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Opinion by Mr. Justice Dean, The defendant is the owner of a large lot of ground in the city of Philadelphia, fronting on Richmond street about one thousand five hundred and forty-seven feet, and extending back to the Port Warden’s line on the Delaware river. Against this property, the city filed a municipal lien for part of the cost of constructing a sewer on Richmond street between Cumberland and Williams streets. Sci. fa. was issued on the lien, to which defendant made affidavit of defense, of which this is the material averment: “The said large lot of ground is entirely and exclusively used as the tidewater coal and iron ore terminal of the Philadelphia & Reading Railroad Company. “ As appears by the said plan, which is an accurate representation of the place, it is covered throughout with a great number of diverging railroad tracks, the said main line entering the property near Somerset 'street, and spreading out and running to the ends of the wharves, some twenty in number, whereby coal is shipped into vessels for export and iron ore is received from vessels bringing the same here and loaded into the cars for inland transportation. Engines traverse all the tracks as upon other parts of the railroad. “ The said lot of ground is an absolutely necessary part of the railroad of the said company.” There was a rule for judgment for want of a sufficient affidavit of defense, which the court below, in opinion filed (4 Dist. Rep. 453), made absolute, and defendant appeals. It was decided the roadbed of a railroad is not, as land, subject to general taxation, nor to special assessments for city improvements, in City v. Railroad Co., 33 Pa. 41. This case was decided in 1856, but not reported and published until 1859, so that the act of April 21, 1858, P. L. 385, could not have been before the court. The facts of the case show it was a scire facias on a municipal lien for paving along the railroad which occupied a strip of land two thousand and forty-six feet long by forty-seven feet wide. The court below says: “ The single question is whether the remedy by scire facias on the claim filed can be enforced against a corporate body clothed with the usual railway franchise. The process which the plaintiff seeks to use is directed wholly against the soil of the railway, together with the structure of the railway itself, and upon a judgment upon it for the plaintiff, this corpus may be sold under a levari facias to the highest bidder at a sheriff’s sale. To authorize this would be to inflict a serious public evil; and tins, too, without the pretext of a benefit having been received by the company by reason of the paving of the public highway contiguous to the railroad.” The court then cites a number of cases in this state which hold certain kinds of real estate cannot be taken away from the company by sale under the ordinary forms of adverse process ; that even conceding the railroad company might be charged in some mode of proceeding with the cost of paving, the proceeding by scire facias, and levari facias, was not the proper one, because directed against the roadbed. The judgment was affirmed in this court for two reasons, in substance the same as those given by the court below: 1. The claim had no foundation in the letter or spirit of the law. 2. The form of the remedy was one which was inapplicable as against a corporation operating a public highway, because it would destroy that in which the public had an interest. The decisions of the court below and this court are based mainly on the absence of statutory authority to seize and sell for assessments the roadbed of a railroad company as land; and reasons of more or less force are given why the absence of such authority is wise. While the facts in this case show'the decision was eminently just, for the sale sought to be enforced by a levari facias was of a strip of land only forty-seven feet wide, on which was the actual structure of the railroad, yet the cases decided up to that time show the exemption of property from taxation on the plea that it was an indispensable part of the corporate franchise, had reached a point which in the legislative mind was no longer tolerable. Water stations, depots, toolhouses, reservoirs, houses and gardens of lock-tenders and collectors, engines and machinery for raising cars up planes, collectors’ and engineers’ offices, all were exempt on the ground they were indispensable to the exercise of the franchise. As noticed, this last decision was in 1856, but then came the act of April 21, 1858, which contains this provision: “ The offices, depots, car-houses and other real property of railroad corporations situated in said City (Philadelphia), the superstructure of the road and water stations only excepted, are and hereafter shall be subject to taxation by ordinances for city purposes.” From its plain words, this was not an act defining what amount or what character of taxes might be imposed on corporate property, but an act declaring what property thereafter should not be exempt and what should be from taxation. It brought again within the taxing power a very large amount of property which under the former decisions of this court had escaped. And it declared in explicit terms the superstructure and water stations should be exempt. Although the word superstructure might, in present railway engineering phraseology, be limited to sleepers, rails and fastenings (see “superstructure,” Century Dictionary), yet we have no doubt the legislature of that day, adopting the ordinary meaning of the word, intended by it the roadbed with whatever had been constructed upon it; except this and water stations, railroad real estate should be subject to taxation. But it is argued the words, “ subject to taxation by ordinances for city purposes,” only mean taxation for ordinary revenue, and give no authority to assess for municipal improvements. Under the authorities the word taxation does not always indicate a power of assessments for local improvements; the purpose as well as the language of the act may exclude such power. But this act plainly includes the power. The purpose as declared in the preamble is the equalization of the public burden; the burden, under the decisions, had not been theretofore shared equally, if the landowner for fifteen hundred feet of a large lot on one side of Richmond street escaped assessments for municipal improvements, while the lot owners on the opposite side paid the whole; the intention was inequality should be remedied: how? By conferring power to tax it by “ordinance for city purposes.” The construction of the sewer is a city purpose ; therefore the power to assess for payment of the cost of it, theretofore limited, is thereafter almost unrestricted. The power conferred is intended to be ample, that the evil before existing because of want of it should be remedied. We are of opinion this act conferred fully on the city the power here claimed to assess by ordinance railroad real estate for local improvements. The Junction Railroad case, 88 Pa. 428, following City v. Railroad Co., supra, declares the roadbed exempt, but recognizes the well marked distinction made by the act of 1858 between the roadbed and other real estate of the company. The claim in the Junction Railroad case was filed against the strip of land constituting the roadbed, and on that ground, was not sustained. Nor can the roadbed here be made subject to this lien. Just what portion of this land is subject to lien for this assessment we do not decide. Clearly a large part of it is not roadbed. The affidavit and map filed show a large part of the land is a coal yard or terminal. Defendant by its act of incorporation is authorized to appropriate for roadbed a strip of land four rods or sixty-six feet wide; in addition, it can appropriate land for sidings and turnouts for the speedy and safe passage of its cars; land so taken would properly be termed roadbed, and be exempt from taxation; but a tract of land one thousand five hundred feet wide, extending from Richmond street to the river, used as a coal and ore, terminal, is not a roadbed any more than the private coal yards in the city, where, by turnouts and sidings, the company dumps coal, are parts of the roadbed. All are appurtenant to the business of the road, but are not an integral part of it in conducting its business as a carrier. If it did not provide these terminal facilities, private individuals, with a view to profit, would. The complete control of such a yard by the company doubtless adds to the efficiency and economy of shipment and delivery after the coal is carried between point of consignment and destination, and the company may properly own and control the land as a stimulant to its business; but if it chooses to do so it must pay municipal assessments as other real estate owners. While we can from this record determine that a large part of this one thousand five hundred feet is not roadbed, we cannot say just how much is; but that fact prevents not the entry of judgment; the plaintiff has a lien on the land in excess of that not subject to municipal assessment; a sale of the land passes to the purchaser nothing the lien does not bind; he takes it subject to defendant’s easement. In Howard Street, 142 Pa. 601, our Brother Mitchell, in passing on the constitutionality of this act of 1858, as to the apportionment of benefits and damages, suggests that serious difficulties may arise from lack of provision for collection and distribution, but he says, none of them arise in that case and they may never arise. A similar question was raised in Berks Street, 12 W. N. C. 10, where the court says, it is something with which it has nothing to do. The same argument is presented here, that is, the insufficiency of the process to enforce the judgment. We might pass the question, as was- done in the other cases, as one which could only arise when the writ was issued on the judgment. But the difficulties presented in the cases cited, which were to assess and apportion damages and benefits caused by the opening of streets, do not appear here. The city has' its judgment in rem against land on which defend ant had, under the law, before the filing of the municipal lien, a visible, notorious easement or right of way to the extent of its roadbed; no adverse process could disturb it in the enjoyment of this easement, for as is held in Canal Co. v. Bonham, 9 W. & S. 27, and the many cases following it, “ The franchises and corporate rights of a company and the means vested in it which are necessary to the existence and maintenance of the object for which it was created, are incapable of being granted away and transferred by any act of the company itself, or by any adverse process against it.” The roadbed running to the river through this yard being necessary to the existence of the road as a common carrier cannot be taken from it by a proceeding in rem against the yard; the purchaser takes subject to the easement, just as the purchaser of land at sale under a mortgage takes subject to an open, visible easement antedating the mortgage. The argument of appellant’s counsel, although a most able one, does not treat the act of 1858 as the undoubted law on which the case turns; we are clearly of the opinion the city’s claim is sustained by this act; that it, in effect, negatived a large number of the decisions of this court announced before its passage, in view of the statutes on this subject then existing. Since 1858 what land held by railroads in Philadelphia shall be assessed for municipal improvements is no longer a judicial question, that statute has answered it in unmistakable terms. The judgment is affirmed.

Opinion by Judge MacPha.il, Allen M. Wenger (Appellant) appeals an order of the Court of Common Pleas of Dauphin County which dismissed his appeal and sustained a one-year suspension ordered by the Department of Transportation (Department) pursuant to Section 1547 of the Vehicle Code (Code), as amended, 75 Pa. C. S. §1547. We affirm. Appellant was observed driving erratically on the evening of November 28, 1985 and was shortly thereafter involved in a one-car collision. Upon his arrival, Officer Popp detected the odor of alcohol on Appellants breath and noticed he was uncoordinated and fumbling in his attempt to produce his license. Officer Popp conducted a field sobriety test and then placed Appellant under arrest for driving under the influence of alcohol. Appellant agreed to submit to a breathalyzer test and was thereafter transported to the police station. At the police station, Officer Newcomer read to Appellant from a form entitled “Notice of Pennsylvania Implied Consent Law.” Appellant indicated that he un derstood what was read to him and he was then taken to the room where breathalyzer tests are conducted. Appellant then said he wanted a blood test rather than a breath test. Officer Newcomer testified that he told Appellant that if he did not take the breath test it would be considered a refusal and his operating privilege would be suspended. Appellant was informed that he could obtain á blood test on his own from his physician after he took the breath test. After refusing to submit to the breath test three more times, Appellant was released and his license was thereafter suspended. Appellants sole argument here is that his license cannot be suspended for insisting on a blood test rather than a breath test because he reasonably misunderstood the law which was read to him, and which he also read for himself, to give him, rather than the police, the choice of tests and because the police foiled to warn him that his insistence on a blood test rather than a breath test would constitute a refusal. The Department argues that Appellants appeal is frivolous and therefore requests an award of counsel fees pursuant to Pa. R.A.P. 2744. Section 1547(a) of the Code states in part that “[a]ny person who drives ... a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood. . . .” 75 Pa. C. S. § 1547(a). This Court has clearly stated that under Section 1547(a) “a licensee has no right to a choice of tests. . . .” Binder v. Commonwealth, 99 Pa. Commonwealth Ct. 548, 531, 513 A.2d 1105, 1107 (1986). In fact, we have specifically held that there is nothing in Section 1547(a) of the Code to indicate that a licensee has the option of choosing which chemical test he will take. Department of Transportation, Bureau of Traffic Safety v. Bartle, 93 Pa. Commonwealth Ct. 132, 500 A.2d 525 (1985). Anything less than an unequivocal consent to take the test requested by the officer constitutes a refusal. Id. In the case at bar, Appellant argues that he was reasonably misled by the form which was read to him by Officer Newcomer. Our review of the contents of that form, however, reveals that it is an almost verbatim recitation of Section 1547(a) and (b)(1) of the Code. Since we have held that Section 1547(a) of the Code does not indicate that a licensee has the option of choosing the test, we must conclude that there is no basis for Appellants argument. Cf. Binder (where this Court held that a licensee had been misled into believing that he had the choice of tests by a form containing the phrase “or if you prefer that a blood test be given. . . .”) Furthermore, our review of the record reveals that Appellant wás properly warned that his insistence on a blood test rather than a breath test would constitute a refusal.* * Accordingly, we reject Appellants argument and sustain the Departments one-year suspension of his operating privilege. We now turn to the Departments request for counsel fees. Pa. R.A.P. 2744 allows this Court to award reasonable counsel fees if an appeal is determined to be, inter alia, frivolous or taken solely for delay. This Court has previously held that a key factor in determining whether an appeal is frivolous is determining “whether, either as a matter of fact or law, the appellants contentions have any likelihood of success” or whether a continuation of the contest is reasonable. Appeal of Langmaid Lane Homeowners Ass'n, 11 Pa. Commonwealth Ct. 53, 60, 465 A.2d 72, 75 (1983). As we have just stated, Appellant’s argument that Section 1547(a) of the Code is misleading has been addressed by this Court on previous occasions and has been flatly rejected; nevertheless, our most definitive statement on the issue was not handed down in the Bartle case until November 22, 1985. The arrest in the instant case occurred November 28, 1985. The appeal from the Department’s action suspending Appellant’s driving privileges was filed January 17, 1986. While it is true that by the time the case came on for hearing on March 27, 1986, our decision in Bartle was, or should have been known to Appellant, we are reluctant to hold that Appellant should have been aware before he appealed that his case was controlled by the result we reached in Bartle and that his appeal had little or no likelihood of success in view of Bartle. We, consequently, will not exercise our authority under Pa. R.A.P. 2744 to impose counsel fees in this case. Order The order of the Court of Common Pleas of Dauphin County in the above-captioned matter is hereby affirmed. When Officer Newcomer was asked to “read what you told the Defendant,” he responded: Pennsylvania has an implied consent law, Section 1547 of the Vehicle Code, which provides that if you drive, operate or are in physical control of the movement of a motor vehicle in the Commonwealth, you shall be deemed to have given your consent to one or more chemical tests of your breath, blood, or urine for the purposes of determining the alcoholic content of your blood or the presence of a controlled substance in your blood, provided a police officer has reasonable grounds to believe that you are driving, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or of a controlled substance or both, or driving, operating or in actual physical control of the movement of a motor vehicle which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. That section further provides that if you are placed under arrest for a violation of Section 373 [sic], relating to driving under the influence of alcohol or controlled substance, and are requested to submit to chemical testing and refuse to do so, the testing shall not be conducted, but upon notice by the police officer, the department shall suspend your operating privilege for a period of 12 months. Notes of Testimony (N.T.) from March 27, 1986 at 20-21. Appellant calls our attention to two cases, Commonwealth v. Kennedy, 27 Pa. D. & C. 3d 449 (1983) and Commonwealth v. Johns, Jr., 26 Pa. D. & C. 3d 371 (1983), in support of his proposition that one who reasonably misunderstands the implied consent law to give him the choice of tests and refuses a breath test based on his misunderstanding has not refused to submit to a chemical test. These cases are readily distinguishable. Both cases involved the use of forms which were read to the defendant and were found by the court to have misled the defendant into believing that he had the choice of tests. In Kennedy, the form read in part “Do you wish to take the test, breath, blood or urine” and defendant was asked to circle one and check yes or no. Id. at 450-451. In Johns, Jr., the defendant was given a form which read in part “If you are unable to perform the breath test, or if you prefer that a blood test be given, you are requested to submit to same.” Id. at 374. In the present case, the form read to Appellant contained an almost verbatim recitation of Section 1547(a) of the Code which we have specifically held does not indicate that a licensee has the option of choosing the test. Bartle. In addition, there were no other statements, like those quoted above, which could have misled Appellant. Officer Newcomer testified on cross-examination as follows: Q: And you never specifically told him [Appellant] that his insistence on a blood test would constitute a refusal, isn’t that correct? A: No, that is not correct. I told him that his refusal to take a breathalyzer test is a refusal. ■Q: Did you ever specifically tell him that his insistence on a blood test would result in a loss of his license? A: Yes, Sir, I did, right where the breathalyzer was. N.T. at 26. The trial court held that the implied consent form and this testimony by the officer was sufficient to indicate that Appellant was properly warned. While we agree with that conclusion by the trial court, we also believe that in order to avoid similar problems in the future, the arresting officer or the breathalyzer operator should inform the motorist that the choice of chemical tests is made by' an officer and not by the motorist and anything less than an unconditional assent to the officers request for a specific test will result in a 12-month license' suspension.

Opinion by Judge Colins, Satish R. Nayak, M.D., an enrolled provider in the Pennsylvania Medical Assistance Program (MA Program), appeals an order of the Department of Public Welfare (DPW), Office of Hearings and Appeals, which adopted the recommendation of the Hearing Officer denying his appeal from the refusal of his request for an exception to the time limitations imposed upon the submission of invoices for payment of health care services rendered. The time limitations on submission of invoices at issue in this case are found at Section 1101.68 of the Medical Assistance Manual (MA Manual), 55 Pa. Code §1101.68, effective January 1, 1980, as modified by the provisions of the Medical Assistance Rulletin (MA Bulletin) 99-83-05, issued on November 1, 1983. Section 1101.68 of the MA Manual states that: (a) Providers shall use the invoices specified by the Department or its agents when billing for Medical Assistance services or items. Providers shall submit the invoices within 6 months after the delivery of the services or items. Invoices that have not been completed according to specified instructions or that lack any required documentation will be rejected by the Department. In the event that an invoice is rejected by the Department, a remittance advice will be sent to the provider explaining the reason for the rejection. The provider may submit a corrected invoice for payment. (b) Invoices submitted after the 6-month period will be rejected absolutely unless: (1) A recipient eligibility determination that was required to be made by a CAO [county assistance office] was delayed for 30 days or longer. (2) Payment is being requested from a third party resource. 55 Pa. Code §1101.68(a) and (b). (Emphasis added.) Under the modified procedure defined by the MA Bulletin, original invoices must be submitted to DPW within 180 days of the date of service. All claims adjustments and resubmissions must be received by DPW within 365 days of the date of service. The procedure thereby affords the provider one year from the date of service to submit correct invoices for payment, regardless of the number of resubmissions. In the years 1983 and 1984, Dr. Nayak timely submitted claims to the MA Program for reimbursement of services rendered to ten patients eligible under Medicaid. Without detailing the specific handling of each invoice, suffice it to say that each invoice was rejected by DPW and payment was denied for one of the following reasons: (1) the improper coding as to type and place of service; (2) the absence of a patient Medical Assistance (MA) identification number; and (3) the alleged availability of alternative third party insurance negating DPWs liability for payment. In most instances, Dr. Nayak attempted to correct the coded information and resubmit the invoices, which were again rejected by DPW for one of the above reasons. Upon resubmission, these invoices were ultimately rejected as not submitted within the requisite 365 days from the date of service. Dr. Nayak then requested an exception to the 180/ 365 day invoice submission limitation, in apparent reliance on the provisions of 55 Pa. Code §1101.68(b), as modified by MA Bulletin 99-83-05. The MA Bulletin pertinently provides that: an exception [to the 180 or 365 day limit] will be granted to allow payment processing only if the deadline date for the submission of the claim could not be met for one of the following reasons: (1) the recipients eligibility determination by the CAO was delayed by thirty (30) days or longer; or (2) payment is being requested from a third party resource. DPW denied the exception to the time limitations because Dr. Nayak did not submit documentation at tributing the delay to either a third party insurance request or eligibility determination directed to the CAO. Dr. Nayak appealed this decision to the Office of Hearings and Appeals and the matter proceeded to a hearing before a designated Hearing Officer. The Hearing Officer, after taking testimony from Dr. Nayaks office manager, as well as from a representative of DPW, denied Dr. Nayaks appeal, stating that “in all instances, the request for an exception to the time limit for submitting invoices was over the maximum 365 day limitation” and that he had “no authority to modify or invalidate [DPW] regulations.” The Office of Hearings and Appeals adopted the Hearing Officers recommendation and the Secretary of DPW denied Dr. Nayaks subsequent request for reconsideration after his Petition for Review was filed with this Court. Upon appeal, Dr. Nayak contends that he is entitled to reimbursement for services rendered because he made every effort to comply with billing regulations. He argues that any errors in the submitted invoices were technical, inadvertent or minor and attributes delay to the dilatory and inconsistent manner in which DPW processes claims. He also asserts that he is entitled to payment, under principles of substantial performance, for services indisputably rendered and that the equities of this case demand that the time limitations for submission of claims not be strictly enforced. DPW counters (1) that it properly denied Dr. Nayaks request for an exception to the 180/365 day rule; (2) that Dr. Nayak is not entitled to payment by virtue of his failure to timely appeal DPW s denial of his claims in accordance with Section 1101.84(c) of the MA Manual, 55 Pa. Code §1101.84(c); and (3) that the doctrine of substantial performance will not excuse noncompliance with substantive regulations having the force and effect of law. There are absolutely no allegations of fraud in the instant matter. DPW rejected Dr. Nayaks claims for payment solely as a result of invoice errors, an area of fiscal accounting which, we emphasize, is terribly complicated. The volume of provider claims mandates that DPWs reimbursement system be computerized, thus requiring the provider to numerically code the patient information on the invoices submitted for payment. Invoices improperly coded are “kicked out” by the computer and returned to the provider with a notation indicating the source of coding error or inconsistency. We fully believe that providers, with some reason, view themselves as subject to the vagaries of a cumbersome and impersonal system. Dr. Nayaks office manager, who was responsible for billing, clearly expressed to the Hearing Officer her frustrations in attempting to unravel these complexities. I. Timeliness Before we can address the merits of DPWs denial of Dr. Nayaks claims, we first consider the contention that the appeal was not timely taken. DPW submits that Dr. Nayaks failure to appeal the denial of his claims in accordance with Section 1101.84(c) of the MA Manual, 55 Pa. Code §1101.84(c), precludes his payment. That section pertinently provides that “appeals of . . . adverse actions of [DPW] shall be filed in writing within thirty (30) days of the date of notice of the action to the provider.” We contrast this provision with those pertinent sections of MA Bulletin 99-83-05 which permit the provider to correct invoice errors and resubmit claims to DPW, with the limitation that all resubmissions must be received by DPW within 365 days of the date of service. We believe the two provisions may be confusing to providers confronted with reimbursement denials. The time point at which the provider must cease attempts to obtain reimbursement by resubmitting claims, pursuant to the MA Bulletin, and appeal the denial, pursuant to Section 1101.84 of the MA Manual, is ambiguous. If the appeal period is in fact triggered by DPWs ultimate rejection of invoices as untimely, there is no indication on this record that DPW so notified Dr. Nayak. In contrast, DPWs denial of Dr. Nayaks request for an exception to the time limitations clearly designated the time period and method of appeal, a procedure which Dr. Nayak utilized. A time period for appeal may be extended nunc pro tunc upon a showing of fraud or breakdown in the administrative process. Martin v. Department of Public Welfare, 99 Pa. Commonwealth Ct. 345, 514 A.2d 204 (1986). This Court also has equitable jurisdiction where administrative remedies are inadequate. Id. We are aware, of course, that providers are charged with knowledge of applicable DPW regulations. Eye & Ear Hospital v. Department of Public Welfare, 100 Pa. Commonwealth Ct. 363, 514 A.2d 976 (1986). However, in light of the potential confusion engendered in the application of these two seemingly inconsistent regulations pertaining to provider action upon denial of reimbursement, we will consider this matter as if timely appealed. II. Request for Exception Upon DPWs denial of the pertinent invoices as untimely, Dr. Nayak requested an exception to the time limitations pertaining to two groups of patient invoices. As we have indicated, the provisions of the MA Bulletin permit payment of untimely invoices if the submission deadline could not be met because the CAO had delayed in determining MA eligibility or payment had been requested from a third party insurer, subsequently not forthcoming. The exception provision is intended to prevent payment denial from circumstances beyond the providers control. See State College Manor Ltd. v. Department of Public Welfare, 92 Pa. Commonwealth Ct. 89, 498 A.2d 996 (1985) (construing Section 1101.68 of the MA Manual, 55 Pa. Code §1101.68). Its application is restricted to the scenarios above defined, neither of which was implicated in the instant action. While Dr. Nayak clearly desired an exception to the time constraints upon the submission of invoices, his reliance on this provision was misguided. DPW properly denied his request for an exception. III. The Merits of Dr. Nayak’s Appeal The gravamen of Dr. Nayaks argument is that the doctrine of substantial performance precludes his forfeiture of payment for health care services indisputably provided, in accordance with this Courts decision in Department of Public Welfare v. Dauphin County Social Services for Children & Youth, 90 Pa. Commonwealth Ct. 295, 495 A.2d 214 (1985). He contends the doctrine is particularly applicable in the instant action because any errors in the submission of invoices were minor and inadvertent and any delay resulted from flaws in DPWs coding system and its inconsistent processing of similar invoices. While we applied the doctrine of substantial performance in Dauphin County, we limited its application in State College Manor to the confines of a contract between two parties. We refused to apply the doctrine to permit reimbursement of invoices submitted by a nursing facility after the time limit on submission had expired. As we stated: the equitable doctrine of substantial performance may excuse unimportant omissions with regard to the terms or requirements of a con tract between two parties . . . [but] will not excuse, however, failures of omission, important or otherwise, with regard to the requirements of a substantive regulation having the force and effect of law. Id. at 94-95, 498 A.2d at 999 (emphasis added). Dr. Nayak attempts to distinguish State College Manor by virtue of the fact that the delay in billing in that case was occasioned by the gross negligence of the facility’s bookkeeper, whereas his own office manager made every effort to comply with the billing regulations. However, we are constrained by the language of State College Manor to conclude that the doctrine of substantial performance is not applicable in the context of noncompliance with substantive regulations to mitigate against the forfeiture of payment occasioned by “failures of omission . . . important or otherwise.” Only if DPW has contributed to these omissions will we find the doctrine applicable. .We next examine the specific difficulties experienced by Dr. Nayak in his submission of the claims at issue. We understand the system to require that the coded information on each invoice be internally consistent, at the risk of automatic rejection by the computer. For example, the code for any particular medical procedure must correspond to a single place of service code and any variation will lead to immediate rejection. Four patient invoices were rejected because the place of service code designated the out-patient department rather than the emergency room. Dr. Nayak submits that the. out-patient department and the emergency room are one and the same unit in the hospital in which he practices and that the coding system is flawed because it fails to reflect this distinction. Dr. Nayak further submits that the computer fails to recognize medical procedures appropriately termed . “diagnostic surgery” and requires that invoices be coded either as “di agnosis” or “surgery.” The confusion engendered by the inflexibility of the computerized system, he posits, necessitates multiple submission of claims and risks their ultimate rejection as untimely. We have little doubt that providers suffer confusion and frustration in attempting to obtain payment from DPW. We also have little doubt that the volume of provider claims prohibits manual review. We hold that the burden of learning to work with the system is upon the provider. A particular medical procedure will always have the same place of service code and, once an invoice has been rejected for an improper code, it may be corrected and resubmitted. The provider must learn to recognize the appropriate codes for each procedure he performs. Dr. Nayak contends that DPW delays in rejecting invoices, thus effectively curtailing the providers time period for resubmission. The record indicates that certain invoices submitted on November 14, 1983 were not rejected until January 2, 1984; on the other hand, another invoice submitted on March 24, 1984 was rejected on March 30, 1984. We cannot conclude from this record that DPW contributes unnecessarily to any delay. DPW also rejected an invoice for services rendered to a newborn infant because the child’s MA identification number was not indicated. Dr. Nayak contends that parents frequently delay in obtaining MA numbers for their children and that it is not his responsibility to do so. However, the provider is charged with verifying the MA eligibility of his patients. See 55 Pa. Code §1101.33(a). Moreover, that regulation specifically states that DPW “may not pay providers for services a provider rendered to persons ineligible on the date of service. ... If the provider notes any discrepancies, he should call the recipient’s [CAO] to verify eligibility.” We cannot fault DPWs rejection of this claim in light of the clear language of the regulation. Finally, DPW rejected an invoice on the basis that this patient had insurance coverage. Dr. Nayak resubmitted the invoice with a handwritten notation that such coverage was not available. DPW again rejected the invoice, requiring written documentation from the insurer that coverage was not available, in accordance with the provisions of the MA Bulletin. Dr. Nayak contends that DPW has, on previous occasions, accepted the handwritten notation of his staff as to the availability of insurance coverage. These other invoices are not included in this record and, although Dr. Nayak s office manager testified as to this inconsistent treatment of similar invoices, we are constrained to limit our sanction to a strong admonition. We strongly caution DPW that any inconsistent treatment of invoices subjects providers to the vagaries of an already complex system and cannot be tolerated. Strict compliance with the regulations pertaining to submission of claims is required where disbursement of public funds is at issue. State College Manor. We repeat the words of Justice Holmes therein quoted: “Men must turn square corners when they deal with the Government.” Id. at 96, 498 A.2d at 999, quoting Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143 (1920). We fear that the increasingly complex DPW reimbursement procedures will require providers to jump hoops as well as turn corners in dealing with this system, but we are constrained to conclude that Dr. Nayaks substantial performance argument must fail. Accordingly, the order of DPW is affirmed. Order And Now, July 21, 1987, the order of the Department of Public Welfare in the above-captioned matter is hereby affirmed. Pennsylvania’s MA Program is associated with the Federal Medicaid system and is administered by the Department of Public Welfare pursuant to Section 201 of the Public Welfare Code, Act of June 13, 1967, PL. 31, as amended, 62 PS. §201. Under the prior procedure, providers had 180 days within which to resubmit a rejected claim or to submit a claim adjustment. There was no time limit on multiple resubmissions as long as each was submitted within 180 days from the previous rejection. See MA Bulletin 99-80-15. At the hearing before the Hearing Officer, Dr. Nayak withdrew his appeal from DPWs denials of reimbursement of invoices submitted for services rendered to four patients.

OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal from a memorandum decision of Commonwealth Court which held that the appellant, Medical Professional Liability Catastrophe Loss Fund (CAT Fund), an agency of the Commonwealth, is responsible for providing statutory excess liability coverage in a medical malpractice action against a surgeon, Arturo Azurin, M.D. The background of the case is as follows. On January 13, 1993, Dr. Azurin performed abdominal surgery on Dora M. Dellenbaugh. Following the surgery, serious complications developed. These included an uncontrollable infection, respiratory distress syndrome, and arterial thrombosis that necessitated an above-the-knee amputation. As a result, Dellen-baugh was forced to remain in in-patient care and her death ensued in August of the same year. Appellee, Charles Dellenbaugh, as administrator of his wife’s estate, filed this malpractice action against Dr. Azurin. It is uncontested that damages could exceed the $200,000 of basic coverage that Dr. Azurin maintains through his primary insurance carrier, Pennsylvania Medical Society Liability Insurance Company (PMSLIC). The CAT Fund, in accordance with its statutory function, normally provides excess coverage for such claims. See Health Care Services Malpractice Act (Malpractice Act), 40 P.S. §§ 1301.701-1301.706. The fund notified appellee, however, that it would not provide coverage in this case. The basis for the CAT Fund’s action was that, beginning in January of 1992, Dr. Azurin failed to pay his required annual surcharges to the fund. Pursuant to the Malpractice Act, such surcharges are assessed against health care providers in the Commonwealth to provide funding for the CAT Fund. See 40 P.S. § 1301.701(e) (assessment of annual surcharge). The surcharges are normally collected by one’s primary insurance carrier, which, in turn, remits them to the fund. The CAT Fund was notified by PMSLIC, via letter dated June 2, 1992, that Dr. Azurin had not paid his annual surcharge. The penalty for failure to pay an annual surcharge to the fund is suspension or revocation of the delinquent health care provider’s license by the state licen-sure board. 40 P.S. § 1301.701(f). It is the responsibility of the fund’s director to notify the applicable licensure board when a health care provider fails to comply with the surcharge requirement. 31 Pa.Code § 242.17(a) (“The failure of the health care provider to comply ... will result in notification by the Director to the applicable Licensure Board.”). With regard to Dr. Azurin’s failure to pay the surcharge, however, the director failed to provide notification to the Board of Professional and Occupational Affairs, State Board of Medicine (licensure board). Hence, proceedings to suspend or revoke Dr. Azurin’s license to practice medicine did not promptly commence. In January of 1993, therefore, when Dr. Azurin performed surgery on Dellenbaugh, his failure to pay CAT Fund surcharges had not been brought to the attention of the licensure board. With regard to the CAT Fund’s liability for payment of damage awards in cases where health care providers fail to comply with surcharge requirements, it is specified in 31 Pa.Code § 242.17(b) that: A health care provider failing to pay the surcharge or emergency surcharge within the time limits prescribed will not be covered by the Fund in the event of loss. Based on this, the CAT Fund denied liability for any damage award arising from Dr. Azurin’s alleged malpractice. On July 7, 1997, appellee filed a petition for review in Commonwealth Court seeking a declaratory judgment that the CAT Fund was estopped from denying statutory excess coverage by virtue of its failure to have promptly reported Dr. Azurin to the licensure board for failing to pay his annual surcharge. Commonwealth Court held that the fund cannot deny coverage. It reasoned that one of the central purposes of the Malpractice Act is to provide fair and reasonable compensation for persons injured by medical malpractice. Commonwealth Court concluded that the Malpractice Act was intended to assure compensation for tort victims regardless of whether surcharges have been paid by the health care provider. It reasoned that although 31 Pa.Code § 242.17(b), supra, provides that a doctor who fails to pay a surcharge is not covered by the fund in the event of loss, the fact that the doctor is not covered does not mean that the fund is not responsible for payment of damages to a victim of malpractice. The court viewed 31 Pa. Code § 242.17(a), supra, as creating a duty for the fund to protect potential victims of malpractice by providing expeditious notice to licensure boards when health care providers fail to pay their annual surcharges. It held, therefore, that appellee could maintain a claim against the fund and that the fund was estopped from denying coverage. We disagree and accordingly reverse. The purpose of the Malpractice Act was set forth in 40 P.S. § 1301.102, which provides: It is the purpose of this act to make, available professional liability insurance at a reasonable cost, and to establish a system through which a person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation. While the second of the stated purposes is indeed to promote the “determination of fair and reasonable compensation” for tort victims, 40 P.S. § 1301.102, supra, the other purpose, to wit, the one deemphasized by the decision below even though it was the one set forth first in the statutory description of purposes, is to “make available professional liability insurance at a reasonable cost,” id. It is inherently contrary to the latter purpose to require the fund to cover claims made against those who have not paid their surcharges to the fund, for, by doing so, the fund would be required to increase surcharges assessed against compliant health care providers. It would also undermine the financial integrity of the fund to pay claims for those who have ignored their responsibility to pay into the fund. We do not believe that the legislature intended such a result. The Malpractice Act provides that “the fund shall be funded by the levying of an annual surcharge on or after January 1 of every year on all health care providers entitled to participate in the fund.” 40 P.S. § 1301.701(e)(1) (emphasis added). Inasmuch as all providers are required to pay the surcharges, the clear and logical implication is that if a provider fails to pay his share, he may not participate in the coverage offered by the fund. Accordingly, the CAT Fund promulgated the regulation at 31 Pa.Code § 242.17(b), supra, which states that a health care provider who fails to pay CAT Fund surcharges “will not be covered by the Fund in the event of loss.” See generally Tool Sales & Service Co. v. Commonwealth, 536 Pa. 10, 22, 637 A.2d 607, 613 (1993) (agencies are accorded deference in interpreting the statutes they enforce). To conclude that a provider can ignore the requirements of the Malpractice Act, yet reap the benefits thereof, is untenable. Further, when an insured is not covered for a loss, it is inconceivable that the claimant is nevertheless entitled to be paid by the carrier for that loss. The court below, by holding the CAT Fund liable for such a loss, plainly erred. We are not persuaded by Commonwealth Court’s suggestion that the CAT Fund could pay the loss and then pursue Dr. Azurin to recoup any damages that the fund pays to appellee. This would further drain assets of the fund where the likelihood of recovering such funds is low, and resources of the fund would have to be used to cover the costs of collection. We note, too, that recourse against Dr. Azurin personally is just as available to appellee as it is to the CAT Fund. Nor do we agree with Commonwealth Court’s determination that the CAT Fund is estopped from asserting its non-liability by reason of its failure to have promptly notified the licensure board regarding Dr. Azurin’s failure to pay surcharges to the fund. Commonwealth Court relied on its own decision in Central Dauphin School District v. Commonwealth, 63 Pa.Cmwlth. 48, 437 A.2d 527, 530 (1981) for the proposition that equitable estoppel can apply to a Commonwealth agency when the agency intentionally or negligently misrepresents some material fact, with knowledge or having reason to know that another would justifiably rely on that misrepresentation, and where the other is induced to act to his detriment because of the justifiable reliance. The court’s opinion offers virtually no explanation, however, of how the principles of estoppel apply to the facts of this case. The court may have reasoned that failure to have notified the licensure board amounted to a misrepresentation, and that this resulted in Dellenbaugh being subjected to surgery by Dr. Azurin, to wit, surgery that would not have been performed if the fund had complied with its notification requirements. This rationale is not clearly set forth, but it is by implication the basis for the application of estoppel. Without regard to whether anything that could be deemed a misrepresentation occurred, however, estoppel was not appropriately invoked. There is nothing in the record to suggest that, if the fund had promptly notified the licensure board regarding Dr. Azurin’s failure to pay surcharges, the surgery on Dellenbaugh would not have been performed. If the fund had notified the board in June of 1992 when it first became aware of Dr. Azurin’s failure to pay, Dr. Azurin’s license would not likely have been suspended or revoked before surgery was performed on Dellen-baugh in January of 1993. Thus, Dellen-baugh was not harmed by the fund’s lack of prompt notification to the licensure board. The fund itself has no power to suspend or revoke a license; rather, such sanctions can be applied only “by the licensure board.” 40 P.S. § 1301.701(f). The sanctions are not invoked immediately upon the board’s receipt of notice from the fund. Rather, notification to the board merely sets in motion a process by which the license can be suspended or revoked. The process affords full procedural due process safeguards. These include notice, hearings, a decision by a hearing examiner, and review by the licensure board. See 40 P.S. § 1301.901-1301.905. As the CAT Fund alleged in its “Answer and New Matter” filed in response to ap-pellee’s petition for review in Commonwealth Court, “even if the CAT Fund had reported Dr. Azurin to the licensure board upon learning that he had not paid his 1992 surcharge, Dr. Azurin’s license would not have been suspended or revoked by January of 1993.” Appellee offered no response to this pleading. On appeal, ap-pellee’s brief concedes that “it is impossible to know with certainty what would have occurred,” but asserts that “[I]t is certainly possible that some suspension could have occurred before the surgery in question.” (Emphasis added). Appellee cites nothing in the record to support this assertion. Indeed, the only indication in the record as to the speed with which the licensure board acts is contrary to appel-lee’s position. After proceedings were initiated against Dr. Azurin on July 6, 1995, his license was not revoked until May 6, 1996. Hence, the process took ten months. Such extended proceedings, had they been commenced in June of 1992, would have been of no benefit to Dellen-baugh in January of 1993 since Dr. Azu-rin’s license would not yet have been revoked. We conclude, therefore, that it was error for the court below to hold that the CAT Fund is liable for excess liability coverage where the doctor has not paid the required surcharges, and that it was error to hold that the fund is estopped from denying coverage. Order reversed. Justice NIGRO files a dissenting opinion in which Justice SAYLOR joins. . This case was addressed to Commonwealth Court’s original jurisdiction; hence, appellate jurisdiction is governed by 42 Pa.C.S. § 723(a). . Proceedings were not commenced by the licensure board until July 6, 1995, and, ten months later, on May 6, 1996, Dr. Azurin’s license to practice medicine was revoked. . It is not alleged that there were ever any communications between the CAT Fund and Dellenbaugh. The fund argues, therefore, that no misrepresentation could have occurred, and that Dellenbaugh placed no reliance on the fund.

