law should be as briefly and concisely stated as is reasonably practicable and consistent with a clear and precise presentation, of .the facts and principles of law on which the decree is based. But .anything short of that, and akin to the so-called finding in this case, would be of very little, if any, assistance to an appellate court. The latter would be obliged to take up the case, — pleadings and testimony entire,— and after a careful consideration of the same in detail, find the facts for itself and draw its own conclusions independently of the action of the trial court. It would also have the effect of depriving the parties of an opportunity of excepting to findings of fact of which the decree may be partly if not wholly predicated. The so-called finding, in this case, that the plaintiff is not entitled to an account, is a conclusion of law rather than a finding of fact. It is, moreover, a conclusion drawn from facts which were doubtless found by the trial court but not put upon the record, and therefore not reviewable here. To sanction such an innovation on time honored equity practice would be a departure which we are not prepared to take. It follows from what has been said that the record is not in proper condition for review here, and must therefore be sent back for an adequate statement of the findings of fact upon which the decree is based. We purposely'abstain from any expression of opinion on the merits of the case. Decree reversed with costs to abide the final determination of the case, and record remitted for further proceedings in accordance with this opinion.

•Mr. Justice Gordon delivered the opinion of the court, This case was as well tried in the court as it could be ; the counsel for the defendant omitted nothing that he ought to have done, and the failure was not for the want of any skill or ability on his part, but because of the desperate character of the case. The joinder of the two counts of murder and manslaughter in the indictment was not the subject of successful objection, hence exception to it in the court below would have been to no purpose. Ordinarily such joinder is useless, as the jury may convict of manslaughter on the count for murder, but where the object is to include a second offence under the 182d section of the Act of March, 1860, there may-well be a count for the minor offence. So,the complaint that the record of the previous coimction was set forth in the indictment, and offered in evidence on the trial, has nothing in it, for in this manner alone can the provisions of the statute be carried into effect: Rauch v. The Commonwealth, 28 P. F. S., 494. It is true, the exhibition, in this manner, of the defendant’s previous crime may have a very bad effect upon his character, but this result must be charged to his own default, and to the statute which looks" rather to the protection of the law-abiding community than to the welfare of the criminal class. Nor need we say that it was entirely proper for the defendant, through his counsel, to admit his identity as defendant in the former indictment. He was under no kind of constraint, and by this he improved rather than impaired his case. As well might it be said that a defendant ought not to bo called upon to admit his identity on arraignment; that he might not admit any fact during trial, or that he might not confess himself guilty of the whole charge laid against him in the indictment, by a plea to that effect. To make such admission and confession is the right of the defendant, and of it he cannot he deprived. Whether he will exercise a priviledge of this kind is not for the court, but for himself and his counsel to determine. The remaining exceptions have, if possible, less in them than the one of which we have just disposed, and the third assignment, the one which excepts to the court’s refusal to admit in evidence the dying declarations of Andrew Kane, the decedent, is that alone which, as we think, merits discussion. The testimony thus offered cannot be regarded as part of the res gestee, for these declarations were made neither at the lime nor place of the shooting, but some hours after, in the hospital. As therefore, they could not be regarded as part of the immediate transaction, to qualify them as admissible declarations, they must have been made under circumstances of such solemnity as to be equivalent to a judicial oath; that is, the declarant must have been impressed by a knowledge of his approaching death. But of this there was no proof offered. It was not made to appear, by Kane’s declarations or otherwise, that he had any sense of impending dissolution, and without such proof the proposed evidence was properly rejected. The judgment of the court below is now affirmed, and it is ordered that the record be remitted for execution.

Mr. Justice Paxson delivered the opinion of the court, There were two appeals in this case: one in the estate of Mary Frances Allen, and the other in the estate of William II. Allen. They do not require to be separately discussed. The only assignment of error pressed upon the argument was the third, which alleges that “ The court below erred in holding that on the death of Roland Curtin Allen his share of the fund passed to Ellen Honora Allen.” The contention grows out of the following clause'in the will of Mary Frances Allen : “I give, devise and bequeath to my husband, William Henry Alien, the interest, rents and profits of one third of the said residue of my estate during the continuance of his natural life ; and after the decease of m v said husband, I give, devise and bequeath tiie remainder of said third to my step-children, Roland Curtin Allen and Ellen Honora Alien, and in case of the decease of both of the said step-children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my daughter, Mary Quincy Allen, and to each and every other child which may hereafter be born of me, and to their issue; and in case of the decease of my said daughter and all of said children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my brothers, Samuel Quincy, Edward Gorham Quincy and George Hatch Quincy.” Roland Curtin Allen died intestate, unmarried and without issue after the death of the testatrix and during the lifetime of her husband, William II. Allen. Ellen Honora Allen intermarried with a Mr. Sheldon, and is still living. The view taken by the learned court below was that the testatrix did not intend her husband to have more than a life estate in the remainder thus given; that she did intend that her two step-children should take the principal of that part of her estate of which the income was given to their father, her husband, for life ; and that she did not intend her own child to take this share at all, unless at the death of the father, both of the step-children should be dead without leaving issue. In order to carry out this supposed intent, the court held that there was a limitation in the nature of a cross-remainder implied in favor of the step-daughter, so as to give her, at the death of the father, the whole. The true question is, whether under this will, the stepchildren took a vested interest. If they did, the ruling of the court below was error. Both sides agree upon the soundness of the rule laid down in Theobald on Wills, 573, in regard to cross-remainders. Mr. Theobald says: “ When the testator has disposed of his whole interest in realty or personalty; if, for instance, absolute vested interests have been given to several as tenants in common with a gift over upon the death of all in certain events, cross-limitations cannot be implied between them as there can be no intestacy, and cross-limitations would divest vested interests. If, however, the interests are not vested but contingent, with a gift over upon the death of all before the interests vest, the argument against an intestacy applies, and no argument can be raised against cross-limitations oil the ground that they would divest vested gifts, and therefore, in all probability cross-limitations would be implied.” Cross-remainders are sometimes implied to prevent intestacy. When, however, a vested interest is given, there is no intestacy, and the only effect of an implied remainder in such case would be to divest a vested interest. It is obvious upon an examination of the above rules laid down by Mr. Theobald, that when he speaks of “absolute vested interests” he does not mean estates, which, though vested, are liable to be subsequently divested by the happening of a contingent event. The question of cross-remainders arises only when the testator has given a limitation over for the purpose of divesting a vested interest, or perhaps to meet the case of a contingent remainder which has never vested. In this case the language of the will: “And after the decease of my said husband, I give, devise and bequeath the remainder of said third to my step-children,” clearly gave> a vested interest to the said step-children had it stopped there. Do the subsequent words: “and in case of the death of both of the said step-children without issue surviving them and me, I give, bequeath and devise the said remainder,” &c., convert the gift into a contingent remainder? We think not. It leaves the gift a vested interest subject to be divested upon a future contingency, which has never occurred, to wit, the death of both the step-children without leaving issue surviving them and the testator. The case of Skey v. Barnes, 3 Mer., 335, cited by Mr. Theobald, was considered by Mr. Jar-man as having finally settled the law on the subject. It was said by. the Master of the Rolls in that ease: “With respect to personal property, if a share once vests, though liable to be divested upon a contingencjs the question of reciprocal succession or survivorship can never arise. If the contingency happens, the share goes over; if the contingency does not happen the share remains vested and goes to representatives.” In the later case of Baxter v. Losli, 14 Beav., 612, there was a gift to certain persons for life, and after the decease of the life tenants to the use of and equally between G. and E. But in case it shall happen that the said G. and E. shall neither of them be living at the death of the survivor of the tenants for life, then I give and bequeath the same to F. Sir. John Romilly, Master of the Rolls, said in his opinion : “ I now come to consider the gift over which is, if neither be living at the death of the survivor of the tenants, for life. Scott v. Bargeman, 2 P. Wms., 68, is a direct authority, if any were wanted, for the court holding that this gift over can only take effect in case the event occur on which he directs the gift over to take effect. In this case that event is in case neither of them be living. This never happened, for one is still alive, and therefore the contingency on which the gift over was to take effect has not taken place, and there are no words to be found In the will by which E. (the survivor) can be held to take by implication.” In Scott v. Bargeman, cited in the foregoing opinion, and also relied upon by tlio Auditing Judge below, the interests were held to be contingent, and for that reason cross-remainders were implied. The principal criticism which has been made upon that case is that the interests should have been held to be vested, and not contingent. It does not appear, however, to conflict with the rule laid down bjr Mr. Theobald. Our own cases of Chew’s Appeal, 1 Wright, 23, and McKee’s Appeal, 15 Norris, 277, are believed to be in accord with the foregoing views. That the English cases are not all harmonious or consistent may be admitted, but the leaning of the later cases then as well as now, has been to favor the vesting of interests wherever there are reasonable grounds for such construction. The court below attached much weight to what they believed to be the intent of the testator, and their ruling was evidently designed to carry it into effect. If that intent had been clearly expressed it would govern this case. It is not, however, expressed at all, and is only a matter of inference. It is possible their view as to the testator’s intent may be the correct one, and that Mrs. Allen never intended her husband to have more than a life interest in this third of her estate. It is more probable, however, that the contingency of his inheriting from his children never occurred to her or the draftsman of the will. It often happens that by the death of persons to whom a vested interest has been given, the property passes to some_ one not contemplated by the testator. It may be so here, but the intent of the testatrix is not so evident as to override what we regard as the settled law as to the vesting of a bequest under the will. The decree is reversed in each estate at the costs of the appellees, and it is ordered that distribution be made in accordance with the views as expressed in this opinion.

Mr. Justice Green delivered the opinion of the court, The seventh section of the supplement to the charter of the city of Scranton (Act of 30th March, 1867, P. L., 630), provides “that the treasurer of said city shall be required to give bonds to the Commonwealth for all moneys received by him for the use of the Commonwealth, and shall settle his accounts with the Auditor General, as treasurers of counties are required to do.” It also provides that the mercantile appraiser appointed for the city, “shall receive the same fees for his services, and be paid in like manner as the appraiser appointed by the commissioners of Luzerne county are paid.” Under this law the treasurers of the city of Scranton are required to give bonds and settle their accounts with the Auditor General in the same manner as treasurers of counties are required to do, and the appraisers are to be paid in the same manner as county appraisers of Luzerne county are paid. P>y the 33d and 34th sections of the Act of 15th April, 1834, Purd., 306, pi. 8 and 9, county treasurers are required to give two bonds, one to the county conditioned for a just account of all moneys that may come into their hands on behalf of the county, and the other for the faithful discharge of all duties enjoined upon them by law on behalf of the Commonwealth, and for the payment of all moneys received by them for the use of the Commonwealth. In the present case, the city treasurer received the fees due the appraiser, as well as the license fee from the persons appraised, and the question is whether his obligation to pay the appraiser's fees over,arises under the bond given to the city, or under the bond given to the Commonwealth. That depends upon whether the duty to make such payment is a duty to the Commonwealth or to the city. By the 8th section of the Act of 16th April, 1845: Bright. Purd., 1458, pi. 14, the appraisers are required to fur nish to the treasurer of the proper city or county a certified list of the dealers, and the treasurer is required, within twenty days thereafter, to transmit to the Auditor General a copy of such list; and he is also required to “receive and collect, together with the fees of the appraiser, and his own fee, the sums to be paid by such dealers for their licenses in the manner directed by law.” Under this law it is very plain that the duty of the treasurer to collect, and therefore to account for the fees of the appraisers is a duly owing to the Commonwealth. This is made still more clear by the seventh section of the Act of 7th April, 1830, Purd., 1458, pi. 15, which provides that “it shall be the duty of the Auditor General to charge the treasurers of the said cities or counties with the amount payable by the several persons mentioned in said lists.” The 12th section of the Act of 22d April, 1846, extended the 5th, 6th, 7th and 8th sections of the Act of 16th April, 1845, which was originally confined to the counties of Philadelphia and Allegheny, to all the remaining counties of the Commonwealth, and fixed the compensation of appraisers at thirty-seven and a half cents for each certificate of license issued, and three cents for each mile travelled. It also directed an account of the mileage to be made out and verified by affidavit, and that upon approval by the treasurer, the same should be paid by the treasurer out of any state taxes in his hands. There is perhaps some doubt owing to the peculiar phraseology of the latter part of the section, whether the treasurer was to pay the appraiser’s fees as well as "his mileage out of state taxes in his hands, but it is not very material to settle the doubt, because the 1st section of the Act of 13th March, 1847, Purd., 1458, pi. 17, repeals so much of any law as requires payment from county treasurers of the costs of collecting mercantile taxes, and directs that they shall be paid out of the state treasury on the warrants of the Auditor. General. If the expression, “ costs of collecting,” includes the appraiser’s fees, then, of course, the Commonwealth is interested in their payment, aud if not, the law is left as it was before, in which event also the Commonwealth is interested, as we have seen. The 8th section of the Act of 15th April, 1850, Purd., 1458, pi. 18, directed that the mileage of appraisers should be paid by the state treasurer on the warrant of the Auditor General, and repealed so much of the 12th section of the Act of 22d April, 1846, as authorized county treasurers to pay it. It is not easy to see why this Act was passed, if the Act of 13th March, 1847, was limited to mileage, as in that event the Act of 1850 would be a mere repetition of the Act of 1847. But however that may be, and conceding that the Act of April 22d, 1846, § 12, is not clear in directing bow the appraiser’s fees shall be paid, we think it plain that the 7th section of the Act of April 7th, 1880, in connection with the 8th section of the Act of 16th April, 1845, makes the collection, adjustment and payment of the appraiser's fees a'Commonwealth matter. It is true this legislation does not direct the fees to be paid out of the state treasury, nor indeed does it, or any other legislation to which we are referred, direct them to be paid out of any treasury, but it does direct that the treasurer shall collect the appraiser’s fees, with the license fees, and shall transmit to the Auditor General a certified list of all dealers subject to the tax, and that the Auditor General shall charge the treasurers with the amounts payable by the persons mentioned in the lists. The duty of collecting the appraiser’s fees therefore is as much a Commonwealth duty as the duty of collecting the tax itself, and when collected the whole account is to be settled with the Auditor General, who is a state and not a county officer. Of course the appraiser’s fees belong to the appraiser, but the duty of paj-ing them is a duty enjoined by law in behalf of the Commonwealth, and this brings it within the very terms of the conditions of the bond required to be given by treasurers, both of cities and counties, to the Commonwealth. Whether these fees must be paid by the county or city treasurer to the state treasurer, and by him to the appraiser, or whether they may be paid directly by the city or county treasurer to the appraiser, it is not material in this case to decide, as there was no payment whatever of the amount now claimed, and there was an undoubted breach of condition in that respect. But as we are of opinion that the bond in suit was not the one whose condition was broken, there can be no recovery in this action. Judgment affirmed.