KELLEY, Judge. PECO Energy Company (PECO) petitions for review of an order of the Pennsylvania Public Utility Commission (Commission) which granted the exceptions filed by the Pennsylvania Department of Transportation (DOT) to the recommended decision of an Administrative Law Judge (ALJ). We vacate and remand. On September 3, 1997, DOT filed an application with the Commission to reconstruct State Route 2001, designated as Christopher Columbus Boulevard/Delaware Avenue (Delaware Avenue), by removal of old railroad tracks, base repairs, drainage improvements and resurfacing. The application sought abolition and removal of twenty-three (23) railroad crossings owned by Consolidated Rail Corporation (Conrail). The Commission, by letter dated November 20, 1997, approved DOT’s application and directed DOT to prepare and submit to the Commission for approval, final construction drawings for the reconstruction and resurfacing of Delaware Avenue. Thereafter, hearings were held before an ALJ after which the ALJ made the following findings of fact adopted by the Commission. As a result of its application to reconstruct and resurface Delaware Avenue, DOT entered into stipulations with various municipal public utilities to share the costs of the project and relocating the municipal public utilities facilities. DOT did not enter into any stipulations or agreements with PECO or Bell Atlantic-Pennsylvania, Inc. (Bell) to share the costs of relocating PECO’s and Bell’s facilities along Delaware Avenue. Consequently, PECO and Bell sought reimbursement from DOT for all costs actually incurred in connection with the removal and replacement of PECO’s and Bell’s facilities. DOT refused-to agree to reimburse PECO and Bell for the aforementioned costs. DOT will receive federal and state funding for the Delaware Avenue project. Based on: (1) the benefit received by the ratepayers of the particular utility; (2) the availability of state and/or federal funding for a project; (3) the placing of the costs upon the party responsible for the situation; and (4) the equities of a particular situation, the ALJ ordered DOT to pay to PECO and Bell 100% of the actual costs incurred by PECO and Bell in furnishing material and performing work minus the costs of any betterment to their facilities. DOT filed exceptions with the Commission raising objections to the foregoing portion of the ALJ’s recommended decision and order. The Commission granted DOT’s exceptions by order entered April 5, 1999. The Commission concluded that the ALJ’s recommended cost allocation with respect to PECO and Bell was not just and reasonable based on the following considerations. First, the Commission determined that both Bell and PECO have received, and will continue to receive, substantial benefits from the location of their facilities in a public right-of-way, rather than being faced with- the necessity of acquiring a private right-of-way for their respective facilities. Second, the Commission determined that DOT may utilize federal funding to defray the cost of utility relocation only when DOT is obligated to do so under state law. The Commission believed that DOT should not be penalized: (1) for cost sharing with municipal non-carrier public utilities, as it is permitted to do by state law; and (2) for complying with the law and not volunteering to reimburse Bell and PECO with state funds or seeking federal funding to reimburse Bell and PECO. In short, the Commission determined that DOT only has legal authority to cost share with municipal, non-carrier public utilities. Third, the Commission found that the IV ct that DOT was the moving force or “cost causer” behind the project was not of overriding weight in the determination of the allocation of reimbursement costs. The Commission believed that DOT should not be penalized for conducting a highway safety improvement project, especially in light of the Commission’s paramount goal of preventing accidents and promoting public safety. Additionally, the Commission stated that it could not expect DOT to wait until the various utilities’ facilities are at the extreme end of their useful lives before DOT can conduct major roadway reconstruction and that safety and design improvements must be completed when necessary. Fourth, the Commission determined that consistency was an important factor in allocating 100% of the costs to Bell and PECO. The Commission pointed out that in a prior proceeding wherein DOT sought approval to rehabilitate the Smithfield Street Bridge in the City of Pittsburgh, the utilities involved therein, Bell and Du-quesne Light Company, were each directed to bear 100% of the costs and expenses incurred in the relocation of their facilities. The Commission pointed out that in that decision, the ALJ determined that the ratepayers of Bell and Duquesne Light Company, as a class, did not benefit from the subject project and that “but for” the project the utilities would not have incurred the costs at issue did not support reimbursement when set against the taxpayers of Allegheny County, as a class, bearing the costs incurred by Bell and Duquesne Light Company to relocate their respective facilities. The Commission concluded that the same logic applied in the present matter and stated that “[tjhe taxpayers of the Commonwealth should not be forced to bear Bell and PECO’s relocation costs when both Bell and PECO have received and continue to receive substantial benefits from the location of their facilities in public right-of-ways.” Commission’s Opinion and Order at 10. Thus, the Commission ordered, inter alia, that PECO and Bell, at their sole cost and expense, furnish all material and do all work necessary to alter and/or relocate and/or remove their facilities from the areas of the crossings in such a manner as will not interfere with the abolition and construction project. On April 20, 1999, PECO requested reconsideration of the Commission’s April 5, 1999 order. By order adopted April 29, 1999, the Commission expressly granted reconsideration of its April 5, 1999. By order adopted June 24, 1999, the Commission determined that the issues raised by PECO in support of its request that the Commission reconsider its April 5, 1999 order were not new and novel arguments that would persuade the Commission to reverse or amend its April 5, 1999 order. This appeal by PECO followed. PECO raises the following issues in this appeal: 1. Whether the Commission committed an error of law in effectively abrogating its exclusive jurisdiction under Sections 2702 and 2704 of the Public Utility Code, 66 Pa.C.S. § 2702; 2704, by accepting DOT’s policy against reimbursing a public utility for costs incurred to replace or relocate facilities located in public rights-of-way. 2. Whether the Commission’s determination concerning the availability of funds was erroneous and not supported by the evidence. 3. Whether there was sufficient evidence of record to support the Commission’s order. 4. Whether the Commission’s order is erroneous, arbitrary and capricious because it fails to follow, distinguish or overrule prior Commission adjudications. As a preliminary matter, the Commission alleges in its brief that PECO has only petitioned for review of the Commission’s June 24, 1999 order in its petition filed with this Court. Consequently, the Commission contends, PECO did not timely appeal the Commission’s April 5, 1999 order and this Court should only consider the Commission’s June 24, 1999 order denying reconsideration. The Commission contends that an appeal from a Commission order denying reconsideration cannot be used to collaterally attack the merits of an earlier order from which no timely appeal was taken. This argument is totally without merit. As stated previously herein, the Commission adopted a timely order of reconsideration of its April 5, 1999 order on April 29,1999. As such, the time for filing a petition for review began to run anew after the entry of the decision on reconsideration on June 24, 1999. See Pa.R.A.P. 1701(b)(3). Pursuant to Pa.R.A.P. 1701(b)(3), the time begins to run anew whether or not the decision on reconsideration amounts to a reaffirmation of the prior determination of the government unit. Id. Accordingly, although PECO could have been more clear in its petition for review and included the April 5, 1999 order, based on the Commission’s specific grant of reconsideration on April 29, 1999 and Pa.R.A.P. 1701(b), this Court’s review of the April 5, 1999 order is properly before this Court. We now turn to the issues raised by PECO in this appeal. First, PECO argues that the Commission erroneously relied on the old common law rule as the only factor for its decision. PECO contends that the Commission’s determination that the taxpayers of this Commonwealth should not be forced to bear PECO’s relocation costs when PECO has received and continues to receive substantial benefits from the location of its facilities in public rights-of-way, simply resurrects the old common law rule that utilities who occupy public rights-of-way are not entitled to compensation if forced to relocate their facilities because of rail-highway improvement projects. PECO point out that this rule was abolished by the 1937 amendments to the Public Utility Code. PECO argues that these amendments explicitly gave the Commission the authority to allocate relocation costs of utility facilities in rail-highway crossing proceedings. PECO argues that the Commission used the abrogated common law rule to override the four factors usually considered by the Commission in allocating costs. Thus, PECO contends that the Commission’s decision was based, not on the law or facts, but on a policy determination that “[t]he taxpayers of the Commonwealth should not be forced to bear Bell and PECO’s relocation costs when both Bell and PECO have received and continue to receive substantial benefits from the location of their facilities in public right-of-ways.” PECO contends that when the four factors are considered, it is clear that DOT should be required to reimburse Bell and PECO for their relocation costs. In response, the Commission argues that its decision was a proper exercise of its authority and supported by substantial evidence. The Commission points out that it is well settled that the Commission is not limited to any fixed rate with respect to the allocation of costs but instead may take all relevant factors into consideration. There is no mandatory or exclusive list of considerations that the Commission is required to utilize when assigning costs in rail-highway proceedings. Thus, the Commission argues that it remains to take into consideration additional factors the Commission deems relevant when assessing costs. The Commission contends that, in this case, the Commission, in its discretion, concluded that the reasons underlying the common law rule were also relevant and were not adequately considered by the ALJ. The Commission states that it found that PECO received substantial benefits from locating its facilities' in the public right of way and that PECO did not present credible evidence that the facilities it had to remove for the Delaware Avenue project had significant remaining useful lives. The authority of the Commission must arise either from the express words of the pertinent statutes or by strong and necessary implication therefrom. City of Philadelphia v. Philadelphia Electric Company, 504 Pa. 312, 473 A.2d 997 (1984). It is well settled that the Commission’s power is statutory and the legislative grant of power to act in any particular case must be clear. Id. In City of Philadelphia, the Supreme Court set forth the historical review of the Commission’s authority with respect to the allocation of costs. Under the earlier case law of the Commonwealth, non-transportation utilities were permitted to occupy highway rights-of-way free of costs, subject and subordinate to the state’s police power to control and regulate the highways for the benefit of the public. These utilities obtained no property rights in the highway and could be ordered by a state or municipal agency to relocate their facilities at their own expense. The reasoning justifying this conclusion was the utilities who occupy the highway free of cost should not be entitled to compensation if they are forced to relocate their facilities because of highway improvements. With the enactment of the Public Service Company Law [Act of July 26, 1913, P.L. 1373 (repealed 1937) ] in 1913, the Commission was given exclusive jurisdiction over the construction of rail-highway crossings. Section 12 of that statute specifically included the common rule relating to the apportionment of cost for relocation incurred by non-transportation public utilities. The express prohibition against the reimbursement of utilities for relocation costs was not included when the Public Utility Law of 1937 [Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §§ 1101-2207 (repealed 1978)] was enacted to supersede the Public Service Company Law. Nevertheless, this Court still rejected the argument that the common law rule was abrogated by implication as a result of that deletion. To the contrary, we held that the 1937 enactment did not establish “a clear, legisla tive intent to change the well-settled policy of the law that non-transportation public utilities must bear the expenses of relocating their facilities when the relocation is brought about by governmental exercise of the police power such as in construction, relocation, ... of a highway-rail crossing.” Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 647, 145 A.2d 172, 176 (1958). In that opinion the Commission’s right to allocate relocation costs under section 411(a) was limited to relocation costs incurred by the railroad, railway or the owners of the highway. Restated, we there concluded that the Commission’s power did not extend to the expenses of a non-transportation utility. Following our decision in Delaware River Port Authority, supra, the legislature in 1963 amended section 411(a) to read as follows: Section 411. Compensation for Damages Occasioned by Construction, Relocation, Protection, Alteration, or Abolition of Crossings. — (a) The compensation for damages which the owners of adjacent property taken injured or destroyed may sustain in the construction, relocation, alteration, protection, or abolition of any crossing under the provisions of this act, shall, after due, notice and hearing, be ascertained and determined by the commission. Such compensation, as well as the [expense] of such construction, relocation, alteration, protection, or abolition of [any] such crossing, and of facilities at or adjacent to such crossing which are used in any kind of public utility service, shall be borne and paid, as hereinafter 'provided, by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties.... [The words added or deleted by the amendment shown in italics or brackets, respectively.] The 1963 amendment was obviously in response to our decision in Delaware River Port Authority, supra, and the added language provided the clear grant of authority to the Commission to allocate relocation costs incurred tby “any kind of public utility service” in rail-highway crossings. It is clear that after the 1963 amendment to section 411(a), the Commission’s statutory pbwer to allocate relocation cost to the appropriate parties in rail-highway crossing cases is limited only by the existence of executed agreements between the parties * as to the allocation of such costs. As part of an ongoing codification program, the Public Utility Law of 1937 was repealed by the General Assembly in 1978 [Act of July 1, 1978, P.L. 598] and the Pennsylvania Consolidated Statutes were simultaneously amended to include Title 66, Public Utilities [66 Pa. C.S. §§ 101-3316.]. As a result, a statutory provision virtually identical to section 411(a) now appears at 66 Pa.C.S. § 2704(a). The 1978 codification did not effect a change in the Commission’s power to allocate costs. City of Philadelphia, 504 Pa. at 318-322, 473 A.2d at 1000-1002 (citations and omitted). Based on the foregoing historical view, the Supreme Court in City of Philadelphia, rejected the argument that the common law rule relating to cost allocations of relocation expenses of non-transportation utilities enjoys a continuing vitality. Id. at 324, 473 A.2d at 1003. The Supreme Court stated that: [s]ince the deletion of section 12 of the Public Service Company Law there is no basis for suggesting that the Commission’s discretion is fettered by the former rule that the utilities must pay their own relocation costs. Although one may argue the wisdom of the common law rule, it must be remembered that in enacting the Public Utility Code and in creating the Commission, the legislature sought to establish a statewide standardization of all facets of the operation of public utilities under the governance of the Commission. It would be cavalier to assume that a judicially created rule of thumb would be preferable to a case-by-case judgment by the agency vested with the superintendence of the area. Id. (citations omitted). As noted herein, Section 2704 of the Public Utility Code governs compensation for damages occasioned by construction, relocation or abolition of crossings. 66 Pa.C.S. § 2704. Pursuant to Section 2704(a), the cost of construction, relocation, alteration, protection, or abolition of crossing and of facilities at or adjacent to such crossings which are used in any kind of public utility service, shall be borne and paid, by the public utilities, municipal corporations, municipal authority or non-profit organization concerned or by the Commonwealth in such proper proportions as the Commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties. 66 Pa.C.S. § 2704(a). As the Commission points out in its opinion and order, the Commission generally considers four factors in determining the appropriate allocation of costs associated with the relocation of facilities for non-carrier utilities in connection with the alteration of rail-highway crossings. Commission Opinion and Order at 7. Those factors are: (1) the benefit received by the ratepayers of the particular utility; (2) the availability of state and/or federal funding for a project; (3) the placing of the costs upon the party responsible for the situation; and (4) the equities of a particular situation. Id. However, as correctly stated by the Commission, there is no fixed four-part test. Bell Atlantic-Pennsylvania, Inc. v. Pennsylvania Public Utility Commission, 672 A.2d 352 (Pa.Cmwlth.1995). The Commission is not confined to any one formula or fixed rate, but must consider all relevant factors when allocating costs of constructing, removing or altering rail-highway crossings. AT & T v. Pennsylvania Public Utility Commission, 558 Pa. 290, 737 A.2d 201 (1999). A fundamental requirement is that the Commission’s order be just and reasonable. Consolidated Rail Corporation v. Pennsylvania Public Utility Commission, 671 A.2d 248 (Pa.Cmwlth.1995). The Commission’s allocations of costs, of repair or maintenance of highway-railroad crossing, between the parties is within the discretion of the Commission. City of Philadelphia v. Pennsylvania Public Utility Commission, 676 A.2d 1298 (Pa. Cmwlth.), petition for allowance of appeal denied, 546 Pa. 657, 684 A.2d 558 (1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1334, 137 L.Ed.2d 494 (1997). As such, an order of the Commission allocating costs in rail-highway crossing proceedings will not be reversed if the Commission’s order is rea sonable and in conformity with the law. Port Authority of Allegheny County v. Pennsylvania Public Utility Commission, 207 Pa.Super. 299, 217 A.2d 810 (1966). With the foregoing historical review and principles in mind, we believe that the Commission’s order directing PECO, at its sole cost and expense, to furnish all material and do all work necessary to alter and/or relocate and/or remove its facilities from the areas of the crossings is not in conformity with the law. It is clear from the Commission’s adjudication that the Commission has resurrected the old common law rule abrogated by the General Assembly. The main justification for the order is the Commission’s determination that the taxpayers should not be forced to bear PECO’s relocation costs when PECO has received and will continue to receive substantial benefits for the location of its facilities in a public right-of-way rather than being faced with the necessity of acquiring a private right-of-way for its facilities. In fact, the Commission states in its brief that it concluded that the reasons underlying the common law rule were relevant and were not adequately considered by the ALJ. However, as held by the Supreme Court, the common law rule that utilities must pay their own relocation costs is no longer a viable rule because the General Assembly has chosen to abrogate the rule. City of Philadelphia. While this Court recognizes that the Commission has the jurisdiction under the Public Utility Code to allocate costs and that such allocation is in the discretion of the Commission, such discretion is not unfettered. Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission, 668 A.2d 615 (Pa.Cmwlth.1995). Thus, we hold that by considering the reasons underlying a common law rule that has been expressly abrogated by the General Assembly, the Commission has abused its discretion. Accordingly, we reverse the Commission’s order and remand this matter for a new determination, in accordance with this opinion, of the allocation of costs incurred as a result of DOT’S abolition and construction project. ORDER AND NOW, this 19th day of July, 2000, the order of the Pennsylvania Public Utility Commission in the above captioned matter is vacated and this matter is remanded for proceedings consistent with the foregoing opinion. Jurisdiction relinquished. . Bell did not appeal the Commission’s order. . We note that the Commission fails to cite any case law in support of its position nor does it cite to or even attempt to offer an argument as to why Pa.R.A.P. 1701 would be inapplicable to this case. . This Court’s scope of review of a Commission decision is limited to determining whether the Commission violated constitutional rights, committed an error of law, rendered a decision that is not supported by substantial evidence, or has violated its rules of practice. Consolidated Rail Corporation v. Pennsylvania Public Utility Commission, 155 Pa.Cmwlth. 537, 625 A.2d 741 (1993). . Section 12 provided in pertinent part: [W]here the order of the Commission shall, as part of the regulation of the construction, relocation, alteration, or abolition of any crossing aforesaid, require, as incidental thereto, a relocation, changes in or the removal of any adjacent structures, equipment or other facilities of any tele- graph, telephone, gas, electric light, water power, water pipeline, or other public service company, said company shall, at its own expense, relocate, change or remove, such structures, equipment or other facilities in conformity with the order of the commission;.... . Section 2704(a) provides: Compensation for damages occasioned by construction, relocation, or abolition of crossings (a) General rule. - The compensation for damages which the owners of adjacent property taken, injured, or destroyed may sustain in the construction, relocation, alteration, protection, or abolition of any crossing under the provisions of this part, shall, after due notice and hearing, be ascertained and determined by the commission. Such compensation, as well as the cost of construction, relocation, alteration protection, or abolition of such crossing, and of facilities at or adjacent to such crossing which are used in any kind of public utility service, shall be borne or paid, as provided in this section, by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties. . As a result of our disposition of the first issue raised by PECO in this appeal, we need not address the remaining issues raised. We do note, however, with respect to PECO's argument that the Commission failed to properly consider the availability of federal funds, that, as stated in this opinion, the Commission is not bound by an fixed formula. AT & T. The Commission’s decision must be just and reasonable and based upon some sound legal or factual basis. Greene Township. Moreover, with respect to PECO’s argument that the Commission’s order is erroneous because the order fails to follow, distinguish or overrule substantial prior Commission adjudications, we point out that while the Commission, as an administrative agency, is not bound by the rule of stare decisis, PECO is correct in its assertion that the Commission, as an administrative agency, must render consistent opinions and should either follow, distinguish or overrule its own precedent. Bell Atlantic.

OPINION OF THE COURT CASTILLE, Justice. The issue in this case is whether a therapist who treats a child for alleged parental sexual abuse owes a duty of care to the child’s parents in a therapeutic treatment situation where the child allegedly has been abused by the parents. Because we hold that a treating psychiatrist or psychologist does not have a duty to the non-patient parents, we reverse the decision of the Superior Court finding appellant liable to appellees. Nicole Athaus was born on April 10, 1975. In 1990, when Nicole was fifteen years old, her mother was diagnosed with skin cancer and breast cancer for which she was successfully treated. At the same time, Nicole’s paternal grandmother was diagnosed with diabetes and pancreatic cancer, which ultimately proved fatal. Nicole apparently began to suffer emotional and psychological difficulties resulting from these family illnesses. One of Nicole’s high school teachers offered Nicole emotional support and assisted Nicole in contacting a cancer support group. Nicole soon developed a rapport with a social worker associated with the cancer support group and discussed the changes in her family life caused by her mother’s illness and her grandmother’s death. At some point in her conversations with the social worker, Nicole disclosed that her father had inappropriately touched her. Eventually, Nicole reported “flashbacks” of her father being in bed with her and on top of her. The social worker then reported this information to the local office of Children and Youth Services (“CYS”), as required by 23 Pa.C.S. § 631I. Based upon Nicole’s claim of sexual abuse, CYS removed Nicole from her family home and notified law enforcement authorities of Nicole’s accusations. Nicole was referred to the Family Intervention Center of Children’s Hospital (“FIC”) where she underwent a medical examination. No physical evidence of sexual activity or sexual abuse was discovered. Pursuant to FIC’s custom, a clinical psychologist interviewed Nicole and found Nicole credible, noting that sexual abuse cannot entirely be ruled out due to a lack of physical evidence. FIC then referred Nicole to appellant, Judith A. Cohen, M.D., associated with the Child and Adolescent Sex Abuse Clinic of the Western Psychiatric Institute and Clinic. Dr. Cohen began treating Nicole for parental sexual abuse based on FIC’s referral. Over the next sixteen months of psychiatric treatment, Dr. Cohen, at Nicole’s request, attended the preliminary hearings held in connection with the criminal charges pending against Nicole’s parents. During the course of her treatment with Dr. Cohen, Nicole’s allegations of sexual abuse expanded to include other family members, her father’s coworkers and eventually complete strangers. Nicole also embellished her descriptions of the abuse to include ritualistic torture, multiple pregnancies and the murder of babies resulting from the pregnancies. With respect to Nicole’s increasingly outlandish accusations, Dr. Cohen stated that direct confrontation only seemed to increase the vehemence with which Nicole propounded further allegations. Dr. Cohen also attended various criminal proceedings where Nicole testified to events that could never have occurred. Eventually, after Nicole’s increasingly bizarre allegations, the trial court held a hearing to determine Nicole’s competency to testify at the criminal proceedings. As Nicole’s treating psychiatrist, Dr. Cohen testified that, in her opinion, Nicole was unable to distinguish fact from fantasy, after which the Commonwealth dismissed the criminal charges against Nicole’s parents. The trial court then ordered that Nicole and her parents undergo family reunification therapy, which was administered by a team of mental health experts that did not include Dr. Cohen. Over the course of her new treatment, Nicole recanted her sexual abuse allegations and returned to her family home. Nicole’s parents initiated a medical malpractice action against Dr. Cohen on behalf of Nicole and themselves, alleging that Dr. Cohen negligently diagnosed and treated Nicole and exacerbated her mental condition. A jury eventually returned a verdict in favor of Nicole and her parents. Dr. Cohen appealed from the verdict in favor of Nicole’s parents asserting that she did not owe them a duty of care and, thus, could not be held liable for their alleged damages resulting from her treatment of Nicole. We agree. The special nature of the relationship between a therapist and a child patient in cases of alleged sexual abuse weighs against the imposition of a duty of care beyond that owed to the patient alone. To hold otherwise would create an unworkable conflict of interest for the treating therapist, a conflict which would necessarily hinder effective treatment of the child. Therefore, we hold that the non-patient parents cannot sustain a medical malpractice cause of action against their child’s psychiatrist under the circumstances of this case. The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff. See Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994)(“Any action in negligence is premised on the existence of a duty owed by one party to another”). It is well established that: In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered ... To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows: These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word selves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979) (citations omitted). Thus, the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society. See Gardner v. Consolidated Rail Corp., 524 Pa. 445, 455, 573 A.2d 1016, 1020 (1990). The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. See generally Dumanski v. City of Erie, 348 Pa. 505, 507, 34 A.2d 508, 509 (1943)(relationship between the parties), Forster v. Manchester, 410 Pa. 192, 197, 189 A.2d 147, 150 (1963)(so-cial utility), Clewell v. Pummer, 384 Pa. 515, 520, 121 A.2d 459, 463 (1956)(nature of risk), Witthoeft v. Kiskaddon, 557 Pa. 340, 353, 733 A.2d 623, 630 (1999)(foreseeability of harm), Cruet v. Certain-Teed Corp., 432 Pa.Super. 554, 558, 639 A.2d 478, 479 (1994)(relationship, nature of risk and public interest in the proposed solution). See also Bird v. W.C.W., 868 S.W.2d 767, 769 (Texas 1994)(“In determining whether to impose a duty, this Court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.”). Here, the relationship between Dr. Cohen and Nicole’s parents does not weigh in favor of imposing a duty of care. Dr. Cohen followed the treatment protocol that she thought best suited Nicole and had minimal contact with Nicole’s alleged abusers, her parents. Dr. Cohen did not participate in the original criminal investigation of Nicole’s parents which gave rise to the charges at issue and she did not testify against the parents at any court proceeding relating to those criminal charges. Dr. Cohen’s professional relationship with Nicole simply does not create the type of relationship between Dr. Cohen and Nicole’s parents to support the imposition of a duty of care. Thus, the therapeutic relationship between Dr. Cohen and Nicole created professional obligations and legal duties that related exclusively to her patient, Nicole. Next, we must weigh the social utility of Dr. Cohen’s actions against the nature of the risk and foreseeability of harm. Unfortunately, child sexual abuse is a troubling reality in our society and reports of sexual abuse have substantially increased. See Third National Incidence Study of Child Abuse and Neglect, U.S. Department of Health and Human Services, 1996. Our legislature has responded to this socially destructive situation. See 23 Pa.C.S. § 6301 et seq. (Child Protection Services Law). The need for prevention of child abuse is unquestionable, as is the importance of adequate psychological treatment for children who have been sexually abused. Thus, therapists who treat sexually abused children perform a valuable and useful activity to society. Here, social utility disfavors expanding therapists’ duty of care to non-patients, especially where the non-patients are the accused victimiz-ers. However, we must also weigh this factor against the potential risk and foreseeability of harm stemming from improper treatment for children who have been sexually abused. To be falsely accused of sexual abuse is undoubtedly a substantial harm, a harm which is readily foreseeable as illustrated by the facts of this matter. Thus, this factor weighs in favor of imposing a duty of care. However, in this matter, we must determine whether Dr. Cohen either created or foresaw the possibility of this harm. Under the facts presented, Dr. Cohen did not create the harm that was suffered by Nicole’s parents. As stated previously, Dr. Cohen did not participate in the original criminal investigation and played no legal role in Nicole’s initial accusations against her parents. Dr. Cohen was not called as a witness against the Althauses in the criminal proceedings against them. This is not a case where “false memories” were implanted by a therapist. Dr. Cohen started treating Nicole only after CYS informed police of Nicole’s accusations and after FIC referred Nicole to Dr. Cohen. Thus, by the time Dr. Cohen became involved therapeutically, the harm to Nicole’s parents had already occurred. Although Dr. Cohen attended hearings related to the criminal charges, she did so at Nicole’s request in her professional role as her therapist. Therefore, after weighing the social utility of effective therapeutic treatment for the child against the nature and foreseeability of the harm, we find that these factors weigh against imposing a duty of care to non-patients upon a therapist who treats sexually abused children. Next, we consider the consequence of burdening mental health professionals with a duty of care beyond that owed to the patient. The foundation for any successful psychiatric treatment is trust by the patient and confidentiality in communications with the provider. In treating patients who have been subjected to sexual abuse, the therapist must be able to rely upon professional confidentiality to facilitate candid discussion. Imposing an additional duty of care upon the therapist to an alleged abuser, parent or otherwise, would certainly alter this important therapeutic relationship. Initially, such an additional duty may cause mental health professionals to avoid providing treatment in sexual abuse cases. Also, victims of sexual abuse may be reluctant to seek treat ment if confidentiality of communications is not guaranteed. Finally, such a duty would necessarily change the very nature of the therapeutic treatment in that the therapist would have to constantly evaluate conflicting duties of care to determine the appropriate manner in which treatment should proceed. Tort law considerations should not interfere with a therapist’s job in this manner, particularly in the area of the psychological treatment of victims of sexual abuse. Accordingly, this factor weighs heavily against imposing a duty of care beyond that owed to a patient. Finally, we consider the public interest in the solution. There are certainly compelling arguments that a person falsely accused of child abuse should have a remedy in law and our decision today would not prevent all such actions against liable parties. See Althaus v. Cohen, 710 A.2d 1147, 1168 n. 1 (Pa.Super.1998)(J. Schiller, dissenting)(stating that other independent causes of action may be available, such as defamation or intentional infliction of emotional distress, based on actions taken beyond the scope of the medical diagnosis and treatment). However, the societal interest in encouraging treatment of child abuse victims and maintaining the trust and confidentiality within the therapist/patient relationship dictates against the imposition of a duty of care beyond that owed to the patient. Accordingly, we reverse the holding of the Superior Court to the extent that it imposed a duty of care upon appellants and remand the matter for entry of judgment in favor of appellants. Justice CAPPY did not participate in the consideration or decision of this matter. Chief Justice FLAHERTY files a dissenting opinion in which Justice NIGRO joins. FLAHERTY, Chief Justice. On this record, I would hold that a duty was owed, and, therefore, respectfully dissent. In my view where, as was the case here, the therapist attended preliminary hearings with knowledge that allegations are untrue, indeed physically impossible, and sat idly by, public policy is not well served by a judicially created insulation from liability. Justice NIGRO joins this dissenting opinion. . 23 Pa.C.S. § 6311 requires individuals who, in the course of their employment, come into contact with children to make a report to the local children and youth agency when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child who has come before them in their professional or official capacity is an abused child. . Police later arrested Nicole’s father following an investigation, charging him with rape, involuntary deviate sexual intercourse, endangering the welfare of a minor, aggravated assault, and incest. Nicole’s mother was also arrested in connection with Nicole's accusations and charged with sexual abuse. . The jury awarded Nicole over $58,000 in damages and her parents over $213,000 in damages. . Dr. Cohen testified at Nicole's subsequent competency hearing and candidly testified that Nicole could not always distinguish fact from fantasy. The nature of this testimony apparently prompted the Commonwealth to dismiss the criminal charges pending against Nicole’s parents. . The term "false memory” has been used in lawsuits filed by former patients and their parents against psychotherapists who utilize a controversial technique know as recovered memory therapy that critics claim permits the therapist to implant in the patient's mind false memories of sexual abuse. Turnan v. Genesis Associates, 894 F.Supp. 183, 185 n. 1 (E.D.Pa.1995) (citing Mark Hansen, More False Memory Suits Likely; Critics Buoyed by Father’s Verdict Against Daughter’s Psychotherapists, 80 A.B.A.J. 36, Aug. 1994). .We emphasize that under the particular facts of this case Dr. Cohen’s actions did not create a duty of care owing to Nicole’s par.ents. Thus, we disagree with the Superior Court’s conclusion that Dr. Cohen’s conduct extended far beyond the negligent treatment of Nicole. See Althaus v. Cohen, 710 A.2d 1147, 1151 (Pa.Super.1998). We note that other jurisdictions that have imposed a duty of care upon therapists that extends to parents accused of sexual abuse have done so in "false memory” cases. See Sawyer v. Midelfort, 227 Wis.2d 124, 595 N.W.2d 423 (1999); Hungerford v. Jones, 143 N.H. 208, 722 A.2d 478 (1998). But see Flanders v. Cooper, 706 A.2d 589 (Me.1998)(therapist had no duty to third party where therapist allegedly induced false memories of sexual abuse); Doe v. McKay, 183 Ill.2d 272, 233 Ill.Dec. 310, 700 N.E.2d 1018 (1998)(therapist owed no duty of care to non-patient where patient recalled repressed memories). Other jurisdictions that have considered this issue outside the context of "false memories” have concluded that a therapist owes no duty of care to the patient's parents. See Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997); Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994). . Our reluctance to create such a duty in the context of sexual abuse cases forms the basis for this holding. Our decision in Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032 (1998), where we imposed a duty on a mental health professional to warn a third party of a patient’s imminent threat to physically harm the third party, is distinguishable from the instant case. There, we held that the mental health professional who knows of a specific and immediate threat of serious bodily injury to a third party must warn that third party of the possible future harm. Here, the harm to Nicole’s parents occurred prior to Dr. Cohen's involvement in the case, and the ultimate dismissal of charges against Nicole’s parents was due, at least in part, to Dr. Cohen’s belated testimony that Nicole was unable to distinguish between truth and falsehoods. Thus, we decline to impose the duty appellees urge that would require a mental health professional to attempt to remedy a harm that has already occurred because we find that such a duty would thwart the treatment process. . The judgment in favor of Nicole Althaus is unaffected by this decision.

SMITH, Judge. Petitioners Michael Zappono, Victoria Dupree and Allison Cooper are employees of the Southeastern Pennsylvania Transportation Authority (SEPTA) and members of the Transport Workers Union Local 234 (Union). They petition for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a Referee to deny their request for unemployment compensation benefits during a work stoppage. The issue before the Court is whether that work stoppage was the result of a strike or a lockout as those terms are used in Section 402(d) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(d). The Collective Bargaining Agreement (Agreement) between SEPTA and the Union expired on March 15,1998 before negotiations produced a settlement on terms for a new agreement. Thereafter Union members continued working on a day-today basis through May 31 under the terms and conditions of the expired contract. On the eve of the work stoppage, SEPTA offered to continue work under the terms and conditions of the expired contract, but the Union initiated a work stoppage on June 1. The Union never informed SEPTA before the work stoppage that the Union believed SEPTA had unilaterally changed the terms and conditions of the expired contract. The Union made public statements during the work stoppage explaining that the Union initiated the work stoppage because SEPTA took a hard bargaining position and because SEPTA’s proposals were unacceptable to the Union. The Union never contended in its . statements during the work stoppage that SEPTA had unilaterally changed the status quo or had refused to continue operations under the terms and conditions of the expired contract. The Union offered on June 4 to return to work under the terms and conditions of the expired contract if SEPTA agreed to binding arbitration to resolve the contract negotiations. SEPTA refused binding arbitration but offered again to provide work under terms and conditions of the expired contract. The work stoppage ended on July 11, 1998, and Petitioners returned to work. Petitioners, as token claimants, applied for benefits during the work stoppage contending that it resulted from a lockout rather than a strike because SEPTA refused the Union’s June 4 offer. The Office of Employment Security (OES) denied Petitioners’ applications. On appeal to the Referee, Petitioners claimed for the first time that the work stoppage was a lockout because SEPTA unilaterally changed the terms and conditions of employment. Three provisions of the Agreement are relevant to Petitioners’ claims that have been preserved for this appeal. These provisions pertain to work assignment pickings, to the Medically Disabled Temporary Duty (MDTD) program and to a safety awards banquet. The work assignment picking provision was set forth in Section 426(h) of the Agreement and implemented through a side agreement. The Union contended that SEPTA unilaterally changed the terms of the pickings provision after the Agreement expired when SEPTA posted work assignments for pickings in some work locations, which made the categories of jobs more general in nature. Although the total number of jobs remained about the same, SEPTA significantly reduced the types of assignments available to be picked by Union members. The Union also contended that SEPTA changed the terms of the MDTD provisions after the Agreement expired when it failed to place Union members who were medically eligible for MDTD assignments into temporary work positions. The Union further contended that SEPTA changed the safety banquet provisions when it failed to reschedule the banquet in April or May 1998. The Referee concluded that the Union failed to establish that the work stoppage resulted from a lockout. Among other things, the Referee explained: No competent evidence was presented to show the union made it known in these comments or otherwise that they believed the employer had made unilateral changes in the pre-existing contract. The union now contends that such changes were one of the reasons for the work stoppage. The Referee does not question the motivation of the union for calling this work stoppage. However, by failing to inform the employer of their belief that the employer had made unilateral changes to the pre-existing contract, the employer had no opportunity to respond and attempt to address the union’s contentions, or to refuse to allow the union to continue working under the terms and conditions of the preexisting contract as defined by the union. Referee’s decision at p. 7. Accordingly, the Referee affirmed the OES. The Board concluded that the Referee’s decision was proper and therefore affirmed it. Under Section 402(d) of the Law, an employee shall be ineligible for compensation for any week: “In which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lockout) at the factory, establishment or other premises at which he is or was last employed....” In Vrotney Unemployment Compensation Case, 400 Pa. 440, 444-445, 163 A.2d 91, 93-94 (1960), the Supreme Court established the following test for determining whether a work stoppage results from a lockout or a strike: Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contact negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a ‘lockout’ and the disqualification for ... benefits in the case of a ‘stoppage of work because of a labor dispute’ does not apply. The essence of the Vrotney test is the offer to continue working under the pre-existing terms and conditions of employment. The key to its application is to determine which side “refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing.” Philco Corp., Inc. v. Unemployment Compensation Board of Review, 430 Pa. 101, 103, 242 A.2d 454, 455 (1968). Each week of unemployment is the subject of a separate claim, and a work stoppage that began either as a strike or as a lockout may be converted into its opposite if the party that initially refused to continue operations offers to do so and the other party now refuses. High v. Unemployment Compensation Board of Review, 505 Pa. 379, 479 A.2d 967 (1984). Where the work stoppage takes the form of a strike, the burden is upon the union to show that it made the initial move by offering to maintain the status quo. Philco Corp. The union must establish that it was willing to maintain the status quo and that the' employer refused to do so. Stanley Flagg and Co., Inc. v. Unemployment Compensation Board of Review, 146 Pa.Cmwlth. 248, 605 A.2d 443 (1992). In the present case, the Union clearly failed to offer to continue working under the pre-existing terms and conditions of the expired contract during the period for which Petitioners seek compensation. The Union never notified SEPTA that it was willing to continue work under the terms and conditions in effect prior to the alleged unilateral changes by SEPTA. The Referee found that the Union never even informed SEPTA that the Union believed SEPTA had altered the status quo. To the contrary, the Union made public statements indicating that it had initiated the work stoppage for reasons unrelated to the alleged changes, and the Union offered to return to work under the pre-existing terms and conditions after June 1, 1998 only if SEPTA agreed to binding arbitration. An offer to continue working only if the other party submits to a new term to which the party has no pre-existing obligation to accede does not constitute an offer to continue working under the preexisting terms and conditions of an employment contract. Burkes v. Unemployment Compensation Board of Review, 43 Pa.Cmwlth. 521, 402 A.2d 731 (1979). The Court recognizes that a union is not required to make a futile offer to continue working under the pre-existing terms that will definitely not be accepted by the employer. Philco Corp. However, the Union does not argue that an offer would have been futile in this case, and, moreover, the evidence of record would not support a finding of futility. If the Union was willing to continue operations but for SEPTA’s alleged changes in the status quo then the entire work stoppage might have been avoided if the Union had merely notified SEPTA of that fact. The Supreme Court’s concluding language in Philco Corp. is particularly apt: When it is considered that this entire controversy could have been avoided had the union merely asked one simple question, or sent some of its members to work on Monday in a bona fide effort to continue the status quo, this Court will not allow such a question to go unasked, or such action to go untaken, without a clear showing that a request for status quo would actually have been futile. Id. 430 Pa. at 110, 242 A.2d at 459. Moreover, the Union’s claim that SEPTA first changed the status quo is unavailing. Even if SEPTA altered the status quo, SEPTA never had an opportunity to agree to continue operations under the terms that the Union believed to constitute the status quo because the Union never informed SEPTA that it objected to SEPTA’S practices. Compare AVCO Corporation v. Unemployment Compensation Board of Review, 739 A.2d 1109 (Pa. Cmwlth.1999) (holding that a work stoppage was a lockout where the union notified the employer that it objected to the employer’s change of the status quo and that it was effectuating the work stoppage in protest); Portee, Inc., RMC Division v. Unemployment Compensation Board of Review, 104 Pa.Cmwlth. 629, 522 A.2d 1180 (1987) (holding that a work stoppage was a lockout where the employer unilaterally imposed changes to the status quo and the union repeatedly advised the employer of its willingness to maintain the status quo). The Vrotney test is designed to encourage the continuation of the working relationship while the parties negotiate a new agreement and to relieve economic distress in cases where employees become unemployed through no fault of their own. Hoffman v. Unemployment Compensation Board of Review, 524 Pa. 470, 574 A.2d 57 (1990); AVCO Corporation. In this case, Petitioners seek compensation despite the fact that the Union made no effort to continue the working relationship by offering to continue working under the pre-existing terms and conditions of the expired contract. The Union never even notified SEPTA that it considered its practices to constitute an alteration of the status quo. Under such circumstances, SEPTA cannot be said to have refused to continue operations under the status quo, and allowing Petitioners to receive compensation would offend the fundamental purposes of the Vrotney test. Accordingly, the work stoppage was a strike, and the Board correctly concluded that Petitioners are not entitled to unemployment compensation benefits. ORDER AND NOW, this 31st day of July, 2000, the order of the Unemployment Compensation Board of Review is affirmed. . Section 426(h) provided: Employees of the surface and subway elevated rolling stock and shops department and division shall have the right to pick their primary work assignments as scheduled by the authority in accordance with their classification seniority. Schedules prepared by the authority will list ihe primary work assignment, reporting location, starting times, finishing times and scheduled days of the week on which assigned work is to be performed. Such pickings will be held at least twice per year with no more than 8 months between any pickings. The side agreement provided in relevant part: The following are guidelines for the implementation and execution of Section 426(h): 1. Management will have the right, subject to the schedule review process, to determine the primary work assignments that will be specified on the picking sheets. . Section 504(2)(b) of the Agreement created the MDTD program. The section provided: Employees who are temporarily disabled due to an on the job injury or who are temporarily disabled and have expired [sic] their sick leave will be assigned to a temporary work which they are physically able to perform.... The Authority, in its sole discretion, will make assignments including, hours, tasks, and days off, provided, however, that the medical opinions concerning the appropriateness of such assignments may be subject to medical dispute resolution procedures of Section 1201. . Section 1102A of the Agreement provided for the banquet, but it did not specify when the banquet would be held. SEPTA decided not to hold the banquet in April or May 1998 because of the difficult contract negotiations during that time. . The question of whether a work stoppage resulted from a lockout or a strike is a mixed question of law and fact subject to the Court's review. Miceli v. Unemployment Compensation Board of Review, 519 Pa. 515, 549 A.2d 113 (1988). . The Union filed a grievance of SEPTA's actions concerning the work assignment picking provision. Subsequent to the Board's order in this matter, an arbitrator rendered a decision which upheld the Union's grievance in part. The Union requests that the Court remand the matter for the Board to consider the arbitrator’s decision. However, that decision is relevant only to the issue of whether SEPTA changed the status quo regarding the work assignment picking provision. In light of the Court’s conclusion that the Union never offered to continue operations under the status quo, remand for consideration of the decision would be pointless.

EAKIN, J: ¶ 1 The Commonwealth appeals from the order granting appellee Linda L. Moore’s motion to dismiss the criminal charges against her. We reverse and remand for reinstatement of the charges and further proceedings. The learned trial court has aptly summarized the factual background: On Tuesday, May 4, 1999, having previously been scheduled, the above-captioned criminal proceeding was called for the purpose of jury selection. Counsel for the Defendant thereupon approached the bench and moved to dismiss the charges on the basis of the failure of the prosecuting officer, one Special Agent Victor Joseph, to appear. This Court determined that this was the case and advised the Commonwealth in accordance with this Court’s policy and in the interest of meaningful and just voir dire that the, prosecuting officer must be present for the purpose of determining whether any prospective jurors were familiar with him or acquainted with him. In order to accommodate the Commonwealth, this Court offered to place jury selection in the instant matter at the end of the fist to permit the prosecuting officer an opportunity to appear. The Commonwealth rejected this offer and the Court thereupon granted Defense Counsel’s Motion to Dismiss. Trial Court Opinion, 7/8/99, at 1-2. ¶ 2 The sole issue raised on appeal is whether the trial court abused its discretion in granting appellee’s motion to dismiss for failure to have the prosecuting officer (the affiant on the criminal complaint) in court during voir dire as required by the policy of the distinguished president judge. ¶ 3 The decision to grant a pretrial motion to dismiss a criminal case is vested in the sound discretion of the trial court and may be overturned only upon a showing of an abuse of discretion or error of law. Commonwealth v. Taylor, 259 Pa.Super. 484, 393 A.2d 929 (1978). The manner in which voir dire will be conducted is left to the discretion of the trial court, see Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), within the parameters of Pa.R.Crim.P. 1106. ¶ 4 Here, the trial court dismissed the charges because “[i]t has always been the policy of this Court that prosecuting officers must be present for jury selection due to the fact that jury selection is a very ‘critical stage’ of the proceedings.” Trial Court Opinion, at 3 (emphasis in original). The Court further noted, “This is not the first time that counsel from the Office of the Attorney General have appeared before this Court. In all instances that this Court can recall, counsel from the Office of the Attorney General have always appeared before this Court with the prosecuting officer because it’s the policy of this Court and it’s a ‘critical stage’ of the criminal process.” Id. (emphasis in original). ¶ 5 The trial court’s concern about due process standards and the accused’s right to an impartial jury is certainly well founded. Jury selection is an important stage of a criminal proceedings. It is unquestionably true that determination of a prospective juror’s acquaintance with the affiant is a proper inquiry during voir dire, but the same can be said about all witnesses, prosecution or defense. Apparently this policy extended only to the affiant, without regard to the quantity or quality of testimony the officer was to provide; other with nesses with vital testimony apparently are not subject to this policy, even though their credibility may be more determinative Of important issues than that of the affiant. Certainly a juror’s familiarity with other critical witnesses may be as significant as familiarity with the officer who happened to bring the charge. ¶ 6 In fact,, the record here does not establish the affiant would testify at all; if the affiant gives no testimony, the justification for his presence during voir dire is attenuated. Certainly the trial court did not consider the nature of the affiant’s testimony to be a factor in deciding to dismiss the case. We do not suggest the court could not require the affiant’s presence in a specific case, if appropriate and necessary for voir dire. However, to mechanically impose the harshest sanction available, dismissal of the case itself, simply because of the absence of the affiant, is an abuse of discretion. ¶ 7 Despite the well-intentioned basis for the policy, as a mandatory requirement it has no support elsewhere in the law. We find no case holding the affiant’s presence is mandatory, or automatically crucial to a fair and constitutional voir dire. Nowhere in Rule 1106, or in any other rule or statute, do we find a requirement that the prosecuting officer be physically present during voir dire. ¶ 8 Further, all policies or procedures implemented to govern criminal practice and procedure must comply with the Rules of Criminal Procedure, promulgated by the Pennsylvania Supreme Court. These Rules “govern criminal proceedings in all courts including courts not of record.” Pa. R.Crim.P. 1(a). “Each of the courts exercising criminal jurisdiction may adopt local rules of procedure in accordance with Rule 6.” Pa.R.Crim.P. 1(b). The term “local rule” encompasses “every rule, regulation, directive, policy, [or] custom .. .which is adopted or enforced by a court of common pleas to govern criminal practice and procedure.” Pa.R.Crim.P. 6(a) (emphasis added). Clearly the “policy” enforced here was a local rule as described in Rule 6. ¶ 9 Rule 6 further provides that “[t]o be effective and enforceable!,][a] local rule shall be in writing.” Pa.R.Crim.P. 6(c)(1) (emphasis added). The local rule must also be filed with the Administrative Office of Pennsylvania Courts, and with the Criminal Procedural Rules Committee; it shall also be published in the Pennsylvania Bulletin, and made continuously available through the clerk of court or prothonotary. ¶ 10 Prior practices and procedures notwithstanding, the requirement of the prosecuting officer’s physical presence was not in writing. The local rule was not promulgated or published with the statewide organizations, as required, nor was it filed and available through the local clerk of court or prothonotary. These shortcomings render the local rule unenforceable. ¶ 11 Therefore, we are persuaded by the well taken arguments of the Commonwealth, and must find the learned trial court abused its discretion in dismissing the charges against appellee. ¶ 12 Order reversed; case remanded for reinstatement of charges. Jurisdiction relinquished.

FLAHERTY, Judge. Thomas Saville (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) which upheld the order of the Workers’ Compensation Judge (WCJ) that granted Pathmark Stores, Inc.’s (Employer) termination petition. We affirm. Claimant was employed as a grocery clerk for Employer stocking shelves. On December 10, 1993, Claimant sustained a low back injury which was accepted as compensable by Employer which issued a Notice of Compensation Payable. Claimant began treating with Dr. LoBianco on March 25, 1994. On March 13, 1997, Claimant underwent an independent medical examination by Dr. Resnick, a board-certified orthopedic surgeon. Dr. Resnick issued a report wherein Dr. Resnick opined that Claimant had fully recovered from his work injury although acknowledging that Claimant had degenerative changes in his lumbar spine unrelated to the work injury and that these changes were not aggravated by Claimant’s December 10,1993 work-injury. Based upon this report Employer filed a termination petition on April 8, 1997. The petition was assigned to a WCJ who conducted proceedings. At these proceedings Employer presented the testimony of Dr. Resnick who testified that he performed a medical examination of Claimant, reviewed Claimant’s medical records and diagnostic studies. Dr. Resnick noted that upon physical examination and testing, Claimant exhibited no abnormalities but for evidence of chronic degenerative changes in Claimant’s lumbar spine which were unrelated to Claimant’s December 10, 1993 work injury. Dr. Resnick further noted that Claimant had subjective complaints of pain but that there were no objective findings supporting these subjective claims of pain. Accordingly, Dr. Resnick opined that Claimant had fully recovered from his work injury. Dr. Resnick would not release Claimant to return to unrestricted work due to the chronic degenerative changes in Claimant’s lumbar spine which was unrelated to Claimant’s December 10, 1993 work-injury. Employer also presented the testimony of Ms. Cynthia Ladson who testified concerning the offer to Claimant of his pre-injury position as of April 28, 1997, without loss of earnings. In opposition, Claimant presented his own testimony, wherein Claimant testified that he continued to experience pain and could not work. In addition, Claimant presented the testimony of Dr. LoBianco, a general practitioner. Dr. LoBianco testified that Claimant had not recovered from his work injury and had lingering lumbar radiculopathy and strain. Despite several years of treatment, Dr. LoBianco testified that Claimant’s physical examination findings, complaints and disability status remained unchanged. The WCJ found Dr. Resnick to be more credible than Dr. LoBianco and found that Employer carried its burden to prove that Claimant was fully recovered from his work-injury and so the WCJ granted Employer’s termination petition. Claimant appealed to the Board which affirmed. Claimant now petitions this court for review. Appellate review over an order of the Board is limited to determining whether necessary factual findings of the WCJ are supported by substantial evidence, whether constitutional rights were violated and whether an error of law was committed. Udvari v. Workmen’s Compensation Appeal Board (USAir), 550 Pa. 319, 705 A.2d 1290 (1997). The first issue which Claimant presents is: whether the testimony of the employer’s medical expert, that he restricted Claimant to modified work, in part because of Claimant’s subjective complaints renders his testimony equivocal as to whether Claimant may return to work without restriction, as required by the Pennsylvania Supreme Court in Udvari and, therefore, insufficient as a matter of law to carry employer’s burden with respect to the termination of workers’ compensation benefits? See Claimant’s Brief at p. 3. Essentially, Claimant is arguing that there is not substantial evidence to support a termination of Claimant’s benefits because the testimony of Employer’s medical expert was equivocal and therefore incompetent and thus could not constitute substantial evidence. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Bethenergy Mines v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Additionally, in performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Birmingham Fire Ins. Co. v. Workmen’s Compensation Appeal Board (Kennedy), 657 A.2d 96 (Pa.Cmwlth.1995). Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). Furthermore, in a substantial evidence analysis utilized where both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Grabish v. Workmen’s Compensation Appeal Board (Trueform Foundations), 70 Pa.Cmwlth. 542, 453 A.2d 710 (1982). It is solely for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the evidence. Beth-energy Mines. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. Dana v. Workers’ Compensation Appeal Board (Hollywood), 706 A.2d 396 (Pa.Cmwlth.1998), allocatur denied, 556 Pa. 696, 727 A.2d 1123 (1998). As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted. Id. It is with these principles in mind that we consider this challenge. Here, Claimant is alleging that the testimony of Dr. Resnick, Employer’s expert, is equivocal, though more precisely, legally incompetent because it fails to meet the legal test clarified in Udvari. Claimant argues that the rule of Udvari states that where an individual is experiencing subjective complaints of pain but there are no objective findings to support the subjective complaints, an employer's expert must testify that claimant is fully recovered and can return to work without restrictions. Udvari, 550 Pa. at 327, 705 A.2d at 1293. Claimant points to the following evidence as causing the testimony of employer’s expert, Dr. Resnick, to be insufficient to meet this test. Employer’s expert testified on direct examination as follows: Q. Doctor, were you able to reach an opinion to a reasonable degree of medical certainty as to whether Mr. Saville was capable of returning to work? A. Yes. My opinion was that he could return to work, but that it would be modified work. Not unrestricted heavy laboring work, but modified work. Q. Doctor, did you impose any restrictions on Mr. Saville’s ability to return to work specifically as a result of what you believe to be any residuals from the December 1993 work-related accident or injury? A. No. I would not have placed any restriction with regard to the accident itself. Q. What was the basis of your concluding that Mr. Saville could return to some type of work in a modified or restricted capacity? A. The basis was my examination which was unremarkable, the subjective complaints which the man made, and his history of having made complaints about his back. In that regard I felt that although he could work full time, that he could have some restricted [sic] on his physical capabilities. Reproduced Record (R.R.) at pp. 19r-20r (emphasis added). Essentially, Claimant argues that the emphasized portions of testimony above render Dr. Resnick’s testimony insufficient under the Udvari test. We disagree. In Udvari, the employer, USAir, Inc. filed a termination petition. In support of that petition, USAir presented the testimony of a physician who testified that the claimant had fully recovered. The WCJ granted a termination and the Board af firmed. This court reversed the termination and opined that because, inter alia, USAir’s medical expert testified regarding claimant’s continuing subjective complaints of pain, a termination was improper, finding a suspension was more appropriate. USAir appealed arguing that there was substantial evidence to support a termination. The Supreme Court agreed, reversed this court and held that: [w]e must keep in mind that the employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met when an employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without any restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari 550 Pa. at 327, 705 A.2d at 1293. Here in this case, we find that Dr. Resnick’s testimony, taken as a whole, met the Udvari test. The mere fact that Dr. Resnick placed restrictions upon Claimant due in part to Claimant’s subjective complaints of pain does not render Dr. Res-nick’s testimony inadequate under Udvari. While it is true that Dr. Resnick considered Claimant’s subjective complaints of pain in placing Claimant on restrictions, it is equally clear that Dr. Resnick did not consider those subjective complaints of pain to be related to the work injury. For example, in the above quoted exchange, Dr. Resnick clearly stated that he “would not have placed any restrictions with regard to the accident [i.e.-, work-related injury] itself.” The record is clear on this point. In response to a question regarding the limitations Dr. Resnick placed upon Claimant, Dr. Resnick testified as follows: [a]s I said earlier, I believe that there are no restrictions to be placed upon his physical capacities with regard to the work injury he sustained in 1993 from which in my opinion he recovered. However, I have placed the limitations in my physical capabilities form upon his work abilities in regard to what I consider to be a chronic degenerative condition in his low back, not arising from the injury but an independent condition. R.R. at 27r-28r. Thus, it is clear that although there were restrictions placed upon Claimant, those restrictions were not work-related. This is significant because as we recently held that in a termination proceeding where restrictions are placed upon a claimant, but it is established that those restrictions are not causally related to the work injury, the employer is entitled to a termination so long as the medical expert has testified that the claimant is fully recovered from the work-related injury. See Davis v. Workers’ Compensation Appeal Board (Mercy Douglas), 749 A.2d 1033 (Pa.Cmwlth.2000)(en banc). In Davis, the claimant suffered a low back sprain/strain. The employer petitioned for termination and presented the testimony of Dr. Kallish who testified essentially that claimant had fully recovered from her work injury. The claimant in Davis, like Claimant herein, complained of subjective pain. Dr. Kallish in Davis, like Dr. Resnick herein, testified that there was no objective evidence to support those subjective complaints of pain. The WCJ granted the termination petition and the Board affirmed. The claimant in Davis petitioned for review in this court. She argued to this court that “employer failed to present sufficient, competent evidence to support the termination of her benefits because employer’s medical witness failed to testify that claimant could return to work without restrictions.” Davis, 749 A.2d at 1034. This argument is remarkably similar to the argument which Claimant makes herein. We rejected the argument in Davis that merely because the employer’s expert testified that claimant could not return to work without restrictions that employer failed to carry its burden of proof to entitle it to a termination. In holding that Dr. Kallish’s testimony in Davis was sufficient to meet employer’s burden we stated that “Dr. Kallish’s opinion that minimal restrictions should apply on her immediate return to employment did not render his opinion equivocal or insufficient because such restrictions were not related to her work injury.” Davis, 749 A.2d at 1035. Thus, although Udvari speaks in terms of requiring medical testimony that a claimant can return to work without restrictions, we understand Ud-vari to require only medical testimony that a claimant can return to work without restrictions which are causally related to the work injury. Hence we reject Claimant’s argument that simply because Dr. Resnick, Employer’s expert, faded to testify that Claimant could return to work without restrictions, Employer failed to carry its burden of proving entitlement to a termination. As in Davis, because the restrictions placed upon Claimant herein were not related to her work injury, those restrictions do not render Dr. Resnick’s testimony insufficient to sustain Employer’s burden. Nevertheless, Claimant attempts to rely upon Thompson v. Workers’ Compensation Appeal Board (Sacred Heart Medical Center), 720 A.2d 1074 (Pa.Cmwlth.1998), allocatur denied, 559 Pa. 699, 739 A.2d 1062 (1999) to support her contention that Dr. Resnick’s testimony was insufficient. We find her reliance unpersuasive. First and foremost, we note that Thompson was a panel decision decided in 1998 without the benefit of the analysis which the court en banc provided in Davis. Second, it does not appear that the issue which is disposi-tive herein was raised by the parties in Thompson and therefore not directly addressed in Thompson. Namely, the dis-positive issue herein is what is the meaning of the phrase from Udvari, requiring an employer’s expert to testify that the claimant “can return to work without restrictions.” Whereas the issue was not apparently raised and therefore not addressed in Thompson, the issue was impliedly addressed in Davis. In Davis, the claimant contended that “since [the] employer’s medical witness testified that it was necessary for her to return to work with restrictions, such testimony is insufficient to support the termination of benefits.” Davis, 749 A.2d at 1035. We disagreed and explained that an employer’s burden for termination is met when either it proves all physical disability has ceased or that whatever physical disability claimant is currently experiencing is the result of an independent cause totally separate and distinct from the work-related injury which is another way of saying that the employer must show a lack of causal connection between any currently existing disability and the work-related injury. See Davis, 749 A.2d at 1035, quoting, Parker v. Workers’ Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102, 104-05 (Pa.Cmwlth.1999). To put this in concrete terms, this means, as explained above, that any restrictions placed upon a claimant which are not causally related to the work injury do not preclude the grant of an employer’s termination petition. In other words, the phrase from Udvari, “can return to work without restrictions” means “can return to work without restrictions which are causally related to the work injury.” See, e.g., Pavonarius v. Workers’ Compensation Appeal Board (Samuel Levitt Sheet Metal, Inc.), 714 A.2d 1135 (Pa.Cmwlth. 1998), allocatur denied, 558 Pa. 613, 736 A.2d 606 (1999)(termination properly granted where employer’s doctor testified that claimant’s continuing pain and restrictions were related to pre-existing degenerative disc disease and not to claimant’s work-related low back sprain/strain which was fully resolved). Because Employer’s medical expert’s testimony as a whole, viewed in a light most favorable to Employer as the party who succeeded before the factfinder, establishes that Claimant had fully recovered from his work related injury and that there was no objective basis for Claimant’s subjective complaints of ongoing pain and that the remaining restrictions placed upon Claimant were not related to the work injury, Employer met his burden under Udvari to merit a termination. Accordingly, this issue does not merit Claimant relief. The next issue which Claimant raises is whether the WCJ’s finding of full recovery is supported by substantial evidence, notwithstanding Claimant’s subjective complaints of pain and Employer’s medical expert testimony that no objective basis exists for the complaints when there actually exists abnormal diagnostic studies demonstrating an objective basis? See Claimant’s brief at p. 15. Claimant points to the fact that there were allegedly two abnormal EMG studies taken of Claimant’s lower extremities in May 1994 and in August 1997. Claimant’s expert, Dr. LoBianco, testified that he referred Claimant to a Doctor Kaplan who performed EMGs in May-1994 and in August 1997 which, according to Dr. Kaplan, indicated lumbosacral radiculopathy. Dr. LoBianco was not provided with the actual EMG results but only with a written narrative summary by Dr. Kaplan. R.R. at 78r. Claimant essentially argues that because Employer’s medical expert, Dr. Res-nick did not have either the two EMG studies or Dr. Kaplan’s narrative summary, Dr. Resnick’s expert opinion regarding Claimant’s full recovery is incompetent as a matter of law and thus cannot provide substantial evidence to support the WCJ’s finding of full recovery. We note however, that Dr. Resnick testified that he conducted a thorough physical examination of Claimant on March 13, 1997, making Claimant undergo a series of physical tests including a neurological examination. In addition, Dr. Resniek, examined an MRI and other diagnostic studies which failed to show any disc abnormalities but for the existence of preexisting degenerative disc disease. Claimant had full range of motion of the lumbar spine with no local tenderness, as well as full range of motion of the lower extremities, with no evidence of atrophy. Claimant had an entirely negative neurological exam. Lastly, Dr. Resnick found no evidence on physical exam of any radiculopathy or findings consistent with nerve injury. See WCJ’s Findings of Fact (F.F.) Nos. 3-5. This testimony combined with Dr. Resnick’s opinion that Claimant has fully recovered from his work injury constitutes such relevant evidence as a reasonable person might accept as adequate to support the WCJ’s finding of full recovery. Notwithstanding this, Claimant argues that Dr. Resnick’s testimony is rendered legally incompetent and thus cannot constitute substantial evidence. However, the mere fact that an expert does not have certain records before him or her or even all of the medical records on a given claimant in providing an expert opinion does not render the expert testimony incompetent but merely goes to the question of the weight to be accorded to such expert testimony, a question wholly entrusted to the factfinder. See, e.g., (New) Jeddo Highland Coal Company v. Workmen’s Compensation Appeal Board (Hovanietz), 49 Pa.Cmwlth. 493, 411 A.2d 582 (1980). Because Dr. Resnick’s merely lacking Dr. Kaplan’s report did not render Dr. Res-nick’s opinion as to Claimant’s full recovery legally incompetent, there was substantial evidence to support the WCJ’s finding of full recovery. Accordingly, this issue does not merit Claimant relief. Hence, the order of the Board is affirmed. ORDER AND NOW, this 7th day of August, 2000, the order of the Workers’ Compensation Appeal Board docketed at A98-1467 and dated July 13,1999 is affirmed. . Dr. Resnick also testified that the work related injury did not aggravate the chronic degenerative condition. The following exchange took place: Q. Doctor, were you able to reach an opinion to a reasonable degree of medical certainty as to whether the work related injury that Mr. Saville described to you as having occurred back in December of 1993, either aggravated or accelerated the degeneration or degenerative changes that were present in this gentleman's lumbar region. A. In my opinion it did not. I found no evidence that there was any aggravation or exacerbation in this regard. R.R. at 18r-19r.

OPINION CAPPY, Justice. This is an automatic direct appeal of the sentence of death imposed upon John Phillip Ockenhouse, Sr. by the Court of Common Pleas of Lehigh County. This case is somewhat unique in that Ockenhouse, although sentenced to death, informed our court that he would not file a brief, and that he does not desire to contest his conviction or his sentence. While Ocken-house has evidently accepted his conviction and sentence of death and has implicitly expressed his desire to forego appellate consideration of his case, our court is nevertheless required to review the decision imposing a sentence of death for adherence to our Commonwealth’s Sentencing Code. Following a detailed review of the record and the trial court’s opinion, for the reasons set forth more fully below, we affirm the judgment of sentence imposed by the trial court. The facts underlying this case are as follows. Ockenhouse was convicted and sentenced for an undisclosed crime arising in Carbon County, Pennsylvania. On March 30, 1998, Ockenhouse was paroled to the Keenan House, located in Allentown, Lehigh County Pennsylvania. Keenan House contracts with the Pennsylvania Department of Corrections as a parole site for inmates leaving correctional institutions. Ockenhouse was paroled-to Keenan House as an inpatient for receipt of drug and alcohol treatment and for development of a permanent home plan. On April 10,1998 at approximately 10:45 p.m., in violation of house rules, Ocken-house left the Keenan House. When he left the Keenan House, circumstantial evi dence indicates that he most likely had no or very little money on his person. Ockenhouse proceeded to the home of Curtis Kratzer, a former acquaintance. The victim, 91-year-old -widow Naomi Spankowitch, was Kratzer’s sister. Mrs. Spankowitch lived next door to her brother. From having stayed with Kratzer on previous occasions, Ockenhouse knew that Mrs. Spankowitch took care of Kratzer’s financial affairs. On April 11, 1998, Ock-enhouse sought Kratzer’s opinion as to whether his sister would loan Ockenhouse some money. Kratzer replied that she would not lend Ockenhouse money. The next day, Ockenhouse went to Mrs. Spankowitch’s home where by his own admission he killed her and took approximately $100.00 from her wallet. With regard to the manner of the killing, Ockenhouse pushed Mrs. Spankowitch onto her bed and first stuffed a pair of underwear into her mouth. He then kneed her in the back, fracturing her spine in three places. After breaking her back, Ockenhouse left the bedroom and went into the kitchen. However, he discovered that Mrs. Spankowitch remained alive, whereupon he took a knife from the kitchen and began cutting and stabbing Mrs. Spankowitch. Ockenhouse cut her neck laterally several times in the front. These slashes cut through Mrs. Spankowitch’s throat to her spine, severing her carotid artery and jugular vein. Above and below these incisions were seven stab wounds, one of which severed her right carotid artery. All of the stab wounds were inflicted prior to the deep slashing wounds. Also, an additional puncture wound was discovered on the victim’s neck. There was a single stab wound to her back that occurred at or near the time of death. The knife was found imbedded in Mrs. Spankowitch’s back when her body was discovered. Ockenhouse was arrested and rendered a confession to police. The Commonwealth filed notice of two aggravating circumstances: that the killing occurred during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and that Mrs. Spankowitch was killed by means of torture, 42 Pa.C.S. § 9711(d)(8). Trial was set for November 30, 1998. On that date, Ockenhouse entered into a guilty plea to first-degree murder, robbery, theft, and receiving stolen property. The guilty plea was accepted following a colloquy in which it was established that Ockenhouse knowingly and voluntarily entered the plea. On December 3, 1998, the date of sentencing, Ockenhouse motioned for the withdrawal of his attorneys, which was granted, subject to the trial court’s order that counsel be present to assist Ocken-house. The trial court then engaged in a colloquy regarding Ockenhouse’s competence and his desire to waive his right to have a jury decide his sentence. The trial court deemed Ockenhouse to be competent and accepted his waiver of sentencing by jury. The trial court heard the Commonwealth’s evidence regarding the two aggravating circumstances. Ockenhouse refused to present any mitigating evidence, despite his counsel’s indication of the existence of such evidence. The trial court conducted a colloquy regarding Ocken-house’s decision to forego the presentation of mitigating evidence. The trial court permitted counsel to proceed with its offer of proof of mitigating evidence and allowed such information to be submitted into the record for purposes of confirming Ocken-house’s knowing and voluntary waiver of his right to present mitigating evidence. Thereafter, the trial court sentenced Ockenhouse to death. Specifically, the trial court found that the Commonwealth had established the two proffered aggravating circumstances beyond a reasonable doubt. Furthermore, in accord with Ockenhouse’s decision to withhold mitigation evidence, the trial court found no mitigating circumstances. Ockenhouse filed no post-sentence motions. However, Ockenhouse, through his attorneys filed a Concise Statement of Matters Complained of on Appeal. The trial court issued a memorandum opinion in response thereto. Pursuant to the automatic direct appeal provisions found in 42 Pa.C.S. § 722(4) and § 9711(h)(1), the case progressed to this court for our review. As noted above, it is evidently Ocken-house’s intention that our court affirm his conviction and judgment of sentence. Ockenhouse’s letter to this court, received February 10, 2000, indicated that he did not intend to file a brief. Moreover, in his letter, Ockenhouse, inter alia, stood by his decision to proceed pro se, his decision to enter a guilty plea, and his decision not to present mitigation evidence: By deciding not to file a brief, Ockenhouse has presented no issues and has set forth no argument for our consideration. However, regardless of Ocken-house’s desires, our court is required to conduct an automatic and independent review of all cases in which the death penalty has been imposed. 42 Pa.C.S. § 9711(h)(1); Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687, 689 (1991). This automatic review of capital cases has been rightfully described as “an integral and absolutely essential procedural safeguard prescribed by the legislature in the enactment of Pennsylvania’s death penalty statute.... ” Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780, 781 (1988). In the absence of any issues on appeal, our review is confined to a threefold inquiry. The first inquiry stems from section 9711(h)(3)(i), which requires the court to affirm the sentence of death unless it determines that the sentence of death was “the product of passion, prejudice or any other arbitrary factor.” Second, our court will review the record to determine whether the evidence fails to support the finding of at least one aggravating circumstance specified in section 9711(d). 42 Pa.C.S. § 9711(h)(3)(ii). Additionally, our court engages in a third, judicially-created inquiry that is inextricably linked with its statutorily required review. It has been determined by our court that to properly perform the statutory-requirements noted above, “and because ‘imposition of the death penalty is irrevocable in its finality and warrants, therefore, the relaxation of our waiver rules, Commonwealth v. McKenna, 476 Pa. 428, 437-41, 383 A.2d 174 (1978), our court shall review, in death penalty cases, the sufficiency of the evidence to sustain a conviction of murder of the first degree.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Thus, in addition to the statutorily-man dated review, our court will also engage in an independent review of the sufficiency of the evidence used to establish the first-degree murder conviction. Commonwealth v. Kemp, - Pa. -, 753 A.2d 1278, 1280 (2000); Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997, 1001 (1998). As has been this court’s practice, and because a review of the sufficiency of the evidence of the underlying conviction is logically a threshold matter, we will address these three areas of inquiry in reverse order, beginning with an analysis of the sufficiency of the evidence. As an appellate court considering the sufficiency of the evidence to establish the conviction that led to the sentence of death, we do not consider the evidence de novo. Rather, in reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the fight most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). This standard is applicable in cases where the evidence is circumstantial, as long as the evidence implicates the accused in the crime beyond a reasonable doubt. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279, 1285 (1996). The crime that served as the foundation for the sentence of death was first degree murder. “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S. § 2502(a). An intentional killing is a killing “by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” Id. The willful, deliberate, and premeditated intent to kill is the element that is unique and distinguishes first-degree murder from other degrees of murder. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 297 (1996). The Commonwealth may prove this specific intent to kill by circumstantial evidence. Id. Furthermore, it is well established that the use of a deadly weapon on a vital part of the victim’s body may constitute circumstantial evidence of a specific intent to kill. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (1995). The evidence presented at trial included Ockenhouse’s confession wherein he stated that on April 12, 1998, he went to Mrs. Spankowitch’s home seeking to kill someone. Once inside the victim’s home, Oekenhouse stuffed a pair of underwear into Mrs. Spankowitch’s mouth and fractured her spine in three places. After realizing that she was still alive, Oekenhouse stabbed Mrs. Spankowitch with a kitchen knife, cutting her throat which resulted in the severing of her carotid artery and jugular vein. We conclude that the evidence, and all reasonable inferences deduced therefrom, when viewed in the fight most favorable to the Commonwealth, was sufficient for the trial court to conclude that the Commonwealth met its burden of establishing the elements of first degree murder beyond a reasonable doubt. Turning now to our statutory mandate, we will review the evidence in support of the two aggravating circumstances which the trial court found, and upon which it based its sentence of death. The first aggravating circumstance the Commonwealth sought to prove was that Oekenhouse committed the killing while in the perpetration of a felony. 42 Pa.C.S. § 9711(d)(6). The trial court found that the Commonwealth established that Ockenhouse formed the specific intent to rob Mrs. Spankowitch before he killed her. We agree. Robbery is established if in the course of committing a theft, a person inflicts serious bodily injury upon another. 18 Pa. C.S.A. § 3701. The evidence of record, when viewed in the light most favorable to the Commonwealth, discloses that when Oekenhouse left Keenan House, he most likely had very little or no money. After arriving at the residence of Curtis Kratzer, Oekenhouse asked Kratzer whether his sister would lend him money, to which Kratzer replied that she would not. The next day, Oekenhouse went to Mrs. Span-kowitch’s home and, pursuant to his own admission, he killed her and took $100 from her wallet. Mrs. Spankowitch’s purse, which contained the money, hung in the closet of the same room in which her body was found. Later that same day, Oekenhouse purchased alcoholic beverages, gasoline, and a lighter. Finally, subsequent to the killing, Ockenhouse’s friend, John Trethan, observed Oekenhouse carrying some cash. Although secured circumstantially, the record clearly establishes beyond a reasonable doubt that Oekenhouse intended to commit, and did commit, the felony of robbery. Furthermore, it is beyond peradventure that Oekenhouse killed Mrs. Span-kowitch during the perpetration of that felony. Thus, we believe that the evidence supports the finding of the aggravating circumstance that the killing was committed during the perpetration of a felony. We now turn to the second aggravating circumstance, that Mrs. Spankowiteh was killed by means of torture. 42 Pa.C.S. § 9711(d)(8). At the outset, in undertaking a review of the sufficiency of the evidence with respect to this aggravating circumstance of torture, we must be mindful that the legislature has seen fit to reserve the ultimate penalty of death for only a genuinely limited class of cases. Every conviction for first degree murder does not result in a sentence of death. Rather, execution is appropriate only in those cases in which the Commonwealth beyond a reasonable doubt proves one or more of the enumerated aggravating circumstances found in the Sentencing Code. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1321 (1996). To establish that a murder was committed by means of torture, the Commonwealth is required to prove beyond a reasonable doubt that the defendant “intentionally inflicted on [the victim] a considerable amount of pain and suffering that was unnecessarily heinous, atrocious, or cruel, manifesting exceptional depravity.” Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1099 (1998); Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1091 (1993); Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 709 (1989). Torture includes the infliction of intense pain to punish or to coerce; it is torment, agony, or anguish to the body or mind. Cox, 686 A.2d at 1289; Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 737 (1987). The linchpin of the torture analysis is the requirement of an intent to cause pain and suffering in addition to the intent to kill. Edmiston, 634 A.2d at 1091. That is to say that there must be an indication that the defendant was not satisfied with the killing alone. Commonwealth v. Caldwell, 516 Pa. 441, 532 A.2d 813, 817 (1987). However, neither the efficacy of the means employed by a defendant to murder his victim nor the immediacy of death is in itself determinative of the question of whether the offense was committed by means of torture. Id. The aggravating circumstance cannot be established simply by demonstrating that the victim suffered pain before dying. Commonwealth v. Brode, 523 Pa. 20, 564 A.2d 1254, 1257 (1989). Indeed, to read the aggravating circumstance of torture so broadly as to cover all painful demises would be contrary to the General Assembly’s intent regarding aggravating circumstances. On numerous occasions, our court has considered whether the evidence adduced at trial was sufficient to support the aggravating circumstance of torture beyond a reasonable doubt. Oftentimes, this is an especially difficult determination because in virtually all cases of murder, the perpetrator inflicts terrible pain and suf fering on the victim, and by definition, the individual who inflicts this killing upon another does so with specific intent. However, a number of factors can be distilled from a review, of these cases and give guidance as to whether the facts support a finding that a murder was committed by means of torture. These factors include, but are not limited to: (1) the manner in which the murder is committed, including the number and type of wounds inflicted; (2) whether the wounds were inflicted in a vital or non-vital area of the body; (8) whether the victim was conscious during the episode; and (4) the duration of the episode. While these considerations are not exhaustive, or in and of themselves determinative of the establishment of the aggravating circumstance of torture, these factors enlighten the inquiry and are the primary criteria by which our court has grappled with this formidable task. In applying these factors to the case at hand, and considering the facts in prior cases which give contour to the meaning of torture, we believe that the sufficiency of the evidence in this case presents an extremely close call. Ockenhouse stuffed underwear into Mrs. Spankowitch’s mouth, jumped on her kneeing her in the back, fracturing her spine in three places, and twisting her neck. Only after Mrs. Span-kowitch’s body moved did Ockenhouse realize that he had not killed her by strangu lation and that she remained alive. At that point, Ockenhouse stabbed Mrs. Span-kowiteh in the neck, cut her throat, and then stabbed her in the back. The number of stab wounds inflicted by Ockenhouse was seven to ten wounds. The type of wounds were stabbing and cutting wounds. Only the initial puncture wound was superficial. All other wounds were deep, including the slicing wounds which cut Mrs. Spankowitch’s jugular vein and carotid artery. Distinguishable from other situations in which torture was established, there were no wounds on her arms, face, chest or other non-vital areas which would have indicated an intent to cause pain and suffering in addition to the intent to kill. Rather, the wounds were inflicted to a vital area of the body, the neck. As to consciousness during the attack, the evidence was simply unclear as to whether Mrs. Spankowitch was aware of what was going on although there was no indication that she was. unconscious. Finally, unlike other instances of prolonged abuse ending in death, the duration of the episode was uncertain, but relatively limited, lasting at most only several minutes. Had Ockenhouse merely stabbed Mrs. Spankowitch, we would probably have to conclude that the aggravating circumstance of torture was not established beyond a reasonable doubt. However, we find it particularly critical to our determination regarding torture that Ockenhouse confessed to first purposely jumping on Mrs. Spankowitch’s back with his knee. Mrs. Spankowitch, who was 91-years-old at the time of the killing stood five foot three inches and weighed one hundred and forty pounds. This assault resulted in three separate fractures to Mrs. Spankow-itch’s spine. Ockenhouse felt Mrs. Span-kowitch’s bones break as he drove his knee into her back. This renders the episode qualitatively different than if Ockenhouse had killed by stabbing alone. Dr. Sara Funke, a forensic pathologist, testified that Mrs. Spankowitch’s spine fractures were consistent with her back being forced backwards, which although not lethal, would have been enormously painful and would have rendered her helpless. Again, it is important to note that our review is colored; we must view all the evidence, with all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth. In this aura, by purposefully jumping on Mrs. Span-kowitch’s back and fracturing her spine, Ockenhouse demonstrated that he was not satisfied with merely killing Mrs. Span-kowitch. He evinced the additional intention to cause pain and suffering beyond his desire to merely kill. Thus, we agree'with the trial court’s determination and find that the evidence adduced by the Commonwealth was sufficient to establish the aggravating circumstance of torture beyond a reasonable doubt. Finally, we will address whether the trial court’s determination was a product of passion, prejudice or any other arbitrary factor. 42 Pa.C.S. 9711(h)(3). We have engaged in an exhaustive review of the record. Based upon our review, there is nothing in the record to suggest that the sentence of death was spawned by, or infected with, passion, prejudice, or any other arbitrary factor. Rather, the sentence was based upon the evidence admitted at trial and in compliance with the statutory mandate of the imposition of a sentence of death when one or more aggravating circumstances are found and no mitigating circumstances are embraced. See 42 Pa. C.S. § 9711(a), (b). We have found that there was sufficient evidence to support the underlying conviction for first degree murder. Further, we have determined that there was sufficient evidence to support the aggravating circumstances that the killing was committed in the perpetration of a felony and that the killing was performed by means of torture. We also recognize that Ockenhouse chose to withhold from the trial court’s consideration all mitigation evidence. Finally, we find that the trial court’s determination was not a product of passion, prejudice or other arbitrary factors. Thus, we affirm the sentence of death. 42 Pa.C.S. § 9711(c)(l)(iv); Lester, 722 A.2d at 1006 n. 15 (Pa.1998). The verdict and sentence of death are hereby affirmed. Justice ZAPPALA files a concurring opinion. Justice NIGRO concurs in the result. . This court's appellate jurisdiction over the direct appeal of a sentence of death is governed by 42 Pa.C.S. § 722(4) and § 9711(h)(1). . 42 Pa.C.S. § 9711. . When paroled, Ockenhouse was only in possession of $5.60 in cash. Keenan House policy required residents to retain their money in a house account. The testimony established that at the time of Ockenhouse’s departure, his house account only held $1.75. . In sum, four issues were raised in the Concise Statement of Matters Complained of on Appeal: (1) whether the trial court erred in finding the aggravating circumstance that the killing occurred during the perpetration of a robbery; (2) whether the trial court erred in failing to consider mitigating evidence submitted by counsel; (3) whether the trial court erred in "variously limiting trial counsel’s active participation in its client’s case”; and (4) whether there was sufficient evidence to support a sentence of death. The trial court resolved each of these issues in favor of the Commonwealth in its January 21, 1999 memorandum opinion. . Previously, our court engaged in the additional statutory inquiry of whether the sentence was disproportionate to the penalty imposed in similar cases. 42 Pa.C.S. § 971 l(h)(3)(iii). Effective June 25, 1997, the General Assembly repealed the requirement of a proportionality review from the death penalty statute. Act of June 25, 1997, No. 28, § 1 (Act 28). Ockenhouse's death sentence was imposed after the effective date of the amendment; thus this case is not subject to a proportionality review. Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 245 n. 34 (1999). . Karenbauer, 715 A.2d at 1099 (1998)(torture found where after inflicting eighteen wounds scattered over the victim's arm, chest, back, head and neck, defendant elected to drown the victim, thus, defendant in position to fatally wound victim yet chose not to do so.); Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 780 (1998)(same, where victim hit over head then mouth taped after which various materials were wrapped around victim’s head and bound in fashion in which breathing was restricted, ultimately resulting in lingering death by suffocation); Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 212 (1997)(same, where prior to gunshot wounds to head, victim received forty-seven impact injuries from cylindrical object consistent with a baseball bat and those administered by kicks — injuries to arm, hand, leg, chest, abdomen, neck, ear, cheek, head, and scalp); Heidnik, 587 A.2d at 692-93 (1990)(same, victim hung by wrist from ceiling, fed bread and water and subjected to beatings, victim administered electrical shock while in water-filled pit); compare Auker, 681 A.2d at 1321 (torture not established where defendant forcibly placed victim in trunk, transported victim to secluded wooded area, then inflicted ' seven to ten stab wounds and left victim to die); 'Caldwell, 532 A.2d at 817 (torture not established where elderly couple were bound to chairs facing each other and in which wife’s throat slashed in view of husband, after which defendant slashed husband’s throat and victims were left to die). . Karenbauer, 715 A.2d at 1099 (torture established where eighteen wounds scattered over victim's chest, back, head, and neck, none of which were deep enough to cause death but deep enough to cause pain to victim); Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 480 n. 10 (1998)(same, where victim stabbed twenty-eight times, twenty-six of the twenty-eight wounds were non-lethal, during four separate attacks); Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623, 628 (1996)(same, where none of the nine gunshot wounds to victim, inflicted with use of hollow point bullets, were individually capable of causing death, and final shot to scrotum area done with intent to sexually maim). . Karenbauer, 715 A.2d at 1099 (torture established where victim remained conscious after receiving eighteen stab wounds scattered over body and during subsequent drowning); Mar-inelli, 690 A.2d at 212 (same, where gunpowder residue on victim's hand from attempt to defend self and eye open at time victim was shot demonstrated that victim was conscious and aware of what was happening during one-half to two hour beating); Stevens, 670 A.2d at 628 (none of wounds caused victim to lose consciousness); but see Thomas, 561 A.2d at 708 (how long a victim can withstand attacks before unconsciousness overtakes the mind is not part of Commonwealth’s burden nor is such a consideration part of the aggravating circumstance of torture). . Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243, 1255 (1997)(torture found where victim was alive for thirty to sixty minutes after attack in which victim was beaten, raped, sodomized, and strangled); Marinelli, 690 A.2d at 212 (same, where beating lasted at least one-half hour and perhaps as long as two hours). . As is our statutory duty, the Prothonotary of the Supreme Court is hereby directed to transmit to our Governor a full and complete record of the trial, sentencing hearing, imposition of sentence and review by our court. Notice of this transmission shall hereby be contemporaneously provided to the Secretary of Corrections. 42 Pa.C.S. § 971 l(i).

OPINION OF THE COURT FLAHERTY, Chief Justice. This appeal requires us to construe the language of section 307(7) of the Workmen’s Compensation Act, 77 P.S. § 562, which permits termination of a widow’s death benefits upon remarriage or for living in a meretricious relationship, and mandates payment of a widow’s dower upon remarriage. The workmen’s compensation judge, the Workmen’s Compensation Appeal Board (WCAB), and the Commonwealth Court all held that appellant’s meretricious relationship justified termination of her widow’s death benefits and that no widow’s dower was due upon her subsequent remarriage. Appellant claims entitlement to the widow’s dower based on an interpretation of the statute which differs from that of the lower tribunals. Appellant, Doris Reichert Todd (Mrs. Todd), was widowed in 1985 when her husband Harold Reichert died in the employment of National Cash Register Corporation (NCR). She received widow’s benefits for a period of time from the company. In March, 1993, NCR filed a petition to terminate Mrs. Todd’s benefits due to a meretricious relationship. Mrs. Todd filed an answer which requested a lump sum distribution of benefits (widow’s dower) due to her remarriage on February 3, 1993. A hearing was held at which appellant testified that she began living with Mr. Todd in February, 1991, and that the two married in February, 1993. The workmen’s compensation judge issued an order terminating appellant’s benefits and denying widow’s dower. The WCAB affirmed the judge’s order, and the Commonwealth Court affirmed the order of the WCAB. We allowed this appeal to review the Commonwealth Court’s interpretation and application of the statute in question. Section 307(7) of the Workmen’s Compensation Act, 77 P.S. § 562, states, in relevant part: Should any dependent of a deceased employe die or remarry, or should the widower become capable of self-support, the right of such dependent or widower to compensation under this section shall cease except that if a widow remarries, she shall receive one hundred four weeks compensation at a rate computed in accordance with clause 2 of section 307 in a lump sum after which compensation shall cease: Provided, however, That if, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be, in meretricious relationship and not married, or the widow living a life of prostitution, the board may order the termination of compensation payable to such widow or widower. (Emphasis added.) The lower tribunals all regarded the fact that for a period of time appellant lived with her flaneé in a meretricious relationship justified the termination of benefits, and held that once terminated, appellant’s subsequent right to widow’s dower upon remarriage was also extinguished. Thus, appellant was not entitled to the one hundred four week lump sum payment due upon remarriage. Appellant argues that such a reading of the statute is unreasonable. Her argument is that the statute creates several conditions which must exist to terminate benefits in this context. First, there must be an investigation and hearing. Then there must be a determination that, at the time of the hearing, the widow lives with a man in meretricious relationship and is not married. Appellant regards the use of the present tense (“is living”) and the conjunction (“in meretricious relationship and not married”) as significant, understanding the language to require both the meretricious relationship and the unmarried state to exist at the time of the hearing. She argues that the legislative intent appears to contemplate that, in some instances, an earlier meretricious relationship would have resulted in marriage prior to hearing, in which case it would be improper to withhold the widow’s dower. A careful interpretation of the statute requires that we give effect to the present tense and conjunction emphasized in the following quotation. “[I]f, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be, in meretricious relationship and not married, ... the board may order the termination of compensation____” We cannot, however, accept appellant’s argument that the only relevant time is the time of hearing. It would be all too easy for a widow or widower to abandon a meretricious relationship temporarily for the date of a hearing and reenter the relationship immediately after the hearing. We cannot presume that the legislature intended such an absurd result. 1 Pa.C.S. § 1922(1). On the other hand, we cannot ignore the use of the present tense. The legislature plainly did not authorize termination of compensation due to a meretricious relationship on some indefinite past occasion. It appears that the only reasonable construction of the language is this: if, upon investigation, a meretricious relationship is discovered, the contemporaneous filing of a petition to terminate compensation alleging a present meretricious relationship satisfies the legislative intent; if, upon hearing, it is proved that a meretricious relationship existed on the date of filing, the board may order the termination of compensation. The date of filing is the critical date because it is the date it is alleged that a meretricious relationship presently exists — that the widow or widower is living in meretricious relationship. The date of hearing, on the other hand, is entirely fortuitous and is totally outside the control of the employer or workers’ compensation insurer. In addition to alleging a present meretricious relationship, a petition to terminate must also allege that the widow or widower is, at the time of filing, not married. Neither condition is satisfied in this case. The record establishes that appellant was engaged to be married and lived with her fiancé for a period of time while intending to marry. Due to a variety of circumstances, the marriage was delayed until February 3, 1993. The employer filed its request for a hearing subsequent to the marriage, in March, 1993. There was thus no meretricious relationship at the time of the filing, nor was appellant “not married” at the time of filing. Termination on the ground of meretricious relationship was therefore improper. It follows that when appellant remarried in February, 1993, prior to the employer’s petition to terminate, she was entitled to the statutory widow’s dower consisting of a lump sum payment of one hundred four weeks compensation, after which compensation ceases. The judgment of the Commonwealth Court is reversed and the case is remanded to the workers’ compensation judge for further proceedings consistent with this opinion. NEWMAN, J., did not participate in the consideration or decision of this case. ZAPPALA, J., files a dissenting opinion.

ORDER PER CURIAM: AND NOW, Ina P. Schiff having been suspended from the practice of law in the State of Rhode Island for a period of eighteen months by Order of the Supreme Court of Rhode Island dated June 7, 1996; the said Ina P. Schiff having been directed on December 18, 1996, to inform this Court of any claim she has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor; and upon consideration of the responses filed, the request for hearing is denied and it is ORDERED that Ina P. Schiff is suspended from the practice of law in this Commonwealth for a period of eighteen months, and she shall comply with all the provisions of Rule 217, Pa.R.D.E.

ORDER PER CURIAM: AND NOW, this 28th day of January, 1997, the Petition for Allowance of Appeal is hereby GRANTED, BUT LIMITED to the following issues: I. Whether the Erie City Ordinance is unconstitutionally overbroad. III. Whether the Ordinance violates the right to freedom of expression as guaranteed by the First and Fourteenth Amendments to the United States Constitution and Article I, section 7 of the Pennsylvania Constitution. NEWMAN, J, did not participate in the consideration or decision of this matter.

PETITION FOR REINSTATEMENT FROM INACTIVE STATUS ORDER PER CURIAM: AND NOW, this 3rd day of January, 1997, The Report and Recommendations of The Disciplinary Board of the Supreme Court of Pennsylvania dated November 27,1996, are approved and IT IS ORDERED that CONSTANCE ANN WYNN, 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.

ORDER PER CURIAM. AND NOW, this 7th day of April, 1997, the Petition for Allowance of Appeal is hereby GRANTED but LIMITED TO THE FOLLOWING: What is the appropriate standard to determine when conduct constitutes the rendering of professional health care services?