Mr. Justice Green delivered the opinion of the court, In this case no evidence was given of the record of the road or street in question, fixing its legal limits, and thus enabling the determination of the precise question whether the defendant had established an obstruction within those limits. Some attempt was made to show a given width of the street at the point of the alleged obstruction, but the evidence offered in support of the theory of a definite width was so imperfect, so contradictory and so much in hostility with equally credible and more precise testimony on the other side, that it cannot be accepted as satisfactory. The case was in fact' tried and adjudged in the court below, upon the theory of a dedication by a former owner, to public use, of that portion of the street upon which the appellant erected the fence complained of. The Master found that there was no dedication to public use, by Clark the former owner, but that he had merely set back his front fence, leaving some twenty-five or thirty feet of open space between the new fence and the road-bed, and that he had done this for his own convenience to provide standing room for wagons, etc. He further found that Clark used this open space for these purposes until the time of his death in 1860, and that therefore the appellant, the present owner of Clark’s title, had a right to restore the fence to its former position. If the Master’s finding is sustained by the testimony, of course the theory of dedication is at an end, and his conclusion recommending a dismissal of the bill must be sustained. The court below reversed the Master’s finding upon one exception without any opinion, without any review of the testimony and without showing that the Master’s finding of fact was incorrect. It is to be regretted in this and in all cases where the court reverses the Master upon findings of fact without reviewing the testimony, that eo opinion is filed pointing out the errors of the Master in his treatment of the facts. Such an opinion, besides being required by a just regard to the rights of the parties and to the character and dignity of the proceeding, greatly simplifies the work to be performed by this Court, by directing our attention to the very points of difference between the Master and the court in the conclusions respectively reached by them. In this case the court below simply said they could not agree with the Master and therefore sustained the fourth exception. That exception, however, only alleged that the. Master erred in deciding that a twenty-one years’ user on the part of the public, was not an absolute dedication to public use. But the Master made no such decision. What he found was that there was no dedication of the ground in question to public use, and on that question the court saj-s nothing. If there was no dedication to public use, the fact of such use jointly with the owner and by his mere sufferance, would not establish a right by dedication no matter how long it was continued. Dedication is a matter of intention, and when clearly proved is as complete in one day as in twenty-one years. Where there is no opposing proof, long continued use by tbe public is evidence of an intent to dedicate, but it is by no means conclusive and always yields to contrary proof of a satisfactory character. In Goddard’s Law of Easements, page 182, it is said, “ The intention to dedicate, however, ought to be clearly manifest in order to deprive a landowner of his own property” — citing numerous authorities. In the case of Gowen v. Phila. Exchange Co., 5 W. & S., 141, we held that a space left open in private property bordering on a highway, for the accommodation, not of the public, but of the owner, is not thereby dedicated to public use but may be resumed at pleasure. In Neill v. Gallagher, 31 Leg. Int., 388, we held that the mere setting back of a building from the line of the street is not a dedication of the intervening space to public use. These are judicial expressions upon the legal effect of the principal fact relied upon by the plaintiff in the present case, and they show its entire insufficiency, standing by itself, as proof of an act of dedication. Was there then testimony in the case upon which the Master was authorized to find that when Clark, the former owner, set back the fence he did so for his own convenience and not for the purpose of dedicating the ground left open on the front part of his lot to public use ? Myron J. Clark, a witness for the plaintiff, testified — “ In 1855 or 1856 there was a board fence further out than the picket fence which father built. Father took this fence down soon after he bought and built a picket fence. I think this picket fence is still there.......The barn was built inside of the old barn fence, and the board fence was turned in so as to get into the barn from the road. The picket fence was built further back so the turn or jog was less.” N. D. Riker, another witness for the plaintiff, says — “ I think the fence has' been moved back ten to twenty feet: remember the old fence in front of Clark’s and remember when it was taken away and the picket fence put up, but cannot tell when it was: my idea was the present picket fence is about where the old fence was.” Godfrey von Storch, a witness for the defendant, who had lived in the vicinity for fifty-seven years, and was acquainted with the place from his earliest recollection, says : “ There was an old house there called the Peter Bond house, after the name of the miller who had lived there. There are still marks of the house on the ground. There is still to be seen the cellar walls; the inside face of the wall is, 1 think, three feet and seven inches out in the street from the picket fence; from appearance, the wall is eighteen inches thick; this wall is in the centre of the path or sidewalk as now used; there is no sidewalk, just a path. This wall, inside face, is eight feet from the new fence; there was a fence in front of this house a good many years ago, but there has not been-for twenty-five or thirty years; as near as I can recollect, it was about six feet in front; when we built the barn, in 1858, there was no fence in front of the house; it had been turned so as to nail on to the house; the fence has been moved back twice within my recollection; I think in 1855, when Clark moved down, he took down post and board fence in front and put up a picket fence; Clark used the old house to store bran and stuff we did not have room for at the mill; the stuff was moved up with teams, wagons; the barn we built was some twenty feet from the house beyond the old house; it was set back into the field; afterwards he took the fence away and throwed it into the road; the next year or two he took the old house away and built a carriage house on the barn; he left room for wagons to stand outside on the road in front of the barn; he said be had land enough of his own, and moved 1ns fence back so as to leave room for his wagons to stand in front of the barn without being in the road; this space in front was used for wagons so long as I staid there, and it was so used for years afterwards as I passed there.” If the testimony of this witness was believed by the Master, it entirely destroys the theory of a dedication to public use of the ground in front of the picket fence, and fully proves that the old fence was set back entirely for the convenience of Clark, the owner. There is not only no reason to disbelieve it that we are aware of, but every reason to give it credence. In conjunction with the testimony of Clark and Riker above referred to, it clearly proves that there was an old fence standing out beyond the picket fence and in front of the buildings, which was set back to the picket fence, and in this respect disposes of much of the testimony of the witnesses for the plaintiff who never knew of the old fence. It gives the location of the old fence from marks on the ground as well as from memory, and, above all, it exhibits a clear and satisfactory reason for setting back the old fence to subserve the convenience of the owner, and proves the long use of the ground thus thrown open for that very purpose. No amount of negative evidence is any answer to such testimony. The witness is precise in his details, appears to be entirely disinterested, and nothing is alleged against his truthfulness. Moreover, his testimony is consistent with the natural probabilities of the case, and we think the Master was not only justified but required to accept and act upon it. But there was much corroborative evidence. Thus Aaron Mo- Donnell says: “I remember when Clark moved there, but do not remember the year; the old fence in front of Griffin’s stood out considerable nearer the road than the fence now there does ; do not remember when the picket fence was built nor by whom.” Uriah McDonnell, who lived close by, and know the place about forty-five years, said: “ I remember the Bond house; sparked one of the girls in it; there are marks on the ground where the house stood ; the foundation is there; from the inside of the wall to the picket fence is about four feet; I judge, from the best of my recollection, there was a fence in front of the old Bond house, may have been six or seven feet in front of it.”.....“ Clark used the space in front to keep his wagons at night; all the space in front of Griffin’s has not been used as a roadway; Clark used to keep his wagons in there; he used ten to eleven feet at one end and eighteen to twenty feet at the other for this purpose; he began to use this some twenty-one years ago — as much as that; 1 can’t give exact dates; this was when the fence was moved back; Mr. Clark used this up to the time of his death.” .... “ Clark had no shed in the open space ; he simply unhitched and left his wagons there; I think he had three wagons; winters and summers he used this space.” There was other testimony which it is not necessary to review, as it does not illustrate the material point of contention. Had not the Master’ conclusion been overruled we should not have felt called upon qo make such extended quotations from the evidence. To us it is manifest that he was fully justified in his findings, and we therefore sustain them. The decree of the court below is reversed, and the bill is dismissed at the cost of the plaintiff, including the costs of this appeal.

Mr. Justice Paxson delivered the opinion of die court, The defendant below was sued for breach of official duty as prothonotary in not properly entering a judgment, by means whereof its lien was postponed and the plaintiff suffered a loss. The defendant pleaded the general issue and the Statute of Limitations. To meet the plea of the statute the plaintiff called a witness, who testified as follows: “ After I discovered that there was no judgment in favor of Hannah Levan against Enoch Rohrbach, but there was one against Enoch Rothenberger, which I knew from the number to be meant as the one against Rohrbach, I went to see Air. Armstrong in reference to the matter. I said to him that he had made this mistake, or if not he, his clerk, and that unless this matter was fixed up, I would be obliged to sue. He then made the remark that he would have to see his lawyer first, Mr. Reber. On the afternoon of the same day, I think it was, he came to my office, alone that time, and he said that I should see Mr. Reber; and I said to him again what I said in the morning in reference to suing. He said that I should not sue; that if Airs. Levan suffered any loss by reason of this mistake, he would make it good to her; that she should not lose anything through his mistake. That was in the spring of 1879, I think during the first days of April.” The court below held that this evidence, if believed by the jury, was sufficient to bar the running of the statute; and that the six years would only commence to run from the date of such promise. The plaintiff in error has given us an elaborate argument to show that a promise to pay after the statute has run, will not revive a tort, and has cited numerous authorities in support of 1 his proposition. We concede his law to be sound ; his authorities fully sustain his point. The difficulty in his way is they do not meet his ease. It was not the question of the revival of a tort by a promise to pay made after six years. The conversation referred to occurred before the statute had run, and it was a distinct promise to pay in consideration that the plaintiff below would not sue. If, therefore, she relied upon this promise^ if she was thereby lulled into security, and thus allowed the six years to go by before she commenced her suit, with what grace can the defendant now set up the statute? The promise operated not to revive a dead tort, but as by way of estoppel. It has all the .elements of an estoppel.. The plaintiff relied and acted upon it; she has been misled to her injury; but for the defendant’s promise she would have commenced her action before the six years had expired. We think the learned judge below was right in holding that the six years would only commence to run from the date of the promise. The defendant’s fourth point called upon the court to instruct the jury that under the pleadings and the evidence in this case the verdict should be for the defendant. This the court declined to do. It was urged in support of this point that the record testimony established the fact that the plaintiff’s judgment was properly entered in the judgment docket although erroneously indexed in the judgment index; and that the subsequent Singmaster judgment, therefore, acquired no prior lien, notwithstanding the finding and decision of the Auditor. This is to ask us to overrule the Auditor and court below upon the question of distribution, arising in another and distinct proceeding. We find no trace in this record that any such question was made in the court below. The learned judge makes no reference to it, and no such specific point was put to the court. That question has been settled by a court of competent jurisdiction, and it shows that the plaintiff has lost a portion of her money by reason of the defendant’s mistake. This is sufficient to entitle her to recover. Judgment affirmed. Mercur, C. J., and Gordon, J., dissented.