ORDER PER CURIAM. The Court being evenly divided, the order of the Superior Court is affirmed. NIX, Former C.J., did not participate in the consideration or decision of this case. ZAPPALA, J., files an Opinion in Support of Affirmance in which FLAHERTY, C.J., and CASTILLE, J., join. NIGRO, J., files an Opinion in Support of Reversal in which CAPPY and NEWMAN, JJ., join. OPINION IN SUPPORT OF AFFIRMANCE ZAPPALA, Justice. This case presents the issue of whether Appellant’s tort action against her employer/hospital and a co-employee/nurse is precluded by the exclusivity clause of the Workers’ Com pensation Act. Cathy Snyder was employed as a respiratory therapy technician at the Pocono Medical Center. Sometime in 1977, while in the performance of her employment duties, she was exposed to tuberculosis. Upon recommendation of Rose Galozzo, a nurse in the hospital’s infectious disease control department, and pursuant to the hospital’s employee health program, Snyder submitted to a tine test. When the test results were positive, Galozzo recommended that Snyder undergo periodic chest x-rays, which were consistently negative. Accordingly, no other treatments were recommended. In April 1986, while at work, Snyder became ill and was taken to the hospital’s emergency room. She was diagnosed as having adrenal failure. Snyder subsequently filed a civil action against Pocono Medical Center and Galozzo, alleging that she had received negligent treatment while participating in the employee health program. At trial, she presented expert testimony establishing that prompt detection and proper treatment with the prophylactic antibiotic INH would have prevented the spread of disease throughout her body. As a result of her condition, Snyder must take adrenal replacement medication for the rest of her life. The jury ruled in favor of Snyder and Appellees’ post-trial motions were denied. The Superior Court reversed, holding that because Snyder participated in the employee health monitoring program pursuant to her employment, her remedies were limited to those under the Workers’ Compensation Act. I agree. Snyder’s exposure to tuberculosis arose in the course of her employment and she was treated pursuant to a protocol established by the hospital specifically for employees who were exposed to tuberculous organisms. The hospital was therefore not acting in a dual capacity as an employer and medical provider. This case is analogous to Budzichowski v. Bell Telephone Co. of Pa., 503 Pa. 160, 469 A.2d 111 (1983). The employee there was a telephone installer who was injured during the course of his employment. He went to his employer’s medical dispensary and subsequently commenced an action for negligent medical treatment. We held that the employee’s exclusive remedy was that provided by the Workmen’s Compensation Act. The Opinion in Support of Reversal relies upon Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). The hospital employee in Tatrai became ill while on duty and was instructed by her superior to go to the emergency room for treatment. While there, she was injured when she fell off an x-ray table that had a loose foot stand. The Court held that the Workmen’s Compensation Act did not preclude her from commencing an action against the hospital. The decision was based on the fact that there was no reason to distinguish the employee from any other patient who had been injured during the course of treatment in an emergency room open to the general public. Tatrai, however, is distinguishable from the instant case. In Tatrai, “although there was a specific unit provided by the employer for employee health services, the employee ... went to and was injured in the emergency service which was open for the general public.” Id. at 253, 439 A.2d at 1165. Here, Snyder was tested by Nurse Galozzo, who testified that the hospital protocol applied to hospital employees. R. 64a. The protocol did not require the administration of INH. Snyder alleged in her complaint that the hospital never advised her to take INH as a preventive medication for tuberculosis, although it was regularly prescribed by medical physicians to prevent the disease. Her claim therefore arises from the alleged inadequacy of the employee health monitoring program. The fact that the place where her treatment was rendered was open to the public is not controlling. What is dispositive of the issue is the manner of the treatment given, i.e., pursuant to an employee health policy. In Budzichowski, we expressly distinguished Tatrai on the ground that unlike the hospital emergency room, the medical dispensary treated the employee solely because of his employment relationship. As explained above, the treatment in the instant case also arose from such relationship. As the Superior Court aptly noted, Where, as here, the employee contracts tuberculosis while employed by the hospital and is monitored and treated by the hospital in a program available only to employees, the employee’s remedies, even if he or she was treated negligently, are limited to those provided by the Worker’s [sic] Compensation Act. Because of the nature of its business, the hospital-employer had a vested interest in monitoring employees who were exposed to contagious diseases so that further contamination of its patients and staff could be prevented. Snyder v. Pocono Medical Center, 440 Pa.Super. 606, 614, 656 A.2d 534, 538 (1995). It is well established that the exclusivity clause of the Workers’ Compensation Act, 77 P.S. § 481, reflects the historical quid pro quo between an employer and employee whereby the employee is relieved of the burden of establishing fault for a work-related injury, and is compensated expeditiously. The employer in turn is relieved of the possibility of a larger damages verdict in a common law action. Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995). The comprehensive system of substantive, procedural, and remedial laws comprising the workers’ compensation system is the exclusive forum for redress of injuries in any way related to the work place. Id. Because Snyder’s injuries and the treatment thereof were related to her employment, her exclusive remedy is pursuant to the Workers’ Compensation Act. Accordingly, I would affirm the decision of the Superior Court. FLAHERTY, C.J., and CASTILLE, J., join this Opinion in Support of Affirmance. OPINION IN SUPPORT OF REVERSAL NIGRO, Justice. Cathy and Kenneth Snyder appeal a Superior Court Order that reversed a jury verdict in their favor. The jury found that Pocono Medical Center and Nurse Rose Galozzo negligently detected and treated Cathy Snyder’s tuberculosis. The Superior Court held that the Snyders’ exclusive remedy is under the Workmen’s Compensation Act and reversed. For the reasons set forth below, the Superior Court’s decision should be reversed. Cathy Snyder worked as a respiratory therapy technician at Pocono Medical Center. In 1977, Nurse Rose Galozzo told Snyder that she may have been exposed to a patient who tested positive for tuberculosis. Pursuant to a hospital employee health program and Nurse Galozzo’s recommendation, Snyder was tested for tuberculosis. When the test results were positive, Nurse Galozzo recommended that Snyder undergo periodic chest x-rays to monitor the disease. The x-ray results were consistently negative and neither the hospital nor Nurse Galozzo recommended any treatment. In 1986, Snyder became severely ill at work. Doctors diagnosed adrenal failure and later tests confirmed that Snyder’s adrenal glands were destroyed. Snyder must take adrenal replacement medication for the rest of her life. Snyder sued Pocono Medical Center and Nurse Galozzo alleging that they negligently failed to treat her condition with a prophylactic antibiotic that prevents the spread of tuberculosis. At trial, Snyder’s doctor traced the adrenal failure to her earlier exposure to tuberculosis and opined that prompt detection and treatment would have prevented the disease from spreading throughout Snyder’s body. A jury awarded Snyder $775,000.00. Pocono Medical Center and Nurse Galozzo moved for judgment notwithstanding the verdict claiming that the Snyders’ exclusive remedy is under the Workmen’s Compensation Act. See 77 P.S. § 481(a)(the Act provides the exclusive remedy for injuries arising in the course of employment). The trial court held that the hospital provided medical services to Snyder in its capacity as a hospital, not as an employer, and thus Snyder could sue for negligence pursuant to our decision in Tatrai v. Presbyterian Univ. Hosp., 497 Pa. 247, 439 A.2d 1162 (1982). The Superior Court reversed. Relying upon our decision in Budzichowski v. Bell Telephone Co. of Pa., 503 Pa. 160, 469 A.2d 111 (1983), it held that Snyder’s injury is related to her employment and that her exclusive remedy is under the Workmen’s Compensation Act. We granted allocatur to revisit the dual capacity doctrine applied in Tatrai, 497 Pa. 247, 439 A.2d 1162, and further defined in Budzichowski, 503 Pa. 160, 469 A.2d 111. In Tatrai, a hospital employee became ill at work. Her supervisor told her to go to the hospital emergency room. The employee was injured when the foot stand of an x-ray table became loose and caused her to fall from the table. She sued the hospital for negligence. The hospital argued that the employee’s exclusive remedy was under the Workmen’s Compensation Act. This Court disagreed. 497 Pa. at 255, 439 A.2d at 1166. In holding itself out as a provider of medical services, a hospital owes a duty to all of its patients. Id. at 255-6, 439 A.2d at 1166-67. We saw no basis to distinguish the employee-patient from other members of the public in jured during treatment. Id. Because the action was based on obligations arising in a hospital-patient relationship, not an employer-employee relationship, we held that the Workmen’s Compensation Act did not apply. Id. at 255-7, 439 A.2d at 1166-67. We reached a contrary result in Budzichowski. In that case, a telephone installer fell while working and was injured. Doctors at the company medical dispensary diagnosed strained muscles, gave the employee muscle relaxers and told him to go back to work. The employee’s pain continued and an independent doctor later diagnosed bone deterioration as a result of the fall. We held that the employee’s exclusive remedy was under the Workmen’s Compensation Act and that he could not sue the company. 503 Pa. at 168, 469 A.2d at 115. We distinguished this case from Tatrai because the company’s medical service was unavailable to the public. Because the employee could not have received the treatment absent his employment relationship with the company, the company did not act in dual capacities as an employer and medical provider. Id. The present case is similar to Tatrai and the dual capacity doctrine should apply. Snyder’s lawsuit is based upon a hospital’s negligent medical treatment. Like in Tatrai Snyder sought medical treatment at the hospital where she worked. The hospital holds itself out to the public as a medical service provider. It owes a duty of care to all of its patients. There is no basis to distinguish Snyder from any other member of the public injured during the course of treatment. Unlike in Budzichowski Snyder could have received treatment at the hospital even if she was not an employee. Because Snyder’s injury arose from a relationship separate and distinct from that of employer-employee and implicated different duties than an employer’s duties to its employees, the Workmen’s Compensation Act is inapplicable. See Tatrai, 497 Pa. at 255-7, 439 A.2d at 1166-67. The hospital dealt with Snyder in the dual capacities of employer and medical provider. Thus, Snyder may sue the hospital and Nurse Galozzo for negligent treatment. The lower courts have stated that this Court has retreated from applying traditional dual capacity analysis. See, e.g., Callender v. Goodyear Tire and Rubber Co., 387 Pa.Super. 283, 291-95, 564 A.2d 180, 185-87 (1989), appeal denied, 525 Pa. 593, 575 A.2d 560 (1990). The cases where we did not apply the doctrine, however, are distinguishable from Tatrai. In Heath v. Church’s Fried Chicken, Inc., 519 Pa. 274, 275-76, 546 A.2d 1120 (1988), for example, an employee was injured at work while operating a saw manufactured by the employer. The employee claimed that the employer was liable for negligence under the dual capacity doctrine since it had independent duties as a product manufacturer. We held that worker’s compensation benefits were the employee’s exclusive remedy because the injury occurred while he was performing a work-related task. Id. at 276-77, 546 A.2d at 1121. This Court’s holding in Heath and other cases that the dual capacity doctrine does not apply where an employee is injured while working is consistent with the analysis in Tatrai. When an employee is working, he is dealing with his employer solely within an employer-employee relationship. If this were not true, an employee could sue his employer for a slip and fall injury at work, for example, and claim that the employer had an independent duty as a possessor of land. This result would render the Workmen’s Compensation Act meaningless. The dual capacity doctrine applies where employees deal with their employers outside of their employment. Only then are the parties in a relationship other than employer-employee and different duties apply. Appellees argue that Snyder’s remedy lies exclusively under the Workmen’s Compensation Act because the negligent treat ment was related to her contraction of tuberculosis which was a work-related injury. See Workmen’s Compensation Appeal Bd. v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977)(in-juries resulting from the negligent treatment of a work-related injury are compensable under the Act because they are causally related). Snyder’s contraction of tuberculosis was a work-related injury and her exclusive remedy for that injury was worker’s compensation benefits. Her subsequent adrenal gland failure was the result of malpractice. If Snyder had sought treatment of her tuberculosis from a third party, she could recover for malpractice. The hospital or its insurer would have been entitled to subrogation for any benefits paid under the Act for negligent treatment. See Powell v. Sacred Heart Hospital, 99 Pa. Commw. 575, 582, 514 A.2d 241, 245 (1986). Instead, Snyder sought treatment for her tuberculosis at the hospital where she worked. The hospital is similarly responsible for malpractice under the dual capacity doctrine. Snyder should be able to recover in tort and the hospital would be credited for any benefits paid under the Act for its negligent treatment. Finally, the fact that Snyder received medical care under an employee health program does not dictate a different result. If it did, employers providing medical care could shield themselves from tort liability by establishing such programs. The record establishes that the hospital tested, monitored and treated members of the public for tuberculosis. Snyder received the same care as other patients and should be afforded the same remedies for negligence. Thus, the Superior Court’s decision should be reversed and this case should be remanded to the Superior Court to decide the remaining issues raised by Appellees on appeal. CAPPY and NEWMAN, JJ., join in this opinion in support of reversal. . The Medical Center had an established "Procedure for Follow Up for Personnel Exposed to Tuberculus Organisms.” The procedure provided that after notification of positive culture and/or smear had been obtained, and definitive diagnosis made, all hospital personnel who had been exposed would be identified and pertinent information would be obtained by the health nurse who carried out the program. The following medical procedures were to be taken upon exposure: In no less than 28 days, and preferably after 30 days, following the latest exposure, a Tine test using Purified Protein Derivative will be given to all personnel with [certain exceptions]. All personnel who have a previous negative reaction to a Tine test who are on this testing occasion found to be positive will have a chest x-ray. Final follow up will take place in six months. The personnel who had a negative response to the tine test will have a repeat tine test done after a six-month interval. Those personnel who converted to positive with the most recent tine test and/or had a negative chest x-ray will have a repeat chest x-ray after a six month interval. R. at 209a. . Tatrai went to the emergency room since there was no doctor on duty at the Employee Health Service at the time of her illness. See Id. at 255, 439 A.2d at 1166. . Other arguments raised in the motion are not now at issue. . The opinion authored by Justice Roberts holds the majority of the ■ Court's votes with Justices O’Brien, Larsen and Flaherty joining. Justice Nix filed a concurring opinion. Justices Kauffman and Wilkinson did not participate. . See, e.g., Lewis v. School Dist. of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988)(dual capacity doctrine did not apply where employee was injured while working).

ORDER PER CURIAM. AND NOW, this 20th day of December, 1996, the Petition for Allowance of Appeal is GRANTED BUT LIMITED to the question of whether the Superior Court erred by denying Petitioner’s PCRA petition alleging that counsel was ineffective by failing to object to the submission of written instructions to the jury. It is further ordered that the case be submitted on briefs and consolidated with Commonwealth v. Skibicki, 547 Pa. 1, 688 A.2d 165 (1996).

NOTICE AND ORDER PER CURIAM. AND NOW, this 6th day of February, 1997, it appearing that Anthony A. Muraski, a member of the Bar of this Commonwealth, has been suspended from the practice of law in the State of Michigan for a period of three years by the attached Notice of Suspension of the State of Michigan Attorney Discipline Board dated April 3, 1996, in accordance with Rule 216, Pa.R.D.E., it is Notice of any claim he has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor.

COLINS, President Judge. Joseph Schnupp (Sehnupp) appeals from the August 30, 1996 order of the Court of Common Pleas of Allegheny County (trial court) granting a motion for summary judgment filed by the Port Authority of Allegheny County (PAAC), William Sullivan, and Richard Schwartz (collectively Appellees), defendants in a civil rights action brought against them by Schnupp. This matter arose as a result of an incident that occurred on September 6, 1993 at PAAC’s Wood Street subway station, where Sehnupp, along with two children from his family, twelve-year-old Melissa and ten-year-old Kenneth, were waiting for a trolley home to the South Hills section of the City. A PAAC trolley pulled into the station, and Schnupp, along with about thirty other individuals who thought the vehicle was bound for South Hills, boarded it. The trolley operator ordered everyone off and announced that the vehicle was a shuttle trolley not headed for South Hills. The record indicates that as Schnupp stepped off the trolley, he questioned the operator about the lateness of the South Hills trolley, whereupon the operator unleashed abusive language at Schnupp and the other South Hills passengers. At this point, as alleged in the record, the trolley operator left his vehicle, walked onto the station platform, pushed through several people, and began using threatening language directly in Schnupp’s face. The record further alleges that Appellees Sullivan and Schwartz, acting within the scope of their employment with PAAC, appeared on the scene, placed the trolley operator back on the trolley, and directed him to leave. Thereafter, Appellee Sullivan moved through the crowd and tried to obtain information about what had happened. Arriving in the station at this point was a South Hills trolley, which Schnupp, his children, and others attempted to board. Appellees Sullivan and Schwartz stopped Schnupp and asked for his name and for information about the incident, but Schnupp continued to board the trolley. Appellees Sullivan and Schwartz stopped Schnupp a second time and warned him he would be arrested if he didn’t tell them what had happened. Schnupp ignored the Appellees and was immediately arrested, whereupon he directed his two young children to board the South Hills trolley for home. Thereafter, according to the record, Appel-lees took Schnupp (who still refused to provide information) to a small room in PAAC’s Wood Street facility, where they were so enraged by Schnupp’s continued silence that they threw him across the room and against the wall. Appellees then took Schnupp in handcuffs to the city jail where he was fingerprinted, interrogated, jailed, and served with a criminal complaint charging him with resisting arrest and disorderly conduct for which he had a preliminary arraignment hearing. Appellees Sullivan and Schwartz were directed to take Schnupp to a hospital where he was examined for his injuries, treated, and released. Thereafter, at a hearing before a city magistrate, the resisting arrest charge against Schnupp was dismissed, and Schnupp was charged $25.00 plus costs for the disorderly conduct charge. Schnupp appealed this latter charge and after a hearing held on February 3,1994, the court sustained the appeal and found Schnupp not guilty. PAAC did not appeal the court’s decision. On August 2, 1994, Schnupp filed a complaint against Appellees PAAC, Sullivan, and Schwartz, alleging intentional infliction of emotional distress, misuse and abuse of process, assault and battery, false arrest, false imprisonment, libel, and slander. Appellees filed a motion for summary judgment, which the trial court, by order dated August 30, 1996, granted; and at the same time the court dismissed Schnupp’s complaint with prejudice. This áppeal followed. Our scope of review of an appeal from the grant of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Rankin v. Southeastern Pennsylvania Transportation Authority, 146 Pa.Cmwlth. 429, 606 A.2d 536 (1992). Schnupp contends the trial court abused its discretion and erred in granting Appel-lees’ motion for summary judgment considering that he alleged a detailed course of conduct by Appellees acting under color of law which, on its face, clearly establishes that Appellees violated Schnupp’s federal and state civil rights. Specifically, both the complaint and affidavit alleged that Appellees, in violation of Schnupp’s civil rights, wrongfidly stopped, interrogated, arrested, assaulted, injured, and unconstitutionally detained him, and thereafter wrongfully brought criminal charges against him which ultimately were dismissed. Finally, Schnupp contends that the trial court erred in granting Appellees’ summary judgment motion on the basis that sovereign immunity shielded Appellees Sullivan and Schwartz from liability. The present matter must be reviewed within the parameters of Pennsylvania Rule of Civil Procedure 1035.2, which provides that any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of material fact that could be established by additional discovery or expert report, or, (2) whenever there is insufficient evidence to permit a jury to find a fact essential to the cause of action or defense. In Salerno v. LaBarr, 159 Pa.Cmwlth. 99, 632 A.2d 1002 (1993), petition for allowance of appeal denied, 537 Pa. 655, 644 A.2d 740 (1994), this Court observed that the grant of a motion for summary judgment is warranted only “in a clear case, that the moving party bears the burden of establishing that no material issue of fact remains and that the record must be viewed in the light most favorable to the non-moving party.” Id. 632 A.2d at 1004. In the present case, the trial court’s opinion indicates that Appellees did not contest Schnupp’s factual account of what transpired, at least insofar as admitting to a “run-in or clash between the parties at the subway station” and that they, “in their official capacity, arrested” Schnupp, as a result of which he sustained injuries. It strains credulity, however, to assume that Appellees admitted to having performed the specific, unreasonably violent acts which Schnupp alleges occurred, such as throwing him across a room so as to hit a wall. In any event, there is a substantial likelihood that through additional discovery, material facts could be elicited that would be relevant to establishing or disproving whether Appellees’ specific conduct and degree of force toward Schnupp would give rise to a cause of action against them under Section 1983, 42 U.S.C. § 1983 . Therefore, the trial court erred in granting Appellees’ summary judgment motion. More significantly, given the present fact scenario, the trial court’s reliance upon sovereign immunity is misplaced. In Heinly v. Commonwealth of Pennsylvania, 153 Pa. Cmwlth. 599, 621 A.2d 1212, 1215-16 (1993), state police officers, while acting in the course and scope of their employment in arresting Heinly and his brother, were charged with violating Heinly’s constitutional rights by “intentionally, willfully, knowingly and recklessly” firing gunshots into the house when they knew Heinly was inside attempting to talk his brother into surrendering. Although the officers conceded they had no immunity from personal liability under Section 1983 because of the United States Supreme Court’s decision in Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), they still asserted that any such 1983 action was barred by the Sovereign Immunity Act. This Court found otherwise and stated: [A] state may not lessen the availability of Section 1983 by taking any action purportedly frustrating its application. In Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332, ... the United States Supreme Court disabused states of any notion that they or its courts could take any action that would alter the parameters of Section 1983.... As to why state sovereign immunity laws or doctrine cannot foreclose Section 1983 actions brought , in state courts, the Supreme Court reasoned: ... A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise ... In Lancie v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827, 830 (1990) , in which police officers were charged with intentional violations of a couple’s civil rights under 42 U.S.C. § 1983 (Section 1983), in addition to claims under state law of intentional infliction of emotional distress, this Court stated: Under 42 Pa.C.S. § 8550, however, an employee is not protected by the local agency’s immunity if his act constitutes a crime, actual fraud, actual malice, or willful misconduct. This Court has held that willful misconduct in this context is synonymous with “intentional tort.” King v. Breach, 115 Pa.Commonwealth Ct. 355, 540 A.2d 976 (1988). Appellants are therefore not protected by governmental immunity with respect to the count of intentional infliction of emotional distress. Lastly, appellants assert that common law official immunity protects them from the state law claims. Since we have already decided that the negligence claims are barred by govern mental immunity, we must only decide if the intentional infliction of emotional distress claim is barred by official immunity. We conclude that it is not. Common law defenses are preserved by 42 Pa.C.S. § 8546 for use by employees of local agencies. This section does not apply, however, if the employee’s act constitutes willful misconduct. 42 Pa.C.S. § 8550. Official immunity therefore cannot protect these police officers from an action alleging an intentional tort. The record in Schnupp’s case clearly indicates that at the least, genuine issues of material fact remain pending as to whether Appellees, while acting under the color of state law, committed acts which deprived Schnupp of a federally guaranteed right or interest. Similarly, in Diaz v. Houck, 159 Pa.Cmwlth. 274, 632 A.2d 1081, 1087 (1993), this Court noted: In a Section 1983 action, a pre-trial detainee is entitled, under the Due Process Clause of the Fourteenth Amendment, to no less protection for personal security than that afforded convicted prisoners under the Fourteenth Amendment.... A motion for summary judgment in the nature of a demurrer admits as true all well-pleaded, material, relevant facts. Mazza-gatti. If the facts, as found in the discovery materials, supporting affidavits, as well as in the non-moving party’s pleadings, state a cause of action under any theory of law, then summary judgment must be denied. Id. Under this standard, we hold that the trial court erred in granting Ap-pellees[’] [sic] motion for summary judgment because Appellant has alleged facts sufficient to state a cause of action under Section 1983. Likewise, Schnupp has alleged facts sufficient to state a cause of action under Section 1983. Accordingly, we reverse the trial court’s order granting Appellees’ motion for summary judgment and remand the matter for proceedings consistent with this opinion. ORDER AND NOW, this 2nd day of April, 1998, the order of the Court of Common Pleas of Allegheny County granting Appellees’ motion for summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. . The trial court’s opinion states that pursuant to Article I, Section II of the Constitution of Pennsylvania, sovereign immunity is extended to the "Commonwealth, its officials and employees acting within the scope of their duties.... The Political Subdivision Tort Claims Act [Tort Claims Act], 42 Pa.C.S.A. Section 8501, (1982), defines a local agency as ‘a government unit other than the Commonwealth government.’_ The Port Authority of Allegheny County is a local agency and enjoys governmental immunity under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. Section 8522. Marshall v. Port Authority, 524 Pa. 1, 4, 568 A.2d 931, 933 (1990).” The opinion then lists nine exceptions to sovereign immunity set forth in Section 8522 of the Tort Claims Act, none of which, avers the trial court, applies to Schnupp's situation. By way of correction, we note that Marshall properly refers to the Port Authority of Allegheny County as a Commonwealth, rather than a local agency. What is commonly known as the Sovereign Immunity Act is found at 42 Pa.C.S. §§ 8521-8528. Exceptions to sovereign immunity are set forth in Section 8522(b) of the Judicial Code, 42 Pa.C.S. § 8522(b). . Effective July 1, 1996, new Rules of Civil Procedure 1035.1 through 1035.5 governing summary judgment replace former Rule 1035. . 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizens of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suite in equity or other proper proceeding for redress. . In Hafer, the Supreme Court found that state officials are "persons” under Section 1983 and as such, may be sued in their individual capacities and found liable for damages for violating protected rights while in the course of their employment. .Lancie refers to governmental, rather than sovereign immunity. This distinction becomes largely one of semantics, however, as noted by our Supreme Court in Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342, 1344 (1995), when it stated that "the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter (emphasis added).”

OPINION OF THE COURT CASTILLE, Justice. The issue before this Court is whether an insurance coverage dispute arising out of an automobile accident caused by a public employee is governed by the indemnity provisions of the Judicial Code applicable to political subdivisions or the language of the insurance policies. We find that the language of the insurance policies at issue controls the question of coverage and therefore reverse the Commonwealth Court’s order. On March 14, 1992, Randy Hunter, Jr. (Hunter), while driving a family-owned automobile, was acting in his capacity as a volunteer fireman for the Center Township Volunteer Eire Company when his vehicle struck and killed Evelyn Houser (Houser). At the time of the accident, the vehicle operated by Hunter was owned by his father and insured with appellee, Motorists Mutual Insurance Company (Motorists). Hunter’s policy with Motorists had a limit of liability of $100,000 per person and $300,000 per accident. The fire company was insured by appellant Indemnity Insurance Company of North America (Indemnity) with an applicable combined single limit of liability of $300,000. Houser’s estate filed suit against Hunter and the fire company, and Indemnity settled the action for $150,000. To clarify which insurer was obligated to provide primary coverage for the accident and thereby determine what portion of the settlement it was obligated to pay, Indemnity filed a declaratory judgment action seeking a ruling that, pursu ant to the language of its insurance contract with the fire company, the Motorists’ policy provided primary coverage for the accident so that any liability Indemnity had was limited to damages in excess of Motorists’ policy and not for any damages that the Motorists’ policy covered. The trial court ruled in favor of Indemnity. On appeal, the Commonwealth Court reversed and remanded for entry of judgment in favor of Motorists. Indemnity’s policy with the fire company covers an employee of the fire company operating an automobile not owned by the fire company provided the employee is engaged in the business of the fire company. There is no dispute that Hunter was an employee of the fire company and that he was engaged in the business of the fire company at the time of the accident. See, Selected Risks Insurance Co. v. Thompson, 520 Pa. 130, 140, 552 A.2d 1382, 1387 (1989) (volunteer firefighters are deemed public employees of a local agency). Indemnity’s policy further states that Indemnity provides excess coverage for any accident involving an automobile not owned by the fire company but operated by an employee of the fire company. Therefore, Indemnity argues that because Hunter was driving his family automobile at the time of the accident, Motorists has primary responsibility for the instant action to its limits of liability. It follows then that Indemnity would be responsible only for those damages that exceed Motorists’ limits of liability. Motorists argues that this coverage dispute is governed by 42 Pa.C.S. § 8548(a) which provides Indemnity by local agency generally.— When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and he has given timely prior written notice to the local agency, and it is judicially determined that an act of the employee caused the injury and such act was, or that the employee in good faith reasonably believed that such act was, within the scope of his office or duties, the local agency shall indemnify the employee for the payment of any judgment on the suit. This indemnification statute is designed to protect a public employee from financial loss incurred while performing acts within the scope of his employment. Wiehagen v. Borough of North Braddock, 527 Pa. 517, 523-24, 594 A.2d 303, 306 (1991). Clearly, under the statute, Hunter would be entitled to indemnification from the fire company for any expenses he incurred as a result of the accident which occurred while Hunter was engaged in the business of the fire company, and this Court has consistently upheld the right of public employees to indemnification. The issue raised in this appeal, however, is whether Hunter’s insurer (Motorists) is entitled to indemnification from the fire company’s insurer (Indemnity) where the fire company’s insurance policy with Indemnity expressly shifts financial responsibility to Motorists as the primary carrier. The policy concerns behind the indemnification statute are not served by placing all of the responsibility for the loss on Indemnity because the financial loss for the accident is not personal to Hunter in this case, but rather would be borne by Motorists to its limits of liability. Further, the indemnification statute does not address indemnification of insurers of public employees, only indemnification of the employee himself. Thus, a finding that Hunter’s insurer is not entitled to indemnification does not offend the statutory indemnification provisions. This Court has long held that “[a] clear and unambiguous contract provision must be given its plain meaning, unless to do so would be contrary to a clearly expressed public policy.” Windrim v. Nationwide Insurance Co., 537 Pa. 129, 135, 641 A.2d 1154, 1157 (1994). See also Paylor v. The Hartford Insurance Co., 536 Pa. 583, 640 A.2d 1234 (1994). The language of Indemnity’s policy is clear and unambiguous that Indemnity provides excess coverage over any other collectible insurance. The provision is not contrary to any public policy. Therefore, it must be given its plain meaning. When Indemnity contracted to provide insurance for the fire company, it factored its risk into the decision regarding the fire company’s insurability and an appropriate premium to charge. Pertinent to Indemnity’s perception of its risk was the belief, based upon the clear contract language, that it provided only excess coverage for vehicles not owned by the fire company but used by the fire company’s employees. Indemnity is entitled to rely on the language of the contract here where the language is not in contravention of public policy. Accordingly, the decision of the Commonwealth Court is reversed. . 42 Pa.C.S. § 8548(a). . The release signed by Houser’s estate when settling the underlying action releases both Indemnity and Motorists from all further liability to the estate for any claims arising out of the subject automobile accident. .If the Indemnity policy was determined to be primary, Indemnity would be required to pay the entire $150,000 because its policy limit was $300,000. On the other hand, if the Motorist policy was primary, Motorists would pay the first $100,000 of the settlement (its policy limits) and Indemnity’s exposure would be limited to the remaining $50,000. . There is no dispute between the parties as to the meaning of the policy language. The parties agree that the language of the Indemnity policy indicates that its coverage is excess to the primary coverage of any covered vehicle that is not owned by the fire company. The disputed issue is whether that language or the indemnity language of 42 Pa.C.S. § 8548(a) applies. . The policy provides: The following is added to the liability coverage—who is an insured provision: any employee of yours is an insured while using a covered auto you don’t own, hire or borrow in your business or personal affairs. . The policy provides, in pertinent part: 5. OTHER INSURANCE a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance ... .See, e.g., BLaST Intermediate Unit 17 v. CNA Insurance Cos., 544 Pa. 66, 674 A.2d 687 (1996) (insurance carrier must indemnify school district for judgment resulting from inadvertent violation of federal discrimination statutes); Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289 (1994) (local agency must indemnify police officer for judgment in civil action for assault and battery and false imprisonment absent a judicial determination that his acts constituted willful misconduct).

ORDER PER CURIAM: AND NOW, this 18th day of May, 1998, on certification by the Disciplinary Board that the respondent, STUART W. JAY, who was suspended by Order of this Court dated October 9, 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, STUART W. JAY is hereby reinstated to active status, effective immediately.

ORDER PER CURIAM: AND NOW, this 11th day of May, 1998, there having been filed with this Court by Gerald Patrick Deady his verified Statement of Resignation dated April 3, 1998, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa. R.D.E., it is ORDERED that the resignation of Gerald Patrick Deady be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

HUDOCK, Judge: On October 31, 1992, Marcia L. King and Charles G. Simpson were involved in a two-vehicle accident with Lisa Pulaski. The collision occurred when King, who was driving, and Simpson were lawfully stopped at an intersection, waiting to make a left turn into a gasoline station. At that time, Pulaski drove her vehicle into the rear end of King and Simpson’s car, thereby forcing King and Simpson’s ear into oncoming traffic. After being extricated from her car approximately thirty minutes after the accident, King was treated at Mon Valley Hospital and released later that evening. From November of 1992 until September of 1994, due to muscular pain caused by the accident, King received chiropractic treatment from Dr. Philip Caffari. In September of 1994, King discontinued treatment with Dr. Caffari because she was dissatisfied with her recovery progress. She then consulted with another chiropractor, Dr. Jack Taylor, and continued her treatment with him until July of 1995. At the time of the accident, King was employed on a full-time basis as a salad bar attendant at a Hoss’s Steak and Sea House restaurant. King’s fringe benefits at Hoss’s included medical coverage and a profit sharing plan. Additionally, King maintained part-time employment as a dietary aid at South Hills Health System—Jefferson Hospital. During the month following the accident, King did not work at either Hoss’s or Jefferson Hospital. Thereafter, pursuant to Dr. Caffari’s recommendation that she could return to “light-duty” employment, King " returned to both of her jobs on December 1, 1992. Upon her return to Hoss’s, King asked her supervisor, Wayne Crise, whether there were any light-duty positions at which she could work. Crise replied that, while there were several such positions at Hoss’s, none were currently available. For the next several weeks, King resumed her salad bar attendant duties. In late December of 1992, King told Dr. Caffari that the lifting and bending necessary at her Hoss’s job aggravated her pain. Dr. Caffari then gave King a note excusing her from work for medical reasons and King took a leave of absence from Hoss’s. Approximately one year later, in December of 1993, King formally resigned from Hoss’s because she still could not physically perform the duties of her former job. With respect to her part-time employment at Jefferson Hospital, King was able to resume her normal duties as a dietary aid following the initial, month-long, leave of absence immediately following the accident. In May of 1995, after completing training as a nurse’s aid, King obtained full-time employment at Jefferson. On October 6, 1994, King and Simpson filed a joint civil complaint against Pulaski to recover damages for their injuries arising from the 1992 auto accident. In November of 1996, following standard pre-trial procedures, the ease was tried before a jury. Pri- or to the trial, Pulaski admitted liability. The contentious trial issues, therefore, centered upon the injuries, if any, which King and Simpson sustained in the accident and the damages to be awarded therefor- King testified in detail relative to her job duties at Hoss’s. In sum, King’s testimony established that, as a salad bar attendant, she was required to do a great deal of heavy lifting and carrying, as well as bending and reaching. Further, because the job was in the restaurant service industry, it necessitated that she work at a fast pace. King’s supervisor, Wayne Crise, corroborated King’s testimony relative to the scope of her work duties. Further, Crise testified that King had been a good employee for the four years preceding the accident but that, following the accident, King’s pace was slower and she sometimes had to ask other employees for assistance. King’s treating physicians, Drs. Caffari and Taylor, testified by way of videotape deposition. Dr. Caffari stated that he had approved King for light-duty employment only and that activities such as heavy lifting would prolong the healing process. Thereafter, King proposed to introduce the testimony of a vocational expert, Jay K. Jar-rell, regarding the calculation of King’s lost wages, health insurance benefits, and profit sharing plans. In response, Pulaski filed a motion in limine seeking to exclude Jarrell’s testimony. In support thereof, Pulaski stated that King had not laid a proper foundation for the introduction of the proposed expert’s testimony. More particularly, Pulaski argued that Pennsylvania law requires the introduction of specific medical evidence of a plaintiffs inability to perform a job before a jury may consider lost wages as an element of damages. Because King’s doctors had not specifically stated that King was unable to perform her duties at Hoss’s, Pulaski argued, Jarrell should be precluded from testifying. At a lengthy sidebar discussion, the parties presented their respective arguments to the court. King argued that the law does not mandate that a doctor provide a specific medical opinion that the plaintiff cannot perform his or her job. Instead, King averred, medical evidence must be presented from which a jury could reasonably conclude that the plaintiff was so incapacitated. Further, King argued, such sufficient evidence was presented in the instant matter and the expert, therefore, should be permitted to testify. In response, Pulaski reiterated her prior argument that, absent a specific medical opinion pertaining to a plaintiff’s inability to work, it would be improper to allow a jury to consider lost wages as a part of damages. After much discussion, the court granted Pulaski’s motion in limine, stating to King: “I don’t think you have the magic words.” N.T., 11/15/96, at 175. After the parties rested their cases, the court charged the jury. Because Pulaski had previously admitted her negligence, the court specifically instructed the jurors that they must find Pulaski negligent and that neither King nor Simpson could be found contribu-torily or comparatively negligent. Rather, the court instructed, the jury must begin its deliberations by considering whether Pulaski’s negligent conduct was a substantial factor in bringing about the plaintiffs’ claimed injuries. The jury was then instructed that, should it answer the causation inquiry in favor of the plaintiffs, it must then determine the proper measure of damages to compensate the individual plaintiffs. With respect to lost wages, the court informed the jury that, while King testified that she missed a substantial amount of work due to her injuries, the jury was not to consider lost wages as an element of its damage award. After deliberating for three hours, the jury sent a note to the court in which it asked, “Can we find for the plaintiff without giving any monetary award?” Id. at 251. The judge, in turn, asked the jury to clarify whether their question related to one or both plaintiffs. The jury responded that their question referred only to King’s co-plaintiff, Simpson. After conferring with the parties, the judge answered the jury’s question in the negative. Soon thereafter, the jury returned its verdict. Despite the court’s plain instructions to the contrary, the jury found for the defendant, Pulaski, in the case of Simpson v. Pulaski In the case of King v. Pulaski, the jury found for the plaintiff, King, and awarded compensatory damages in the amount of $600.00. King filed a timely motion for post-trial relief in the nature of a new trial. Therein, King argued, inter alia, that the verdict “bears no relationship to the uncontroverted testimony presented at trial” and was, thus, against the weight of the evidence. Motion for Post-Trial Relief, at 3. King also alleged that the court erred in granting Pulaski’s motion in limine, which barred King from introducing expert vocational testimony at trial. By order dated March 10, 1997, the court denied King’s post-trial motion. In its accompanying opinion, the court stated that, while “this Court is inclined to award a new trial for failure of the jury to follow the court’s instructions and for inadequacy which does shock this Court’s conscience, this Court believes plaintiff has waived these reasons for a new trial by failing to object to the verdict in a timely fashion.” Opinion, 3/10/97, at 6 (emphasis added). By way of explanation, the court opined that King had waived her right to challenge the weight of the jury’s verdict by failing to object before the jury was dismissed. In support of this decision, the court relied upon this Court’s holding in Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994). Further, the court reaffirmed its decision to exclude the proposed testimony of King’s expert vocational witness. Again, the court reiterated that “there must be specific medical evidence that a claimant is unable to perform their job before wage loss can be considered by a jury.” Opinion, 3/10/97, at 4-5. This Court’s holding in Gordon v. Trovado, 234 Pa.Super. 279, 338 A.2d 653 (1975), was cited in support of the decision to grant Pulaski’s motion in limine. It is well-settled that, in order for a claim of error to be preserved for appellate review, a party must make a timely and specific objection before the trial court at the appropriate stage of the proceedings. See, e.g., Brown v. Philadelphia Tribune Co., 447 Pa.Super. 52, 668 A.2d 159, 162 (1995). The failure to do so will result in waiver of the issue. Id. In Picca v. Kriner, supra, this Court held that, under the unique facts of that case, a plaintiff who failed to object to the jury’s verdict before it was dismissed was barred from requesting a new trial. Factually, Pic-ea was similar to the instant matter in that it involved a rear-end, two-vehicle collision in which liability was not at issue. Procedurally, however, Picea is distinguishable from the present ease. After the Picea jury was charged as to damages, it retired for deliberation with a set of special interrogatories, one of which was broadly worded and confusing. There was no objection made to the overly broad wording of the interrogatory before it was given to the jury. Likewise, there was no objection made after the jury returned a confusing and ambiguous verdict. On appeal, this Court held that the appellant waived her challenge to the weight of the evidence because the record was unclear as to whether the jury determined, incredibly, that the victim sustained no injuries as a result of the accident or whether the jury simply determined that the tortfeasor’s actions were not a substantial factor in bringing about the victim’s actual injuries. Further, we held that the inherent ambiguity in the record was caused by the appellant’s failure to object to the wording of the interrogatory at some point before the jury was dismissed. Specifically, we held as follows: But events did not so transpire, and on appeal we are left with an ambiguous record. We cannot tell whether the jury incredibly found that Picea suffered no injuries, or whether it found that Kriner’s negligence did not cause enough of Picca’s alleged injuries to make his negligence a substantial factor in bringing them about— a mistaken, albeit reasonable, interpretation of the second verdict interrogatory. It does not matter, however, because in either event, Picea waived her right to ask for a new trial by not objecting to the problems with the verdict before the jury was dismissed. Picca, 645 A.2d at 871. In the several years since our decision in Picea, we have had occasion to review several similar procedural challenges. As a whole, we have found that the result reached in Picea is only appropriate in cases in which the jury returns an ambiguous verdict which can be traced to a litigant’s failure to ensure the proper wording of a jury charge or special interrogatories. For example, in Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439 (1995), we were faced with the threshold issue of whether, pursuant to Picea, the appellant waived his right to object to the jury’s verdict. In rejecting the appellee’s waiver claim, we stated as follows: We are of the mind that Picea is not applicable to the instant case since, in Pic-ea, the jury was given specific interrogatories containing overly broad language about which Picea could have made an objection before they went to the jury. Further, since the Picea verdict revealed that the jury there misinterpreted an interrogatory, counsel should have attempted to have any confusion resolved by further deliberation. In the present ease, however, there were no specific interrogatories for the jury to answer in rendering its verdict, and the trial court gave a clear, concise jury charge outlining the applicable law of the case. * * * * * # Thus, it seems that application of the Picea waiver rule is more prudently restricted to verdicts of obvious inconsistency and clear, certain irrationality. Henery, 661 A.2d at 441-42 (footnote omitted) (emphasis added). Similarly, in the case of Fillmore v. Hill, 445 Pa.Super. 324, 665 A.2d 514 (1995), this Court was called upon to determine “whether a trial court may properly deem waived an issue relating to a jury’s problematic, but not inconsistent, verdict because a party failed to object to the verdict prior to the jury’s dismissal by the trial court judge.” Id. 665 A.2d at 514. In Fillmore, a case which also involved a two-car collision, the special interrogatories answered by the jury reflected its determination that the plaintiff and the defendant were each 50% negligent and that the plaintiff sustained injuries in the accident. Nonetheless, the jury refused to award any damages to the plaintiff. As in the instant case, the Fillmore plaintiff did not object to the jury’s verdict prior to its dismissal. The plaintiff did, however, file a timely post-trial motion in which he claimed that the verdict was against the weight of the evidence. In denying relief, the trial court relied upon, inter alia, our decision in Picea for the proposition that the plaintiff waived his right to a new trial by failing to object while the jury was still empaneled. Upon review, this Court held that the trial court’s reliance upon Picea was misplaced. As we explained, the Picea waiver rule is only applicable to cases in which a litigant’s failure to object to improper or ambiguous jury instructions or interrogatories causes an inconsistent verdict. The waiver rule should not be applied to cases in which the verdict is clear and unambiguous, albeit problematic, troublesome or disappointing. This rule is consistent with the longstanding policy of our courts not to invade the province of the jury in issues relating to credibility and fact-finding determinations. Thus, a verdict that is inconsistent because the jury received ambiguous or incorrect instructions may be corrected at the trial stage by explaining to the jury why their verdict is flawed and asking the jury to deliberate anew with reference to the correct legal principles. In so doing, however, a court must ensure that it is not encouraging a substantive change in a verdict that was reached following a proper jury charge and, if applicable, the answering of properly worded special interrogatories. As the Fillmore Court held: Once a jury returns its verdict, a trial court judge has the ability to point out the problems and explain that the verdict is flawed because the jury must return a verdict which is both free from ambiguity and clearly understandable. í{í * ;¡c ‡ ^ # By the same token, the trial court may not, in its additional instructions, “inject itself into the deliberation and encourage a basic change in the intended verdict of the jury. The court in sending the jury back to correct their findings should not suggest a substantive change in their findings.” Fillmore, 665 A.2d at 517 (quoting Robinson v. Brown, 195 Pa.Super. 384, 171 A.2d 865, 868 (1961)) (emphasis added). With this standard in mind, we have reviewed the facts of the instant matter and, after careful consideration, must reverse the order of the trial court. As previously stated, after receiving three days of testimony relative to Ring’s injuries and their cause, the trial court charged the jury with the applicable principles of negligence law. In their entirety, the jury instructions were clear and unambiguous. The jury was then given a general verdict slip and proceeded to deliberate. Several hours thereafter, the jury returned a verdict for King in the amount of $600.00. This verdict, while arguably inadequate, problematic, and disappointing to the plaintiff, nonetheless clearly and unambiguously reflected the jury’s fact-finding and credibility determinations. There was no flaw in the verdict in the sense that the jury misunderstood the applicable law, received an ambiguous jury charge, or answered poorly worded interrogatories in a confusing manner. Thus, any further instructions from the trial court, at the request of King’s counsel, would have been wholly improper in that the court would have suggested to the jurors that they make a substantive change in their findings. See Fillmore, supra. Such actions would have impermissibly encroached upon the jury’s function. As we stated in Fillmore, “the trial judge did not have the option of sending the jury back to re-deliberate because there was no ambiguity or evidence of a misunderstanding. A judge is not at liberty to suggest that the weight of the evidence did not support a damage award.” Id. at 519 (emphasis added) (citation omitted). Although the court in the instant matter denied relief based upon King’s failure to object to the verdict at trial, it nonetheless stated that, but for King’s omission, a new trial was warranted. Specifically, the court stated that the jury’s compensatory damage award of $600.00 was inadequate and “does shock this Court’s conscience.” Opinion, 3/10/98, at 6. In this respect, we must defer to the trial court who observed all the witnesses and had a perception of the entire trial that we cannot obtain from a review of the cold record. Therefore, in light of the foregoing analysis and our holding that the waiver rule is inapplicable to the present case, we reverse the order of the trial court and remand this case to the trial court for a new trial. We will now address the second issue presented on appeal. As previously stated, King has also objected to the trial court’s decision to grant Pulaski’s motion in limine to exclude the testimony of King’s expert vocational witness. Since this issue will likely be revisited during retrial, we will briefly address its merits. In precluding the proffered expert’s testimony, the court below relied upon this Court’s holding in Gordon v. Trovado, supra, for the proposition that expert medical testimony must specifically establish that a plaintiff is unable to perform his or her job before wage loss can be considered. As the court stated: “[I]n the opinion of this Court, unless there is specific medical testimony that plaintiff cannot perform her job and for what period of time, any testimony thereon would be purely speculative and prohibited by Gordon.” Opinion, 3/10/97, at 5. After careful review, we believe that the trial court construed Gordon’s holding too narrowly and, in so doing, improperly excluded King’s proffered expert testimony. Indeed, a cursory reading of Gordon establishes that a claimant must introduce sufficient evidence from which a jury may assess damages with reasonable certainty. Gordon does not, however, require absolute certainty or, as the trial court in the instant matter opined, “magic words.” N.T., 11/13/96, at 154. Indeed, our Court in Gordon specifically held that “[t]he law requires not merely conjecture, but rather sufficient data from which the damages can be assessed with reasonable certainty.” Gordon, 338 A.2d at 657 (emphasis added) (citations omitted). This premise has been echoed in a more recent pronouncement from our Court. In Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1982), this Court reversed a trial court’s order which prevented the plaintiff from introducing expert testimony relative to the plaintiff’s impaired earning capacity. At trial, the plaintiff introduced expert medical evidence that he suffered permanent injuries as a result of the underlying automobile accident and that he would, therefore, be precluded from engaging in occupational activities requiring heavy lifting. In disallowing the plaintiff’s proffered expert testimony, the trial court held that there was no evidence that plaintiffs “economic horizon had been limited in any way.” Janson, 455 A.2d at 671. On appeal, the defendants asserted that “evidence of permanent injury by itself is insufficient, and the evidence must also show that the injury will prevent the plaintiff from engaging in a specific type of work.” Id. The panel majority in Janson held that such specificity is not required and, therefore, reversed the trial court’s order and remanded the case for a new trial, limits ed to damages. As we stated: “While this evidence, like most evidence of impairment of earning power, is imprecise and difficult to evaluate, it is nevertheless sufficient.” Id. As applied to the instant matter, our review plainly demonstrates that King proffered sufficient evidence to permit expert testimony as to King’s lost wages. Prior to the trial court’s ruling on Pulaski’s motion in limine, both King and her supervisor testified at length relative to King’s workplace duties. As a whole, this testimony established that, as a salad bar attendant, King was required to perform a good deal of heavy lifting, bending and carrying. In conjunction with this evidence, King’s initial treating chiropractor, Dr. Caffari, testified that King was permitted to return to “light-duty” employment only. Since Hoss’s did not have any light-duty positions available for King, Dr. Caffari gave her a note excusing her from work for medical reasons. We believe that the above testimony established with reasonable certainty and specificity that King could not perform her job duties at Hoss’s. The trial court should, therefore, have permitted King to introduce expert testimony relative to her resultant lost income. As with all other testimony, both lay and expert, the jury could then have evaluated the witnesses’ credibility and reached a proper, non-speculative verdict regarding this issue. Judgment reversed. Case remanded to the Court of Common Pleas of Westmoreland County for a new trial. Jurisdiction is relinquished. . King’s co-plaintiff, Simpson, did not join in the filing of post-trial motions and is not a party to the present appeal.