Mr. Justice Clark delivered the opinion of the court, This action is brought to recover damages for the breach of an alleged, contract to devise real estate. George Terry in the year 1869 owned, and resided upon, the land in question ; he was about seventy-one years of age, physically infirm, and therefore unable to carry on the work at the farm. His son, Eben G. Terry, who was twenty-nine years of age and married, ’ had from childhood lived, with him, and for years had worked the farm for him. It is claimed by the plaintiff that in the year 1869, the old man agreed with Eben to devise to him a particular portion of the land in consideration that Eben would maintain and care for him and his wife, as long as they should each live. The first and leading question in the cause is, whether or not the evidence submitted was sufficient to establish the contract alleged. The law is well settled, that between parent and child, there can be no recovery for services or maintenance, unless upon proof of an express contract.to pay therefor ; and to establish such a contract requires the production of direct, clear and positive evidence. This rule is especially applicable to the case of a son who has never left his father’s family to do business on his own account, but remains with him after majority as before. When, however, services are rendered by a son to his father upon an alleged parol contract of the father to convey lands to the son, even a stronger degree of proof is required; to establish such a contract the evidence must not only be direct, positive, express, and unambiguous, but the contracting parties must be brought face to face, the witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence; a contract is not to be inferred from the declarations of one of the parties only, every presumption is against the claimant in such a case: Ackerman v. Fisher, 7 P. F. S., 457; Edwards v. Morgan, 4 Out., 330; Miller’s Appeal, Id., 568. And the same measure of proof requisite to establish a parol agreement between father and son, to convey land in consideration of services rendered, is required to establish a parol agreement of the father, to compensate the service of his son, by a devise of lands; the latter being in effect but an agreement to convey by will instead of deed. A contract to devise, may in some instances be enforced by decree for specific execution : Brinker v. Brinker, 7 Barr, 53; or it may furnish ground for an action, in case of a breach, and the damages will be computed according to the same measure, as if the action were for breach of a contract to convey. The same policy of the law which demands the application of the rule in the case of a parol contract to convey, would seem to demand its application in the enforcement of a parol contract to devise. That the law has heretofore been so understood, appears from the language of tins court in Miller’s Appeal, supra, where Mr. Justice Trunkey, in defining the degree of proof necessary to establish a promise by a parent, to pay for the service-of his child, says: “The degree of proof to establish it, cannot be the same in all cases ; nor is the contract for the payment of money for services, or goods, subject to the same rules, respecting its proof, as are applied to oral contracts for the conveyance or devise of land by a.father to his son,” &c. In the case at bar, the evidence fails to disclose any express or positive contract, the contracting parties are, at no time, brought face to face ; no witness heard the bargain made, or at any time heard either party repeat it in presence of the other. A will was written it is true, but there is no evidence that Eben ever saw it, or knew of its execution, or that the father and the son had ever agreed upon its terms, or assumed the obligations therein written. The will was, of course, ambulatory; its provisions were liable to change at the mere pleasure of the testator, unless by contract he had obligated himself otherwise. The contract is therefore not proven by the will, its execution at the time was a fact of a corroboratory character merely, bearing upon the question of the existence of the contract; but it does not establish it. If the contract to devise had been plainly proved, as an independent fact, a will shown to have been written, in compliance with if, might perhaps have been resorted to, to declare its particular provisions, define boundaries, &c., but the devise alone was not sufficient evidence of a contract to devise ; if produced in evidence it certaiuly would be entitled to have no more weight than would any other deliberate admission of the testator. Trior to the execution of this will the testator had consulted with his nephew, Major Uriah Terry, in reference to what arrangement he should make of his property. Uriah Terry says: “ He first came to me in 1889 with a deed to witness, and I refused to do it, and I told him he didn’t know in whose hands he might fall, and to keep the property in his own name while he lived. 1 would not witness the deed. He did not execute it. The property at first had been divided, east and west, to make it equal between the two oldest sons; he was going to deed it east and west. Well, he came to me and told me what he proposed doing. That he was going to give Eben the centre of farm, and give Jonathan the east side of the road as we pass down the river, and fifty acres on the back end of the farm, and the balance of the property to Eben. Eben was to take care of him and his wife during their lives, and provide for them and take all the care and everything of it, and then he was to have the property.” The witnesses to the will state, in substance, that they were called upon in 1869 to attest its execution. The old man read the will in their hearing. Eben, according to its provisions, was, at the death of his father, to have the farm on the west side of the road, excepting the fifty acres on the back end of the farm, and was to support his father and mother as long as they lived. After the execution of the will, and until the time of his death, Eben carried on the work of the farm, as he had done before, his father taking no' apparent control or management in its affairs. He built a barn worth from $750 to $1,000, taking part of the material from the land; he had the land assessed in his own name and paid the taxes; he ditched the land and otherwise improved it; he supported and cared for his father and mother; gave them credit at the store, and paid the bills. On the next Sunday after Eben’s death, in August, 1875, Uriah Terry was helping the father, George Terry, to turn Eben’s cattle into the fiefd; “ The old man,” says Uriah, “ was very much affected, and he said, I have got to be an old worn out man, and I don’t know what I shall do. I want to do justice between all my grandchildren, and what disposition to make I don’t know.’ He talked about it, and said, ‘if they were old enough to carry out the provisions I made with their father.....’ And I said, perhaps the administrator would do it; ’ and so he talked about it in that way, and let it drop.” “He said then, I never expected to have any of this thing come into my hands again, Eben was to do all these things, and he did it to my satisfaction,’ and he cried considerably.” This is the substance of the testimony relied upon to prove the contract. From such facts and circumstances, in a case where the relation of parent and child did not exist, we might readily infer a contract, in'accordance with the provisions of the will; but the existence of any such contract can only be inferred, it is not directly proven. At no time have the contracting parties been brought face to face, in the creation of a contract or in the rehearsal of it, in the presence of a witness. The admissions on the one side are of the father only, in the absence of the son; whilst the acts of the son, on the other, furnish evidence of a circumstantial character only. The care and improvement of the farm, the building of the barn, and the exercise of exclusive control, may all be attributed to the intimate relation and condition of the parties; and the kind and generous support furnished to the parents, to the natural affection and dutiful care of the son. For anything that is shown, Eben G. Terry at any time might have removed from the place, leaving his father to shift for himself without rendering himself liable for so doing. He has said nothing, has done nothing, which could be construed into a contract to support his father and mother, beyond the period of his pleasure. After a careful investigation of the whole case, we are of opinion that the evidence of the contract alleged is not of that direct, positive, express, and unambiguous character, which justified a submission to the jury. Such claims are so often made against the estate of decedents, and, under the ordinary rules of evidence, are so easily proven, that they must be examined with the closest scrutiny. “The danger attendant upon the assertion of such claims requires,” as was said by Chief Justice GlBSON, in reference to a somewhat similar contract, that “a tight rein should be held over them, by malting the quality, if not the sum, of the proof a subject of inspection and governance by the court, and by holding juries strictly to the rule prescribed.” The view which we have taken of this branch of the case, renders it unnecessary, we think, to consider the other errors assigned. The judgment is reversed. Chief Justice Merctjr dissented.

Mr. Justice Gordon delivered the opinion of the Court, On the 11th of August, 1856, John Manderbach sold to the Lebanon Valley Railroad Company a perpetual right, for the use of the railroad only, to take water from a spring on his land, and for that purpose to lay a three-inch pipe from the railroad to said spring, either on the property of the grantor, or on that of John Sheetz, an adjoining land owner. After-' wards, on the 1st of September, 1859, Manderbach granted to Sheetz the right ’ to use the water from said spring by attaching, on his own land, a two-inch pipe to the railroad company’s pipe, and for this privilege he agreed to pay the sum of five dollars a year for each house that he might thus supply with water. John Manderbach died intestate; the defendant below was appointed administrator of his estate, and he, said defendant, afterwards by purchase became possessed of the land upon which the spring above mentioned was situated, and in turn sold it to the Bethany Orphans’ Home. As there were in this conveyance no reservations except such as related to a water right distinct from the rights above stated, the grantee, of course, took not only the land but all the appurtenances not reserved. But as rent issues out of land it is incident to the reversion, and the right to demand it necessarily attaches to the ownership. Hence, in Streaper v. Fisher, 1 Rawle, 154, a sheriff’s sale of a lot of ground was held to pass also a rent charge. It is urged, however, that this is not in the nature of a rent, but is rather a personal right belonging to the estate of the grantor. But, in answer to this, it ma]’ well be contended that the covenant to supply Sheetz’s pipe was undoubtedly one running with the land; by it the land was made perpetually servient to this right, and the plaintiff took it subject to the burthen thus imposed upon it by the grantor. Nor do I see how the fact that the Sheetz pipe tapped that of the railroad company on lands not of said grantor can make any difference. The water nevertheless comes from the Manderbach property, and for a disturbance of it such as would interfere with Sheetz’s rights an action would lie. Thus the servitude upon the land continues as it was when first created, and whether Sheetz was to be supplied with water through his own pipes or those of the railroad company can made no difference. Indeed, the right of Sheetz to use the railroad pipes makes them, so far as the use intended is concerned, as much his own as though he had laid them in place. Should the company abandon them, Sheetz is still entitled to their use, and he may at any time enter upon the servient land for the purpose of repairing or relaying the pipes. All this follows as incident to his grant, and his rights cannot be destroyed either by the neglect or abandonment of the railroad company. Here then, is a right charged upon the land of the plaintiff; a right to which his land is servient, and in consideration of which Sheetz is obliged to pay an annual compensation. This compensation is, therefore, a profit issuing yearly out of lands; a rent, reditus to the landlord for their annual use, and as such it passed by the conveyance of H. H. Manderbach to the plaintiff. The judgment is affirmed.

Mr. Justice Gordon delivered the opinion of the court, Jaman H. Phelps, the plaintiff below, and W. W. Winton were, on the 31st of May, 1867, the owners of about twenty acres of land in the city of Scranton, which on that day, by articles of agreement, they contracted to sell to one Patrick MacDonald, for the consideration of $500. On this contract MacDonald [(aid $60, took possession of the land, and built thereon a small house. On the 21st of October of the same year, he assigned to Sarah A. Wonder, wife of Jeremiah Wonder, and mother of John L., the defendants; the consideration for this assignment was paid in full by the said Sarah A., and she in turn, with her husband and son, assumed possession, which they have continued down to the present time. Some payments were made by Mrs. Wonder on account of the purchase money, and some improvements were made upon the property by her husband. Afterwards there was an assignment of the articles of agreement, above recited, by Wonder and wife to Phelps. This assignment, as will appear hereafter, was void for the want of a proper acknowledgment on her part. Phelps executed a now contract to Wonder in which tlie purchase money is set forth as $2,300, though in fact there is in this sum some $1,900 of other indebtedness. Again, and after the transaction above recited, Jeremiah Wonder, at the instance of the plaintiff, assigned to his son, John L., who, in turn, assigned to Phelps and. Winton, and on the same day Phelps, who had in tlie meantime secured Winton’s interest, made a contract with John L. for the sale of the premises in consideration of $3,062, to be paid in instalments as therein set forth. This sum also embraced an indebtedness over and above the purchase money for the land. The transaction would thus seem rather to assume the character of a mortgage of the equitable interest in this property than a salo, and tlie process in hand might be regarded as one to enforce payment of that obligation rather than to collect purchase money. On this last contract the pending action was brought, and on the 8th day of December, 1867, the case was referred, under the provisions of the Act of 1869, to a Referee, who reported a judgment for the plaintiff, to be released on payment by tlie defendants of the sum of $4,570.12, with interest, within four months from the date of the rendition of the said judgment. We will not now stop to consider whether this judgment, under the circumstances above stated, can be sustained, but will pass to certain findings of the Referee which of themselves' will determine this case. These findings are as follows: (1.) “The assignment by Patrick MacDonald to Sarah A. Wonder, of his equitable title in the land-described in the writ, vested that title in her as against her husband and as against the subsequent creditors of her husband not then in contemplation by him, even though he furnished her the purchase money.” (2.) “ The writing of the 5th of January, 1870, indorsed upon the MacDonald contract, and purporting to be an assignment .to plaintiff of all the title and interest of Sarah A. Wonder and her husband in said land and improvements thereon, was null and void as to her, for the reason that the certificate of acknowledgment does not set forth that she was examined separate and apart from her husband.” (3.) “The said Sarah is not estopped by her acquiescence in the subsequent sale of the same property by plaintiff to her husband, from setting up her equitable title.” (4.) “ The improvements made by Jeremiah before he acquired any interest in the premises inured to the benefit of his wife, whose rights are not concluded by this ejectment.” We hesitate not to say that the legal conclusions here announced are sound, and we have no difficulty in adopting them, but it is not so with the fifth finding, since in this he holds that the defendants must comply with the John L. Wonder contract by paying what is therein set forth as purchase money, or surrender the possession of the premises. This entirely ignores the title and possession of Mrs. Wonder, under which it was not only the right but also the duty of her husband to defend. The case of Johnson v. Fullerton, 8 Wr., 466, rules the contention in hand. It was there held that a writ of habere facias possessionem, issued from a judgment in ejectment against a husband cannot affect the wife’s title, but only her possession, and that, in order to preserve that possession the husband ought to have defended on his wife’s title, and that he may interpose such title in an action of ejectment brought by a purchaser at a sheriff’s sale on a vend. ex. against hfinself, is also recognized in the case of Curry v. Bott, 3 P. F. S., 400. It is thus made clear that it was entirety proper for Wonder to set up his wife’s title in order to protect her possession, and that a disregard of this title by the Referee was ¡erroneous. As the conclusion here reached covers this cabe, and must necessarily reverse it radically, we need not consider the other exceptions. The| judgment is reversed.