Mr. Justice Paxson delivered the opinion of the court, in both cases, APPEAL OF CHARLES HEYDRICK, SURVIVING EXECUTOR OF SAMUEL HEYDRICK, DECEASED. The court below was clearly right in holding that the appellant was an incompetent witness. It is true he was not a devisee, legatee or creditor of the estate of either Samuel Heydrick or Leanna Heydrick; of the first estate he is the executor, of the other the administrator; lie is a trustee and has no interest in either estate. But he seeks to relieve himself from liability to the estate of Samuel Heydrick for a sum of money which by his account as executor, filed and confirmed, he has thus solemnly admitted to be in his hands, by showing that the money was in the hands of Leanna Heydrick, his co-executrix; and that said money had been used by her in the purchase of certain real estate. This he may do, but not by his own testimony. He has the direct interest of casting his own burden upon some one else. For this reason the Act of 27th, March, 1865, P. L. 38, does not apply. That Act contains an exception as to all executors, administrators, trustees or other persons acting in a fiduciary or representative character, who have “ any interest in the subject matter of controversy.” It will be noticed that the words “ any interest, in the subject matter of controversy ” are much broader than an interest in the estate. There does not appear to be any controversj’- here as to the distribution; the controversy is whether the money to be distributed is in the hands of the accountant or of some one else. In this respect the case differs from Cox v. KcKean, 6 P. F. S., 243. There Cox, the trustee, was not offered as a witness to discharge himself from payment of or responsibility for the trust money in his hands. He stood indifferent between his cestuis que trustenl and the administrator of Kine, and was properly held to be a competent witness. It may be the facts are as the appellant contends. If so it is bis misfortune that be has no competent evidence to prove them -, it is bis own fault in transacting the business in a loose way, and we cannot remedy bis want of care. To make law to meet hard cases is not among the recognized duties of the judiciary. A.s there is no testimony'in the case to sustain the appellant’s contention, the court below Committed no error in eon-firming tlie report of the Auditor, and in ordering distribution in accordance therewith. This is all there is in the case and elaboration would not make it plainer. The decree is affirmed and the appeal dismissed at the costs of the appellants. APPEAL OF CHARLES HEYDRICK, ADMINISTRATOR OF ESTATE OF LEANNA HEYDRICK. In this case the accountant sold the real estate of his intestate, and in his account claimed a credit for the sum of $1073.48, which he says was the trust money belonging to the estate of Samuel Heydrick, deceased, and which his intestate as executrix of said estate kept in her hands, and invested in the purchase of said real estate. But the accountant could only prove this by his own testimony, which the court below rejected. In the appeal of the accountant as executor of Samuel Heydrick we have just decided that he was an incompetent witness. He is equally incompetent in this estate and for the same reason, viz: that the effect of his testimony is to relieve himself from this liability and cast it upon Lcauna Heydriok’s estate. We need not repeat what was there said. The decree is affirmed and the appeal dismissed at the costs of the appellant.

Opinion by Mr. Justice Williams, The important facts in this case may be very briefly stated. The defendants Laughlin and McManus were stock brokers. Albertson, the plaintiff, had been for some years one of their customers. In February, 1893, he borrowed $10,000 from Laughlin for which he gave his own note. About the same time he turned over to Laughlin a note for $29,134.92, which was known as the “ Bass note,” as collateral security for the payment of his own note and for the payment of “ any losses that might be be tween the said firm of Laughlin and McManus and said Lewis Albertson ” in their stock transactions. Within a few days after this was done a balance on account of losses appeared on the books of the firm against Albertson of about $20,000. On the 2d day of March, 1898, the firm with the consent of Laughlin transferred the Bass note to David H. Lane for the sum of $29,000. The master has found that Lane was a purchaser bona fide and without notice of any equity of Albertson in the note. Laughlin and McManus made an assignment for the benefit of creditors within a few hours after the transfer of the Bass note to Lane. On the 4th day of the following August, this bill was filed against Laughlin and McManus, against Hopkins the receiver, and against Lane the holder of the Bass note. It alleges that the $10,000 borrowed from Laughlin was obtained, with the knowledge of the lender,-for use in stock gambling operations; and that the balance of $20,000 appearing against him on the books of the firm was for losses incurred in stock gambling done by him through them. These allegations, with another asserting notice to Lane of the title of the plaintiff to the Bass note, make the basis on which is grounded a prayer for a decree directing that the plaintiff’s own note for the $10,000 borrowed from Laughlin, and the Bass note, be delivered up to him. The delivery of the note for $10,000 has not been insisted on in the argument for the appellant made in this court, but the right of the plaintiff to the Bass note both as against Laughlin and McManus and against Lane has been urged with great earnestness. We are unable to see, however, how we can interfere with the transactions between the plaintiff and his broker which they have already closed. If we assume the truth of every averment in the bill stating the nature of the transactions in stocks in which the losses were sustained no ground for the interference of a chancellor is disclosed. It does not matter so far as the legal effect of payment is concerned whether the loser in a gambling transaction pays his losses in cash or in negotiable securities. He cannot recover what he has voluntarily paid in either case. The winner could not recover from him by an action at law if he refused to pay, nor could he recover back from the winner the money or the security paid by him to cover his losses. The law will leave both parties just where it finds them, and will afford its help to neither. A fortiori will a court of conscience turn away from the illegal transaction and deny its aid either to the winner to compel payment of his unpaid gains, or to the loser who has paid his losses to enable him to recover them back. In this case it appears by the proofs and is found as a fact by the master, that the plaintiff provided for the payment of his losses, to the extent of the balance due upon the Bass note over his own note to Lauglilin, by an agreement in writing delivered at the time the Bass’ note was delivered by him to Laughlin. This security so delivered was negotiable, and has been actually negotiated by the firm for the payment of the very losses for which it was pledged to them. What we are asked to do is to compel its return because it was held by the firm for a gambling debt. This we cannot do. Having provided for the payment of his losses, and the note put in the hands of the firm for that purpose having been negotiated, as the court below have held, to one who bought for full value and without notice, the plaintiff is in the position of any other loser who has paid his losses. We agree with the court below in holding the Bass note to be negotiable, and we have been shown no sufficient reason for overruling the finding of the master, concurred in by the learned judge of the court below, that Lane is a purchaser bona fide and without notice. In this view of the case it becomes unnecessary to enter upon an examination of the transactions between Albertson and his brokers. The master thinks they were not of a gambling character but were purchases and sales for actual delivery. Whether the evidence showing the purchase and sale of over a half million dollars worth of stock in a few years, not one share of which was delivered to the plaintiff or actually paid for by him, but all of which was settled for on margins and the profit or loss alone accounted for, justifies his finding is a question that we shall not enter upon. It is not necessary for the decision of this case. Give the plaintiff the full benefit of his position on this question and treat the stock transactions as all illegal, a mere wager on the course of the market, and we can see no way in which a chancellor can help him to regain what he has lost. The case of Peters et al. v. Grim, 149 Pa. 163, and Gaw v. Bennett, 153 Pa. 247, hold that a purchase and sale on margin is not necessarily illegal, but they both adhere to the rule that a contract that appears to be an illegal and gambling contract is one with which the courts will not interfere to assist either the unpaid winner or the loser who has paid his losses. Leaving the plaintiff therefore to stand on his own position, we can afford him no relief. The decree is affirmed; the costs to be paid by the appellant.

ZAPPALA, Justice. This appeal raises the issue of whether prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901. We answer this inquiry in the affirmative and hold that the standard applicable to terminations for inactivity pursuant to a defendant’s motion for non pros applies equally to dismissals pursuant to Rule 1901. As Appellees have established prejudice, however, we affirm the decision of the Superior Court. On July 26, 1990, Daniel E. Shope was involved in an automobile accident and fractured his right leg. He was subsequently treated by Dr. Perry A Eagle, M.D., at York Hospital. On October 23, 1991, Daniel and his wife (Appellants), filed a medical malpractice and corporate negligence action against Dr. Eagle and York Hospital (Appellees), alleging that Dr. Eagle negligently treated Daniel’s leg. The docket reflects that a subpoena was issued on August 31, 1992. The next entry was an October 25, 1995 court order directing the parties to appear for a hearing on whether the case should be terminated for inactivity. During the period of - inactivity, Dr. Kruper, an orthopedic surgeon who had examined Daniel after Dr. Eagle’s allegedly negligent treatment, died. At the termination hearing, Appellants argued that the delay in prosecution was partly attributable to Appellees because they failed to timely produce an x-ray which was critical to the case. The trial court found that the missing x-ray did not affect the outcome of the case, that the delay was not chargeable to Appellees and that the death of Dr. Kru-per prejudiced Appellees. Accordingly, it terminated the action for lack of activity pursuant to Local Rule 255(b). The Superior Court, 695 A2d 446, affirmed, holding that although the trial court applied a rescinded version of the local rule, it did not abuse its discretion in terminating the case. It found that because the trial court ordered the termination pursuant to a local rule, rather than entering a judgment of non pros for docket inactivity pursuant to Penn Piping v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), no prejudice to Appellees need be demonstrated. It farther held that Rule 1901 and the local rules promulgated thereunder are designed to eliminate cases that have become stale for any reason, based upon the conduct of any party to the action. Slip op. at 8. Thus, it concluded that it was irrelevant which party was responsible for the delay. Appellants first contend that prejudice must be established to warrant termination of a civil action under Rule 1901. They also argue that a case may not be terminated pursuant to Rule 1901 if the delay is attributable to the defendant. The disputed element of prejudice does not arise from the language of Rule 1901, but rather stems from case law setting forth the requirements for entering a judgment of non pros upon motion of the defendant for lack of prosecution. Although terminations pursuant to Rule 1901 and motions for non pros both result in the dismissal of a case for inactivity, each action has a distinct procedure. Rule 1901 is essentially an administrative tool by which the court, through the protho-notary, may rid the court dockets of stale matters that have not been discontinued by the parties. The local rules implemented thereunder are “intended to foster elimination of stale cases from the judicial system where the parties have failed to proceed and which are carried as open matters because of the failure on the part of any party to seek dismissal or otherwise to bring the matter to a conclusion.” Pa.R.J.A.1901 Note. A motion for a judgment of non pros is the vehicle by which a litigant asserts his or her common law right to a reasonably prompt conclusion to a case. In the companion case of Jacobs v. Halloran, also decided today, we noted that the grant of a judgment of non pros is based upon the equitable principle of laches, which requires that the adversary suffer harm before a case is dismissed for inactivity. We further held that, pursuant to the rules of equity, the party seeking dismissal for inactivity must do so with clean hands. In this case, we must determine whether the same is true for a dismissal pursuant to local rules implementing Rule 1901. This issue has been a source of confusion in the lower courts. The Superior Court and the Commonwealth Court have stated, without analysis, that prejudice to the adverse party is part of the test employed to dismiss cases due to inactivity pursuant to local rules enacted under Rule 1901. See Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 520 A.2d 891 (1987); Blair v. Zoning Hearing Board of the Township of Pike, 676 A.2d 760 (Pa.Cmwlth.), alloc. granted, 548 Pa. 683, 699 A.2d 736 (1997). The Superior Court in the instant case, however, relied upon Pilon v. Bally Engineering Structures, 435 Pa.Super. 227, 645 A.2d 282, alloc. denied, 539 Pa. 680, 652 A.2d 1325 (1994), in which a different approach was taken. In Pilón, the court found that although prejudice need be demonstrated prior to the entry of a judgment of non pros, an order terminating an action for inactivity pursuant to a local rule “may be entered by the court sua sponte after an unreasonable period of inactivity even though there may be no prejudice to the defendant.” Id. at 230 n. 1, 645 A.2d at 283 n. 1. It distinguished the terminations by observing that an order terminating an action pursuant to a local rule is a final appealable order whereas an order entering a judgment of non pros can only be challenged by filing a petition to open pursuant to Pa.R.C.P. 3051. Our Court was faced with a Rule 1901 dismissal in Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992). In the Opinion in Support of Affirmance, Mr. Justice (now Chief Justice) Flaherty rejected the argument that prejudice is not required in a Rule 1901 dismissal and stated that “[i]t does not matter whether the prothonotary notifies the parties of its intent to terminate the case, or whether the non-delaying party petitions for dismissal; the same standards apply.” Id. at 362 n. 2, 603 A.2d at 1012 n. 2 (emphasis added). In the Opinion in Support of Reversal, this author found that because the defendant made no claim of prejudice, the case should not have been terminated by a judgment of non pros. Thus, although the members of the Court disagreed as to whether the ease should have been dismissed, we agreed that prejudice to the defendant was a component of a Rule 1901 dismissal. The issue which divided the Court in Streidl was the application of the Penn Piping presumption of prejudice. The Note to Rule 1901 supports the conclusion that prejudice is required before a case is terminated for inactivity. The Note states that the rule has no effect on the substantive law. The substantive law prior to the promulgation of Rule 1901 required that the adversary be prejudiced by the delay before a case is dismissed for inactivity. James Bros. Lumber Co. v. Union Banking & Trust Co., 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). This requirement continues in effect notwithstanding the enactment of Rule 1901. We therefore conclude that prejudice is required before a case is dismissed for inactivity. ’ Accordingly, the three part test applicable to the defendant’s motion for non pros in Jacobs applies here. To dismiss a case for inactivity there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant. — Pa. at -, 710 A.2d at 1103. We further hold that equitable principles should be considered when dismissing a case for inactivity pursuant to Rule 1901. Here, the record reveals a period of inactivity from August 31, 1992 to October 25, 1995. Appellants argue that a considerable portion of the delay was attributable to Ap-pellees because they faded to timely produce an x-ray which was critical to the case. We find that the trial court’s conclusion that the “missing” x-ray did not affect the outcome of the case is supported by the record. The law is settled that it is plaintiff, not defendant, who bears the risk of failing to act within a reasonable time to move a ease along. Pennridge Elec. v. Souderton School, 419 Pa.Super. 201, 209, 615 A.2d 95, 99 (1992). Appellants were given thirty-nine x-rays along with a detañed inventory, which would have revealed that the particular x-ray they sought was not included. Appellants apparently did not immediately examine the x-rays or the inventory because they did not request the particular x-ray until ten months later in September of 1993. Moreover, it is undisputed that dining this time Appellants possessed the radiologist’s interpretation or written explanation of the “missing” x-ray. Thus, we conclude that Appellants lacked due diligence in failing to proceed with reasonable promptitude and that no compelling reason existed for the delay. We must next determine whether Appellees were prejudiced by events which occurred during the delay in prosecution, specifically, the death of Dr. Kruper. At the termination hearing, Appellees contended that Appeñant’s counsel listed Dr. Kruper as a possible expert witness in their answers to interrogatories and that due to his death, they were precluded from discovering the findings of his examination, his opinion concerning liability, causation and damages and the detañs of the history provided to him by Daniel Shope. The trial court specifically found that Appellees were prejudiced by the death of Dr. Kruper. We find no abuse of discretion on the part of the trial court in this regard. For the reasons set forth herein, the order of the Superior Court is affirmed. . The companion cases of Jacobs v. Halloran, - Pa. -, 710 A.2d 1098 (1998), and Marino v. Hackman, - Pa. -, 710 A.2d 1108 (1998), also decided today, involve related issues. In Jacobs, we abandon the presumption of prejudice first enunciated in Penn Piping, Inc., v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), and hold that the defendant must establish actual prejudice by the delay in prosecution. In Marino, we hold that non-docket activity may be examined in determining whether a compelling reason exists for the delay. . Rule 255 provides: (a) All civil cases filed in this court which shall not have been reduced to judgment or final order, and in which no action has been taken for a continuous period of two (2) years or more preceding the end of each calendar year, shall be automatically terminated as herein provided, in accordance with Pa.RJ.A. 1901. (b) On or before the fourth Friday of June of each calendar year, the Prothonotary shall furnish to the District Court Administrator a list of all cases: (1) Which have become inactive cases as herein defined as of the close of the preceding calendar year; and (2) Which previously became inactive cases as herein defined but have not theretofore been terminated as herein provided. .As noted in footnote two, former Local Rule 255 directed that all civil cases be terminated if no action has been taken for two years or more. In contrast, Local Rule 6035(a), which replaced Rule 255 on April 15, 1996, requires both inaction and. docket inactivity for at least two years. .Rule of Judicial Administration 1901 provides in pertinent part: RULE 1901. PROMPT DISPOSITION OF MATTERS: TERMINATION OF INACTIVE CASES (a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter. (b) Primary Responsibility for Implementation of Policy. (1) Each court of common pleas is primarily responsible for the implementation of the policy expressed in subdivision (a) of this rule and is directed to make local rules of court for such purposes.... . It should be noted that a "judgment of non pros” can be entered in cases involving either a defendant’s motion or upon the prothonotaiy’s initiative pursuant to local rules implementing Rule 1901. . Accordingly, as noted in footnote one, we rejected the presumption of prejudice adopted in Penn Piping and required that actual prejudice be shown before a case is dismissed for lack of prosecution. We find that the weakness of the presumption of prejudice is exemplified in a Rule 1901 dismissal. It strains logic to conclude that prejudice is required for a Rule 1901 dismissal, and at the same time presume prejudice after two years of inactivity. In order for a particular case to come to the attention of the prothonotaiy for Rule 1901 purposes, the case must have already been inactive, at least on the docket, for a period of two years. . In Judge Olszewski's dissenting opinion, he concluded that because the two types of terminations serve nearly identical purposes. Pa. R.C.P. 3051 applies in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing. We express no opinion on the issue of whether a petition to open pursuant to Pa.R.C.P. 3051 need be filed to appeal a Rule 1901 termination as that question is not before our Court. . Streidl was decided the same day as Penn Piping. Penn Piping, however, did not involve the termination of a case pursuant to Rule 1901 as the local rule implementing Rule 1901 was rescinded at the time the trial court dismissed the case. . Counsel for Appellee Dr. Eagle acknowledges that a majority of the Court in Streidl agreed that prejudice is required for a Rule 1901 dismissal. . The Opinion in Support of Affirmance, citing Penn Piping, presumed prejudice as the delay exceeded two years. In the Opinion in Support of Reversal, I again noted my disagreement with the adoption of the presumption of prejudice and stated that my concerns were magnified in a case arising from the administrative action of the pro-thonotary acting under a local rule implementing Rule 1901. . Rule 1901 became effective on May 10, 1973, and was amended on January 18, 1974. . This rule shall apply to all pending cases where the issue has been preserved. . We note that Appellants preserved their right to challenge the dismissal of the action by responding to the court order directing them to appear for a hearing on whether the case should be terminated for inactivity. Had they not done so, their right to challenge the dismissal would have been waived and the court could have dismissed the action without any showing of prejudice to Appellees. . It is interesting to note that Appellants rely solely on the missing x-ray to explain the delay in prosecution. Appellants’ counsel conceded at the termination hearing that any other delays were "due to inadvertence on [her] part,” (N.T. 12/1/1995 at 4), and were "entirely [her] doing.” (N.T. 12/1/1995 at 12). . Appellants argue that Appellees were not prejudiced by the death of Dr. Kruper because he was not the treating physician, was not deposed and was not listed as an expert witness. These same arguments were made before the trial court and rejected. The trial court obviously credited the Appellees’ version of the importance of Dr. Kruper as a witness.

Per Curiam, This action was brought on a lease of land for oil and gas purposes. After providing for the payment of a royalty on the oil produced, the lease contains the following clause, which is the basis of this suit: “ It is further agreed that if gas is obtained in sufficient quantities and utilized off these premises, the consideration in full to the party of the first part shall be the free use thereof for domestic purposes, and one eighth of the gas sold for each and every gas well drilled on the premises herein described and piped off the same.” A number of wells —producing oil in paying quantities, and also some gas in greater or less quantities — were drilled. It was claimed by plaintiff that gas had been obtained in sufficient quantities and. utilized off the premises to entitle him to receive free use thereof for domestic purposes. He also claimed that defendant company sold gas obtained from these wells, for the purpose of pumping a well on an adjoining farm. These items of claim were resisted by the defendant company, but there was some evidence tending to sustain each of them. The testimony, it is true, was conflicting, but it was sufficient to warrant its submission to the jury on questions of fact which were exclusively for their consideration. It was carefully submitted to them by the learned president of the common pleas in a clear, well guarded charge in which the provisions of the lease were properly construed, and the questions of fact involved correctly presented. We find nothing in the record that would justify us in sustaining any of the assignments of error; nor do we think that either of the specifications requires further comment. Judgment affirmed.

Per Curiam, The court below was clearly right in holding that, during the lifetime of her undivorced husband, Patrick McCartney, who survived her, Ann McCartney was incapable of contracting a valid second marriage, and hence she never was the lawful wife of the intestate Michael A. Clark. The undisputed facts, relating to that subject, bring that branch of the case directly within the ruling of this court in Thomas v. Thomas, 124 Pa. 646. It being thus settled that Ann McCartney never was the wife of the intestate, there was no error in awarding one third of the fund for distribution to his widow Theresa C. Clark and one half of the remaining two thirds to each of his children John J. Clark and Edward A. Clark. There is nothing in any of the specifications that requires further notice. Neither of them is sustained. Decree affirmed and appeal dismissed, with costs to be paid by appellants.

Per Curiam, A careful consideration of the record in this case, with special reference to the assignments of error, has led us to the con elusion that the findings of fact of which the decree is predicated are substantially correct, and that the decree itself is sufficient in both form and substance. There is nothing in any of the specifications of error that requires discussion. Neither of them is sustained. Decree affirmed and appeal dismissed with costs to be paid by the appellants.

Mr. Justice Clark delivered the opinion of the court, In the argument of this case, but two questions were presented for the determination of the court:— 1. Does the evidence show that William Galbraith, at the time of the fatal injury, was in the service of the defendant company? 2. Was it the duty of the court to instruct the jury, as an inference of law from the facts proved, that the deceased was guilty of contributory negligence ? Under the pleadings in the cause, the first, question, we think, becomes unimportant. The declaration expressly avers, by way of inducement, that the Somerset and Cambria Eailroad Company is a corporation, under the laws of this Commonwealth, and “the owners and proprietors of the Somerset and Cambria Eailroad, and of the locomotive engines and cars running over and upon the same,” &c., and that being such owner, &c., William Galbraith, husband of the plaintiff below, “became and was emploj'ed as a conductor of a freight train of cars of said defendant, on said road.” The defendant’s plea was “not guilty,” which under the rules of court operated only “ as a denial of the breach of duty, or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement.” The plea was accompanied by an averment of special matters upon which the defendants gave notice they would rely at the trial as follows :— “ That the road of the defendant company was opened and trains commenced running on the same,” &e., “ that the condition of the road was well known to the said William Galbraith, and that he accepted employment under said company, as a conductor on freight trains with full knowledge of its condition; that if there was any defect in the road at the culvert at or near ‘ Eerndale Station,’ either in said culvert, or road-bed, or rails, at or near the same, or in the locomotives, tenders, ears, coupling and machinery, etc., the same was well known to the said William Galbraith for some time prior to the alleged injury, and that he continued in the service of the company with said knowledge and accepted the risk of said employment.” In view of this solemn and deliberate admission of the defendants, entered of record in the cause, can it be pretended there is no evidence that William Galbraith was in their employment? It is true, the evidence taken at the trial on this point was meagre and unsatisfactory, perhaps to some extent conflicting, but in view of the condition of the pleadings, but little if any proof was required. The purpose to be attained by the filing of a notice of special matter with the general issue plea, is to inform the adverse party of the precise question in controversy ; it is to lead the litigants to the real matter in dis pnte, not to mislead, and what is thus unequivocally admitted need not be shown. The second question in the cause, as to the alleged contributory negligence of the decedent, is the substantia] and important one. In the consideration of it we assume the negligence of the defendants, and its causal relation to the injury ; no question is here made as to that, and we are controlled by the finding of the jury. What constitutes negligence, in a particular case, we have frequently said is, in general, a question for the jury. The veracity of the witnesses; the conflict in the evidence ; the reasonable doubt as to the facts tending to prove negligence, or as to the just inference to be drawn therefrom, and the varying standard of duty, according to the particular circumstances proven at the trial, are matters, which taken together or separately, cause the question, generally, to be one, under proper instructions, for the consideration of a jury. There are cases, it is true, where the facts are admitted or undisputed and the standard of duty is determinate, in which it is the duty of the court to declare upon the question of negligence as matter of law. A servant cannot recover where, from neglect of known duty, or want of care on his own part, he has contributed to the injury ; if he recklessly or needlessly expose himself to danger, or by disregard of his duty to his employer, inflicts injury upon himself he must accept the consequences of his own act. This is a proposition so plain, and so well established, that a reference to authorities in support of it is unnecessary. If Galbraith therefore, as an employee of the company, negligently left the post of duty assigned to him under the rules and regulations of the company, where he would have received no injury, went upon the engine, where his duty did not calL him, thereby lost control of his train, and thus contributed to the injury which caused 1ns death, the duty of the court would be plain; such a course of conduct would undoubtedly constitute negligence, and there could be no recovery in this case. But we cannot assume all these facts; Galbraith was the conductor of the train, lie was bound to exercise in the interest of liis employer all due care and caution. If he knew of any obstruction on the track, or had reason to expect any, it was his clear duty to guard against it. “The conductor,” as Sanner, the witness, says, “is held responsible for the safe transport of his train, and that requires of him, in eases of this kind, to use judgment.” His duty under the general rules of the company “in all cases of doubt” was to “take the safe side;” and what is the safe side in any given exigency, is, of course, a question for the exercise of judgment. He had, it is true, certain orders from the company under the general regulations, one of which was, that he should remain in the middle of the train, to command the crew, in regulating the speed on descending grades. He was held, of course, to the reasonable observance of all these rules, but he had a general' duty and discretion to exercise in an emergency. His duty varied according to the circumstances. Unless some exigency calls him away he must remain at his post, whilst the train is on a descending grade, but he must necessarily be allowed some latitude in the exercise of judgment for the safety of his train. When Galbraith came upon the engine, he said to Sypher, the engineer, “ Look out — run slow, and look out for the Cambria Iron Company’s engines, the3r are liable, sometimes, to come outside of their limits.” He made no other communication, and an inference may be drawn that this was the object of his errand. If the fact were known to him, that the engines of the Cambria Company, at times exceeded their bounds, it was his plain duty to exercise a reasonable precaution against a collision with them; if they had on previous occasions exceeded the limit, they might do so again. The train was running on special order No. 4, with instructions to flag against these engines between the first bridge west of Johnstown and Johnstown only, but if there was any probability of an obstruction, not known to, or considered by, the company, in making that order, it was his duty to guard against it, and he was privileged to walk on all parts of the train for that purpose. Thus whilst his dut3r, under general orders, were on a descending grade, to be in the middle of the train, he was liable in an exigenc3r to be called elsewhere. If there was a.n3r condition of things existing, or reasonably apprehended, which justified the conductor in leaving his place, to communicate with the engineer, and no more time was taken than was necessary for the purpose, he certainly cannot be couvicted of negligence; and these facts although disputed at the trial were b3r the jury determined in his favor. The charge of the court may not be strictly accurate in all respects, but its inaccuracies, if there be an3r, did the defendant no harm ; upon the points discussed in this court it was certainly correct. The judgment is affirmed.

Mr. Justice Clark delivered the opinion of the court The plaintiff in this replevin is a dealer in horses, in the city of Reading; on the 26th of February, 1881, he had a public auction sale of horses at the Drover’s Exchange. The terms and conditions of the sale, as they were verbalty announced by the auctioneer, in the presence of the bidders, before the sale began, were “sixty days note, with security, or 6 per cent, off for cash, satisfaction to be given before stock is removed.” The defendants purchased a horse at this sale, at and for the price of $125. After the sale the horse was removed to the plaintiff’s stable, where he remained until in the evening of the same day, when the defendants, without the plaintiff’s knowledge, removed him, leaving in its place another horse, which they had previously purchased from the plaintiff. This replevin is brought to recover the possession of the property thus removed. Jt is certainly true, if nothing else were shown, or offered to be shown, on the part of the defendants, that they had no right to possess themselves of this property, until satisfaction had been given, according to the terms of the sale, as stated by the auctioneer. They had neither paid the money, nor given note, with security as by the terms they were required, and until this was done the right of property, and of possession, remained with the plaintiff. But the defendants allege that these terms of sale were under an agreement made beforehand, waived as to them ; that their purchase was made under a particular contract, not as to the price but as to tbe terras of payment, which extended to them a special privilege over other bidders;and, they claim, that the purchase having been made upon the faith of this contract, the property was rightly removed in pursuance thereof. As the errors assigned arise from the rejection of certain offers of evidence, the truth of the particular facts therein stated, and offered to be proved, must of course, for the purposes of this case, be assumed. It is not denied that the price of the horse, which the defendants bought, was to be determined by the bids at the sale ; in this respect the defendants were admittedly on an equality with all other buyers, but the defendants allego that special terms of payment had been particularly agreed upon, and that they had under these terms the right to remove the property at the time it was removed. To establish this,David Mitchell being on the stand, the defendants proposed to prove in substance: That several weeks before the sale Zimmerman told the witness that if he would trade for a horse which the plaintiff then had, and that horse would not get “ all right in his foot ” he would in a few weeks have another supply, and he would then have one that would suit, and would exchange. That the parties did trade, the defendants giving $75 difference; that the defendant took the horse home upon these terms, and kept him until the new supply arrived; that he then went to the plaintiff’s stables and the plaintiff told him he would have a public sale of horses on that day ; that the defendant should bid on a horse that would suit him, and if the price exceeded the price of the other horse which defendant had previously traded for (which horse was to be returned), the defendant was to pay the difference; if not, it was to be square. To be further followed by evidence that the defendant bid a horse off at $125, took it home, and returned the other horse, and that the plaintiff then had $75 of money from defendant, and $45 which he had received for the first horse traded. This offer was followed by another substantially as follows: That on the day of the sale of the horse in question, and immediately before it was offered, the defendant asked the plaintiff if he could have the privilege of bidding at the sale, with the understanding that if he should buy a horse higher iu price than the defendant had given plaintiff in trade, some three weeks before, for another horse, defendant would pay the difference; if it would not bring more they would call it even, defendant to take away the horse he might purchase and return the other. That plaintiff replied; “Yes, that you can do,” and with this understanding and agreement defendant purchased a horse at the sum of $125, took him home and returned the other horse. In subsequent offers it was proposed to show by the same witness that, a few days after the sale the plaintiff went to the defendant’s house and said to him in the presence of several persons: “Now, Mitchell, you have a good horse, and you ought to be satisfied ; but as the horse you now have cost me more money I ought to have a little more money; you ought to pay me §25 or $50 to make it even', but give me $25 and we will call it square ; ” that Mitchell told the plaintiff, according to the price bidden at the sale for the horse which he now had, and the agreement they had together for his purchase, by the return of the other horse, he did not owe plaintiff anything. As these several propositions were of testimony to be given by a single witness, they may be considered as constituting a single offer; the court below, in ruling upon them, and in the opinion filed so considered them. It is certainly true, as we have said, that under the terms of the auction sale, as verbally announced by the auctioneer, title would not pass to a purchaser until the price was paid or properly secured; the giving of a note with security or actual payment of the price, was made a condition precedent of the sale. Welsh v. Bell, 32Penna. St. 12. But it was altogether proper to admit evidence to show that these verbal conditions were waived, in any particular case, either by an agreement beforehand or by a delivery afterwards. The plaintiff had a right to make any contract he chose respecting payment, there was no writing between the parties, and it was certainly proper to permit the defendant to show what contract, in this particular case, he did make. Prima facie, the defendants’ purchase was made subject to the condition, publicly stated, and the burden was clearly upon them to show that this was not so. For this purpose, we think, the evidence offered was admissible. As the action was replevin the real question in the canse was the right of possession, and this depended largely upon what the contract really was and what was done by the parties in pursuance of it. If the facts offered to be proved are true, it is clear that the contract, upon which the defendant’s purchase was made, was not according to the general terms or conditions of the sale, but was exceptional in its character and distinct from the ordinary sales then made. The transaction was rather in the nature of an exchange; the defendants to pay the difference between the price of the horse they bought at $125, and the price of another to be returned, out of which the plaintiff had realized $120. It is contended on part of Zimmerman, however, that assum ing the contract to have been as stated, the defendants do not offer to prove the payment of the $5, and that until the other horse was returned, and this difference paid, the right of possession still remained in Zimmerman. Assuming that the case ended here, and that $120 was the price of the horse to be returned, this might be so; but the defendants proposed to show that the other horse having been in fact returned to Zimmerman, they took possession of the purchased horse and removed it to their own stables; that for “a few dajrs ” the possession was retained without objection, and that until the bringing of this suit, the defendants’ right to remove the horse was not in terms denied, on the contrary, that a few days after the sale Zimmerman went to the defendants’ house, and in the presence of several persons, said to him, “Now, Mitchell, you have a good horse, and you ought to be satisfied, but as the horse you now have cost me more money, I ought to have more money; you ought to pay me $25, or $50, to make it even; give me $25 and we will call it square.” Under this offer, if admitted and established, the jury might well have inferred that the possession was rightly taken. If Zimmerman had at this time demanded the possession, and denied the defendants’ right to remove the horse, until the terms of his purchase had been complied with, had agreed to accept $25 in settlement of his claim, or, indeed, if he had said nothing, a different case would have been presented. If the conditions of the auction sale, as to tbe defendants, were dispensed with, we must ascertain the real purpose of the parties in what they said and did. Contracts are executed, or executory merely, absolute, or conditional only, just as the parties may intend; that intention must, in the first instance, of course, be ascertained from tbe terms of tbe contract itself; when it is not thus clearly manifested, it may be shown by the circumstances attending its execution, or appear in the conduct of the parties, with reference to it. As the case is to be retried we do not desire to discuss the effect of the evidence; when tbe testimony is taken it may fall far short of the offers made, and any extended discussion of the case, as it is now presented, might have a misleading effect at the trial. We have said enough to indicate the principle upon wbicb we think tbe evidence is admissible, and that is sufficient. It is true that the statements contained in the several offers are specifically denied by the plaintiff, but this is of no consequence now ; tbe truth of tbe matters alleged, on either side, is for the determination of the jury, when the whole case is presented. We are of opinion that the offers, the rejection of which con stitute the several bills of exception in this ease, should have been admitted. The judgment is therefore reversed and a venire facias de novo awarded.

Opinion by Mr. Justice Mitchell, This is a regrettable controversy between two corporations occupying to each other practically the position of trustee and cestui que trust, both having the same end and object in view, but differing in opinion as to the time and mode of accomplishment. By the action of the trustee’s agent, its former board of managers, the corpus of the trust has been transferred to the hands and management of the cestui que trust, and while this result is in accord with the purpose of the trust, the trustee complains that it has been done without proper authority, and without due regard for the trustee’s own rights and interests. We are obliged to say that this complaint is well founded. The notice for the special meeting of the Hall Company at which this lease was authorized was insufficient both in time, and in substance. It was dated and mailed to the members of the board on January 2, and called for a meeting on January 3, at four o’clock. There is no finding by the master as to the hour of mailing nor any evidence that the notices were received by the members before the morning of the day on which the meeting was fixed. Prima facie this was not a reasonable time. The managers are all reported as business men, who cannot be presumed to be ready to drop their own affairs and attend off hand on such a notice. One full day in advance of the time fixed is as little as the law could presume to be reasonable, and in many cases that would be too short. The bylaws or the practice of the particular board could of course fix any time that should be agreed upon, but there is no by-law here, and no sufficient evidence of any practice to supply a rule. Albree, the president, says it was customary to give two or three days’ notice, and Thompson the secretary says that to the best of his knowledge two days’ notice was given in this instance, in which he is admittedly in error. The notice further was insufficient in substance. It was for a special meeting, with a definite object named, “ to hear the treasurer’s report,” and the few general words added “and transact any other business which may come before them.” It was for a meeting on the last business day that the board would be in existence, prior to the election of their successors at the stockholders’ meeting on the following Monday, and was calculated to convey the impression which Whitney says Williams complained of, that it was a formal meeting to pass on annual reports and similar matters of routine, prior to the approaching stockholders’ meeting. In fact however it was called for business of the most important and most exceptional character, involving the practical surrender of the active duties of the corporate trust. The meeting thus irregularly called was equally unfortunate in its attendance. The full board of managers consisted of the four principal officers of the Hall Company and five directors, making nine, of whom five were a quorum. By reason of two vacancies at that time there were only seven managers, one of whom, Whitney, did not get the notice in time, and another of whom, Brown, did not attend, for reasons not explained. This left an attendance of a bare quorum of five persons, of whom the master reports that one was not a stockholder, and therefore not legally qualified to be a director, and another was not a stockholder of record though he appears to have held some certificates. These two whose titles were at least questionable, and one other, making a majority of the quorum, knew all about the special business to be put through, for as directors of the Library Association they had been active in having the lease prepared by counsel, and adopted by the association at its meeting on the previous day. It is true that they had on that day resigned as directors of the Library Association, so that at the meeting of the Hall Company on January 8 they no longer technically occupied the positions of directors in both companies, but it cannot be pretended on the evidence that these resignations were not mere formalities in order better to carry out the plan of leasing which prior to such resignations the same persons in their other capacities had prepared. The practical result was that when the board of managers of the Hall Company met on January 3 to consider the lease, three of the quorum present as representatives of the lessor were already committed to the lease in the interests of the lessee, and the vote of these three made the majority by which the lease was approved. The master finds that in this action there was no fraud in fact, and we see no reason to question the correctness of this finding. The gentlemen concerned had no pecuniary interest in the matter and were acting for the benefit of the Library Association, which as already said was the cestui que trust for which this building was originally designed, and to which it was ultimately to go. But the mere statement of the facts is enough to show that the method of proceeding is open to most serious objection. By this it is not meant to be intimated that the same person may not legally and properly act as director in two corporations, even when dealing with each other. The interests of corporations are sometimes so interwoven that it is desirable to have joint representatives in their respective managements, and at any rate it is a not uncommon and not unlawful practice. But the action of such persons should be open, and free from any suspicion of secret dealing in favor of one principal while acting as the representative of the other. Such action is always open to investigation, and the utmost good faith must not only exist but be made manifest. In the present case we are not required to say whether or not the transaction is so contrary to settled policy that it must be conclusively pronounced a fraud in law, as there are other grounds which are decisive. Before leaving this branch of the case however we may call attention to the difference in Gloninger v. R. R. Co., 139 Pa. 13, cited by appellee, in that the issue of bonds in that case was for payment of an undisputed debt, and was authorized by a vote of the stockholders themselves. But the lease in controversy here is fatally defective for want of authority in the board of managers to grant it. While the object of the incorporation of the Hall Company was to build a hall for the use of the Library Association, and to lease it and ultimately to convey it to that association, yet the act of 1859 looked to the payment of the stockholders of the Hall Company, and defined with great precision the respective rights of all the parties, including the terms of the contemplated lease. The supplementary act of 1870 relieved the stringency of the former act somewhat as to the terms of the lease, by authorizing it under certain restrictions to be made upon mutual agreement. But it made no substantial change in the rights of the stockholders, and it is not clear how it could have done so without their consent. The act however seems to have been acquiesced in, as a lease for ten years was made under its authority in 1871, and appears to have been lived under until the action that led to the present controversy in 1891. The present lease does not follow the terms of the act of 1859. It is not neces sary to go into the discussion of the variations further than to say that by the act of 1859 the Library Association, on taking possession under the lease provided for, was to pay to the Hall Company annually the necessary repairs and taxes, “and in addition thereto á sum not over six per cent per annum on the whole cost of said ground and building,” while under the lease of 1891 the payment is to be four per cent, and that dependent on a surplus of income from rents etc. after payment of taxes, repairs and interest on incumbrances. As these last are necessarily preferred claims, it may well be that the stockholders of the Hall Company would get a larger return under the lease, provided the Library Association is able to keep its covenants, than they would under their own management, but under the act of 1859 they were entitled to keep the management of the property in their own hands until the terms of the act should be complied with, and this was a right of which they could not be deprived except by such compliance, or by their own consent. The lease in question surrenders the control of all the company’s property, divests the company of all its active functions, and practically winds up its existence except for such formal continuance as may be necessary for the receipt and distribution among its stockholders of such payments as the Library Association shall hereafter make. Such an act is not in the management of the current affairs of the company, but is extraordinary and practically final. It cannot be fairly regarded as within the authority committed to the board of directors, but rather as an accepted completion of its corporate purpose and a consequent surrender of its property, franchises and rights which only the true owners themselves, the stockholders, were competent to make. At the close of respondent’s answer, there were some rather irregular averments that the objections of the present managers of the Hall Company, and the action of the majority of the stockholders, are for selfish aims, and with a view to their own profit rather than to the interests of the Library Association. These we understand to have been stricken out by the court below as impertinent, and they have not been considered as part of the case before us. They are mentioned now only to make this, fact clear. The object of the Hall Company’s corporate existence was to promote the interests of the Library Association. It is a trustee for that purpose and. bound, to act in the utmost good faith to that end. Should it at any time fail to do so, the courts of equity are open to the cestui que trust for redress, and this adjudication will not be in the way. Decree reversed, bill reinstated and decree directed to be made restoring parties to their respective positions before the lease of January, 1891, was made, but saving intervening rights of tenants who have paid rents, and others.

The opinion of the Court was filed Per Curiam. The owner of land is the person in whose name proceedings are to be instituted to recover damages or compensation for laud taken or injured by a railroad or canal company. The same rule applies in the case of public roads and streets : McFadden v. Johnson, 22 P. F. S., 335 ; Tenbrooke v. Jahke, 27 Id., 392. Damages being in the nature of a trespass for injury done to the land do not pass by a subsequent conveyance thereof. The damages were a personal claim of the owner when the injury occurred. They do not run with the land nor pass by the deed, although not specifically reserved. Prior to the purchase by the appellant in this case the damages had not only been sustained, but had actually been assessed. The fact that a right of appeal existed, and the appellant purchased before the right of the vendor to appeal had expired, did not pass it to the appellant. It remained in the vendor as if he had not conveyed the land. Decree affirmed and appeal dismissed at the costs of the appellants.

Mr. Justice Paxson delivered the opinion of the court, This action was commenced before a justice of the peace. It resulted in a judgment in favor of the plaintiff for $16.50. The defendant entered an appeal to the Common Pleas. After a trial, consuming nearly an entire day in that court, there was a verdict for the defendant. The plaintiff brings it here upon a writ of error. It may be, the parties regard litigation as a luxury. Be that as it may they have a legal right to come here, and we will dispose of the case with as much care as if it involved a large amount as well as a great principle. The plaintiff was the owner of a farm; the defendant was his tenant. When the latter moved upon the demised premises he brought with him two loads of hay and a quantity qf cornstalks.. At the end of the term he took away about the same quantity of each. This was authorized by the terms of the lease, and is not the subject of the present contention. The dispute is about a small quantity of hay and cornstalks which belonged to the landlord and which the tenant found on the premises when he moved there. This hay and cornstalks the tenant fed to his cattle and refused either to compensate' the landlord therefor, or to leave a corresponding amount when he moved off;hence this suit. The lease is silent upon this matter. Upon the trial below the landlord testified that he gave the tenant permission to use the hay and cornstalks in question provided he left the same amount when he moved. He said in the course of his examination: “ When he (the defendant) had signed the lease, and the witness John Hartzell had signed the lease, then Hummel got up and said “ Now, Mr. Anewalt, I must go; how is it about the hay and cornstalks ? ” and I says, “You can have what is left, but you must leave the same when you leave,” and he says, “It is no more than right and I need it.” The defendant when upon the stand denied this and said that “there was nothing said about the fodder or abont the hay; ” but that there was a custom amongst farmers in that neighborhood, by virtue of which he was entitled to use this hay and the cornstalks without making compensation or leaving an equal quantity in place thereof. He called several witnesses to prove such custom, and the admission of this evidence and the rulings of the court thereon form the subject of the several assignments of error. The first four assignments are not of much importance. They relate to the admission of-evidence in proof of the alleged custom; but the custom itself is so obscurely stated in the questions, and the answers are so vague, that no harm, could have resulted under proper instructions from the court. One witness said: “well, what they bring there they ought to take away again, that is the custom; ” another witness said “ of course he would take away as much as he put there.” Daniel Fogle, another witness for the defendant, went a little further, and said: “ Well, if it is on the premises, on the farm or in the barn, it is the custom and practice for them to use the fodder; that is the custom and practice in that neighborhood — to feed what remains upon the farm and has not been taken away.” The knowledge of this witness appears to have been eon fined to himself and a neighbor named Desh, both of whom allowed their tenants this privilege, and in the opinion of the witness that made the custom and practice. The testimony of Isaac Nesley was substantially to the same effect. He did not however name any other farmer who followed such a custom. The plaintiff called two witnesses who denied there was-ail}'- such custom in that neighborhood. The learned court submitted the question of this custom to the jury, and instructed them that if they found it really existed, “ then I say to you that the law presumes that the parties made their contract in subjection to that custom and the custom itself would enter into the contract as much as if it liad been expressly included in it;.....then so far as that branch of the case of the plaintiff is concerned he would have failed in making out a case entitling him to recover.” See fifth assignment. This was error. The evidence of the custom was too weak and inconclusive to submit to tlie jury. The most that it amounted to was the practice of a very limited number of farmers in dealing with their own tenants, while there were other farmers in the same neighborhood who had never heard of any such practice, and who did not follow it themselves. It needs' but a moment’s reflection to see that this would not make a custom binding upon the entire farming community in the absence of an express contract upon the subject matter. Moreover, had the proof been clear, it was a bad custom. It was so wholly unreasonable that it could not be set up as a defence. It was a custom that the tenant may use the property of his landlord without making compensation. The tenant might with equal propriety have set up a custom that his landlord should pay his debts or give him his share of the crops. It is a familiar rule of law that a custom to be valid must be reasonable. We are of opinion that the learned judge erred both in the admission of the evidence and in his instructions to the jury. We sustain all of the assignments of error. Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Gordon delivered the opinion of the court, The counsel for the plaintiff below requested the court to charge the jury “ that the judgment rendered in the action of partition is conclusive upon Nora Cummisky, and the subsequent proceeding's by which the land was sold and purchased by I. S. Jones vested a good title in him and his vendee, Patrick Cummisky, as against Nora Cummisky and her husband.” This was refused as was a second point, requiring the direction that the proceedings in the partition could not be impeached in the action of ejectment then trying. We think the refusal to answer as requested in both these points was error. The court held that the proceedings in partition were not conducted in a legal manner, and that Nora Cummisky was not bound thereby. The learned judge thus proceeds to enumerate the points wherein" he thought the record was deficient: “ There has been no sufficient judgment quod partitio fiat; no examination of the title; no valid inquisition or alias inquisition; no final judgment; no confirmation, and that includes no valid sale, having been made.” If, indeed, these charges against the record are correct, there was certainly no title passed by the sheriff’s sale and deed to Jones, and, of course, the plaintiff’s title fails. There cannot be such a thing as an adversary partition without a judgment or decree that partition shall be made, neither can a sale of the property be ordered without an inquisition, and the subsequent proceedings leading to such sale. But in all this the court was mistaken ; the proceedings were irregular in no material particular. The writ was served on Nora Cummisky and her husband, Bernard; there was a narr. filed, an appearance entered, and a plea put in by which the defendants denied that they held the premises together and undivided with the plaintiff. That plea was afterwards withdrawn, and thereupon the court entered judgment quod partitio fiat. It is said, however, that the court, before entering that judgment, made no examination of the title as required by the Act of Assembly. But as the Act, in this particular, is but directory, we will presume that the court did its duty. On the same day upon which judgment was entered, on motion of plaintiff’s attorney, a writ de partitions .faciendo, was awarded, and was issued returnable to the following September term. Here again the record is impeached in that an alias writ issued without the order of the court. This defect, if defect it is, is explained as follows: the attorney, by his praecipe, ordered the writ returnable, as was proper, to the September term, and the prothouotary, by mistake, made it returnable to the then present May term, which did not give time necessary for the requisite notices, thereupon a return of it was directed and a new writ issued. This may have been irregular, but nothing more. It, in fact, carried out the order of the court, and as no objection was made to this irregularity at the time, it cannot now be taken advantage of. Under this writ an inquisition was, in due form, had and returned, and in this inquisition it is found set forth that the parties in the said writ named had been severally warned, and that as many as chose were present. It is urged that this was not a sufficient return of the service of the notices. We think it was, and in this we are sustained by the cases of Richards v. Rote, 18 P. F. S., 248; Horam’s Appeal, 9 Id., 152; and Vensel’s Appeal, 27 Id., 71. In the case first named, which was in the Orphans’ Court, it was held that when the names of the parties appear in the petition and other proceedings, it will be presumed that due and regular notice was given even when it does not affirmativety so appear on the record. In other words, there is in such case a conclusive presumption in favor of the regularity of the proceedings. These authorities certainly dispose of the objection to the record now before us, for not only does it appear by the inquisition that the defendants were warned, but their names appear everywhere in the said record. As we have said, the inquisition was duly returned, and it was therein set forth that the property could not be divided without prejudice to or spoiling the Avhole, Avith an appraisement in the sum of $3,083.38, all of which Avas approved by the court. Thereupon a rule was granted on all persons interested to come into court on a day fixed, and accept or refuse the premises at the appraisement, and of this rule the defendants had notice. On the day thus fixed, October 3d, 1882, no one appearing to accept, an order Avas made for the sale of the property by the sheriff of CraAvford county. In obedience to this order, as appears by the sheriff's return, on due and legal notice the property was put up for sale, and sold to I. S. Jones, the vendor of the plaintiff. The money arising from this sale was brought into court, a deed executed by him to his vendee, as prescribed by the Act of Assembly, and that deed, after acknowledgment in open court, Avas duly delivered. In all this there Avas a strict compliance Avith the statute, and if there is not in these proceedings a formal judgment or decree it is because the Act of Assembly does not require it. Nevertheless the whole of the record, subsequent to the judgment quod partitio, does constitute a decree which, though informal, is final and conclusive on all the parties. Finally, as to the objection that the proceedings are not found copied into the partition docket, we have but to say, in the language of the case of the Girard Life Insurance Company v. The Farmers’ and Mechanics’ National Bank, 7 P. F. S., 388, that this fact does in no manner affect the purchaser, since it was not his business to see to the proper keeping of the dockets. The judgment is reversed and a new venire ordered.

Chief Justice Mercur delivered the opinion of the court, In this case there is no evidence of any intended fraud or deceit by the vendor, nor of any express warranty. Mere representations as to the quality of the article sold do not constitute a warranty: Wetherill v. Neilson, 8 Harris, 448; nor in itself is it evidence of a warranty: McFarland v. Newman, 9 Watts, 55. Unless there be fraud or warranty the purchaser takes the risk of the quality: Whitaker v. Eastwick, 25 P. F. S., 229. So in a sale of personal property on inspection, and where the vendee’s means of knowledge are equal to the vendor’s, the law does not presume an engagement by the vendor that the thing sold is of the species or kind contemplated by the parties : Lord v. Grow, 3 Wright, 88. That case is very similar to the present. There the intention was to buy and to sell spring wheat, but the kind actually delivered turned out to be winter wheat. The purchaser claimed to recover on an implied warranty that the wheat sold was spring.wheat, but this court held otherwise. Among the nu merous authorities leading to the same conclusion are : Fraley r. Bispbam, 10 Barr, 820; Selser et al. v. Roberts, 9 Out., 242; Ryan v. Ulmer, 12 Out., 832. In the present case the purchaser asked for the seed which the vendors had kept over from the previous year. The latter thereupon laid out on the counter before the purchaser some of the papers containing the seed. They were the identical packages remaining over from the previous year. Each party had an equal opportunity of inspecting them. Although the declaration charges a false and fraudulent sale by the vendors, yet no evidence was given tending to prove any fraud or intended deceit, nor is any averred here. They sold it just as they had bought it, in entire good faith. The vendee had just as much knowledge in regard to the kind and quality of the seed as they had. In such case, in the absence of express warranty, the exemption of liability of the vendors is too well settled to need any further citation of authorities. Judgment affirmed.

Mr. Justice Paxson delivered the opinions of the Oourt LASH v. VON N ET D A, No. 245. Judgment was entered against the defendant below for want of a sufficient affidavit of defence. The bond upon which suit was brought was dated in 1854. The copy filed liad various payments indorsed thereon commencing in 1855 and ending in Í882. The credits are no part of the bond and aro not evidence of such payments until proved. Before they can have any force to rebut the presumption of payment which arises after the lapse of twenty years, it must be proved that they were made when it was against the interest of the obligee to make thorn: i, e. before the presumption of payment had ripened: Addams v. Seitsinger, 1 W. & S., 243; Cremer’s Estate, 5 Id. 331; Shaffer v. Shaffer, 5 Wright, 51. As the plaintiff below was not entitled to judgment until the presumption was rebutted, it was of little consequence what the affadavit of defence contained. A mere suggestion setting up the presumption was sufficient. J udgment reversed and a procedendo awarded. IN EE PETITION OF SARAH VANDERSLICE, NO. 246. This judgment was entered upon a warrant of attorney dated in 1854. The bond was between the same parties as in Lash v. Von Neida, just decided. There were indorsements upon the bond of payments of interest as in that case. No judgment by warrant of attorney or otherwise can be entered upon a bond after the presumption of payment has attached, until that presumption lias been in some way rebutted. The reason is that in such case the bond does not even furnish prima fade evidence of indebtedness. It is not needed to cite authority for so plain a proposition. After twenty years a presumption of payment arises as to every instrument, whether under seal or otherwise. It is a presumption of fact, however, and may be rebutted. Has this presumption been so rebutted as to justify the entering of the judgment? The bond was given to Thomas Vanderslice, executor of Wm. Vanderslice, deceased, and the judgment was entered in the name of the administrator of the latter. A petition was presented to the court below by Sarah Vanderslice, who avers that she is co-executor with Thomas Vanderslice of Wm. Vanderslice ; that Thomas Vanderslice is now deceased; that one Isaac R. Lasli, who is still living, executed a judgment bond .... in the sum of $2000, conditioned for the payment of $1000 with interest; that interest was paid thereon at vari ous times, and payments were made as in said bond and war-rent is set forth; that the money is unpaid upon said bond and warrant, &c. It was upon this affidavit that the rule to show cause why judgment should not' be entered upon the warrant of attorney was based, and which rule the court below made absolute. The affidavit is vague. It was made by a person not a party to the bond, and who for aught that appears never had the possession of it. She does not say that the credits upon the bond were placed there by the obligee before the presumption of payments had ripened, nor does she say that any of the said payments were made by the obligor. Much is left to inference where we should have had specific averments. If however we concede the sufficiency of the affidavit we are of opinion that the judgment was improperly entered for other reasons. The defendant below put in an answer to the rule in which he averred “ that the bond, to which said warrant of attorney is attached, has been paid.” This certainly is not specific, and it is not too much to say that, as an affidavit of defence in anordinary case it would have been insufficient. But the bond was about thirty years old, and in view of the vague character of the petition, the defendants’ counsel may well have been misled into believing that the same strictness of averment, was not necessary when the prima fades of plaintiff’s case was destroyed by the presumption of payment. Upon the argument of the rule in the court below he asked leave of court to file a supplemental affidavit of defence. To this application the court responded that a supplemental affidavit would be considered if received before the entry of judgment, and then adjourned the court until the following Saturday. This was on Monday. A supplemental affidavit was prepared and sworn to and taken into court on Saturday for the purpose of filing, when the counsel ascertained that the judge had filed his opinion making the rule absolute on the preceding Wednesday. The supplemental affidavit is full and complete, and if filed in time was sufficient to bar judgment. We are aware that it is within the discretion of the judge below to allow a supplemental affidavit of defence to be filed, and had leave to file it in this case been refused at the time it was asked for, we would have had another question before us. We will dispose of the one we have. The discretion referred to is one that should be exercised discreetly and in the interest's of a just administration of the law. To refuse it in many instances might result in oppression anda denial of just rights. The learned judge having granted leave to file a supplemental affidavit ought to have allowed a reasonable time to prepare it. It was promptly done and taken into court on the following Saturday. The rule had been made absolute three days before. Promptness is always commendable in judicial proceedings, but the interests of justice must not be sacrificed to speed. Here was a case of a bond and warrant about thirty years old; if the answer was not specific the petition was also vague, and if more time — -a reasonable time — was required to prepare a fuller answer it should have been allowed in view of an allegation that the proper facts existed upon which to base it. Where a party is called upon to meet a claim as stale as this, and asks for time, at most a few days, he ought to have it. The language of this court in Lord v. Ocean Bank, 8 H., 384, is not inapplicable here: “ Let the defendant satisfy the court that he has made diligent effort to inform himself, or that he has failed by no fault or laches of his own, and we can venture to assure him that he will have as much time to file an affidavit of defence as is reasonably necessary.” The court below having, in a case where a supplemental affidavit of defence was eminently proper, assented to the consideration thereof in case it was presented before final action upon the rule, we are of opinion it was error to make this rule absolute without giving a reasonable time to prepare and file it. And as the supplemental affidavit itself is a full answer to the rule, we have no hesitation in reversing the judgment. Judgment reversed. LASH v. VON NEIDA, No. 247. In this ease the presumption of payment did not arise, as the suit was brought upon a bill single dated in 1868. It is ruled, however, by the case, “In Re petition of Sarah Vandersliee ” just decided, where it was held that a reasonable time should have been allowed to have filed a supplemental affidavit of defence. That case is upon all fours with this upon that point and we need not repeat what was there said. As the supplemental affidavit which was prepared and ought to have been received, sets out a defence, this ease must be reversed and sent to a jury. Judgment reversed, and a procedendo awarded.

OPINION ZAPPALA Justice. We must determine whether non-docket activity may be considered when deciding whether a case should be terminated for inactivity pursuant to local rules implementing Rule of Judicial Administration 1901. For the reasons set forth herein, we hold that non-docket activity may be considered. On March 4, 1992, Appellants filed a complaint in Berks County seeking damages for injuries allegedly caused by Appellees’ negligence in an automobile accident. The docket reflects activity during 1992, including an answer to the complaint and issues related to discovery. The final docket entry of the year was a discovery-related item on November 30,1992. No docket entries followed for two years and a day until December 1, 1994, when the prothonotary of Berks County filed a notice of termination pursuant to Ride 1901 and Berks County Rule of Judicial Administration 1901. On January 30, 1995, new counsel for Appellants entered his appearance and two days later filed a motion to prevent termination. A hearing was held on the motion, where it was established that the following non-docket activity occurred during the period of alleged inactivity. Arthur D. Rabelow, Esquire, was substituted for Appellants’ first attorney, Donald Artzt, Esquire, due to Artzt’s death sometime in 1992. In March, 1993, depositions of all parties were taken. In the ensuing months, Appellants tried to contact Rabe-low several times, but . he never returned their calls. They last spoke 'with Rabelow in February, 1994, when he reported settlement negotiations and indicated that he would let them know how the negotiations were proceeding in two or three weeks. Rabelow never contacted Appellants, however, and in August, 1994, Appellants decided to hire another attorney and wrote to Rabelow, discharging him. They received no response from Rabelow. Appellants subsequently retained current counsel, Dennis E. Boyle, Esquire, in October, 1994, and he requested Appellants’ file from Rabelow. After several months, Boyle was obliged to drive more than 200 miles to pick up the file at Babe-low’s office. At the same time, Boyle received Rabelow’s withdrawal of appearance which had been requested months earlier. In addition to the foregoing activity, at least five letters were exchanged between counsel for Appellants and Appellees during the period August 6, 1993 and March 16, 1994, soliciting and communicating a settlement demand from Appellants. Appellees’ counsel stipulated that there was also a telephone call in June, 1994, in which Rabelow told him he would send a certificate of readiness for trial, although it was never received. Following the termination hearing, the trial court held that Appellants had failed to establish compelling reasons for the two years of inactivity on the docket, and ordered the case terminated pursuant to Berks County Rule of Judicial Administration 1901, which was enacted pursuant to Pennsylvania Rule of Judicial Administration 1901. The Superior Court affirmed, holding that the reasons advanced by Appellants to explain the delay are not the type of reasons contemplated by our Court in Penn Piping or Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992). We begin our analysis by reviewing our holdings in the companion cases of Jacobs and Shope. In Jacobs, we held that to dismiss a case for inactivity pursuant to a defendant’s motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant. — Pa. at -, 710 A.2d at 1103. In Shope, we held that the same standard applies to terminations pursuant to a defendant’s motion for non pros and dismissals pursuant to a local rule implementing Rule 1901. We further held that equitable principles should be considered when dismissing a case pursuant to Rule 1901. — Pa. at -, 710 A.2d at 1107. This case gives us the opportunity to determine whether the second prong of the test for inactivity, i.e., whether the plaintiff set forth a compelling reason for the delay, should include consideration of activities which are not reflected on the docket. In Penn Piping, we stated that compelling reasons for delay were set forth in “cases where the delaying party establishes the delay was caused by bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law.” We noted, however, that “[t]here may, of course, be other compelling reasons which will be determined on a case-by-case basis.” 529 Pa. at 356 n. 2, 603 A2d at 1009 n. 2. While we adhere to the view that each case must be examined on its merits, we find that non-docket activity can be examined in deciding whether a compelling reason exists. In recent years, many courts of common pleas have developed their own policies regarding which activities are to be recorded on the docket. In some counties, activity that was formerly recorded on the docket is no longer. This leads to a lack of uniformity in the application of Rule 1901 and also in the granting of judgments of non pros. We further recognize that some activities which are beyond the control of the plaintiff can cause delay in prosecution yet are not required to be docketed. This precise problem was anticipated in Streidl, where it was noted that “a case may be active but have no need of reflecting the activity on the docket....” (Opinion in Support of Reversal), 529 Pa. at 364 n. 1, 603 A.2d at 1013 n. 1 (1992). Although the docket provides an empirical, easily verifiable criterion to trigger review of a case, it is too crude a mechanism to distinguish truly inactive, stale cases from active ones where activity is not reflected on the docket. Dismissal of a case is far too harsh a result when the case is not actually stale but was moving slowly forward. Applying this standard to the instant case, we find that the lower court abused its discretion in dismissing the case for inactivity as a compelling reason existed for the delay in prosecution. This case had an unusual amount of activity not entered on the docket: the death of Appellants’ first attorney and the substitution of his partner, an attorney not known to or selected by Appellants; the taking of depositions of all the parties; the replacement of Appellants’ second attorney because of Appellants’ perception that he was not moving their ease forward; the difficulties encountered by Appellants’ third attorney in obtaining the case file from Appellants’ second attorney as well as difficulty in getting the second attorney to withdraw his appearance; the exchange of letters seeking a settlement of the case; and, finally, a telephone discussion of certifying the case ready for trial. Quite simply, the foregoing record removes this case from the category of stale cases that the rules of judicial administration are designed to eliminate from the system. As we have already indicated, any one of the cited factors would be insufficient to salvage this case from dismissal for inactivity, yet the total picture painted by this record is that of a case proceeding, albeit slowly, towards disposition. This case provides a perfect example of activities and circumstances which, in combination, justify a delay in docket inactivity though each circumstance alone might be insufficient. It was therefore an abuse of discretion to terminate the case. Accordingly, the order of the Superior Court is reversed and the case is remanded for further proceedings. . The companion cases of Jacobs v. Halloran, - Pa. -, 710 A.2d 1098 (1998), and Shope v. Eagle, — Pa. -, 710 A.2d 1140 (1998), also decided today, involve related issues. In Jacobs, we abandon the presumption of prejudice first enunciated in Penn Piping, Inc., v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), and hold that the defendant must establish actual prejudice by the delay in prosecution. In Shope, we hold that the same standard applies to terminations pursuant to a defendant’s motion for a judgment of non pros and the court’s dismissal for inactivity pursuant to local rules implementing Rule of Judicial Administration 1901. . Berks County Rule of Judicial Administration 1901 essentially provides that in cases where there is no docket activity for a period of two years, the prothonotary shall advise the parties that the case will be terminated unless, within sixty days following the mailing of notice, one of the following documents are filed: (1) a motion requesting a hearing on the termination; or (2) a stipulation signed by all counsel and approved by the court, allowing the case to remain active. The rule further provides that after two years of docket inactivity, the court shall not act upon any document filed or motion made with the exception of the prothonotary giving notice or the action upon a motion for a hearing on the termination. . This rule provides as follows: RULE 1901. PROMPT DISPOSITION OF MATTERS: TERMINATION OF INACTIVE CASES (a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter. (b) Primary Responsibility for Implementation of Policy. (1) Each court of common pleas is primarily responsible for the implementation of the policy expressed in subdivision (a) of this rule and is directed to make local rules of court for such purposes.... .An order terminating an action for failure of a plaintiff to prosecute his claim within a reasonable time is within the discretion of the trial court and will not be disturbed on appeal absent proof of an abuse of discretion. Gallagher v. Jewish Hospital Association, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). . This rule shall apply to all pending cases where the issue has been preserved. . Our holding does not represent a departure from the rule that, in the ordinary case, an attorney’s mistake or oversight does not constitute a compelling reason for a delay in prosecution. See Hale v. Uhl, 293 Pa. 454, 143 A. 115 (1928). At a minimum, a plaintiff must provide a reasonable explanation for counsel’s error to prevent dismissal under Rule 1901 or entry of a judgment of non pros. Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983). .As we have found that a compelling reason existed for the delay, we need not examine whether Appellees were actually prejudiced by the delay.

Opinion by Mr. Justice Mitchell, The offer of evidence by defendant should have been admitted. The suit was for the unpaid balance of a cash subscription to stock, and the offer was to show that no subscription in cash was made by defendant, but on the contrary that paid-up stock was to be given him in compensation for services. There is no inherent incapacity of a corporation to purchase property or labor and pay for it by stock instead of money. If the corporation here had paid defendant $1,000 in cash to leave his former situation and undertake its presidency, on condition that he invest the money in its stock, there could be no question of the validity of the transaction, yet it would in substance have been exactly the same. But in addition to its inherent powers to make such contract, the corporation has express statutory recognition of its authority in sec. 17 of the act of April 29, 1874, P. L. 81. The proviso that no stock shall be issued “ except for money, labor done, or money or property actually received ” does not prevent payment for labor or services bona fide to be thereafter rendered, any more than it prevents contracts to pay in advance for property to be furnished. A corporation in process of for mation and not yet in actual operation may have no other mode of getting the necessary equipment to commence business. Whether the defendant can prove the contract set up, and whether if he does so he is estopped from asserting it against creditors of the corporation, by his joining in the certificate of subscription, are questions not before us. The case has not yet reached that stage. Judgment reversed and venire de novo awarded.

Per Curiam, There was no error in construing the residuary clause of the testator’s will and holding that the trust provisions thereof, as to Hazel M., minor daughter of John H. Weinbrenner, are valid and not violative of the rule against perpetuities. We affirm the decree on the opinion of the learned court below, and dismiss the appeal with costs to be paid by the appellant.

Per Curiam, In view of the testimony tending to prove that literal and formal compliance with the terms of the contract relating to plaintiff’s election as a member and manager of the “ Identity Indicator Company” had been waived by him as well as those interested in the company, the learned trial judge was warranted in submitting the question of waiver to the jury. Without referring specially to the testimony, it is sufficient to say that the facts and circumstances properly in evidence tended to prove such mutual waiver, and thus presented a question of fact for the exclusive determination of the jury. It follows that there was no error in refusing plaintiff’s points recited in the first six specifications, nor in charging the jury as set forth in the remaining specifications. Considered as a whole, in the light of the testimony, the charge was neither unfair, nor misleading. The question of mutual waiver, on which the case hinged, was properly submitted to the jury, and the presumption is that it was rightly determined in favor of defendant. We find nothing in either of the assignments of error that requires further comment. Judgment affirmed.

Per Curiam, Plaintiff company’s right to recover in this case depended on questions of fact, which were properly submitted to the jury, with instructions which appear to be adequate and free from substantial error. The testimony on which it relied tended to show that Leiper Brothers were employed by defendant company to sell its yam, and that plaintiff’s order for yarn, taken by ■General Leiper, was either previously authorized by defendant or subsequently ratified by it. In view of this testimony, and of the instructions under which it was submitted to the jury, their verdict, in favor of the plaintiff, necessarily implies the finding, either of antecedent authority in Leiper to sell the yarn in question to the plaintiff, or of subsequent approval of the sale by defendant, or possibly the finding of both facts. In either event, the verdict, rendered under proper instructions and based upon sufficient testimony, ought to be conclusive against the defendant. We find nothing in any of the specifications of error that requires further discussion. Neither of them is sustained. Judgment affirmed.

Per Curiam, So far as appears in the statement of claim, the alleged contract of the defendants with the plaintiff company was a secondary or collateral agreement as contradistinguished from a primary or original undertaking. It is virtually an agreement to answer' for the debt or default of the Penn Elevator Engineering Company ; and, not being in writing, it comes within the letter as-. well as the spirit of the act of April 26, 1855, P. L. 809. There was therefore no error in entering judgment for the defendants on the demurrer to plaintiff’s statement. Judgment affirmed.

Opinion by Mr. Chief Justice Sterrett, The facts agreed upon in this case stated bring it within the provisions of the act of February 24, 1834, section 25, which declares: “ All judgments, which at the time of the death of a decedent shall be a lien on his real estate, shall continue to bind such real estate during the term of five years from his death, although such judgments be not revived by scire facias or otherwise after his death; and such judgments shall, during such term, rank according to their priority at the time of such death; and after the expiration of snoh term, such judgments shall not continue a lien on the real estate of such decedent, as against a bona fide purchaser, mortgagee or other judgment creditor of such decedent, unless revived by scire facias or otherwise according to the laws regulating the revival of judgments.” Purd. 593, pi. 118. The judgment in favor of John It. Large, Esq., against Mrs. Drusadow, the then owner of the lot in question, was entered in her lifetime, February 24, 1871, and on June 2d following she died intestate, seized of said lot, leaving to survive her a husband, since deceased, and heirs at law, plaintiffs in this action, who have ever since been in possession of the premises. More than ten years after Mrs. Drusadow’s death, a scire facias to revive and continue the hen of the Large judgment was issued against her administratrix and judgment by default was entered sec. reg. September 9,1881. Under a fieri facias issued on this revived judgment the lot in question was levied on, condemned and afterwards sold on a venditioni exponas, and in June, 1882, conveyed by the sheriff to John F. Large, whose deed was duly recorded. There is no question as to any other intervening purchaser, mortgagee or creditor of said decedent or any of her heirs. It does not appear that there are or were any. In Shearer v. Brinley, 76 Pa. 300, Mr. Justice Sharswood, after reviewing the statutes and decisions bearing on the subject, concludes thus: “ It is accordingly well established that the hen of a judgment against a decedent at the time of his death, as against his heirs and devisees, is without limit and needs not to be revived every five years, in order to be executed at any time on lands still held by them; ” and he cites in support thereof: Fetterman v. Murphy, 4 Watts, 424; Brobst v. Bright, 8 Watts, 124; Wells v. Baird, 3 Pa. 351; Konigmaker v. Brown, 14 Pa. 269; Aurand’s Appeal, 34 Pa. 151; Bindley’s Appeal, 69 Pa. 295. In Aurand’s Appeal, supra, it was held that the lien of a judgment, though not revived by scire facias within five years, continues against the lands of the debtor in the hands of his heirs or devisees, and is entitled to priority of payment over the general creditors of the debtor who had not obtained judgments against him in his lifetime; that the act of April 4, 1798, restrained the lien of a judgment to a period of seven (now two) years, only in favor of purchasers from the debtor and judgment creditors in his lifetime, but left it without limit against every one else. Again in Baxter v. Allen, 77 Pa. 468, it was held that a judgment of record at the time of the defendant’s death, though not then a lien on his land, is not a debt whose lien is limited to five years from his decease, unless suit he brought according to the 24th section of the act of February, 1834. In such cases suit is unnecessary because the debt is already in judgment. As to all volunteers it remains unaffected by the lapse of time, until the presumption of payment arises. Heirs and. devisees are regarded as mere volunteers: Shannon v. Newton, 132 Pa. 375. To the same effect are Middleton’s Ex’rs v. Middleton, 106 Pa. 252, and other cases; but enough has been said to show that the judgment originally obtained against plaintiffs’ ancestor, Mrs. Drusadow, in her lifetime, had not lost its lien on the lot in question, and that it was unnecessary to bring in her heirs by scire facias, as it would have been had there been no judgment against Mrs. Drusadow in her lifetime. Upon the facts as presented, the defendant should not be required to accept the title that plaintiffs offer to give her. To say the least it is not marketable. Judgment reversed, and judgment is now entered here on the case stated in favor of the defendant.

Opinion by Mr. Justice Gbeen, As a matter of fact the property in question in this case was not “ unimproved real estate.” The master in his finding of fact thus describes it: “ The fifty-eight acres of the tract which was acquired by Mercer from Worrell, upon which is located the mansion house and other buildings and improvements referred to in the deed from Mercer to Charles Robb, and which with the remaining acres constituted the seventy-three acre tract conveyed by Worrell to Mercer, were the country seat of a French gentleman who early in the century, had improved it with a mansion house estimated to have cost $15,000, and built in the style of that period. There was a bam and outbuildings and two tenant houses, and appurtenant to the house was a garden and lawn of several acres laid out in the French style.” The master further finds, “After the purchase by Charles Robb, the property was placed in the care of a tenant farmer, who has occupied one of' the tenant houses and has farmed the place on shares. The nature of the crops is not clearly shown by the evidence. The other tenant house and the mansion house have been rented to tenants, the mansion house renting at from $15.00 to $20.00 a month. The result of the operation of the farm since 1876 is shown by a table as follows: ” Then follows a tabulated statement of the rentals for every year, 1876 to 1893, varying from $331.74 in 1884, to $2,605.90 in 1877. In the aggregate the rents received from the property by the landlord during the whole period amounted to $12,281.90, and the taxes and expenses incurred during the same period amounted to $7,921.28, showing a net profit to the owners of $4,310.62. In addition to this was the value of the share upon which the farm was let to the tenant, the amount of which is not stated in the report of the master, but which must have been a very considerable sum. The master further reports that the tract is in the midst of a farming country. He says, “To the west and south of the tract the adjacent properties are all farms or country seats. To the east are open fields extending to the west wall of the insane asylum property which is about two miles to the eastward. In the intervening space a few scattering dwellings have been erected, but the district is almost entirely an open common.” The master reports his opinion on the facts thus, “ Having, considered these facts, the master is of the opinion that the interest of Samuel Robb in the premises in question must be regarded as an interest in improved property, and consequent^ the intervening petitioner is entitled to a one sixth interest therein.” He then proceeds to state the reasons for his opinion, and after a patient and attentive consideration of them, and after a careful reading and examination of the argument of the learned counsel for the appellant, we are constrained to say that in our judgment the opinion of the master is fully sustained by the facts in evidence and by the reasons given by him to its support. The appellant has no title to this land but what can be derived from a description of it in the following words, “ All my unimproved real estate in said city of Philadelphia.” If this property is not “unimproved real estate,” in Philadelphia it is not possible to sustain the appellant’s claim. Whether we regard the expression “ unimproved real estate,” in its strict legal sense, or in the ordinary and popular sense, it is quite impossible to apply it to the land in' question. In the open country mere fencing and cultivation- are sufficient to constitute improved lands, and when this is accompanied by the erection and occupancy of dwellings, barns and outhouses, there is nothing left for discussion, under a great array of the decisions of this court upon that subject. It is equally unnecessary to discuss the common understanding of men upon the same subject. With three dwelling houses upon the tract besides suitable farm buildings, with constant annual cultivation by a farmer for more than twenty years up to the time of the inception of this proceeding, with actual money rents received for its occupancy to the amount of more than $12,000 in eighteen years besides the share of the tenant in the growing crops, we cannot but feel that we would be doing violence to both the technical and ordinary meaning of the expression, if we should adjudge the title to this properly to pass under the description only of “ unimproved real estate.” The master reports in his opinion that, “ The property, as a whole, has been worked by the farmer who occupies one of the tenant houses. The master has found that while the farm does not appear to have been kept up to the standard winch characterizes most of the farms in Delaware and Chester counties it has in fact been maintained as a farm, and is not in the condition of the open commons and vacant lots which for two miles to the eastward fill up the space between this property and the built-up portion of West Philadelphia. So the table of receipts shows a revenue from the farm, which, as farms go when operated on shares may be regarded as a reasonable return from a sixty-seven acre farm.” These findings of the master have been approved by the learned court helow and are therefore entitled to all the force of a verdict upon the contested fact in question. Giving to the argument that the property was purchased for the purpose of being cut into city lots and sold as such, all the force to which it is entitled, we cannot hold that it is sufficient to change the whole actual character of the property into an antagonistic character. Country property near the built-up part of a city may well be held for a future rise in its value by dividing it into city lots and selling them as such, but while it remains country property cultivated, occupied and rented as farm land it remains as improved land and cannot be converted, into land, which is unimproved, merely because its owner contemplates selling it in lots whenever the proper time arrives. We are clearly of opinion that the conclusion reached by the master and confirmed by the learned court below was entirely correct. Decree affirmed at the cost of the appellant.

Chief Justice Mercur delivered tbe opinion of the court, It is well settled that an agreement in consideration of stifling or compounding a criminal prosecution or proceeding for a felony or a misdemeanor of a public nature is void: Riddle v. Hall, 3 Out., 116. There are, however, misdemeanors of an inferior class in which the public is presumed to have less interest. They are assumed to affect chiefly the parties especially aggrieved thereby. The settlement of offences of this class is not illegal, and therefore an agreement between the offender and tbe party aggrieved, to settle one of this kind is not invalid. Section 9 of the Act of 31st March, 1860, Pur. Dig., 377, authorizes the magistrate or the court to which the proceedings have been returned, to permit the? settlement of such offences. The obtaining of money by means of false and fraudulent representations, with intent to cheat and defraud is an offence for which there would also be a remedy by action, and may be settled. There was therefore no error in entering judgment for want of a sufficient affidavit of defence. Judgment affirmed.

Opinion by Mr. Justice McCollum, The defendant company contends that the court should have taken the case from the jury and that there was error in the instructions under which it was submitted to them. It asserts that there was no evidence of any negligence on its part in connection with the injury complained of, that if there was such evidence the plaintiff was guilty of contributory negligence which was. a bar to his claim for damages, and that he and the men engaged in shifting the cars were fellow servants. If either of these assertions is true the plaintiff was not entitled to recover. But we are satisfied from our examination of the case that the evidence made the alleged negligence of the defendant company a question for the jury, that it was for them to determine whether he was guilty of contributory negligence, and that the plaintiff and the shifting crew were not “ engaged in the same common work and performing duties and services for the same general purposes,” and therefore they were riot fellow servants. The plaintiff was not an employee of the defendant company or on the footing of one under the act of April 4, 1868. He was not employed on or about the roads, works, depot, or premises “'of the company,” or “ in or about any train or car therein or thereon ” in the sense that relieves it from liability to him for an injury received through the negligence of its employees: Spisak v. R. R. Co., 152 Pa. 281. Negligence being the absence of care according to the circumstances, the plaintiff was not negligent in getting on the car if he did what a person of ordinary prudence would have done in the presence of the conditions developed by the evidence in the case. If, however, he did not exercise the care such a person would have exercised under the circumstances, his act was negligent; and if it contributed in an}*- degree to the injury he received, it is a sufficient answer to his claim. It was for the jury to ascertain, from the evidence, and under proper instructions, the nature of the act and its relation to the injury. Did they receive such instructions in this case ? The defendant company alleges they did,not, and to substantiate its complaint in this particular it appeals to the portion of the charge which constitutes the first specification of error. It seems to us that this instruction considered by itself was misleading. From it the jury might reasonably infer that the plaintiff could recover although it was his own negligence that exposed him to, and made possible, the injury he received. It should be borne in mind that the negligence imputed to him is that he got, or attempted to get, upon the car before the work assigned to the defendant company was completed and before he was warranted by the conduct of the company, or otherwise, in believing that it was. If he did so he disregarded his employer’s orders and placed himself where he was forbidden to be while the company was engaged in the work of shifting the cars. The company was not bound to know that he was there and he certainly knew or had reason to apprehend the danger to which he voluntarily exposed himself. Under such circumstances an instruction which virtually withdrew from the jury the question of his alleged contributory negligence was erroneous, and we are not satisfied that it was cured or rendered harmless by other portions of the charge. The first specification of error is sustained and the second and third specifications are overruled. Judgment reversed and venire facias de novo awarded.