COLINS, President Judge. Yorktowne Mutual Insurance Company (Yorktowne) petitions for review of the January 9, 1995 decision of the Insurance Commissioner, which found that Yorktowne violated Section 5(a)(9) of the Unfair Insurance Practices Act (Act) when it cancelled the homeowner’s insurance policy of its insured, John Lovelace. We affirm. By Notice of Cancellation dated February 21, 1992, Yorktowne cancelled Lovelace’s homeowner’s insurance policy effective March 23, 1992. As the reason for the cancellation, Yorktowne cited a substantial increase in the hazards insured against caused by willful or negligent acts or omissions by the insured as evidenced by the insured’s not repairing the poor physical condition of the sidewalks and injury to two persons. Lovelace appealed to the Insurance Department, which upheld the cancellation. Lovelace then requested a formal administrative hearing. At a hearing held in July 1992, Yorktowne presented evidence that it complied with the Act in cancelling Lovelace’s policy. York-towne submitted evidence that a loss prevention inspection of Lovelace’s property in June 1991, approximately six months after the homeowner’s policy was issued, revealed that the sidewalks at the Lovelace property were broken, cracked, and uneven. Yorktowne notified the servicing agency, Watt Insurance, which twice communicated Yorktowne’s request that Lovelace repair the sidewalks. In November 1991, the Watt agency notified Yorktowne that Lovelace agreed to repair the sidewalk in the spring of 1992. York-towne later received two claims for injuries caused by falls on the sidewalk in November and December of 1991. Yorktowne’s executive vice-president in charge of the underwriting department testified that the claims resulting from the two falls prompted the cancellation. Lovelace did not attend the administrative hearing, but in his request for administrative hearing, Lovelace noted that he had been a resident for only one year and that the sidewalk had been neglected for over 15 years. Yorktowne’s vice-president testified that the June 1991 inspection was the first inspection of the property and that the company had no information as to the condition of the sidewalk when the policy was written. The Insurance Commissioner concluded that Yorktowne had not met its burden of proving an increase in hazards caused by willful or negligent acts of the insured. The Commissioner noted that Yorktowne produced no evidence of a change in the condition of the sidewalks after the policy went into effect and that evidence of injury claims and violations of the borough code were immaterial to that issue. Our review of the orders of the Commissioner is limited to determining whether findings of fact are supported by substantial evidence, whether errors of law were committed, and whether constitutional rights were violated. Erie Insurance Exchange v. Insurance Department, 129 Pa.Commonwealth Ct. 120, 564 A.2d 1312 (1989). The Act prohibits persons engaged in the business of insurance from engaging in unfair or deceptive acts or practices, which include, in pertinent part, Cancelling any policy of insurance covering owner-occupied private residential properties or personal property of individuals that has been in force for sixty days or more or refusing to renew any such policy unless ... there is a substantial increase in hazards insured against by reason of wilful or negligent acts or omissions by the insured; .... 40 P.S. § 1171.5(a)(9). In applying this subsection, this Court has reasoned that the phrase “increase in hazard” has a peculiar and appropriate meaning denoting an alteration or change in the condition of the property that tends to increase the risk. J.C. Penney Casualty Insurance Company v. Department of Insurance, 43 Pa.Commonwealth Ct. 360, 402 A.2d 558 (1979). The risk assumed by the insurer is not increased by the mere continuation of the conditions and uses existing at the time the policy was issued. Id. The record in this case contains no evidence of a change in the condition of the sidewalk during the time the policy was in effect. The record does tend to indicate that the sidewalk condition of disrepair existed long before. Because Yorktowne failed to establish any increase in the hazards insured against, we affirm the Commissioner’s order. ORDER AND NOW, this 7th day of August, 1995, the order of the Insurance Commissioner in the above-captioned matter is affirmed. . Act of July 22, 1974, P.L. 589, No. 205, as amended, 40 P.S. § 1171.5(a)(9).

Opinion by Mr. Justice McCollum, The injury which led to this action was received by the plaintiff while she was in the act of alighting from the defendant company’s car at Tamaqua on the evening of the 22d of August, 1890. It appears that she fell between the steps of the car and the platform, and sprained her ankle so that for several weeks she was unable to walk without the aid of a crutch or cane. After she had substantially recovered from ■the effects of her fall it seems she thought the company ought to compensate her for it on the theoiy or ground that her fall was attributable to its unassisted negligence. Of course the mere fact that she fell and was injured furnished no.support to the charge of negligence. In the prosecution of her suit it devolved on her to show wherein the company was negligent, and the connection of its negligence with the injury to herself. ■ The learned court below concluded, upon a careful consideration of the evidence she submitted to sustain her claim, that she had failed to present a case for. the jury, and accordingly entered a compulsory nonsuit. From the refusal to set aside the nonsuit this appeal was taken. Was there any error in this refusal ? In answering this question we must not overlook the absence of any evidence or claim of any defect in the platform provided by the company for the reception of its passengers on their retirement from its trains, or of any fault in the construction or arrangement of the steps of its cars. As we understand the theory of the plaintiff in respect to negligence it involves two propositions, (1) there was too much space between the steps and the platform, and (2) the latter was insufficiently lighted. In reference to the first proposition, we note that there is no claim or pretence in the evidence or elsewhere upon the record that the space between the step and the platform was greater on the night of the accident than at any former time, or that it has been reduced since. The plaintiff therefore could easily have shown, if she had desired to do so, the exact distance or space between them by actual measurement. For evidence of this character, easily and readily attainable, the mere guess of a single witness, who by his own confession could not tell the width of the space and never gave any thought to the subject, is not a decent substitute. It is absolutely worthless. The evidence showed that the platform was lighted. There was an electric light upon it from fifty to one hundred feet from the point where the plaintiff fell. That she did not notice it does not overcome the clear evidence that it was there, or convict the company of a neglect of its duty to its passengers. It does not appear that any one complained or suggested before the accident or at the time of it that the platform was insufficiently lighted. It requires more than a scintilla of evidénce to establish negligence, and that cannot be found in this case in support of either proposition relied on by the plaintiff. The specifications of error are overruled and the judgment is affirmed.

Opinion by Mr. Justice Fell, This action was to recover damages for injuries caused to the-plaintiff by being thrown from a carriage in which she was riding on one of the public roads of Foster township. Late on a dark night in company with another woman, who was driving, she attempted - to cross a bridge twenty-three feet long, less than twelve feet wide, and six feet above the surface of the stream that it spanned. The approaches to the bridge were by earth embankments of considerable length and gradually rising above the level of the road. These approaches had no guard rails, and it was in dispute whether there were any on the bridge. The carriage was driven either over the side of the bridge or over the side of the embankment by which they approached it, and so near the bridge that the occupants were thrown into the creek. The night was very dark and stormy, and neither the bridge nor the embankment could'be distinctly seen.o No exception was taken to the charge, and the assignments of error all relate to answers to points submitted. The affirmance of the first of these raises the only doubt which appears in the case. The point is : “ It is the duty of Foster township to keep all bridges and dangerous approaches thereto on her public roads so guarded as to protect travelers in passing over them, and failure on her part in this respect is negligence, and for injury resulting therefrom, without proof of concurrent negligence on the part of the plaintiff, the township is liable. ” As a statement of the law this is not accurate. It was not the duty of the township to keep all bridges so guarded as to protect travelers, unless we are to assume that a bridge is necessarily dangerous. As applied to the facts of this case, and in connection with the answer to the defendant’s first point and the statement of the law in the general charge, this answer could do the defendant no harm. It was the duty of the township to keep all places of manifest danger properly guarded, and to maintain the roads in a reasonably safe condition, and the measure of this duty must be determined by the circumstances of the particular case. In the charge of the learned judge it was left to the jury to find whether there was negligence in not placing guard rails on the bridge, or in not replacing them if they had been removed, and they were told that there was no fixed duty which required their erection and maintenance on this bridge. The instruction upon this subject was full and accurate, and we - assume that the scope of the language of the point was overlooked. The case was tried upon this point within the rule as laid down in Plymouth Township v. Graver, 125 Pa. 82, and we think properly tiled. The other assignments of érror were not pressed upon the argument, and could not be sustained. The negligence of the driver, if there was any, could not be imputed to the plaintiff, and the case could not have been properly withdrawn from the jury. The judgment is affirmed.

Opinion bk Mb. Justice McCollum, This is an appeal from the refusal of the court below to set aside a compulsory nonsuit in an action on a policy of insurance. The action was brought to recover compensation for the loss the plaintiff sustained in the death of his horse in a stable in Philadelphia, from an injury received there, and the nonsuit was entered on the ground that by removing his horse from Jenkintown, where the insurance was effected, to the place where the injury was received and the death occurred, he forfeited his right to the indemnity guaranteed by the policy. Two questions are raised by the appeal. They are (1) whether there was a forfeiture, and (2) if there was, whether there was evidence of a waiver of it by the company. The first question turns on the construction of section 14 of the by-laws which is as follows: “ The insurance of this company shall be confined to a distance not exceeding twelve miles from the borough of Hatboro.” The learned judge of the court below construed this by-law to mean that the property must be kept within the distance limit to' entitle the insured to indemnity in case of loss, and he cited 95 American Decisions, 751; Wood on Ins., sec. 47; London Ins. Co. v. Lycoming Ins. Co., 105 Pa. 424, and Insurance Association v. Evans, 102 Pa. 281, as in accord with and supporting his construction. In all the- cases cited except in Ins. Co. v. Evans, supra, the location of the property was desigmated in the policy. In some of them the designation of the location of it was held to be merely descriptive; in others it was regarded as consti tuting a continuing warranty that tile location of the property should not be changed. This seeming inconsistency in the decisions is due to the fact that the question whether the designation in the policy of the location of the propertyis descriptive only or a warranty that it shall not be removed, depends to some extent on the nature and uses .of it. In Ins. Association v. Evans, as in this case, there was ho statement in the policy in respect to the location of the property. In that case the insured lived in the district to which the business of the association was confined. On the 28d of April, 1879, he obtained from the association a policy of insurance on his two horses then within the charter limit. On the 2d of May, 1880, he took them to Philadelphia for the purpose of selling them, and in pursuance of this purpose he left them there in a livery and sale stable until the 25th of June, when one of them died. In a suit for the loss it was contended by the insurer that the policy was forfeited by the action of the insured in removing the horses to Philadelphia and keeping them there for the purpose-above stated, but it was held that, in the absence of any prohibition in the contract, such action did not forfeit it, or prevent a recovery upon it. We think therefore that Insurance. Association v. Evans does not sustain the defendant company’s contention in this case. It did not decide that the horses were temporarily in Philadelphia for a purpose necessary or incident to the ordinary use and enjoyment of them, or that the provisions in the charter restricting the business of the association to the counties of Chester, Montgomery and Berks would have avoided the policy if the insured had moved to Philadelphia and kept his horses there. It simply determined that- upon the facts appearing in the case there was no violation or forfeiture of the contract. We have made particular reference to the decision in Ins. Association v. Evans because the by-law limit in this case is of the same nature as the charter limit in that. We have then to decide as an original question, whether the plaintiff, in moving to Philadelphia and taking his horse with him, violated sec. 14 of the bj^-laws and thereby forfeited his policy. It is by no means clear that he did so. There is, at least, room for doubt whether the by-law was intended to, prohibit such removal of the property or to attach such consequences to it, and, as forfeitures are not favorites of the law, the doubt should be resolved against the insurer. We think the by-law in question fairly admits of a construction which prevents a forfeiture. There need be and should be no ambiguity in a contract of insurance. The prohibitions and conditions in it are prepared and inserted by the insurer, and they ought to be clearly expressed. In the case at bar if the defendant company had intended that a removal of the property beyond the twelve mile limit should avoid its policy, it could easily have said so and saved litigation. The specifications of error are sustained. Judgment reversed and procedendo awarded.