TAMILIA, Judge: Appellant, Morrisville Hampton Village Realty Limited Partnership, takes this appeal from the September 22, 1994 Order granting summary judgment in favor of ap-pellee, Citicorp Mortgage, Inc., in the amount of $3,435,318.67 plus interest. On August 2, 1990, appellee loaned $2.3 million to appellant under a multi-family note secured by a multi-family mortgage, assignment of rents and security agreement, which provides security for a multi-family garden apartment complex in Morrisville, Bucks County, Pennsylvania. On June 24, 1992, appellant, who went into default on the loan on November 1, 1992 and continues to be in default, filed a petition for bankruptcy in the Federal District Court of New Jersey under Chapter 11 of the Bankruptcy Code listing appellee as a secured claimant with a claim in the amount of $2.3 million. By Order of March 25, 1994, the bankruptcy court granted appellee relief from the automatic bankruptcy stay and permitted foreclosure on its mortgage. Appellee, on April 8,1994, filed a complaint in mortgage foreclosure based upon the defaults under the loan documents. By affidavit, appellee established the amounts of the unpaid principal, unpaid interest, accrued late charges, costs and expenses incurred, a prepayment fee and attorney’s fees for a sum total of $3,435,318.67. The facts surrounding the execution of the mortgage and note as well as the amount of the mortgage, the rate of interest and the specific terms and conditions of the note and mortgage are not in dispute. On appeal, appellant takes issue only with two elements of the damages asserted, namely the prepayment fee and the attorney’s fees. When we review the grant of a motion for summary judgment made under Pa. R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 198, 653 A.2d 688, 691 (1995) (citations omitted). On appeal to this Court, appellant argues the trial court, in granting summary judgment in favor of appellee, erred in allowing a “prepayment penalty” of $434,182.48 to be added to the judgment. Appellant contends the provision for the prepayment fee, encompassed in a rider attached to the note, does not authorize imposition of such payment after the mortgage is in foreclosure. Specifically, the rider contains carefully defined terms as to various provisions concerning, inter alia, the calculation of the prepayment formula, however, the rider fails to include a specific statement as to prepayment in the event of default or foreclosure. Accordingly, since the law presumes a mortgagor can prepay the mortgage, appellant argues the mortgage document must be strictly construed as to any restriction placed on this right. Generally, where a mortgage note is silent as to the right of prepayment, there arises a presumption the debt may be prepaid. Mahoney v. Furches, 503 Pa. 60, 65, 468 A.2d 458, 461 (1983). This presumption can be rebutted by showing a contrary intent mutually manifested by the parties. Id. Here, after a review of the record, we find the prepayment fee requested by appellee clearly was set forth in the rider in great detail and, specifically, appellee went to great lengths to define the prepayment fee, how it would be calculated, that it would be paid whether or not the prepayment is voluntary or involuntary and that no prepayment fee would be imposed during the last three months prior to the maturity date. Although neither party was able to locate controlling caselaw pertaining to prepayment fees when a default occurs, we find this situation controlled by contract law. This was a commercial loan entered into by a corporation and a limited partnership with the type-written rider signed by appellant’s general partner. Accordingly, appellant, who signed the note and presumedly was well aware of the provisions of the rider will be bound by it. Maho-ney, supra. Appellant further contends appellee has not shown the prepayment fee is justified as liquidated damages and not an illegal penalty. Specifically, appellant contends appel-lee has failed to show some relationship between the penalty sum of $434,182.48 and the actual damages suffered by it. The record reveals the rider signed by appellant set forth a detailed formula for calculating the prepayment fee. The trial court determined the calculations to be accurate and in conformity with the provisions of the loan documents. (Slip Op., Garb, J., 11/19/94, p. 3.) Beyond a bald assertion the fee is a penalty and excessive, appellant sets forth no evidence disputing the liquidated damages, nor does it show where the trial court committed an error of law or abused its discretion in granting the summary judgment. Secondly, appellant argues the trial court erred in awarding attorney’s fees of ten per cent (10%) or $226,307.21. Appellant contends the trial court merely determined this figure was specifically provided for in the loan documents and thus was acceptable without considering equitable principles to determine if the fees were reasonable, as required by Pennsylvania law. In Pennsylvania, a mortgagee is entitled on foreclosure to recover reasonable expenses, including attorney’s fees. Foulke v. Hatfield Fair Grounds Bazaar, Inc., 196 Pa.Super 155, 173 A.2d 703 (1961). The test of a legal fee must be its reasonableness, determined by the circumstances of the particular case. Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979). Here, the trial court entered summary judgment for appellee and included attorney’s fees in accordance with the formula set out in the loan documents. Simply because the trial court, in its Opinion, did not specifically state the attorney’s fees were “reasonable,” we will not hold to the contrary. Rather, appellant must set forth some facts, beyond bald assertions, to support its argument the attorney’s fees were unreasonable. Although the trial court does not support its decision with caselaw or detailed analysis, our review of relevant Pennsylvania law finds attorney’s fees of 10% to be reasonable. See Federal Land Bank of Baltimore, supra. Moreover, in light of this transaction involving a commercial loan and mortgage, foreclosure proceedings, this appeal, and various ancillary matters, we find the trial court did not err in including the 10% attorney’s fees in the summary judgment. Lastly, appellant argues the trial court should not have entered summary judgment for the full amount claimed simply because this was a foreclosure action and Pennsylvania law requires judgment be entered in a specified amount as otherwise execution could not be effected. Thus, if the amount of the judgment really doesn’t matter, appellant contends, then it would have made more sense for the trial court to have entered judgment in the undisputed amounts, and not include the attorney’s fee and prepayment fee. As indicated above, in an action for mortgage foreclosure, it is essential that judgment be entered in a specific amount as otherwise execution could not be effected thereon. See Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971). In Landau, as in the present case, the mortgagee had taken possession of the premises and therefore the amount of the outstanding debt was in flux because it was likewise collecting the rent. Thus, here, as in Landau, the amount of the outstanding debt at the time of execution and sale is somewhat uncertain. Accordingly, the trial court entered summary judgment for a sum certain consisting of the amount by which appellant was in default plus the prepayment fee and attorney’s fees, inter alia, to facilitate execution. The trial court determined the disputed fees to be clearly and expressly provided for and set forth in the loan documents and therefore includable in the summary judgment. Having found the trial court did not abuse its discretion in finding these fees to be in accordance with the loan documents, we find the court did not abuse its discretion in including the fees in the Order of summary judgment. Order affirmed. . Subsequent to the filing of the complaint, the parties agreed to the appointment of a receiver for the property.

Opinion by Mb. Justice McCollum;, Four fifths of the materials for which this claim was filed were furnished on the order of Messenger while he was the apparent owner of the lot, and all of them except the transom door-frames were furnished before the material man was informed that Riale had any legal or equitable title to or interest in it. All the appearances were in accord with Messenger’s representations, when he ordered the materials, that they were for a house he was building on his lot on Park avenue. His deed for the lot was on record, and there was no visible change in his possession of it. There was absolutely nothing discernible anywhere to suggest or in the remotest degree indicate any change in his relations to the property or that in erecting a house upon it he was the representative or agent of another. In short, the record, the appearances and Messenger’s representations to the appellant united in presenting the case of an owner of a lot ordering the materials for and erecting a house upon it. But it is urged that the appellant is not entitled to a lien for his claim because (1) in August, 1889, Messenger verbally agreed with Riale to sell the lot to him, and that in pursuance of this agreement a deed of it-was made and delivered to the latter on the 5th of October following; and (2) that soon after the agreement to sell the lot he verbally agreed with his vendee to build for him a house upon it, and “ not to allow any lumberman’s or mechanic’s lien to be entered against it.” The agreement in respect to the erection of the house was not reduced to writing and signed until September 26, 1889, or six days after the materials were ordered, nor was anything paid on the lot until that time! The appellant, whilst conceding the principles enforced in Schroeder v. Galland, 184 Pa. 277, and kindred cases, contends that upon the facts above recited he is entitled to a lien upon ■the building for materials furnished and used in its construction. In considering this contention it must be remembered that when Messenger ordered the materials for the house he was the owner of the lot and his title to it was shown by the record. Riale had then no enforcible equity or claim in or upon the lot because the verbal agreement gave him none, and he had done nothing in pursuance of it which prevented his vendor from successfully repudiating it. Messenger’s possesr sion of the lot when he commenced the erection of a house upon it was in accord with his title and so were his representations that the materials he ordered were for a house he was building on his lot on Park- avenue. What was there in the circumstances surrounding the transaction, to suggest to the material man the existence of an equitable interest or title in Riale or any one else, or to put upon him the duty of further inquiry ? Absolutely nothing. The ease before us is therefore wholly unlike the cases relied on by the appellees in which it is held that a sub-contractor is bound by a stipulation against liens in the contract between the owner and the principal contractor. In none of them is it held or suggested that a secret verbal agreement, such -as is interposed here, will prevent or defeat a lien. They were cases in which the labor was done or the materials were furnished on the order of or under a contract with the principal contractor who was known as such, not, as in this case, on the order of or under a contract with the apparent owner. In them the sub-contractor was chargeable with knowledge of the contract between the owner and the principal contractor, because he had an opportunity and it was his duty to ascertain its terms before performing labor or furnishing materials on the credit of the building. In this case no such opportunity was presented or duty imposed. It is in accordance with equity that the sub-contractor should be'bound by the terms of the contract between the principal contractor and the owner, in the former case, and against it to hold him bound by the terms of the secret agreement relied on in this case to defeat the claim of the appellant. We hold therefore that the appellant is entitled to a lien for the materials furnished before he’knew or ought to have known that such agreement existed. To the extent that the rulings of the learned court below are in conflict with this' opinion the specifications of error are sustained. Judgment reversed and venire facias de novo awarded.

TAMILIA, Judge: The Commonwealth appeals from the February 16, 1994 Order granting defendants’ motions to suppress evidence seized at appel-lees’ places of employment during a warrant-less inspection of the premises and the subsequent execution of allegedly invalid warrants. The investigation and appellees’ ar rest were the result of “whistleblowers’ ” allegations of wrong-doing provided to Pennsylvania Department of Health officials and the Office of the Pennsylvania Attorney General. A detailed recitation of the circumstances preceding appellees’ arrest, pivotal to the resolution of the issues before us, follows. At the time of the alleged improper activity, appellee, William L. Clark, was President and Chief Executive Officer of and held an ownership interest in Central Pennsylvania Drug and Alcohol Services Corporation (CPDASC), t/d/b/a Talleyrand Retreat and Central Pennsylvania Individual and Family Counseling (CPIFC). Talleyrand was an inpatient drug and alcohol service provider, established pursuant to the terms of the Pennsylvania Drug and Alcohol Abuse Act, 71 P.S. §§ 1690.101 et seq., and was regulated by the Office of the Drug and Alcohol Programs (ODAP), Pennsylvania Department of Health. CPIFC provided out-patient drug and alcohol counseling. Appellee, Michael Barrett, was an employee of the Centre County Drug and Alcohol Program (Centre County), which utilized services provided by Talleyrand. In July, 1991, an investigation was begun by ODAP into an alleged conspiracy by ap-pellees to defraud the county of more than $27,000 for services charged to Centre County by Talleyrand but not provided. The investigation was initiated after former CPDASC employees Sandy Taylor, Pam Johnson and Mary Natoli, and a member of Centre County’s Drug and Alcohol Planning Council, Mary Watson, notified Ronald Young, a field representative of ODAP, of, inter alia, suspected improper billing activity at Talleyrand. The disgruntled employees also complained to the Pennsylvania Attorney General’s Office and were interviewed on July 23, 1991 by Special Agent Dan Boden. On August 3, 1991, the employees informed Young, for the first time, of the substance of the billing irregularities and also advised him they had notified the State Attorney General’s Office. Boden testified although the employees’ allegations of wrong-doing were varied, only possible criminal activities such as billing irregularities, supported by documentation provided by Johnson and Taylor, were of interest to the Attorney General. After being advised the employees had contacted the Attorney General’s office, Young contacted Boden, as a professional courtesy, and told him he was planning to conduct an unannounced inspection of Talleyrand the following week. Boden asked Young to delay his visit for a few days but made no request of Young to conduct his investigation in any manner other than the norm. On August 7, 1991, Young and another ODAP field representative made an unannounced visit to Talleyrand for the purpose of investigating complaints of non-compliance with confidentiality regulations, failure to follow personnel policies and fraudulent record keeping and billing practices. This inspection was conducted as authorized by 28 Pa. Code § 709.15, Right to enter and inspect. The Talleyrand client files inspected in furtherance of the investigation included one specifically identified by one of the employees, as well as 7 to 10 others selected at random. Young’s notes of this visit were not turned over to the Attorney General. Also on August 7, 1991, Young met with employee Johnson and secured copies of accounting documents she had removed from Talleyrand. Once again, none of this information was provided to the Attorney General. On August 20, 1991, a regularly scheduled visit of Talleyrand was conducted by ODAP field representative, William Foltz, who at Young’s request reviewed specific files to further his investigation into improper billing practices. On September 3, 1991, Young provided a copy of his finished report, with all clients’ names removed, to the Attorney General. Two days later, on September 5, 1991, ODAP informed Talleyrand of two areas of non-compliance, disciplinary actions and confidentiality, but took no further action with regard to any alleged improprieties, ex. improper billing. This concluded ODAP’s administrative investigation of Talleyrand as prompted by the employees’ complaints. In October, 1991, Boden and the Criminal Investigation and Prosecution section of the Office of the Attorney General received a copy of Young’s September 3rd report. Based in part upon the statements contained in Young’s report, as well as the information provided by the employee confidential informants, Boden obtained and executed, on December 18, 1991, a search warrant at the Centre County Drug and Alcohol Program. On September 1, 1992, CPDASC sold Talleyrand to HUB Centre Inc. Clark, however, retained ownership of the real estate with HUB as a tenant. As part of this transaction, CPDASC turned over all Talleyrand client files with the understanding they would be retained for six years following any patient’s treatment, as required by law. In December, 1992, search warrants were obtained by the Attorney General’s office and executed upon records of CPDASC and Talleyrand, now operating under the auspices of HUB. The affidavits of probable cause in support of the warrants were based on the employees’ information and, in part, on Young’s September 3, 1991 report. As a consequence of the information secured via the initial administrative inspections at Talleyrand and the execution of the search warrants subsequently obtained, ap-pellees were arrested and charged with tampering with public records or information and criminal conspiracy. Additionally, appellee Clark was charged with theft by deception. In granting apjoellees’ motion to suppress, the court reasoned unless Young’s search was clearly administrative, appellees were entitled to a reasonable expectation of privacy, necessitating the implementation of a warrant. In further support of its decision, the court characterized Young and his coworkers as agents of the state, whose investigation centered on criminal conduct from its inception. The Commonwealth argues both the administrative, warrantless search and those subsequent searches conducted with the benefit of warrants were constitutional. Appellant contends the Department of Health employees acted properly in their capacity as administrative supervisors and as authorized by 28 Pa.Code § 709.15, Right to enter and inspect, investigating alleged wrong-doing by a Pennsylvania licensed drug and alcohol treatment services provider. The affidavits of probable cause to secure the wai'rants contained a detailed explanation of the information provided by the whistleblowers, and used that information obtained during the Department of Health’s investigation of Talleyrand only as supplemental support. Moreover, the Commonwealth argues, even if the purportedly tainted information provided by Young is excised from the affidavits of probable cause, sufficient probable cause still remained upon which to secure valid warrants. In reviewing an Order granting a motion to suppress, we must first determine whether the suppression court’s factual findings and legal conclusions are supported by the record. Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992); Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992). To determine whether the findings of fact are supported by the record, an appellate court must review only the evidence of the appellee and so much of the evidence of the appellant which, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993). If the factual findings are supported by the record, then we may reverse only for an error of law. Id. We find the warrantless inspections made by Health Department employee Young and his co-workers were legitimate, investigative visits, statutorily authorized by 28 Pa.Code § 709.15, Right to enter and inspect. Accordingly, appellees enjoyed no expectation of privacy and no warrant was necessary. The Health Department’s purpose in conducting the unannounced visits, during August of 1991, was to investigate several employees’ allegations of noncompliance with confidentiality regulations, the facility’s failure to follow personnel policies, staffing problems, sexual harassment and fraudulent billing practices. Young’s purpose in conducting the initial unscheduled visit was specifically articulated to the individual in charge of Talleyand on that partic ular day. Although admittedly the State Attorney General’s Office was aware of ODAP’s visits, it neither counseled Young as to how to proceed nor did it attempt to supervise or assume control of the Health Department’s investigation. The records reviewed by Young during the initial inspection, with the exception of one specific client identified by a confidential informant/employee, were selected at random and, only by chance, happened to support the employees’ allegations of overcharging. We particularly note with interest that after ODAP’s followup investigation, corrective administrative action was taken with regard to only two areas of Talleyrand’s noncompliance, neither of which related to the allegations of billing improprieties. From our thorough review of the record, we find the warrantless search of the state regulated agency was statutorily authorized, clearly administrative, and legitimately conducted. Moreover, we also find there was no indication Young and his co-workers were acting as agents of the Pennsylvania State Attorney General, but rather as supervisors conducting an independent, administrative investigation. Having so found, it is unnecessary to address the law as set forth in Slaton, supra, and relied upon by the suppression court herein. (Officers were required to advise pharmacy owner/defendant of a change in the focus of a criminal investigation from a customer to him, and to obtain either owner’s informed consent or a warrant in order to search the premises.) Id. Turning to the Attorney General’s investigation, we find, based on the totality of the circumstances test adopted by this Commonwealth, sufficient probable cause existed for the issuance of warrants pertaining to the Talleyrand investigation. See Commonwealth v. Murphy, 427 Pa.Super. 578, 629 A.2d 1020 (1993), appeal denied, 537 Pa. 648, 644 A.2d 734 (1994). The informants independently provided the Attorney General’s Office with allegations of wrong-doing supported, in part, by documentation. Young’s findings served merely to confirm or corroborate the employees’ charges. Moreover, for the sole purpose of argument, conceding the information provided by Young to be tainted, which we expressly do not so find, excising said information still leaves the Commonwealth with facts sufficient to support affidavits for probable cause for the issuance of the warrants. See Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990). We find the sworn facts contained in the affidavits of probable cause provided reasonable bases upon which to issue the search warrants requested. Having found the record fails to support the decision of the suppression court, and having found further the searches conducted both with and without warrants to have been valid, there is no need to address the Commonwealth’s argument probing the appellees’ standing to challenge the inspections and searches at the provider facility and/or government agency. After careful consideration of all written and oral arguments presented, we find the suppression court’s ruling granting appellees’ motion was not supported by the record. Accordingly, we vacate the suppression Order of February 16, 1994 and remand this matter to the trial court for proceedings consistent with this Opinion. Order vacated; case remanded. Jurisdiction relinquished. . Defendants' motions to suppress were consolidated for the purpose of the preliminary hearing and this Court has, sua spontc, by per curiam Order dated May 18, 1994, consolidated the cases for appeal. . The record is unclear as to whether appellee Clark was physically present at the facility at the time of the inspection.

Opinion by Mb. Justice Gbeen, There is no question at issue here except the right of the court below to open the judgment. There was no trial on the merits after the rule to open was made absolute, and it is certainly a serious question whether an appeal can be taken at this stage of the proceedings, there being no final judgment. This question is not raised however by a motion to quash or in any other manner. It is not possible to consider now the other subjects which are discussed in the paper-books, as there is nothing to bring them on the record. The question whether the court of common pleas may open a judgment which has been entered upon an obligation not under seal after the expiration of six years from its maturity, is res adjudicata. It was positively decided in several of our modern cases, and had been substantially determined many years prior to either of them: Herman v. Rinker, 106 Pa. 121; Sossong v. Rosar, 112 Pa. 197; Ellinger’s Appeal, 114 Pa. 505. In the present case the defendant’s obligation was an ordinary promissory note dated November 10,1873, payable at one day after date, with an authority to any attorney to confess judgment for the amount of the note. It was not under seal. There was no judgment entered on the note until June 2,1881, more than seven years after its maturity. Other matters of defence were alleged in the defendant’s petition, but the court, in the order opening the judgment and granting an issue, prohibited any other plea than the statute of limitations, and thereupon the plaintiff took the present appeal without going.to tidal. In Herman v. Rinker, supra, we held that it is within the discretion of the courts of common pleas to open a confessed judgment entered upon a judgment noté, not under seal, for the purpose of permitting the statute of limitations to be pleaded thereto. In Sossong v. Rosar, a judgment was entered upon a judg ment note not under seal, without terms being imposed by the court below. We held not only that the judgment might be opened, but that, on the trial, any defence could he made Which could have been made if the action liad been brought upon the original instrument, without the powpr of attorney to confess judgment. We recognized the propriety of the ruling in Herman v. Rinker, that a judgment by confession might be opened for the very purpose of letting in the plea of the statute of limitations, and said: “ We held it was a matter in the discretion of the court below in any.event, and we could see no error in opening the judgment. A very sufficient reason lies in the fact that the defendant has had no hearing. When judgment is entered by confession, and, if upon the face of the obligation containing the authority to enter judgment it appears that tlie statute was a bar to the debt when the judgment was entered, it follows'that the defendant has had no opportunity to present a perfectly lawful and proper defence.” That is this case precisely. On the face of the judgment note it appears that the judgment was entered at a time when the statute was a bar to the debt. That being so it follows that the defendant lias had no day in court when he might plead 'the bar of the statute. He is therefore entitled to be heard on that subject. In Ellinger’s App., we held that it is a good cause for opening a judgment and letting a defendant into a defence, that at the time of the entry of the judgment on a judgment note, it was prima facie barred by the statute of limitations. The foregoing, cases completely cover the present contention. The appellant seems to think that Woods v. Irwin, 141 Pa. 278, is in conflict with these decisions, but that is an entire mistake. There is nothing in that case that interferes in the least with the matters decided in the cases cited. The order made by the court below is affirmed and the appeal dismissed at the cost of the appellant. Ms,. Chief Justice Sterrett and Mb. Justice Mitohelr dissent.

Opinion by Mr. Justice Fell, The contest in this case relates to the distribution of the residuary estate of Jennie E. Scott. The third clause of her will, under which the question arises, is: “ Should my beloved niece Miss Jessie A. Barnes die without issue, then in that case I will and devise the remainder of my estate after her decease without issue as aforesaid, to be divided among my nephews and nieces, to wit: the legal heirs of Mrs. Lilly A. Gwin, the heirs of my deceased brother James A. Scott, and the lawful heirs of my beloved brother John W. Scott, and Anna R. Stuckey, each to take share and share alike.” Jessie A. Barnes died without issue, and the question before the auditor was whether distribution should be made per capita or per stirpes. The testatrix left surviving her a brother, John W. Scott, and two sisters, Mrs. Gwin and Mrs. Hutchinson. Her brother James A. Scott and her sister Mrs. Barnes died before her. All of these brothers and sisters had children ; and those of John W. Scott, Mrs. Gwin and James A. Scott, and one of the two children of Mrs. Barnes, Anna R. Stuckey, are beneficiaries under the third clause of the will, while the children of Mrs. Hutchinson and Rush Barnes, a brother of Anna R. Stuckey, are not mentioned. The learned auditor, for reasons stated in his very full and elaborate report, concluded that distribution should be made per stirpes. He awarded it accordingly, and his report was confirmed by the orphans’ court. "We are of opinion from a careful examination of the case that this judgment is not correct. The scheme of the testatrix in disposing of her estate was to give to Anna R. Stuckey a bequest of $1,000, and the residue for life to Jessie A. Barnes, with remainder to her children, and, upon failure of such issue, to fourteen of her twenty nephews and nieces, to the exclusion of the other six. Whether we apply to the residuary clause of the will the technical rules of construction, or give to it the plain meaning which its words import and its grammatical structure requires, the result is the same. When there is a testamentary gift to one'person, and to the children of another person who stand in the same relation to the testator, the donees, take per capita. This rule under the English authorities yields to slight indications of a contrary intent; and in Pennsylvania the contrary intent is inferred where under the intestate laws, which are always resorted to in cases of doubtful interpretation, the distribution would be made per stirpes, as in the case of a gift to a son or brother of the testator and to the children or heirs of a deceased son or brother. Where, however, the gift is to persons or classes of persons who stand in the same relation to the testator, the analogy furnished by the intestate laws indicates a division per capita, for in such cases, under sec. 14 of the act of April 8, 1883, and sec. 1 of the act of June 30, 1885, persons so standing, “ if there he more than one, shall take in equal shares.” ■ The benefit here was evidently intended for the legatees individually, as nephews and nieces, and not as representing their parents, who in two instances are still living and were entirely passed over. The nephews and nieces are treated as if their parents were dead; and in that case, if there were no will, the estate would go per capita under the intestate laws, to the beneficiaries and others occupying the same position. The intestate laws, which would have required a distribution per stirpes, are passed over in order to exclude brothers and sisters and give the estate directly to nephews and nieces. That having been done, distribution under the law would then' be per capita; and the presumption is in favor of such an intention on the part of the testator in the absence of evidence in the will of a purpose to further supersede the statute. The will seems clearly and affirmatively to show that the distribution was to be in equal shares. Leaving out the parenthetical enumeration of the persons intended to be embraced in the gift, the language is as follows : “ I will and devise the remainder of my estate after her decease without issue as aforesaid to be divided among my nephews and nieces .... each to take share and share alike.” Nothing could be more explicit than this, and the meaning is not changed by the parenthetical clause. Its manifest object was to limit the generality of the preceding words, and to define the persons who were to take. She had before written “ my nephews and nieces,” which included all her nephews and nieces. This was not her purpose, and she proceeded to designate those who were to take in order to exclude the others-The design was not to classif}’, but to discriminate and ex elude. The word heirs is not used technically, but in the sense of children or descendants, as the brothers and sisters would be collateral heirs of each other in case of death without issue, and until death there could be no heirs either linéal or collateral. The- nephews and nieces intended as beneficiaries having thus been ascertained, there is no uncertainty how they are to take. The division is to be such that “ each ” is “ to take share and share alike.” Each refers to the persons described in the first part of the paragraph, the nephews and nieces who are identified by the videlicet clause. The expression “share and share alike ” standing- alone might refer to a division among classes as well as among individuals ; but this cannot be said of “ each to take,” which, unless applied to individuals, as the grammatical structure of the paragraph requires, must be regarded as redundant and meaningless. This would violate the elementary rule of construction which forbids the rejection of a word if a meaning can be found for it. . “ Where a testator uses an- additional word or phrase he is presumed to have an additional meaning.” The decree is reversed at the cost of the appellee and it is ordered that distribution be awarded in accordance with this opinion.

Opinion by Mr. Justice Green, In all the cases which have come before us presenting the question which appears on this record, we have referred ourselves to the contract of the parties, and upon its interpretation we have adjudged the rights of the parties litigant. If the transaction was a conditional sale, whether in form or in substance, we have held the title in the vendee, and therefore subject to the claims of his creditors, but if it was a bailment, we have held the title in the bailor, and not subject to any claims of the vendee’s creditors. The cases are so numerous that it will be desirable to select only a few of' such as are representative in their character. Thus in Myers v. Harvey, 2 P. & W. 478, which was a case of lease of farming stock to a tenant in possession with compensation for its use, and a sale to the tenant upon payment of a fixed sum, Gibson, C. J., said: “As it appeared on the evi dence the case seemed to be that of a bailment, with a super-added agreement to vest the title in the bailee when he should paya sum certain; and such an agreement is clearly consistent with public policy. No facility to fraudulent dealing is afforded by it, that is not- afforded, in the same degree, by a naked contract of bailment. Such a transaction includes two distinct but consistent contracts, the one taking effect, if at all, when the other is spent. The contract of bailment preserves the ownership of the bailor during the particular relation created by it, and the contract of sale, which supersedes it, transfers the title as soon as it is called into action, by payment of the. price.” This is a distinct declaration of the-dual operation of such a contract. The bailment is operative to fulfill its proper function, and it is subverted by the happening of the event which brings about a sale, and both are consistent and may stand together as part of the same contract relation.. Following this principle the case of Rowe v. Sharp, 51 Pa. 26, was decided. The ultimate object there was a sale, but a preservation of the title in the grantor with possession in the grantee was desired and accomplished, until, by the payment of the full consideration, the provision for a sale was brought into action. The contract there was a lease of two billiard tables for nine months, upon payment of definite sums for the use of the tables, and upon the whole amount being paid a bill of sale was to be executed transferring the title. We sustained the contract in both its aspects, and declared it to be a bailment for use of the tables with provision for sale in case of the payment of the price. This is what was said, Agnew, J. : “ That a sale of the billiard tables -was contemplated in the lease between Sharp and Goff of the 16th of November, 1865, is manifest in the writing itself, as well as from the other evidence in the cause. But it is the character of the sale which must determine when the title vested. The bill of sale of the 18th November, 1865, was not signed, and before Sharp, the manufacturer, parted with his possession, he had a right to dictate the terms of its transfer. He lived in the city of New York, and the tables were to be taken by Goff into Pennsylvania. The article of lease, as it is called, was the final act of the parties, executed, as its own provisions show, before .Sharp had parted with his control. By its terms it is clearly a bailment for use (inaccurately termed a lease), with a provision for a sale in case the price of the tables should be fully paid. The possession was delivered to Goff upon the express terms'that he was to take the tables to his place of business in Pennsylvania, keep them, and not remove them without Sharp’s written .consent, and would surrender them at the end of nine months, or sooner, on Goff’s failure to pay the installments as they fell due; and a title or bill of sale was only to be made on full payment of the price. The transaction is clearly a bailment of the possession, with an agreement for a future sale conditioned on the payment of the price. According to the authorities this is a valid contract, and can be enforced even against creditors.” Here also the purpose of the parties was to effectuate a sale, in the future, directly to the bailee, who was to have actual possession in the meantime under a different arrangement, and we gave it our sanction as against creditors of the bailee because of the contract. In other words although the intent of the parties, and the effect of their agreement, was to vest the title at a future day in the purchaser, he having actual possession in the meantime, yet as the intervening arrangement was upon a valid contract of bailment as between the parties, the title of the bailor was preserved until terminated by compliance with the provision for a sale, at which time that portion of the agreement became operative.. Clark v. Jack, 7 Watts, 375, is another instance where the same doctrine was applied to a future sale, where the intervening bailment was a permission to use the chattel, a library of books. In Rose v. Story, 1 Pa. 190, we said: “ So where one receives goods upon a contract, by which he is to keep them a certain period, and if in that time he pays for them, he is to become the owner, but otherwise he is to pay for the use of them, he receives them as a bailee and the property in the goods is not changed until the price is paid.” A case still closer to the present is Becker v. Smith, 59 Pa. 469, the syllabus of which is as follows: Becker, by articles, sold real estate to Linn and agreed that he should have the use of certain personal property, and might sell materials belong ing to Becker on the premises on commission ; Linn to deposit the proceeds with a banker named, and when the payments to the banker reached a sum named, Linn was to become the owner of the personal property and materials if any remained; if the sales did not amount to the sum, Linn was to make up the deficiency. Held not to be a conditional sale but a bailment. We said, Agnew, J.: “ Hence the contract provided that the entire stock should be bailed to Linn, to be sold on commission, the new and the old metal to be converted into castings for sale in like manner, and after allowing '25 per cent commission for compensation, storage and sale, the balance to be applied to payment of the judgments. It was only in the event that the $4,250 should be realized by the sales of stock, that the remainder of the stock and other personal property were to become the property of Linn, the other property being delivered to him upon a contract of. bailment for use till that event happened. Now, clearly, this was not a mere conditional sale to Linn, but a bailment for legitimate purposes, recognized by repeated decisions as not falling- within the principle which subjects personal estate delivered upon a contract of sale, to the execution creditors of the purchaser. ... In reference to the peculiar features of this contract, to wit, the bailment to sell on commission, and to manufacture and sell, there are two cases directly in point. In McCullough v. Porter, 4 W. & S. 177, it was held that an agreement to furnish -goods to an insolvent to be sold at -invoice prices, he returning the invoice price after sale to the consignors, and retaining all above that sum. for the support of himself and famity, is a bailment, and the goods are not subject to the executions of the insolvent’s creditors.” The other case referred to is King v. Humphreys, 10 Pa. 217. Proceeding, Agnew, J., further said: “ The delivery of the stock on hand for sale on commission, and of the metal to be converted into castings also to be sold on commission, and the proceeds of the sales deposited with a banker for the purpose of paying off the judgment, was clearly a bailment only; and the property thus bailed was not subject to the executions of Linn’s creditors.” We may now pause to consider the character of the contract under which the present contention arises. Sweeting, a dealer in bicycles, applied to Brown Bros. & Co. for letters of credit fco purchase bicycles abroad. The letters were sent directly to the parties in England, who shipped the goods, got the bills of lading and consular invoices, which were sent to the London house of the plaintiffs, accompanied by the draft and invoices, which were drawn at three months. The only witness in the case, Dawson, plaintiffs’ manager, testified: “These papers were accepted by our London house, and the goods were shipped to us here as our property, and we delivered them to Mr. Sweeting upon his signing the trust receipt as we call it.” The goods were shipped to the plaintiffs, the bills of lading made to them. This of course gave them the property in the goods which could only be obtained by the surrender of. the bills at the custom house. The plaintiffs paid the drafts drawn on them for the price of the goods at maturity. Before surrendering the bills of lading to Sweeting he signed the trust receipt in question, containing the following provision: “Received from Brown Brothers & Co. the following goods and merchandise, their property, specified in the bill'of lading, per Lord Clive, dated Lpool. May 17 ’92, marked and.numbered thus (marks omitted), and in consideration thereof j j- hereby agree to hold said goods in trust for them, and as their property, with liberty to sell the same fór'their account, and further agree in case of sale, to hand the proceeds to them to apply against the acceptances of Brown, Shipley & Co., on j ^ j account under the terms of letter of credit No. -(If issued for j j account to Brown, Shipley & Co., or Brown Bros. & Co. Brown Bros. & Co. may at any time cancel this trust and take possession of said goods, or of the proceeds of such of the same as may then have been sold, wherever the said goods or proceeds may then be found; ’and in the event of any suspension, or failure or assignment for benefit of creditors on j “J | part, or of the non-fulfillment of any obligation, or of the non-payment at maturity of any acceptance made by j j- under said credit, or under any other credit issued by Brown Bros. & Co., or Brown, Shipley & Co., on j^j- account, or of any indebtedness on | “J [ part to either of them, all obligations, acceptances indebtedness and liabilities whatsoever shall thereupon, with or without notice, mature and become due and payable. The said goods while in j j- hands shall be fully insured against loss by fire.”. It will be observed that this was not in any event an undertaking on the part of Brown Bros. & Co. to sell the bicycles to Sweeting. He was not to become the owner-of them by purchase or in any other way. In this respect the case is far stronger than any of the reported cases in favor of the grantor or bailor. It must also be remembered that Sweeting had no title to the goods and no possession except as derived through and by operation of the trust receipt. He paid nothing for them, he had no right or title to them prior to the trust receipt, and that paper was the only source of-any right to the possession or control of them for any purpose whatever. What then was bis right under the receipt? Only this. He was to hold the goods in trust for Brown Bros. & Co. as their property, with liberty to sell them for their account and pay ov'er to them the proceeds, to be applied to the payment of acceptances given for the price of the bicycles, and was entitled to credit upon any7 other-indebtedness of his to either of the plaintiffs’ firms. In what conceivable aspect of this contract was Sweeting to become the owner of the goods? Plainly7 none. His duty7 was to sell the goods for the account of the plaintiffs, and while he was selling them he was' holding them in trust for the plaintiffs. Even his possession was not on his own account but on theirs. The service he was to render was not for himself but for them. Even the proceeds of the sales he made did not belong to him but to them. At the very utmost the contract was but a bailment for sale without any title or ownership of any7 kind in the bailee in any event. The case is too plain for extended argument. Not a case has been referred to us in which an ownership was held to arise in the bailee upon such a state of facts as this. On the contrary in the following cases the principles and authorities heretofore cited are recognized, affirmed and applied, and in all of them, although an interest as owner was to be acquired by the bailee for use or sale, or lessee or other party ultimately interested, the right of the bailor, lessor or vendor was sustained against the creditors of the other party: Enlow v. Klein, 79 Pa. 488; Henry & Co. v. Patterson, 57 Pa. 346; Edwards’s Appeal, 105 Pa. 103; Ditman v. Cottrell, 125 Pa. 6.06. Judgment reversed and new venire awarded. See Monjo v. French, below, page 107.

Opinion by Mr. Chief Justice Sterrett, The first specification in substance challenged the sufficiency of the special verdict and alleges error in entering judgment thereon. In Wallingford v. Dunlap, 14 Pa. 31, it is said: “ A special verdict is when the jury find the facts, leaving the ultimate decision of the cause, upon those facts, to the court, concluding conditionally that if, upon the whqle matter thus found-, the court should be of opinion that the plaintiff has a good cause of action, they then find for the plaintiff and assess his damages; if otherwise, they then find for the defendant.” Nothing is better settled, on principle as well as authority, than that all the facts upon which the court is to pronounce judgment should be incorporated in the special verdict. It is the exclusive province of the jury, in the first place, to determine all disputed questions of fact, from the evidence before them; and then their special verdict is made up of those findings of fact, together with such undisputed facts as may be necessary to a just'decision of the cause. If important undisputed facts are omitted by mistake from the special verdict, or are incorrectly recited therein, the court may, upon full proof thereof, so amend dr mould the verdict as to make it conform to the undisputed facts. This should be done when the verdict is rendered or as soon as practicable thereafter. The court, in considering a special verdict and entering judgment thereon, is necessarily confined to the facts found and embodied in the verdict; the latter cannot be aided by intendment or extrinsic facts that may appear in the evidence. It is an inflexible rule that in a special verdict no inferences whatsoever, as to matters of fact, but only inferences of law and of legal construction are allowable: 4 Minor’s Inst. 752; Wallington v. Dunlap, supra, and cases there cited: Loew v. Stocker, 61 Pa. 347; Vansyckel v. Stewart, 77 Pa. 125; Tuigg v. Tracey, 104 Pa. 493; Railway v. Evans, 53 Pa. 250. According to all the authorities, it is essential to a special verdict that it con tain all the facts upon which thé judgment of the court is to rest. Nothing is to be taken by implication or intendment. .Like a case stated, whatever is not found in it is presumed not to exist. ■ Tested by these requirements, we think the special verdict •in this case is defective. The first clause substantially finds that plaintiffs purchased and owned the lumber in question, and that it was properly marked, etc., as claimed by them. The second finds that of the lumber, so owned by plaintiffs, there was in the yard, on the day of the fire, a quantity greater in value than the “ insurance sought to be recovered in this .case.” The third finds: “ That the lumber in the yard was not piled 300 feet from the mill, and that in the space between the mill and the lumber piles and along the tramway, there were pieces of rotten and broken boards, slabs, edging and plastering lath, in some places were about 9 feet high, but that there was no lumber piled within said space as in the .yard beyond.” The fourth and last clause finds that the fire of May 19,1891, was caused by a general forest conflagration, unconnected with the operation of the mill, and that the mill had been shut down about seven days before. . While these findings of fact, except those contained in the' third clause, may be regarded as distinct and sufficiently specific, it will be observed that the special verdict is silent as to terms and conditions of the policy given in evidence. , There is no finding that any lumber was destroyed by fire on May 19, 1891, or at any other time. These and other facts, obviously necessary to a just decision of the case, are left to conjecture, or must be sought for in the evidence. That, of course, is contrary to every correct precedent and cannot be sanctioned. Again, assuming, for the sake of argument, that the findings in the third clause are- sufficiently distinct and certain, and that they relate to a condition of things existing at a time and place material to the matter in controversy, there is nothing in the special verdict to which they are applicable. It is claimed that these findings-establish a breach of the “space clause” in the policy; but hów can we know that without going outside of the. special verdict and resorting to the evidence to ascertain what the alleged “ space clause ” is ? Without further comment on this branch of the case, we are of opinion that, according to the authorities above cited, the special verdict is essentially defective and should be set aside. The subjects of complaint in the two remaining specifications are the offers of testimony recited therein respectively. It is claimed that this testimony, in connection with' other evidence in the case, would have shown that defendant company relinquished any right it may have had under the “ space clause ” in its policy, and by its conduct estopped itself from interposing said clause as a defence to plaintiffs’ claim, and • hence it should have been received for that purpose and submitted to the jury for their consideration. For present purposes, it must be assumed that plaintiffs could and would have proved all’ the facts and circumstances suggested in these offers; and, therefore, in considering their relevancy and effect, said facts, etc., may be regarded as proved. It was conclusively shown that on May 19,1891, during the life of the policy, an unprecedented forest fire swept over the premises where the lumber insured was piled, and destroyed mill, lumber and everything of a combustible-nature in its path. Defendant having been duly notified of the total loss, immediately sent its adjuster, Mr. Taylor, to the premises for the -purpose of inquiring into the circumstances of the fire and adjusting the loss. After making such examination as was deemed proper, an’d with a full knowledge of all- the circumstances attending the loss, etc., he informed plaintiffs that there would be no objection to payment, so far as the “space clause ” was concerned. The only objection he suggested was that plaintiffs had little if any lumber in the yard at time the fire occurred. As clearly shown by subsequent 'correspondence, the company, with full knowledge of all the facts, took the same position, and finally refused to pay on the sole ground 'that the lumber covered by the policy did not belong to plaintiffs. Under date of July 3, 1891, its general agent at Philadelphia wrote plaintiffs’ attorney thus: “ I note what you say as to the general agreement, as to the law of the case, between yourself and.'. . . our counsel, but with respect to the fact, it does not appear at all probable that we can come to a better understanding, as I have made a thorough investigation into the matter, and believe that I can prove beyond all question that there was not a foot of lumber at the time of the sale in the yard of-Stevenson’s marked as the property of McCormick & Son.” A few days thereafter plaintiffs’ attorney again wrote, inclosing .notice of appointment of referee, etc., and said: “ I learn 'that no formal proof of loss, as required by the policy, was made. The reason it was not done was, that your adjuster, Mr. Taylor, said to.Mr. R. W. McCormick that no formal or other proof than he had was necessary. I don’t want any technical question about this formality to arise, to trouble us hereafter, and if you are not satisfied with what your adjuster ■ has done in this regard, I desire that you say.so now, so that we may put ourselves in proper shape.” To this, the general agent replied, under date of July 9,1891, and said: “ Having given a full examination into the subject of this fire-loss claim, and being satisfied that there was no property on the 'premises insured under policy No. 3,923,669 belonging to your clients, I see no occasion for arbitration, and decline to enter into one in behalf of the Royal Insurance Co. You are therefore at liberty to bring suit at once, any right of exemption from suit under the 14th clause of the Royal policy being waiv.ed.” It is impossible to consider what was said and done by the parties, the company’s adjuster, its general agent, and its counsel, from the beginning until suit was brought, without being forced to the conclusion that the adjuster, acting for the company, relinquished any right it may have had under the “ space clause; ” that, with full knowledge of all the facts, the adjuster’s action in that regard was fully approved and ratified by the company, and that, by mutual understanding of both parties, the only matter in controversy between them was the ownership of the lumber in question. With that mutual understanding, plaintiffs were virtually invited to bring suit for' the purpose of determining that fact and nothing else. In view of the testimony it would be idle to suggest that the effect of the “ space- clause ” was overlooked by the company until after suit was brought. Such a thing is simply impossible, or at best extremely improbable; but, if it were otherwise, every principle of good faith and fair dealing required the company to notify plaintiffs, when they were invited to bring suit to settle the question of ownership, that-the space clause would be made a ground of defence. If such notice had been given, non constat that they would'have risked the outlay of employing counsel, and the expenses of conducting a useless lawsuit. If, by.its willful conduct, the company led the plaintiffs on and induced them to incur expenses for the purpose of establishing their ownership of the lumber, in the belief that there was no other question in the case, justice and equitjr both forbid that in such circumstances the company should be permitted to impale them on the “ space clause.” If such a thing can be done, it would be difficult to conceive of a plainer case of bad faith, by which a party is induced to change his position for the worse and involve himself in useless trouble and expense. In view of its legitimate bearing, and tendency to prove such facts as ought to constitute a waiver of the space clause and estoppel, we think the proposed testimony was relevant. In connection with other evidence in the cause, it presents questions of fact which are proper for the consideration of the jury. In Brink et al. v. Ins. Co., 80 N. Y. 108, 113, the defendant company, after considering the claim of the insured, decided not to pay the loss, upon the ground of fraud, and so informed them. Thereupon suit was brought and, at the trial, the company sought to interpose the additional defence that the proofs of loss were not filed in time. Mr. Chief Justice Church, speaking for the court of appeals, said: “I think it was estopped from so doing. The plaintiffs’ claim was challenged for fraud and that only. They acted upon it and brought an action, incurring large expense in its prosecution. Non constat, if the failure to file the proofs in time had been insisted on, but that the plaintiffs would have acquiesced in it and refrained from prosecuting, and thus they might be injured by the change of ground on the part of the defendant. Every consideration of public policy demands that insurance companies should be required to deal with their customers with entire fairness and frankness. They may refuse to pay, without specifying any ground, and insist upon any available ground, but when they plant themselves upon a specific defence, and so notify the assured, they should not be permitted to retract after the latter has acted upon their position as announced, and incurred expenses in consequence of it.” “ Refusal of an insurance company to pay a loss on a specified ground estops it from asserting other ground relieving it from liability of which it had full knowledge, where the assured has incurred expense and brought suit in the belief that the only objection was that stated: ” Towle v. Iona Fire Insurance Co., 51 N. W. Rep. 987. A similar principle was recognized and applied in Bonnert v. Ins. Co., 129 Pa. 558, to prevent the defendant from successfully asserting a breach of condition requiring suit to be brought within six months after loss. Mr. Chief Justice Paxson in that case said: “ When an insurance company attempts to defeat a recovery upon a condition that was intended solely for its own benefit, and which deprives the assured, however honest his claim may be, of the indemnity which he paid for, it is not too much to hold the conipany to entire good faith. The breach of the condition must be promptly taken advantage of. Nothing else must be alleged as a reason for non-payment, and especially must not the assured be led astray by proposing settlement on grounds other than the alleged breach of the condition.” The principles, which we think are applicable to that branch of the defence grounded on the “space clause ” in the policy, are also recognized in the following cases: Stayton v. Graham, 139 Pa. 1; Pipe Lines v. Ins. Co., 145 Pa. 361; Castner v. Ins. Co., 50 Mich. 273; Vos v. Robinson, 9 Johns. 192; Ins Co. v. Miller, 120 Pa. 517; McFarland v. Ins. Co., 134 Pa. 590; Michigan Shingle Co. v. Ins. Co., 53 N. W. R. 945; Same v. Same, 94 Mich. 389. For reasons above suggested, the assignments of error are sustained, judgment reversed and a venire facias de novo awarded.