Opinion by Mb. Chief Justice Stebbett, This appeal is from the refusal to grant a preliminary in.~ junction restraining defendants from violating the building restriction contained in the deed, hereinafter referred to, under which they derive title. So far as they are material to the question involved in this ■contention, the facts are sufficiently stated in the bill. In 1830, Mrs. Elizabeth B. Sergeant owned three adjoining lots, ■each fronting twenty feet and four inches on the west side of North Ninth street, Philadelphia, and extending bach, preserving same width, about one hundred and sixteen feet, now numbered respectively 252, 254 and 256, on which it is alleged that three houses were then about being erected. On December 21 of that year, by three separate deeds, of same date, Mrs. 'Sergeant conveyed said lots to different persons reserving a ground.rent. Each deed was therefore signed and sealed by ■the purchaser. In each, the description of the lot conveyed referred to the adjoining lot or lots as “intended to.be this day ■granted, by the said Elizabeth B. Sergeant, to ” the purchaser of such adjoining lot. The middle or central lot, now owned by the defendants and numbered 254, was thus conveyed to William G. Hough, who signed and sealed the deed therefor. That deed contains, at the end thereof but above his signature ■and seal, the following clause: “ It is further understood, ■conditioned and agreed by and between the said parties hereto that the said William G. Hough, his heirs and assigns, shall not nor will at any time hereafter erect or build on the said hereby granted lot any building or part of a building further westward than thirty-seven feet from the line of Ninth street, ■except.a privy and bath-house not exceeding six feet in depth and sixteen feet in height, from the lower floor of the house, now erecting on the said lot, to the eave of said, bath-house.” By deed of same date, as above stated, lot No. 252, now belonging to plaintiff, was conveyed by same grantor. In that deed no reference, in express terms, is made to said building restriction, but the lot conveyed is described, in part, as bounded, “ Northward partly by a lot of ground intended to be this day granted by the said Elizabeth B. Sergeant to William G. Hough on ground rent.” In like manner, her deed to Mr. Hough describes the lot conveyed to him as bounded on the south by property intended to be granted to David R. Knight, through whom plaintiff derives her title. By similar deed of same date, lot No. 256 was eonvejmd to John C. Davis. These three deeds, all of same date, were duly recorded, etc. It is conceded by defendants that they have commenced and intend to erect an addition to their front building which will extend further westward than thirty-seven feet from the line of Ninth street; but they deny that their lot is subject to any building restriction in favor of plaintiff’s lot. On the other hand, it is claimed by plaintiff that the building restriction above quoted is in the nature of a covenant running with the land, and was intended to create and did create an easement of light and air in favor of her lot as well as the lot adjoining that of the defendants on the north, the observance of which, as to her own lot, she has a right to enforce. Considered in the light of the undisputed facts and giving to the words employed their ordinary and proper meaning, we are- unable to see that the clause in question is susceptible of any other reasonable construction. It cannot be successfully contended that the restriction was intended to be merely personal or .temporary, such as during the lifetime or the ownership of Mr. Hough, the grantee of Mrs. Sergeant. No warrant for any such construction can be found in the language employed. The words of. the covenant are that “the said William G. Hough, his heirs and assigns, shall not nor will, at any time hereafter, erect,” etc. In principle the case does not essentially differ from Clark v. Martin, 49 Pa. 289, and St. Andrew’s Church’s Ap., 67 Pa. 512, and is ruled thereby. On the case, as presented, we think the learned court erred in denying the motion for a preliminary injunction. Decree reversed with costs to be paid by defendants, and it is ordered that upon plaintiff giving bond in such sum as may be fixed by the court below; a preliminary injunction, as prayed for, be issued.

Opinion by Mb. Justice McCollum, It appears to the writer that McCormick was the real as well as the apparent owner of the tobacco when he agreed with the defendants to sell and deliver it to them. It was raised on his farm, under an arrangement with Fowler and the Doreys which he described on the. trial as follows : “ They received the half for planting it and working it, and taking care of it and packing it.” Surely this arrangement did not make the parties to it tenants in common of the tobacco or partners in raising it, nor establish between them the relation of landlord and tenant. Fowler and the Doreys were employees of McCormick in raising the tobacco, and were to receive one half of it as compensation for their labor. They were croppers, and as such they acquired no property in the tobacco before it was divided: Fry v. Jones, 2 Rawle, 11; Adams v. McKesson, 53 Pa. 81; Steel v. Frick, 56 Pa. 175; and Am. & Eng. Ency. of Law, vol. 4, pages 887 and 889, and cases there cited. But what has been said on this subject may be regarded as a mere suggestion of a possible view of the case which was not presented on the trial or in the argument on appeal. It will not be made a factor in the decision of the case. The-appellants complain of the" instructions which allowed the jury to consider the payment made by the defendants when they purchased the tobacco as a set-off in or equitable defence to this action. The conditions on which the jury were permitted to so consider it were that the payment was- made on account of the tobacco which McCormick sold to the defendants at that time, or that he became indebted to them in that amount by his failure to deliver the Fowler crop in accordance with his agreement. We think the instructions, read in the light of these conditions or qualifications and the evidence in the case, were promotive of justice and free from error. In the first place McCormick, as apparent owner of the tobacco, agrees to sell and deliver it to them. Their agreement was in writing and with him. The designation of the tobacco in this agreement as the “Wm. Dorey crop and Al. Dorey crop ” or “ the Fowler crop,” did not make Fowler or the Doreys parties to the agreement or partners of McCormick in the sale, nor was it intended to do so. In the next place it appears from the testimony of McCormick that he paid the Doreys one half the sum for which the Dorey crops were sold, and it appears from the evidence of Fowler that, shortly after the sale of the tobacco to the defendants, McCormick paid Mm for his interest in or claim upon it, in consummation of previous negotiations between them in relation thereto. From the evidence produced by the appellants it therefore appears that the defendants paid McCormick for all the tobacco he delivered to them, that he paid the Doreys all they were entitled to receive under his agreement with the defendants, and that he purchased and paid for the interest or claim of Fowler. He was therefore the sole equitable owner of the claim in suit, and the first payment made by the defendants, whether on account of all the tobacco purchased at that time or on account of the Fowler crop alone, was available as a set-off or equitable defence to it: Childerston v. Harnmon, 9 S. & R. 68. The specifications of error are overruled. Judgment affirmed.

Opinion by Me. Chief Justice Stebeetí, After reciting the facts agreed upon, the case stated provides as follows : “ If on the above facts the court shall be of opinion that after said registry no sale for taxes could lawfully.be had-of the interest of the said plaintiffs in said property, or of either of them, without having their names, or either of their names suggested as the actual owners, and until after service of the writ on them and recovery by suit against them, made as in the case of summons, then judgment to be entered for the plaintiff, Charles E. Claghorn, for one undivided third part of said premises, and judgment to be entered for the plaintiff, Anna M. Fryer, individually and as trustee under the will of Joseph C. Fryer, deceased, for one other undivided third part of said premises, otherwise judgment to be entered for the defendant,” etc. Judgment was accordingly entered on the case stated'.in favor of each of said plaintiffs for one undivided third part of the premises in controversy; and of this the defendant complains. It was claimed by plaintiffs that the “ registry ” of their deed referred to was defective in that it did not set forth the individual names of the three vendees given in - said deed, and that this negligent omission of the chief engineer and surveyor of the city was perpetuated by the city solicitor when suit was brought to enforce payment of delinquent taxes. On July 24, 1858, Henry Holthausen, Charles E. Claghorn and Joseph C. Fryer purchased, as tenants in common in equal shares, the land in question, and their deed therefor was duly recorded September 23d following. As required by the registry act, they presented the deed to the proper officer for regis try, and he stamped thereon that the same was duly -registered January 7, 1871. Having thus performed their duty, the said owners had a right to rely upon the guarantee of the registry act that no proceeding should be taken, against their property except by process issued in their names as registered owners, and that proper effort would be made to serve such process on them. The act declares: “ If said duty .... shall have been . discharged by the party who shall have acquired title, in whatsoever manner, before the tax accrued as a lien of record, for which the same shall have been sold, the purchaser at the tax sale shall not acquire the title of such person who shall have performed said duty, or of his heirs and assigns, unless the sale shall have been made in the name of such owner, after service of process upon him, as in the ease of suit by summons.” As has been suggested, the property was carelessly and negligently registered, not in the name of three owners, as it should have been, but in the name, “Henry Holthausen, et al.” The abbreviation, “ et al.” was thus substituted for the names of Charles E. Claghorn and Joseph C. Fryer, two of the owners. This was never corrected, nor does it appear that any effort was made to correct it. On the contrary, when the citj' filed its claim, the patent blunder of the registry bureau was repeated by the law department, notwithstanding the registry disclosed the date of the deed, etc., and the words “et al.” clearly indicated that Henry Holthausen was not the only owner. The result was that plaintiffs were deprived of that protection which it was the chief object of the registry act to ensure. The court was clearly right in virtually holding that the proceedings, from the defective registration down to the sale of the property both inclusive, were a series of blunders, the .consequences of which could not be visited on the plaintiffs. If defendant’s contention should prevail, the registry act, instead of being a protection to law-observing property owners, would be a snare into which any one might fall. Throughout the proceedings, by which it is claimed plaintiff’s title was divested, the ownership was treated as being in a single person, Henry Holthausen. Efforts to find and serve him were of course fruitless because of his disappearance ; but it does not appear that any effort was put forth to ascertain who were represented by the words “ et al.” on the registry. Reference to the record of the deed would have readily furnished that information. There is nothing in the record that would justify a reversal of the judgment. Judgment affirmed..

Opinion by Mb,. Justice Feel, The advantages to a property resulting from the construction of a railroad which are to be considered in connection with the disadvantages, are such as are special to the property affected and give it an increased value above the general appreciation of property in the neighborhood. This rule, without qualification or limitation, has been applied in a long line of cases, among which are Hornstein v. A. & G. W. R. R. Co., 51 Pa. 87; P. & L. E. Co. v. Robinson, 95 Pa. 426; R. R. Co. v. McCloskey, 110 Pa. 442; Long v. Harrisburg & P. R. R. Co., 126 Pa. 148. In R. R. Co. v. McCloskey, supra, Clark, J., said: “ The adjustment of this difference involves in all cases a fair and .just comparison of the advantages and disadvan tages resulting from the opening and operation of the road and the construction of its works; but the advantages to be considered are such only as are special, and the disadvantages such as are actual. The general appreciation of property in the neighborhood, consequent to the projected construction of the road, cannot enter into the calculation. To this the landowner whose land has been taken is as fairly entitled as is his neighbor whose possession and enjoymént have not.been disturbed.” Upon- the trial a limitation was placed upon this rule which gave to the defendant' the benefit of the increase only in the value of the plaintiff’s property in excess of the increase in value of any other property affected by the construction of the railroad. The defendant was thus deprived of the benefit of having the jury consider the advantage to the property of the plaintiff which was special and.peculiar to it, as compared with the advantage to the property in the neighborhood which was general. ■ . The general charge contains these expressions: “. .' . . The advantage that is to be considered and offset against'a disadvantage is that which belongs to the property affected by the injury, and -which does not belong to any other property in the vicinity. . .-. You are to inquire whether or not the property of Mr. Mahaffey has special facilities, or special advantages afforded it by the construction of the road, which no other property has in that community.” In answer to the third point it was said: “If this property is increased in value above the valué of- all other property there, then you are not at liberty to consider that the railroad will be of no benefit.” And in answer to the fourth point the jurors were told that the fact that there were other means of- transportation would not justify them in finding that the railroad was of no advantage to the plaintiff “ provided that you find that it is an actual advantage over and above that which it'is to any other property,” etc. This limitation of the rule finds no'sanction in'either prin ciple or authority. It was the right of the defendant to have the jury consider the advantages to the plaintiff’s. property which were special to it, and they should not have been confined to the advantage which it received “ over and above that to any other property.” The plaintiff’s property was not the only property taken, and presumably not the only property which received special advantages. Against the demand of each claimant it was for the jury to consider the advantages special to his property, but according to the instruction given this could be done only as to the claimant whose property had been most increased in value; and as to his property the allowance to the defendant would be limited to the increase over any other property, and not to the increase over the general advance in values. The general instruction on this subject both in the charge of the learned judge and in his answer to the points was -correct and full, and the case was carefully tried; but we cannot know that the language excepted to did no harm. It was an incorrect statement of the rule, and calls for a reversal of the judgment. The submission to the jury of the effect of the destruction of the landing of James Mahaffey was also error. This landing was not on the plaintiff’s property, but on another tract of land in which he had no interest, and as to which he possessed no right. -Nothing was done on the plaintiff’s property to obstruct the way to a landing, but the landing of another person was destroyed. This landing was on the property of James Mahaffey ; it had belonged to him, and he had received compensation for its destruction. Yet the jury was allowed to consider it “ as bearing upon the question as to whether or not the property as a whole is inconvenienced and has suffered injury by reason of the construction of the railroad.” As in Grorgas v. R. R. Co., 144 Pa. 1, the plaintiff was deprived only of what did not belong to him. For the reasons stated the eighth, ninth, eleventh, thirteenth, fourteenth and fifteenth assignments of error are sustained, and the judgment is reversed and a new venire awarded.

Opinion by Mb. Justice Williams, This appeal comes from the orphans’ court, but it grows out of a controversy between an’ attaching creditor of Franklin R. Kuhns and an.assignee of his interest as a residuary legatee under his father’s last will and testament. The important facts are that Franklin R. Kuhns assigned his expectant interest, in his father’s estate to his sister Julia Ann Kuhns in February, 1890. The. father died in June, 1890. In October of the same year a judgment creditor of Franklin R. Kuhns issued an attachment-execution against him on a judgment obtained in 1885, and seized his interest in his father’s estate. -If the assignment is valid, the attachment is too late. If not valid, then the creditor is entitled to the fund to the extent of his just demand upon it. Two questions were considered by the learned auditor and the court below. First, can a valid assignment of an expectancy be made ? Second, if so, was the assignment made in this case a valid one ? The conclu■sion reached in the court below upon the first of these questions was clearly right. At law a valid transfer can be made of anything in actual existence. What the assignor has he ■may dispose of. What he has not, although he may hope or expect to acquire it, he can make no title to because he has no title himself. But such sales and assignments have been sustained in courts of equity whenever good conscience seemed to require it, and not otherwise: East Lewisburg Lumber and Manufacturing Company v. Marsh et al., 91 Pa. 96; Patterson v. Caldwell et al., 124 Pa. 455. If the consideration for such an assignment is a-fair and honest one, the assignment will be treated as an agreement to transfer when the assignee’s title accrues, and it will be held to take effect as an assignment when the expectant interest vests in the assignor. The second question affords the only real ground for coiitroversj'- in this case. Was the assignment to Julia Ann Kuhns good in equity? This must depend on the bona fides of the transfer and the adequacy of the consideration. The proof on these subjects depends on the testimony of the assignor and the assignee. The learned auditor excluded -both these witnesses as incompetent to testify, and then held the assignment invalid for want of proof of consideration. This appeal is thus seen to depend on the competency of these witnesses. The auditor and the learned judge of the court below placed the incompetency of these witnesses on section 5 of the act of May 23,1887. The persons excluded by this clause are the surviving and remaining parties to a thing or contract in action where the other party to such thing or contract is dead, or has become a lunatic, and the interest of the decedent or lunatic'has passed by his own act or the act of the law to a party on the record. In such case the surviving party and “ any other person whose interest shall be adverse to that of the deceased or lunatic party is declared to be incompetent to testify to any matter occurring before the death of said party or the adjudication of his lunacy.” Does this clause include Julia or Franklin R. Kuhns? It should be noticed that this question did not arise upon the trial of the cause between Newhard, or the bank, and Franklin R. Kuhns, but upon execution process issued upon a judgment obtained when all the parties were living and sui juris. It should be noticed in the next place that the question trying was the title of F. R. Kuhns to property seized in execution which the plaintiff alleged belonged to him. ' The thing in action was the legacy seized. Newhard was never a party to that. It came to the defendant under his father’s will, and Julia Ann Kuhns alleged that she had become the owner of it some eight months before the execution issued. The contract under examination was that under which she claimed title. Both parties to this contract were living and both were offered as witnesses. Newhard was simply a creditor of F. R. Kuhns who had seized property alleged to be his. Julia Ann Kuhns was-a claimant of the property seized asserting her title against her brother’s creditor. If the property seized had been a horse instead of a legacy, would the mouth of the purchaser have been closed by the act of 1887 because her vendor’s creditor had died after levy made upon the horse ? To state this question is to answer it. Under the sheriff’s interpleader act the issue would have been made up between the creditor and. claimant. The claimant and the defendant would have been competent witnesses and their competency would not have been affected by the death of the creditor except as to matters transpiring between the claimant and. the creditor, that might come under investigation. In this case the title to the thing seized was derived through an independent channel with which Newhard had no connection. The contract, the good faith of which it was necessary to establish, was a contract to which the creditor was a stranger, and both parties to which were living; and the adverse interest existing was simply that which grows outof the mere pendency of litigation. The creditor seized, and was interested to hold, the legacy as the property of his debtor. - The claimant set up a title under an assignment before the death of the father and when the interest of the assignor was a mere expectancy. The quéstion therefore was over the honesty of the transaction and the sufficiency of the consideration, as between herself and her brother. Upon this question both of them were competent. The decree of the orphans’ court is reversed and the record remitted for further proceedings. The cost of this appeal to be paid by the appellee.

Opinion by Mb,. Justice Mitchell, Brokers, says Sharswood, J., in Keys v. Johnson, 68 Pa. 42, “ are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiation of the bargain.” This is said generally of brokers, though the words used are “ buyer and seller,” and the case was one of the sale of real estate. There is no good reason why the same principle should not apply to a broker negotiating a loan as to one negotiating a sale. The basis of his right to compensation in either case is the same, his bringing to his principal a party able and willing to carry out the desired transaction. It is said in some of the cases that there must be shown a contract binding on the party produced. But this is not essential. Keys v. Johnson decides that the principal cannot take the matter out of the broker’s hands and thus deprive him of his right to the commissions though he had as yet’made no contract. In Clendenon v. Pancoast, 75 Pa. 213, no binding contract appears, and in Sweeney v. Oil & Gas Co., 130 Pa. 193, it affirmatively appears that no such contract was made. So in Reed’s Exr. v. Reed, 82 Pa. 426, there was no contract, because while the expected purchaser was considering the matter under a time option allowed for that purpose, the principal sold to another party, and it was held that the broker had earned his commissions. These cases show clearly that a binding contract is not essential where the party produced by the broker stands ready to perform his part of the proposal, and the failure to do so occurs through the fault or inability of the principal. We are therefore of opinion that there is no ground for a distinction in the extent of the duty of a broker to effect a loan and one to effect a sale. In the former case as in the latter, as said by Baron Bbamwbll in the closely analogous case of Green v. Lucas, -33 Law Times Reports, 584, “ the word ‘ procure ’ means to procure the lender and not the money, and the contract was completed, so far as the plaintiff was concerned, when he had procured a person who was ready and willing to advance the money.” Did the plaintiff complete his part of the contract in the sense so explained? He found a lender whose ability is not questioned, and whose willingness must be tested by' the grounds of final refusal. If these were the fault of the defendants, then the failure to obtain the money was no defence to the plaintiff’s claim. A man who proposes to sell land, or to borrow money upon mortgage on it, impliedly warrants that he has a marketable title for the purpose desired, and, in the absence of specific instructions to the contrary, his employment of a broker is sufficient authority to the latter to make representations and negotiations on that basis. And such authority is not negatived by merely leaving unanswered questions which have been put by the broker on a blank furnished by him for the purpose of obtaining information. It is objected on the- part of defendants that plaintiff’s contract with the Fidelity Company was not sufficient in that it was not binding in form, and it was not in accordance with the agreement between'plaintiff and defendants as to the loan. The necessity for a binding contract has already been considered. The objections under the second head are, first, that plaintiff’s contract with the Fidelity Company provided that defendants should pay the state tax in addition to the agreed interest; secondly, that the contract stipulated that the proposed mortgage should be a first lien, while defendants had made no representa tions as to incumbrances ; and thirdly, that it subjected the title to the opinion of special counsel, whose injection of it would terminate the agreement without remedy to the defendants. The first objection was not well founded in fact. It is true that a provision for the payment of the tax appears in the memorandum of agreement, but plaintiff offered to prove by the other party to it, the Fidelity Company’s officer, that it was in there by mistake, through the use of a. printed form, and that it was no part of the actual contract. .This proof should have been admitted. Of course the officer’s mere letter was not of-the requisite grade of evidence, except by the agreement of counsel that it should represent what the officer would testify to if examined in person. Under such agreement it should have been admitted. The second objection would ordinarily raise a question of fact for the jury. As already said an owner proposing to borrow on mortgage and employing a broker to find a lender of the money, impliedly warrants that his title is marketable for mortgage purposes, and that may require certain conditions as to liens, according to the custom of business. In the present case the point is conceded by appellee to be immaterial, as the stipulation for priority of the mortgage was modified by the Fidelity Company, and as so modified was complied with. It was not therefore a cause of the failure of the loan. The third objection also raises a'question of fact. The application by plaintiff to the Fidelity Company for the loan stated that “ full brief of title and searches, with opinion of counsel, will be required.” This was within the implied authority of plaintiff. Any owner, as already said, was bound to know that a loan would not in- the ordinary course of business be made on mortgage without an examination of title, and finding it marketable for mortgage purposes, and this was a matter for the opinion of counsel. The brief memorandum of acceptance by the Fidelity Company contained the words, “ Opinion of J. C. Stillwell, Esq.” This does not necessarily mean anything more than the suggestion of Mr. Stillwell as the counsel whose opinion should be obtained in the first instance. There is no provision that he is to be the final arbiter in the matter, and such stipulation will not be understood as intended without express words to support it. But even if he were made the arbiter, the question whether the plaintiff went outside of his authority in submitting the matter to him would depend on the nature of the objections raised against the title. The plaintiff had authority to stipulate that, the title should be marketable in the opinion of counsel. If Mr. Stillwell’s opinion required nothing more, then plaintiff did not exceed his authority. If, on the other hand, Mr. Stillwell through over caution or excessive particularity raised objections not sufficient to destroy the marketability of the title in the general opinion of the profession, and the refusal of the Fidelity Company to-lend was based on those objections, then the plaintiff would be held to have failed to produce a willing customer within the requirements of his contract with defendants. But these questions would be for the- jury. From the foregoing it follows that the defendants failed to raise .any defence which was sufficient to prevent the plaiutiff’s recovery as a conclusion of law, or to justify a binding direction that he could not recover his commissions. He was entitled to go to the jury on the question. whether he had completed his agreement by procuring a party able and willing to make the loan, and if so whether the loan finally failed through no fault of the plaintiff but through defects in the title of defendants which were sufficient in the usual course of such business to justify the proposed lender in declining to go on with the transaction. Judgment reversed and a venire de novo awarded. .

Opinion by Mb: Justice Williams, The facts upon which the legal question presented on tins record is raised are quite novel. It appears from the evidence that Andrew Moore is the owner of a row of buildings between the hotel known as the Girard House, and Ninth street, extending from Jayne street to Chestnut. The most northerly of these buildings is No. 29 South Ninth street, and it has been occupied for some time by the plaintiffs as lessees of Moore. The building next to No. 29 is in the occupancy of Geo. M. Moore as a tenant, and is but one story high. The other buildings down to Chestnut street are also but one story high, while No. 29 is two stories in height. The south wall of No. 29 is for this reason plainly visible above the buildings south of it to persons going in and out of the post office and to persons passing along Chestnut street, at its intersection with Ninth street, and for some distance westwardly therefrom. The American Bill Posting Co., Limited, desired to make use of the conspicuous surface so presented for the display of advertisements by means of pictures and words thrown upon the wall by a stereopticon; and it entered into a contract, in the form of a lease, with the plaintiffs for the use of the roof and south wall of No. 29 at an agreed rent. The defendants are the sureties of the company upon this contract. The company took possession of the roof and south wall in pursuance of its contract, and entered upon the display of its advertisements, which were thrown upon the south wall by means of a stereopticon. Sometime afterwards Geo. M. Moore made a lease of the roof of the building occupied by him for a similar purpose to the American Exhibition Co. The use of this building was made possible by the erection of a frame upon the roof to support a screen on which views could be displayed. This frame and screen when in place nearly covered up the south wall of No. 29 and rendered it practically valueless to the Bill Posting Co. It thereupon abandoned the effort to use it and refused to pay accruing rent. The position taken by it was that it had been evicted from the leasehold, and that the rent was as a matter of law suspended in consequence. If the facts amount to an eviction the defense is well taken. It may be conceded that the plaintiffs had no title to the south wall of No. 29. It was a party wall, and the rights of the plaintiffs did not extend beyond its center; its southern face belonged, for all purposes, to the owner of the land on which that half of the wall rested; but the company was put into actual possession of its surface. Neither the plaintiffs, nor the owner nor the tenant of the adjoining building has objected to or denied the validity of the lease. What has happened is that the tenant of the adjoining property has made a contract with another company for the use, not of the wall of No. 29, but of a frame erected on his own roof, and that the use of this frame has the effect of covering up considerable of the surface of the south wall of No. 29, and greatly reducing its value as a surface for the display of advertisements. Is this an eviction? Originally an eviction was understood to be a dispossession of the tenant by some act of his landlord, or by the failure of his title: Anderson’s Law Dictionary, 418. It has come in later years to include any wrongful act of the landlord which may result in an interference with the tenant’s possession in whole or in part. The act may be one of omission as well as of commission. The rent is suspended by an eviction because it is plainly unjust that the landlord should be permitted to collect it while by his own act he deprives Ins tenant of the possession which is the consideration for it. But the landlord is not responsible for the acts of others lawfully done on their own premises. He is liable only for his own acts and for such acts of others as it was his duty to protect his tenant from: Tiley v. Moyers, 43 Pa. 404; Hoeveler v. Fleming, 91 Pa. 322. If Mrs. Oakford or Andrew Moore, her landlord, or any person having an estate in fee simple, or by lease in the party wall on the south side of No. 29, had objected to the use of that wall by the Bill Posting Co., and ousted it from its possession, whether by legal proceedings or by physical interference, an eviction would have taken place. The right to use the wall would in that case have been taken away from the tenant and the duty to pay rent would have ceased. But neither Mrs. Oakford nor her landlord, nor any other person has objected. No ouster by legal proceedings or by physical interference has taken place. The lessee is still in possession so far as the plaintiffs or any one having any right to question its possession is concerned j but that possession has been lessened, perhaps practioally destroyed, by the action of an adjoining tenant. If this action was a lawful one, within the limit of his own premises, the plaintiffs cannot be held liable for it. The covenants for quiet possession relate only to acts of the lessor and those acting under him, or of the holder of a better title. They do not extend to the ill nafcured conduct of other persons by which the value or the comfort of the leasehold may be diminished. The probability that the view of the south wall of No. 29 would be cut off by some in tervening structure between it and Chestnut street erected by one of the owners or tenants in the row, was one that could be estimated by the company as well as by Mrs. Oakford. If the company desired to guard against this contingency it could have been done so by contract with the intervening tenants or by a special covenant with Mrs. Oakford. But the company made no inquiry and took no precautions. It assumed the risk of the actions of the owners and tenants of the property between No. 29 and Chestnut street and the result has been what should have been anticipated. The tenant of an intervening property has undertaken to furnish a wholly different surface for the display of advertisements which when in use conceals the south wall of No. 29 from view and takes away its value. This does not seem to us to be an eviction. The tenant has been disappointed but not dispossessed. He is in possession of the space he leased but he cannot use it in the manner he anticipated because of the action of a third person done within the limits of his own leasehold. If this was not an eviction, for the same reason it does not amount to a failure of consideration, as the case appears on this record. The consideration of the promise to pay rent was the right to the use of the roof and south wall of No. 29. That right has not been legally denied, but its value has been reduced. Since the action of Geo. M. Moore it is. not worth the rent the Bill Posting Co. promised to pay for it. But if the depreciation is not chargeable to the plaintiffs it is the misfortune of the company to have had their possession made useless by the intervention of parties with whom they had no contract, and against whose conduct they had no covenant. The judgment is reversed and a venire facias de novo awarded.

Opinion by Mr. Justice Green, For the reasons expressed in the opinion in the case No. 222, July T., 1895, Evans v. Taylor, supra, 286, the defense set up in Üiis case must be pronounced invalid and, therefore, The judgment is affirmed.

Opinion by Mr. Justice Dean, There is nothing of merit in these assignments of error which has not been passed upon in the opinion this day filed in appeal of defendants from same decree. In so far as the insufficiency of the decree is complained of the appeal is premature. What connections shall be arranged between the railroads, and how they shall apportion joint earnings on a mileage basis, can only be properly determined when the decree of the court below goes into effect. The daily operations of the roads will point out to both what shall be to their mutual advantage, and circumstances, as they then exist, will suggest what is an equitable apportionment under the contract of the joint traffic receipts; if then, irreconcilable disputes arise, either party can call into operation the arbitration clause of the contract, or, if this be ineffective, either can ask, on proper proof, for a supplemental decree from the court below. We will not now assume the parties will refuse to carry out the contract according to its true intent and meaning, when the court below and this court have adjudged it binding upon them. The appeal is dismissed at costs of appellants accruing on their appeal since the same was taken. Decree affirmed.

Opinion by Mr. Justice Dean, This is an ejectment for about one hundred, and ninety square yards of land in Curwensville, Clearfield county. It formed part of a large tract owned by William Irvin, who died in 1869; partition was then had of his estate, and the disputed piece made part of purpart No. 15, which was taken by one of the heirs, Ellen A. Irvin, íd payment of a debt due her from the estate, and the others delivered to her a deed for it. She died'intestate and unmarried February 28,1878, and the title passed to her heirs at law, who, on the 20th of April following, conveyed a part of this purpart to McNaul, this plaintiff, by this description: “ Beginning at a post on State street; thence by land of William Irvin’s estate, south 301 /2 degrees west 80 feet to a post; thence by land of said estate south 591/2 degrees east 180 feet to a post; thence by lot of Hiram Caldwell north 30 1/2 degrees east 80 feet to a post on line of State street; thence by said street north 59 1/2 degrees west 180 feet to a post and place of beginning.” On November 19, 1881, the same heirs conveyed to E. A. Irvin, among other land, the whole of this purpart 15, and he by deed quitclaimed to McNaul that part of 15 conveyed to him by the heirs on 20th of April, 1878. By virtue of these conveyances McNaul, the plaintiff, claimed all the land in dispute. Defendants claimed under a deed from E. A. Irvin, dated August 19, 1884, to N. E. Arnold for the undivided one half of purpart 15, reserving the lot conveyed to McNaul, the plaintiff, but the description in the deed, as defendants averred, embraced the land in dispute; the title to the undivided half thus conveyed to N. E. Arnold, afterwards by sheriff’s deed passed to Samuel Arnold, Sr., the other defendant, to whom by deed of February 25,1893, E. A. Irvin conveyed the other undivided half of purpart 15. The learned judge of the court below being of opinion the description in the first deed of the Irvin heirs to McNaul, on April 20, 1878, embraced the land in dispute, directed peremptorily a verdict for plaintiff, and we now have this appeal by defendants, who assign fourteen errors, arguing from all of them, either the case should have been submitted to the jury, or that there should have been a binding instruction to find for defendants. It will be noticed, as undisputed facts, that the title to the whole of purpart 15 was, at the date of the first deed, April 20 1878, in the heirs of Ellen A. Irvin, who by metes and bounds conveyed to this plaintiff. The exact location of the boundary at the north, State street, is in dispute, and as the starting point is a post on that boundary, the quantity of land embraced within the boundaries is larger or smaller, according to the location of the post. The description says: “ Beginning at a post on State street.” There was no State street at this point; it was the northwestern corner of the lot, and State street, a street of the borough of Curwensville, terminated at the southwestern corner of the adjoining lot of Hiram Caldwell, and if this street had been continued in a straight line, to the northwest corner, then, starting from a post on the street and running around the track according to the courses and distances in the deed, the disputed piece would be outside plaintiff’s description, and would not belong to him. But, from the termination of State street at the Caldwell lot, there ran an open highway, with a course deflecting to the north of it, known as Erie turnpike, and so far as the traveling public was concerned, there was nothing to indicate where the street ended and the turnpike began. If the place of beginning had been the comer of Caldwell’s lot, thence by the line of State street to a corner, the defendants might have stood with safety on the description in the deed, for there was such a point'of beginning, and it might have been said the intention was to continue the line of that street; but the place of beginning was at a post at the northwest corner on State street; there was in fact no such street there; there was, however, a turnpike, and when the description is one hundred and eighty feet from the Caldwell corner along line of State street to place of beginning, it is an impossible line so far as name was concerned, and must have meant the turnpike, following up which alone would stop the distance at the place of beginning on a highway. It was then an error in name to say the starting point was State street. Was it intended, to be the Erie turnpike? The northern boundary of purpart 15 in the proceedings in partition is the turnpike; the deed of E. A. Irvin, in August, 1884, for the undivided half of 15 to N. E. Arnold, one of defendants, and which is expressly intended to exclude the McNaul lot, speaks thus: “ Beginning at a post on State street and corner of Friends’ Meeting House lot, thence north by the turnpike.” This is the same starting point as in McNaul’s deed, and it treats the turnpike as a continuation of State street; if the post were on the line of State street extended from the Caldwell corner, then the line by the turnpike in Arnold’s deed was a mistake, for the post was far south of it. All the deeds clearly show that the turnpike was adopted for purposes of description, as a continuation of State street, and not that State either was or would be continued in a straight line from where by the borough plot it was laid out and terminated. Further, if State street was continued on West from the Caldwell corner the same course as it had in the borough, defendants, after the date of their deed, erected their house upon thirty-eight feet'of it, still, however, keeping to the south of the turnpike. There is then the positive testimony of E. A. Irvin, the grantor in the deed to defendants, that in the negotiations preceding the deed it was understood the land fronting the meeting house up to the turnpike had already been conveyed to McNaul as trustee, and was not included in the conveyance; he further states the highway in front was sometimes called State street and sometimes the turnpike. Samuel Arnold, Sr., when called, does not contradict this testimony, but goes further, and says Irvin told him he did not want to convey the strip in front of the Quaker meeting house, because it belonged to the street; he corroborates Irvin in his statement that the land was reserved from his deed. Taking the descriptions in the partition and all the deeds with the oral testimony the starting point was, without doubt, at a post on the line of the turnpike, mistakenly called State street in the deed, because it was on the turnpike leading to that street, and one hundred and eighty feet beyond where the street by borough ordinance terminated. The contention of appellants that, even if State street were not laid out at the time, nevertheless bounding the lot by that street was a dedication to public use of a street in line with that laid out in the borough, is untenable. The evidence conclusively shows the conveyance to McNaul was of a lot fronting on the turnpike and by mistake called State street, therefore the intention to dedicate had no existence. On the whole evidence the learned judge of the court below could not do other than direct a verdict for plaintiff, for the defense rested on the merest scintilla of evidence. The judgment is affirmed.

Opinion by Mr. Justice Williams, There is no room for doubt that the general purpose and character of the act of May 14, 1889, entitled “ An act to provide for the incorporation and government of street railway companies in this commonwealth,” are within the constitutional powers of the legislature. There may be particular provisions that are not. This appeal challenges the constitutionality of a provision found in the seventeenth section, and raises a question not heretofore considered. The eighth section of the sixteenth article of the constitution was intended to protect private property against the exercise of the right of eminent domain in a harsh or unjust manner. It provides that “just compensation ” shall be made to the owner for all property taken, injured or destroyed by any corporation, “ which compensation shall be paid or secured before the taking, injury or destruction shall be permitted. The machinery by which “just compensation” may be ascertained has been provided by law, and it includes an appraisal made by viewers appointed by the proper court, an appeal by either party therefrom, and an ascertainment of the amount of the “just compensation” by a jury upon a trial after the forms of the common law. Security for the payment of the just compensation to which the property owner is entitled must therefore be security for the amount that may be recovered upon the trial of the appeal from the appraisement before a jury. This is a plain constitutional requirement, and the legislature can neither dispense with it in whole or in part. The provision of the act of 1889 now complained of authorizes the corporation, when an appeal has been taken from the award of viewers by the property owner, to pay into court the amount of the unsatisfactory award, and thereupon to take possession of, or proceed to injure or destroy, the property of the appellant. The section declares that the right to build and use the desired crossing over the plaintiff’s turnpike “ shall vest ” in the railway company upon the payment into court of the amount of the award, and the money shall remain in court to “ await the final judgment on said appeal.” If the verdict should be much more than the award the plaintiff has np security for its payment, and may have no means for its collection. The title to the crossing having “ vested ” when the money was paid into the court, the crossing became a part of the line of the railway subject to incumbrance by mortgage or otherwise and subject to alienation. It might well happen that when a judgment was finally entered on the verdict in favor of the property owner ascertaining the amount of compensation due him, the corporation would be found to be insolvent, the line of railway with all its appurtenances incumbered to its full value or transferred to a purchaser, and the plaintiff left without security or any responsible party to whom to look for the larger part of his “just compensation” for the injury sustained by him. This is a result that the constitutional provision was intended to guard against, and would effectually prevent if it was fully enforced. The act of 1889 is unconstitutional in so far as it undertakes to confer an absolute right on the corporation to injure the property of the plaintiff by its crossing, without payment or security for the payment of a just compen sation as it may be finally ascertained upon tbe disposition of tbe appeal. The decree was erroneous and must be reversed, but it is not necessary that the injunction shall be restored if the defendant will promptly give the security that should have been given before making the crossing. The decree is reversed and the record remitted with direction that the injunction be restored unless the defendant corporation shall within ten days after notice of this order give security to be approved by the court below for the payment to the plaintiff of such sum as may be found due upon the disposition of the appeal from the award of the appraisers now pending, as the damage sustained by, or the compensation due to, the plaintiff by reason of the crossing of its turnpike road by the railway of the defendant at grade. Injunction not to issue if such security be given, costs to be paid by the defendant.

Pets Curiam, This case came here under a special allocatur granted by one of the justices of this court. No question was raised as to whether, within the meaning of section 7, clause (a) of the Superior Court act of 1895, the case is one “involving the right to a public office,” and it was accordingly argued and submitted to us on its supposed merits. Unfortunately for the appellant, the record discloses no ground on which the judgment of the court of quarter sessions can be reversed. The first three specifications are to the action of the court in denying defendant’s motion to quash the indictment, and in overruling his reasons in support thereof. There appears to be nothing in either of these specifications that would have justified any other course of action. This is so clearly shown in the opinion of the learned judge that further discussion is unnecessary. The indictment is framed under the act of April 15, 1834, which declares : “ If any county commissioner shall be concerned in any contract, or shall be directly or individually interested in the construction of any public work, or any improvement, made or undertaken under tire authority of the commissioners of the said county, the same shall be deemed a misdemeanor in office, and such commissioner shall be fined .... and shall be adjudged by the court to be removed from office.” It is sufficient both in form and substance. It “charges the crime substantially in the language of the act of assembly prohibiting the same,” etc. Nothing more than that is required: Purd. 549, pl. 19. For reasons given at length by the learned judge, in his opinion denying the motion for a new trial, there is no merit in the 4th specification. The case was correctly tried, and the verdict of the jury, upon which judgment was entered, was fully warranted by the evidence before them. The judgment of the court below is therefore affirmed; and, to the end that the same may be fully executed, it is ordered that the record be remitted to the court below.

Opinion by Me. Justice Dean, We take the facts as stated by the court below, as follows : “ On the 26th of October, 1893, the plaintiff, having bought a return ticket, went as a passenger upon the railroad of the defendant company from Frankford to Holmesburg. After spending the day there attending to' some matters of business, he concluded to come back upon a way train due at Holmesburg at five minutes after six in the evening. While waiting for this train, the plaintiff stood on the platform of the station, which was on the north side of the tracks, at the .eastern end of the platform with his back against the wall at the corner. To the eastward of the station, a street crosses the railroad at grade. How far this crossing is from the station does not appear from the evidence. It was not so far away, however, but that persons on the platform could see objects at the crossing. For at least one hundred and fifty yards to the eastward of the crossing, the railroad is straight, and then curves to the right. About 6 o’clock, an express train coming from the eastward upon the north track passed the station, and the plaintiff, while standing in the position described, was struck upon the leg by what proved to be the dead body of a woman, and was injured. The headlight of the approaching locomotive disclosed to one of the witnesses who stood on the platform two women in front of the train at the street crossing, going from the south to the north side of the tracks. One succeeded in getting across in safety, and the other was struck just about as she reached the north rail. How the woman came to be upon the track, there is nothing in the evidence to show. There was evidence that no bell was rung or whistle blown upon the train which struck the woman before it came to the crossing, and some evidence that-it was running at the rate of from fifty to sixty miles an hour. Upon this state of facts, the trial judge entered a non suit.” The court in banc having afterwards refused to take off the nonsuit, we have this appeal. Was the negligence of defendant the proximate cause of plaintiff’s injury ? Judge Pennypacker, delivering the opinion of a majority of the court below, concluded it was not, and refused to take off the nonsuit. Applying the rule in Hoag v. Railroad Co., 85 Pa. 293, to these facts, the question on which the case turns is: “Was the injury the natural and probable consequence of the negligence, — such a consequence as under the surrounding circumstances might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” As concerns the situation of plaintiff at the time of his injury, and the relation of that fact to the cause, whether near or remote, we do not consider it important. He was where he had a right to be, on the platform of the station; that lie had purchased a ticket for passage on defendant’s road and was waiting >on its platform for his train has no particular bearing on the •question. The duty of defendant to him at that time was to provide a platform and station, safe structures, for him and others who desired to travel. In this particular, its duty was performed; the injury is not in the remotest degree attributable to the platform or the station. It is sufficient to say, when there he was not a trespasser on defendant’s property, and therefore his action does not fail for that reason; but he is in no more favorable situation as a suitor, than if he had been walking alongside the railroad, on the public highway, or at any other place where he had a right to be. The rule quoted in Hoag v. Railroad, supra, is in substance the conclusion of Lord Bacon, and the one given in Broom’s Legal Maxims. It is not only the well settled rule of this state, but is, generally, that of the United States. Professor Jaggard, in his valuable work on torts, after a reference to very many of the cases decided in a large number of the states, among them Hoag v. R. R. Co., comes to this conclusion: “It is admitted that the rule is difficult of application. But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is a proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances : ” Jaggard on Torts, chap. V. Judge Cooley states the rule thus: “ If the original act was wrongful, and would, naturally, according to the ordinary course of events, prove injurious to some others, and result, and does actually result, in injury, through the intervention of other causes not wrongful, the injury shall be referred to the wrongful cause, passing through those which were innocent:” Cooley on Torts, 69. This, also, is in substance the rule of Hoag v. Railroad Co. All the speculations and refinements of the philosophers on the exact relations of cause and effect help us very little in the determination of rules of social conduct. The juridical cause, in such a case, as we have held over and over, is best ascertained in the practical affairs of life by the application to the facts of the rule in Hoag v. Railroad Co. Adopting that rule as the test of defendant’s liability, how do we determine the natural and probable consequences which must be foreseen, of this act? We answer, in this and all like cases, from common experience and observation. The probable consequence of crossing a railroad in front of a near and approaching train is death or serious injury; therefore, acting from an impulse to self prese rvation, or on the reflection that prompts to self preservation, we are deterred from crossing. Our conduct is controlled by the natural and probable consequence of what our experience enables us to foresee. True, a small number of those who have occasion to cross railroads are reckless, and either blind to or disregardful of consequences, cross and are injured, killed or barely escape; but this recklessness of the very few in no degree disproves the foreseeableness of the consequences by mankind generally. Again, the competent railroad engineer knows, from Ms own experience and that of others in like employment, that to approach a grade highway crossing with a rapidly movMg train without warning is dangerous to the lives and limbs of the public using the crossmg; he knows death and injury are the probable consequences of Ms neglect of duty, therefore he gives warmng. But does any one believe the natural and probable consequence of standing fifty feet from a crossing to the one side of a railroad, when a tram is approaching, either with or without warning, is death or Mjury ? Do not the most prudent, as well as the public generally, all over the land, do just this thing every day, without fear of danger ? The crowded platforms and grounds of railroad stations, generally located at crossings, alongside of approacMng, departing and swiftly passing trains, prove that the public, from experience and observation, do not, in that situation, foresee any danger from trains. They are there, because, M their judgment, although it is possible a tram may strike an object, animate or inammate, on the track and hurl it against them, such a consequence is so Mghly improbable that it suggests no sense of danger; they feel as secure as if in their homes; to them it is no more probable than that a tram at that point will jump the track and run over them. If such a consequence as here resulted .was not natural, probable or foreseeable to anybody, else, should defendant, under the rule laid down in Hoag v. Railroad Co. be chargeable with the consequence? Clearly, it was not the natural and probable consequence of its neglect to give warning, and therefore was not one which it was bound to foresee. The injury, at most, was remotely possible, as distinguished from the natural and probable consequence of the neglect to give warning. As is said in Railroad Co. v. Trich, 117 Pa. 899: “ Responsibility does not extend to every consequence which may possibly result from negligence.” What we have said thus far is on the assumption, the accident was caused solely by the negligence of defendant, or by the concurring negligence of defendant and the one killed going upon the track with a locomotive in full view. This being an action by an innocent third person, he cannot be deprived of his remedy because his injury resulted from the concurrent negligence of two others. He fails because his injury was a consequence so remote that defendant could not reasonably foresee it. But there is another view which may be taken of this evidence. Assuming defendant was negligent, did that negligence contribute in any degree to the result ? The uncontradicted evidence showed the train could be seen from one hundred and fifty to two hundred yards distant; plaintiff himself testifies he heard it coming, although he heard no whistle or bell; and all his witnesses had notice of it; even those sitting in the waiting room got up to go out, supposing it was their train; some heard the rumbling, some saw the headlight. Assume, then, the fact to be that no warning was given by bell or whistle, and in that particular, defendant, in its general duty to the public, was negligent, was this the cause of the injury? To so find, we must presume the deceased and her companion failed to hear or see what all the others saw or heard. There is no reason for such presumption. While, in the absence of any evidence on the question, the presumption would be, that the two women, before crossing, stopped, looked and listened, and then, because no warning was given, they, without apprehension of danger, attempted to cross, still, when all the other witnesses with like opportunity either saw the headlight or heard the rumbling of the approaching train, the reasonable presumption is they saw and heard it too. If this be so, they attempted to cross, with the same knowledge of the same peril, they would have had if the bell had been rung and whistle blown; therefore,' the sole cause of the injury was not the negligence of defendant, but the negligence of deceased. In such case, there could have been no recovery by the representatives of the deceased woman, for whatever' might have been the negligence of defendant, it was no more the cause of the accident than if it had neglected to give warning at some other crossing. The case could not have reached the jury, unless they had been permitted to infer she had neither seen nor heard the same warnings that all plaintiff’s witnesses saw and heard. If the companion of deceased, or other witnesses, had testified they neither saw nor heard the approaching train, the case would have been altogether different ; but as it stood, there was no proof that the alleged negligence of defendant contributed to the death of the woman. In this view, the negligence was not even concurrent; true, there was negligence, but the same result followed as if defendant^ had exercised care, therefore, the injury was attributable to her-sole negligence. While the proper warning on approaching a crossing is the sound of a whistle or the ringing of a bell, no accident can be properly said to be the consequence of the neglect to give such warning if the public be apprised of the danger by other sounds or signals; the injury, then, is caused solely by the neglect of the injured person to heed the danger. On both grounds we think the nonsuit was properly entered. The judgment is affirmed.