Opinion by Mb,. Justice Dean, On 29th August, 1887, the partnership of Robert Haré PoavcI and Company, and Robert Hare PoAvel’s Sons and .Company, made assignments for the benefit of creditors to the Guarantee Trust and Safe Deposit Company. The assets of the assignors were made up principally of iron ore lands, coal lands, collieries, one large blast furnace in operation, and another approaching completion. These properties Avere located in Allegheny, Westmoreland, Bedford, Clearfield and Huntingdon counties. The assets, Avith some others of less value, were appraised by appraisers appointed by the court at $4,300,000. The liabilities, principally .liens on real estate and maturing negotiable paper, were, approximately, more than $1,500,000. Apparently, the value of the assigned estate Avas sufficient to pajr at least twice the indebtedness. But, after three years administration of the trust by the assignee, the accounts filed showed such a dwindling from the appraised value, that all the unsecured debts, in the most sanguine view, were in peril. On January 24, 1889, the assignee filed its first account, to' which exceptions were filed by several of the creditors, among them the Houtzdale Bank, this appellant. The balance, as shown by the account filed, Avas $3,780,755.98. The auditor did not sustain any of the exceptions to the account, nor did he make any distribution, except to counsel for fees, agents for commissions, costs and expenses of audit, amounting to $7,146.47, Avhich, added to appraised value of properties conveyed by assignee to Powelton Iron Company, $2,313,318.89, left an-apparent balance of $1,460,290.57 on this first account,still in -hands of accountant. The basis of this large credit to the assignee, as stated by the auditor, was as follows: “ The firm of Robert Hare Powel’s Sons and Company, prior to the assignment, had conducted the business of the manufacturing and sale of iron, and the firm of Robert Piare Powel and Company had carried on the business of mining and shipping coal. The affairs of both firms, particularly the latter, were upon an'extremely large scale. The assignment occurred on the twenty-ninth day of August, 1887. Shortly afterwards, the creditors of the two firms organized, and appointed a committee to represent them in advising the conduct of the assigned estates. A number of meetings were held by this committee to assist the judgment of the assignee. In pursuance of their recommendations,, the business of both firms was continued by the assignee through the medium of the partners as agents, until the end of the year 1888. The creditors were of two classes. Two sets of loans, aggregating nearly $500,000, issued by the iron firm and secured by mortgages upon the iron plant, were outstanding at the time of the assignment. There were also several mechanics’ liens filed in Bedford county.. One class of creditors were the holders of these bonds and of the said liens. The second class was unsecured. It consisted of the other creditors in general. The property assigned, consisted of a large iron manufacturing plant and extensive coal lands and leases. “ At length the following arrangement was reached, and was joined in by all the creditors who could be ascertained. The assured creditors agreed to an extension of five years upon the terms of their loans and mechanics’ liens. The unsecured creditors formed a corporation under the laws of Pennsylvania, to which they gave the name of the Powelton Iron Company, with a capital of $1,000,000. To this company $100,000 in cash was to be paid, and a transfer made of the iron plant and various other properties which belonged to the assigned estates, estimated to be worth not less than $900,000 above the mortgage. This stock was to be taken by the creditors-in proportion to the amounts of their claims. It was to be divided into twenty thousand shares of fifty dollars each. These shares were to be accepted dollar for dollar for all unsecured claims, all odd amounts of which—less than fifty dollars—were to be paid in cash. The remaining portion of the stock was to be transferred to the Guarantee Trust and Safe Deposit Company to be held in trust for the assignors.” Presumably, and by a note appended to the account, the balance of the estate was made up of what was left of the inventory: Sterling Coal Mine No. 2. Crisfield tract of coal land. Lands in Belmont county, Ohio. Coal land in Allegheny county. Coal land in Westmoreland county. Powelton estate land in Centre county. Unpaid book accounts. Proceeds oí sale of Sterling Coal Mine No. 1. Ilamey coal lease. By the terms of his appointment, the auditor was to “audit, settle and adjust the account filed,” but an examination of his report shows that he really settled by hearing and adjudication only eight distinct matters of contention. 1. He determined that the assignee was rightfully entitled to a credit of nearly §26,000. 2. For §15,000 paid to Mrs. Amy Powel as rentals. 3. That certain boats used in transportation of coal were advantageously disposed of. 4. That the assignees had diverted no money paid for coal to payment of illegal commissions. 5. That R. B. Wig-ton was entitled to §2,510 as commission on sale of Sterling No. 1 mine. 6. That part of exceptants’ costs and counsel fees should.be paid out of the assigned estate. 7. That an allowance of §2,154.91, commissions on sale of coal cars, should be made. 8. That the property conveyed to the Powelton Iron Company was free from the trust created by the assignment. As the first account showed still a very large portion of the assigned estate undisposed of, and there would necessarily be another accounting, the investigation of the claims of the assignee for compensation and counsel fees, at this audit, was not very thorough, nor does it seem to have been so considered by any of the parties in interest. The principal object seems to have been, to settle by an adjudication, that the Powelton Iron Company was not answerable .to the assignee for the administration and management of the property convejmd to it under the arrangements with the creditors, and that, thereafter,- the creditors must look to the board of directors óf that corporation, as alone answerable for the assets transferred. We have no doubt, the auditor, on the facts before him, performed his full duty in respect of the .authority conferred upon him, and the confidence reposed in him by the court. The contending parties were represented by able counsel. It was not the duty of the auditor to suggest new subjects of contention to them ; he was to pass upon the issues of fact and law raised by the litigants, and not upon those which'might suggest themselves to him during the progress of the hearing. The report of the auditor was filed August 12th, and confirmed absolutely August 20, 1889. On September 6, 1889, the second account of the assignee was filed. This was also excepted to, and the account referred to Mr. Miller as auditor. It appeared from this account, that, in its first account, the assignee had taken credit for payment of $62,586.06 more cash than it had in its hands; a correction of this error in the second account was made by charging itself with the appraised value of unconverted assets, less that amount. The auditor properly held, this was wrong, as it, in effect, was an appropriation of assets not yet converted. Further, it appeared at the second audit that the amounts with which the assignee was charged in the account, although apparently collections in the ordinary course of business, were in large part the proceeds of sales of assets at prices far below the appraised value. In such cases, the amounts realized were added to the debit side of the account, thus swelling the appraised value by the amount of proceeds of sales, until the aggregate reached nearly $7,000,000 ; while the large difference between the appraised value and the price realized by conversion, even at that period of the management, showed there would not be enough money to pay the unsecured creditors. The auditor pertinently says: “ The vice of this mode of presenting the assignee’s operation, consists......not merely in formal error, but in radical and vital injury to the creditors. ... A very careful examination of the whole account, in connection with the facts appearing at the audit, shows that these monthly items of receipts include the entire proceeds of assets sold at an enormous depreciation from the appraised value.” That is, apparently, the appraised value of $4,311,579 of the assets, as shown by the inventory, had been augmented by the monthly receipts from operating the plants, month by month, during a period' of seventeen months, until-they reached $6,877,969.27.' There is but obscure intimation in the account, that these monthly receipts were, to a large extent, from thé sale or conversion of assets. This is the form of the charge for the first month of the seventeen: “1887. Sept. 30th. To amount of receipts for this month, $149,213.15.” And this entry, except as to month and amount, is dittoed for each of the following months, up to the date of filing the account. And there is no real correction of this method of accounting f.or conversion of the assets, on the credit side of the account, The Sterling' No. 1, appraised at $496,785.72,, and sold for $50,000, is itemized thus: “ By appraised value of properties sold and account collected and accounted for in the receipts, Sting, on act., $5,000.” It is true, as argued by counsel for appellee, the mere fact of entering proceeds of sales on the debit side of the' account is not necessarity misleading; they may be so distinguished, as to clearly identify them,-and then they disclose the truth, however awkward the method. And this is the ease, as to the charge in first account of appraised value of the Powelton Iron Company property. But, if the sales be entered as apparently monthly receipts from another source than sales, the account is not alone formally wrong; it is false. Not, necessarily, intentionally so, but false, because misleading. In fact, the second account, on both sides of it, by the method of stating it, was misleading. The auditor undertook, to some extent, to reform it, as to the item of $62,586.06, by deducting-this sum from‘a credit of $75,000, counsel fees and commissions in the first account, on the theory that, as the money to pay that item was not in the hands of the assignee at the date of the credit, it could not have been adjudicated, because not in fact paid. He, therefore, surcharges the accountant with the $62,586.06 by adding that sum to the balance brought over from the first account, making the whole $3,843,341.99, instead! of $3,780,755.93. In thus treating this item,- and leaving it for future adjudication, he was" right. The assignee had taken up a note in the sum of $2,584.50, of the Reading Iron Works, indorsed by the -assignors ; the drawer-became -insolvent; this was also surcharged, and the item remains to be passed upon at another hearing. The auditor, for reasons stated by him, disallowed the credit of- $2,313,218.89, the appraised value of the property conveyed to the Powelton Iron Company^ and surcharged the assignee with this amount, to be finally adjudicated, however, on settlement of final account. , As to the sale of lease of Sterling No. 1, the auditor recommended that the contention as -to that item stand over for adjudication in a subsequent accounting. He further surcharged accountant with interest on balance of funds on hand from, date of assignment, to the amount of $600, for the reason that, the money was mingled with the funds of the assignee^, bank,, and loaned indiscriminately to customers.- On a restatement of the account, and adding surcharges, the balance against ae countant was $3,920,029.92. No distribution was made to creditors, for the reason that sufficient notice of audit had not been given, and therefore many claims may not have been proven and presented ; and further, because of some doubt as to his authority to distribute under the terms of his appointment. He therefore awarded the balance to accountant, to be thereafter accounted for. A rehearing on exceptions to this report was bad before the auditor before it was filed, but, except in some immaterial matters, he adhered to his adjudications, and filed his report, and exceptions were entered by both assignee and complaining creditors. One thing appears clear, that is, that so far as concerned all the real questions in contention between the assignee and the complaining creditors, they now were substantially before the court, with the evidence bearing on them. There w¿re also two reports of a competent auditor, of whose ability and integrity neither party had intimated a doubt. The litigation on the important matters tiled before the auditor, with so much labor and vexation to all concerned, and at such large expense to the estate and creditors, should have been stopped just at that point, by a final judgment of the court below on the exceptions to these reports. After tracking, step by step, the long course of litigation which followed, it seems to us but little further light was thrown on the important points in controversy, and the questions raised at the second audit continued, to the end, almost the only ones of merit in dispute. It is not, alone, the duty of courts to decide disputed points ; it is also their manifest duty to so control the course of procedure before them, that, consistent with fair hearing, as speedily as possible, there shall be an end of strife in final judgment. But, while the exceptions were pending before the auditor on the second account, on June 7, 1890, the Houtzdale Bank presented its petition for the femoval of the assignee, and this was followed on January 10, 1891, by a like petition by the Harrisburg Bank and other creditors. The petitions preferred fifteen distinct charges of mismanagement and dishonesty against the assignee; all were answered by a distinct denial of record. On July 8, 1890, just a month after the first petition for removal of assignee was preferred, the second report of the auditor was presented, to which exceptions were filed by both accountant and creditors. These exceptions raised distinctly the questions of negligence and mismanagement. Uuless the estate was in peril from the insolvency of the trustee, which was not even intimated, it is very clear, action on the petitions should have been suspended, to await the event of the judgment on the exceptions to the auditor’s report; but judicial action on the reports was suspended, and the new line of litigation, having for its object the removal of the assignee, was taken up and pursued for nearly two years, with an acrimony seldom exhibited in the records of courts. Thomas J. Worrell, Esq., was appointed examiner, and it was directed that all the testimony, theretofore taken by the auditor, be laid before him. After-wards, the same gentleman was appointed master. In the opening language of his report, he says: “ By the examiner’s report, it appears that the entire record of the Bowel assigned estate in this court, and the proofs taken at the several audits, shall be treated as before him, in order to help him in finding the facts, and in forming his opinion upon the case. So that every paper filed in the cause is now practically before the master for his determination, and accordingly he proceeds to pass upon them as directed.” The faster, then, in a most elaborate report, proceeds to state his findings of fact on the issues raised by the petitions and answers for removal. In the course of the report, he undertakes to review, pass upon, and condemn some of the findings of fact and conclusions of law by the auditor on the' first and second accounts. He points out, where, in his judgment, the auditor committed grave errors in both his facts and law. During the course of the proceedings before him, the auditor had prepared what is termed an “interlocutory report” for the court; it was intended by the suggestion in this paper, to move the, court to direct a form of notice to be given creditors, as to the audit. As counsel immediately agreed upon the form of notice, this report was not presented, but is here upon the record as one of the exhibits of the cause. While vindicating the integrity, it.reflects somewhat severely on the business management of the assignee. The master regrets this paper was not withdrawn and destroyed at the time counsel agreed upon the form of notice, as it only tended to encourage litigation. He says of this paper: “ It was unfortunately violent in its insinuations, and, as it was soon shown, unwarranted by the facts of the case, the improvident statements of which had been derived somewhat from sources beyond the regular course of the audit. . . . The proposed interlocutory report was due to a misconception of matters of fact, and to mistaken conclusions upon matters of suspicion.” The. master further characterizes the litigation as experimental; speaks in a tone of disapproval of the complaining creditor for calling the respondent and its agents as witnesses, and interrogating them with a view of discrediting their answers to the petitions. After narrating the course of management, he announces this conclusion: “ The master has,, without difficulty, reached the conclusion that the assignee has done nothing to bring it within the provisions of the act of June II, 1836, whereby neglect or mismanagement of a trust estate are declared to be grounds for dismissal. It has not been seriously contended at the argument, that any offence greater than neglect and mismanagement could be charged. The proof is overwhelming, that an extraordinary degree of care, and conscientious and remarkable skill in management are to be ascribed to the assignee.” He then recommends that the petitions be dismissed at the costs of the petitioners. The decree suggested by the master was adopted by the court. The material exceptions by‘the assignee to the report of the auditor on the second account, were sustained, and the report set aside, and the second account confirmed absolutely. From the different formal orders of the court -below, the Houtzdale Bank takes no less than twelve appeals. All the questions raised by them are embraced in, and can be considered in disposing of the decree overruling exceptions to auditor’s report, and confirming absolutely the first and secbnd accounts, which is appeal No. 12; and from the decree overruling exceptions to the report of the master, and dismissing the petitions for the removal of the assignee, which is appeal No. 11. The petitions for removal were presented-under the 11th section of the act of June 14, 1836, which enacts that: “ Whenever it shall be made to appear in a court of common pleas having jurisdiction. . . . that such assignee or trustee is wasting, neglecting or mismanaging the trust estate. ... it shall be lawful for such court to issue a citation to such assignee or trustee to appear before the court, at a time to be therein named, to show cause why he should not be dismissed from his trust. On the return of such citation, the court may require such security, or such other and further security, from such assignee or trustee as they may think reasonable, or may proceed at once to dismiss such assignee or trustee from the trust.” Under this act, the petitions of these appellants for the discharge of the assignee were presented. This was after two accounts had been filed by the assignee. Then followed, on January 10,1891, petitions by other creditors for the discharge. As before noticed, in the meantime, the two accounts by the assignee, to which exceptions were filed, had been referred to E. Spencer Miller, Esq., as auditor, for adjudication; he had made two reports; in the last one, had surcharged the assignee with $2,313,218.89, and exceptions were filed to 'this report, which were pending, when, on January 24, 1891, Thomas J-. Worrell, Esq., was appointed an examiner to take testimony. By an order of the court, made the same day, all the testimony and exhibits produced before the auditor, were directed to be treated as evidence before the examiner. Then, afterwards, the examiner is appointed master, and, as such, passes on all the evidence, and reviews the findings- of the auditor. The creditors had averred, against the assignee, illegal payments of the trust money to itself; concealment of the true value of the assets; favoritism towards the assignors in employing them at large salaries; excessive charges for commissions and counsel fees; reckless sales'at grossly inadequate prices, of portions of the assets, and other charges. Whether the evidence sustained all, or any one of these averments, was solely for the court to determine from an impartial consideration of it. We are very decided in our opinion, that, under the act, the duty of consideration of the testimony, and the formation of opinion upon it, cannot be delegated by the court to any appointee. It is,' doubtless, within the povyer of the court, and properly so, to appoint an examinerv to reduce to writing the evidence offered in support of the petition, that it may be presented in an orderly form- for the consideration of‘the judge who passes upon it; but the right to act through another, by appointment, extends no further. The petitioning creditor', -then, has the right, to the best judgment- of the court on his proofs, uninfluenced by the opinion of any other person on the same proofs. Here, the gentleman appointed master passes on the evidence touching every averment; discusses its relevancy and significance, and in no doubtful terms gives his opinion as to the truth or falsity of the charges. He may have been a very capable officer, and in every respect fitted to exercise the judicial function attempted to be conferred upon him, but his opinion is not what these appellants had the right, under the law, to ask on their complaint. It is the opinion of an officer wholly unknown to the law, which has prompted and framed the judgment. Nor does the fact that the evidence on which the opinion of the-master was based, was afterwards submitted to the scrutiny of the court, help the matter. This evidence went before the court, accompanied by inferences, argument and a judgment as to the fact, by one who stood as a disinterested officer. Necessarily, from the very composition of the hüman mind, the tendency is, to give weight to the opinion which comes before us as the result of an impartial and disinterested deliberation. The petitioners’ case was prejudged before it reached the court, which alone, under the statute, had the duty of determining whether the complaint was well founded. It was error to ask the opinion of a master on a matter which was solely for the opinion of the court on the facts; to invite another to suggest a judicial.decree, which the law, in effect, declared must originate in the mind of the court. As the master had no authority to tell the court what to do in reference to the discharge of the assignee, much less had he power to review the findings and conclusions of the auditor, then pending for consideration in court. Therefore, we eliminate and put to one side his opinions and take the facts bearing on the issue raised by the petition and answers. As to the auditor’s report, and exceptions thereto, thejr must stand on the facts developed at the audit, and be adjudicated accordingly. The prominent fact, and the one which, without doubt, suggested and to a great extent stimulated this litigation, is the gross disparity between the assets when converted and their appraised value. The appraisement of the property passing into the hands of the assignee was greatly in excess of any probable realization. The amount of the inventory was $4,311,579.15; the actual indebtedness approached $1,700,0Q0, made up of liens, by mortgage, judgment and mechanics’ liens, about $700,000, and unsecured debts of nearly $1,000,000. As indicating how unreliable was this appraisement, as a basis of value for payment of debts, we note the Sterling No. 1 : Appraised value, . . . $496,495 23 Selling price, . . . $50,000 00 Ramey lease, appraised value, 268,998 05 Surrendered to discharge a debt of 16,000 00 $66,000 00 $765,493 28 These two properties had been disposed of before the second account was filed,, and not two years after the assignment, for less than 9 per cent of their appraised value, a loss of about 91 per cent. The blast furnaces and all the coal and ore lands appurtenant, with improvements, were valued by the appraisers at $2,313,218.19 ; they were transferred to the Powelton Iron Company for $900,000, a little over 40 per cent of the appraised value, a loss of about 60 per cent. Yet the evidence shows Sterling No. 1 was sold for the best price that could be got for it, and that the surrender of the Ramey lease, under the circumstances, was wise; the- assignee could not operate, indefinitely, a coal mine; the minimum royalty tobe paid was fast piling up a debt. The mismanagement was not in a reckless conversion of the assets at wholly inadequate prices; it was in a reckless appraisement of them, by appointees of the court, at prices which no assignee, under a lawful management of the property, could obtain for them. The appraisers were reputable gentlemen ; one was an iron manufacturer, having experience and knowledge of iron properties ; two of them were practical coal operators, and besides, for years before the assignment, one of them had special knowledge of the assigned coal lands. The competency of the appraisers, from everything that could be known of them when appointed, was beyond question. But, now notice from the testimony of Mr. McHugh, a coal operator for forty years, on what a radically wrong basis they proceeded to make their valuation of assets, which clamorous creditors were demanding should be turned into money and appropriated in payment of more than one and a half million dollars of debt. He testi fies : “We met at Saxton, and organized there, and conferred together as to the basis upon-which this appraisement should be made, and we concluded that it should be made upon a practical basis ; that is, upon the basis that the business should be conducted uninterruptedly, and under skillful management, and all to be fiiade out of it that such management could produce. . . . That was the method w¿ settled on to make those appraisements.” Further on he says, in substance, that he did not think the properties would have brought anything like the appraisement at a sale, but the valuation made was on the assumption that the creditors would take and operate the properties until their debts were paid. Mr. Coit, in his testimony as to the iron property, after speaking of the special advantages of the plant, says : “We valued it as an active plant in operation ; not as a dull, dried up, dead thing, but as a thing that was going, that was capable at that time of making money.” A man of ordinary observation, it seems to us, would have no difficulty in discerning the cause of the great disparity between the amount realized by a sale, soon after the appraisement, and this sort of “ practical ” value thus put upon the property by the appraisers. Take the Sterling mine; the lease stipulated that ten cents per ton royalty was to be paid to Long, the owner, for each ton of coal mined; the coal seam being about five feet in height, yielding about 5,000 tons to the acre ; the appraisers estimated a reasonable profit on each ton to the operator of ten cents; this made a profit of $500 per acre when the coal was mined; the coal yet in the tract, was, therefore, valued at $500 per acre. It does not seem to have occurred to the appraisers that any one purchasing on that valuation, after years of business management and risk, would only get back what he had paid ; and unless he made in profit the interest on his investment, would be a heavy loser. The fact is, the value of the coal in place,'ten cents per ton, was to be paid to Long, the owner, as it was mined; to mine it was a business venture running through future years, and depending for its success oh many contingencies. It might or might not yield a profit. To enter upon this venture, required an investment of capital in rails, tipples, engines, mules, and other mine equipment at that particular point, a large part of which would be practically valueless, when the coal was mined. The value of this equipment, at that mine, for the purpose of mining out what remained in that coal tract, was the reasonable value of Sterling No. 1. It brought, at a sale entirely fair and open, §50,000; and, so far as the evidence shows, that was about all it was worth. The value of the iron property was.ascertained by the same unreliable estimate; that is, what net profit by skillful management might be made ? The principal sum on which that profit was a fair percentage was adopted as the appraised value. As an illustration, presumably, a blast' furnace, with the capacity of those transferred to the Powelton Iron Company, with all the ore, coal and limestone, in proximity to and part of the furnace propertj'', ought to make 500 tons of pig metal per .week, Avhich ought to yield a profit of §2.00 per ton, or §1,000 profit per week, or §50,000 per year, and with two furnaces, §100,000 per year, or 5 per' cent on §2,000,000; therefore, the value of the plant, with some additional advantages, was over §2,000,000. Where the purchaser, who put in his §2,000,000, was to get his profit, Ave cannot conjecture. Clearly, havin g paid §2,000,000, if the money was worth 5 per cent, he would just keep whole. Yet the appraisers seem to have assumed that sane men would invest §2,000,000 in an iron manufacturing enterprise, take all the risks incident to that business in the hope of making 5 per cent profit, when the money was worth that much in .other investments, where other men took all the risks. As was to be expected, there rvas no rush.of purchasers, nor any purchaser at that figure. If Robert Hare Powel, with his exceptional business energy and activity, had survived for many years, and no unlooked for business disaster had overtaken him, having already a large amount of money invested, it is possible he might have added to his estate a sum approximating the values put upon these properties by the appraisers. But, .taking the circumstances as they existed when the appraisement was made, they were wholly unwarranted. The assignors were sanguine young men, with but little experience; they took a most hopeful view of the condition of affairs. What to other men, of more experience, seemed a barely possible value, under the most propitious circumstances, to the assignors was a value certain under the then existing circumstances. And they seem to have impressed their views on the appraisers and creditors, and possibly, to some extent at first, on the assignee. This is the utmost proven by the evidence, as to a fraudulent overvaluation. There is nothing to show the assignee was intentionally a party to this valuation, or even knew how erroneous it was, until months after it was filed. Many of the creditors, among them this appellant, were -familiar with some of these properties, if not all of them, and knew the values put on them were purely fanciful, yet filed no exceptions. As the assignees were guilty of no mismanagement in accepting what they were actually worth, in this particular the averments in the petitions are not sustained. Nor do we find anything in the evidence, in the other averments, which would warrant the court in removing the assignee from the trust. Irregularities, which we will notice in considering the exceptions to the auditor’s report, there were, but nothing which calls for anything more than surcharge, if not made clear on settlement of the final account. That part of the decree imposing the costs upon the petitioners, is not justified by the facts. The findings of the auditor in his second report, and in the interlocutory report, were sufficient grounds on which to base the petitions. And although, on a consideration of the whole evidence, the weight of it is in favor of the respondent, the litigation cannot be properly termed causeless. As to the complaint of the conduct of the master, in receiving part of his fee from the assignee before his report-was filed, there is no evidence that this was other than an indiscretion. That an auditor or master should wait until the end of a prolonged litigation like this, before receiving any part of his compensation, is unreasonable; that he should receive any part of it from one of the parties without the knowledge of the other, or of the court, is, to use the mildest term, unseemly. If he has devoted his time for months to his duty, and the end is not in sight, as here, he has a right to ask a direction of the court for immediate payment of a proportionate part, and then such order can be made as to the court seems proper. But if this, clearly the better way, be not followed, then the payment should be made with knowledge of and by consent of counsel for parties interested. The course pursued here by the master was exactly that sort of indiscretion which invited upon him the grave imputation put on record in the exception of the appellant. A. master ought to be honest,.as we believe the master here was; but he ought, also, to appear to be honest. Therefore, we find as a fact, the material averments of the petitions are not sustained, but that they were not groundless. The decree dismissing them is sustained; so "much of it as imposes the costs upon the petitioners is reversed, and it is directed the costs be paid out of the assigned estate. As to the examiner and' master’s fee, $5,000, we think the charge excessive. A very large part of the testimony had been taken before the auditor, and typewritten ; this had to be read and considered; the time consumed in taking additional testimony, and in making up the report, warrants no such charge as this. One half this sum, or $2,500, we determine to be a reasonable compensation, ¿ind that is the sunr.dirécted to be allowed him. This brings us to a consideration of the appeals from the decree overruling the exceptions to the second report of the auditor. The principal subject of contention, as to the auditor’s second! report, is his surcharge of the assignee with the appraised value-of the iron property, $2,313,318.89, conveyed by the assigneeto the Powelton Iron Company. This company was a corporation formed by the creditors for the express purpose of takipg a conveyance of this portion of the assets. The creditors were-the subscribers for the stoek; by the operation'of the plant, they expected to make the stock valuable, and thus realize a part of their debts against the assigned estate. The consideration was $900,000, subject to mortgages and liens ; and, in addition, the assignee paid to the company $100,000 in cash,, which was intended to be a working capital. , The Powelton Iron Company gave to the assignee a receipt and discharge of all further liability in respect of the matter. The operation turned out disastrously for the creditors. This, itself, can give the creditors no ground of complaint against the assignee. Before buying the property, they met together, discussed its value, and capabilities; weighed all the advantages and disadvantages of the proposed corporation; then signed the creditor’s agreement to take a conveyance of it; accepted the $100,000 in cash from the assignee, and launched their enterprise. In a few months,'under théir management, the scheme utterly failed. Why should these creditors, or any of them, seek to surcharge the assignee rvith more than twice the agreed value of a.property, which their own management had demonstrated they had paid too much for? They Avere not children or lunatics, for Avhom the law provides guardians as protectors against improvident bargains ; they Avere grown men, of large business experience; they had ample opportunity of knowledge concerning the sub- ■ ject of the contract; most of them linew as much, some of them more, about the property, than the assignee did. Unless there be some evidence of fraud or overreaching upon part of the assignee, or there be some settled rule of law, in the administration of such a trust as this one, violated, a court of equity will be slow to visit such a penalty on a trustee. The auditor finds: 1. That, by the third paragraph of the creditors’ agreement, it Avas not to go into effect until all the creditors had signed it. 2. That all had not signed it. 8. That, the confirmation of the first account Avas not an adjudication of this question. 4. That appellants had doné nothing which estopped them from raising any legal objection at the audit of the second account. As facts, we fiud, from' the decided Aveight of the evidence, that all the known creditors, except'those of $850 or less, \Vbo Avere' to be paid in cash, did sign the agveement, except the First National Bank of Huntingdon. And, as to this creditor, Ave find its claim Avas represented by a third party who professed to own it; that this Avas known to the bank, and that it purposely refrained from making its ownership known, that it might afterwards assert its debt independent of the other creditors, and thus compel payment. ■ It thus kept silent when it ought to have spoken, and therefore will not be heard now. It further appears that the Houtzdale Bank was represented by counsel at the first audit, who knew of the report of- the auditor and its filing; -that this report, after exceptions Avere filed, was confirmed absolutely, and thus, by a final decree of the -court, this credit Avas allowed; that Mr. Brisbin, one of the^ partners acting for the bank, took part in the meetings of the creditors leading up to the transfer of the property, and kneAV of the payment of the $100,000 by the assignee to the company. As we have already noticed, in the first account, this transfer was distinctly identified by accountant; in the first auditor’s report, it was. the subject of consideration and adjudication. The auditor was asked in the interest of all concerned, to make specific findings as to this property, and says: “ It has been brought to the attention of the auditor, that the transfer to the Powelton Iron Company by the assignees of the property agreed upon as aforesaid, has been effected several months prior to the filing of this report. The payment of §100,000 to the company appears on the assignee’s account filed. The auditor finds that these transfers are absolute, save as limited by the terms of the creditors’ agreement referred to. In the ownership of the company, these assets will continue free from the trust of the assignment, from all claims of creditors, save under the agreement reported herewith, and subject only to the mortgage held by the secured creditors, and such other liens of récord as may exist, and to the stipulations of said assignment. Should any other creditors hereafter make themselves known, they must have recourse to a later fund in the hands of the assignee, or to the assignors. There is need that these facts be expressly found by the auditor, because the directors of the Powelton Iron Company should know to whom they are accountable for their administration of the corporate property.” Certainly, a question thus passed upon by the auditor, and then settled by a final decree of confirmation by the court, with all' the attending circumstances of notice and heaping to appellants, ought not-to be disturbed without imperative reasons. As to some of the creditors acting in a fiduciary capacity, having no authority to join in such an agreement, the appellant is not in a position to raise that question. The trustee and his cestui que trusts will be heard at the proper time, when it is raised between them. Those directly interested are not now before us. But, whatever might have been appellant’s right at an earlier stage, it is too late to challenge the validity of this transfer after his apparent acquiescence in the first report. The material facts were then known to him, or might, with reasonable diligence, have been known. As is said in Randolph v. Quidnick Co., 135 U. S. 457, in a case involving a somewhat-similar arrangement by the creditors of the insolvent Sprague estate : “ We do not feel called upon to decide, as a question of absolute law, whether the conveyance was or was not valid beyond challenge. It is enough, for the purposes of this ease, that it was with the general acquiescence of the creditors, and that its purpose was equality between them. ... If they were not satisfied with the legality and equity of the proceedings, they should have antagonized them sooner. Equity loves equality; and if they did not believe that these proceedings were legal and equitable, they should promptly have invoked ■the aid o£ a bankrupt court, or made their assertion of legal right. They might not equitably wait the outcome of tlie proceedings, expecting to approve if they worked out full payment of all creditors, and ready to attack if the scheme proved a failure.” To the same effect are Guiterman v. Landis, 1 W. N. 622; Boyd v. Smith, 128 Pa. 205. The appellant’s 8d, 5th, 6th, 7th and 9th assignments of error all relate to and depend upon the validity of the transfer of the furnace plant to the Powelton Iron- Company, and are therefore overruled. As to the 8th assignment, that is overruled to this extent : It appears that coal seam B, an underlying, undeveloped seam of Sterling No. 1, did not pass to the purchaser of the lease and equipment of the upper seam, but that it remains an unconverted asset. Let the assignee-account for this in a future account. It is not discharged from accountability by the fact ■ that the whole property is one item in the inventory. The sale severs that item. A part is now sold and accounted-for ; a part remains unsold, and to be accounted for. The Ramey lease was properly disposed of and accounted for, and therefore the 12th assignment is overruled. As to the 13th, the decided weight of the evidence shows that Mr. Crawford was of counsel for appellant at the first audit, with his, appellant’s knowledge and consent, and as counsel had due notice of the filing of the report. What we have said, generally, as to the effect of the decrees of confirmation, necessarily disposes of the 4th, 10th, 11th and 14th assignments of error; they are overruled. This leaves the parties in this attitude: The assignee, in its second account, claimed a credit for $62,586.06, because, in its first account, credit to that amount for commissions and counsel fees, in excess of cash on hand, had been taken. By this very act, the accountant, in effect, admitted there had not been a final adjudication of it; that the payment had not been in fact executed as represented in the first account. The auditor concludes that, to the amount of $62,586.06, this credit “ must be regarded as unadjudged.” We concur with him in this conclusion, and sustain the 1st and 2d assignments of error. The decree of the court sustaining exceptions of assignee to second report of the auditor in this particular is reversed'. And this is the only question remaining open to further litigation, as to items embraced in the two accounts filed; and as this claim of credit is not yet res adjudicata, it is the duty of the court below to appoint an auditor to pass upon the legality and reasonableness of the charges of the assignee for counsel fees and commissions, and to distribute any balance in hands of assignee. This reasonableness is to be determined from proper proof adduced before him. That ought not to be fixed on the large appraised value of the assigned estate, without regard to its real value. True, the extent of responsibility is an element in arriving at what is a reasonable charge. But there are to-day millions of stocks and bonds not worth five cents on the dollar; an assignment of such assets involves very little responsibility on part of the trustee, and it would be unjust to creditors to measure compensation by the nominal value. Nor is the assignee entitled to double compensation in any case; if duties usually performed by an assignee personally, have been delegated to lawyers and agents, and compensation has been allowed-for th'eir services, it cannot again charge for such service, as if rendered by itself. It is the duty .of the courts, in every trust account, to rigidly scrutinize all charges for compensation, and to prevent the depletion of trust funds from excessive charges by either trustees or counsel. All creditors’ claims-on the fund, in a sense, are antagonistic to the trustee. It is his dutjr to see that they are properly proven and to resist payment of all unfounded demands. He should not be represented by counsel who have adverse claims. As to the complaints, put of record here, against the learned judge of the court below, we can discover nothing to warrant them, in the evidence before us. The character of -the ditiga tion and' the-temper of counsel may exhaust even tbe patience of a judge, as they possibly did here. The court had other cases to try, and other suitors anxious for a hearing; this probably did not occur to counsel for appellant, and therefore he attributes the adverse judgment to a neglect to fully hear, rather-than to a weakness of his cause in the several important particulars we have noticed. The record is remitted to the court below, to be proceeded in to final decree in accordance with this opinion; the record costs of these appeals to be paid out of the fund. SOUTHWESTERN' NATIONAL BANK’S APPEAL. Opinion by Mr. Justice Dean, Oct. 1, 1894: All the questions raised by this appeal, have been passed upon in the Appeal of the Houtzdale Bank from the same decrees, opinion filed this day. The record is therefore remitted to the court below to be proceeded in to final decree in accordance with that opinion, the record costs of this appeal to be paid out of fund in hands of assignee.

Opinion by Mr. Justice Dean, On October the 8th, 1877, James Hutchinson and his wife Nancy-joined in a mortgage to William J. Craig. The land mortgaged was the separate estate of the wife, and was to secure to Craig the payment of $150 on April 1, 1878. The mortgage did not specify the nature of the debt it was given to 'secure. The plaintiff, on the 19th of October, 1886, issued sci. fa. on the mortgage. The affidavit of cause of action admitted'a payment of $70.00. Defendant filed affidavit and plea of payment. It appeared from the evidence that James Hutchinson, the husband, in October, 1877, leased from Craig a hotel, and was to pay therefor, for the first six months, a monthly rental of $20.00 ; thereafter, there was to be an increase of $5.00, making $25.00 per month. Hutchinson occupied the premises .about two years and three months. Before taking possession, the mortgage was delivered to Craig, who claimed at the trial it was given as a general and continuing security for any rent that might be due him from Hutchinson during his occupancy. Hutchinson averred it was given to secure the first six months’ rent, amounting to $120, and $80.00 in money which Craig had loaned him. It was conceded, the wife was a mere surety, and pledged her separate estate to secure the husband’s debt. She died before the termination of the lease, and her husband took out letters of administration on her estate. There was a dispute as to whether Hutchinson had paid Craig all the rent for the term, but there was none that he had paid him considerably more than $150; so it became a very material fact as to whether the mortgage was given to secure the first six months’ rent and a loan of $30.00, or rent generally; for, if only for the first, the defendant was entitled to a verdict; but if for the second, then the case turned on whether Craig had been paid his rent for the whole term. John Hünter, Esq., was called by defendant, who testified he had prepared the mortgage at the request of the Hutchinsons and that' both they and Craig informed him it was to secure the first six months’ rent and $30.00 in cash. Hutchinson was called by plaintiff, as if on cross-examination, and testified the mortgage was given for the first six months’ rent and $30.00 cash. A number of receipts of Craig were read in evidence two of them within the first six months, one for 140.00 and the other for $30.00, specified thejr were-on account of the mortgage; the others were for rent without mentioning the mortgage. Here was the positive testimony of two witnesses, one of them disinterested, that the mortgage was given for the first six months’ rent and a loan of $30.00. Then- the evidence of the first two receipts in Craig’s handwriting, that the payments were on account of the mortgage, which tended -to rebut the averment that it was to be a continuing security; for if they were to be credited on the mortgage, then as soon as $150 was paid Craig, the mortgage, was satisfied ; would not be continuing.- A careful reading of all the evidence before us shows nothing to weaken the credibility of these two witnesses in this particular, while Craig’s written admissions in the twp receipts tends to corroborate them. These facts, then, are either admitted or established by uncontradicted evidence : 1. The mortgage was'given by the wife .on her separate estate, to secure the payment of $120 rent by her husband, and a loan of $30.00. 2. Much more than that amount has been paid by the husband to the mortgagee. The rent to be secured was the first six months’ rent and $30.00, and not rent falling due thereafter. It follows that defendant was entitled to peremptory instructions for a verdict in his favor. Yet the court charged the jury thus : “ From the nature of the evidence introduced bj- plaintiff, and the course of the examination of the witnesses, and the argument before you, you might conclude that the plaintiff’s attitude is that the mortgage was given for the rent generally, that it was given as collateral security for rent which might fall due from Hutchinson to Craig during the occupation of the hotel by Hutchinson, that is, that it was given to secure any rent that might become due. If that is proved to have been the understanding then the mortgage would not have been discharged unless it appeared that all the rent had been paid, and if the rent is not paid, you could find for the plaintiff the $80.00, with interest, or a less sum if a less sum is owing.” We cannot tell exactly what was the course of examination of witnesses, or what the argument of counsel, or what the attitude of plaintiff at the trial in the court below, but no one of these, nor all together, can. take the place of competent evi dence; on this alone can the jury found a verdict which warrants a judgment. It seems to us there was an absence of evidence here, and that the court permitted the jury to find a verdict on what could be little more than a guess. In this there was error. This disposition of the first assignment of error relieves us from a consideration of the second. The judgment is reversed.

Opinion by Mr. Justice Mitchell, If it were necessary to consider appellant’s right of subrogation to the hyne judgment, the question might well be rested on the opinion of the learned judge below, ivhich shows clearly the absence of any equity on which such subrogation could rest. But even conceding the right, the Lyne judgment was junior to the Bosler lien if that was still alive against F. W. Searight’s land. -The only question therefore is whether the Bosler judgment, having lost its lien against the land of G. P. Searight, the principal, still kept its hold on the estate of the suret3r, by virtue of the latter’s death while it was an undisputed lien. The question is settled by the cases of Winton v. Little, 94 Pa. 64; Kindt’s Appeal, 102 Pa. 441; and Campbell v. Sherman, 151 Pa. 70, unless the law has been changed by the act of June 1, 1887, P. L. 289. That act amends the act of March 26, 1827, P. L. 129, by adding a clause preventing the continuance of the lien of a judgment as against a terre tenant whose deed is recorded, unless he be named as terre tenant in the original scire facias. This appears to be the whole scope of the amendment, but in obedience to the constitutional requirement the act quotes the whole of section first of the act of 1827, and then re-enacts it in the same words, with the addition above mentioned. In so doing it necessarily re-enacts the words “and no judgment shall continue a lien . . . . for a longer period than five years .... unless revived,” etc., and the argument is strongly urged by appellant, first, that the act of February 24, 1834, continuing the lien of judgments against the lands of a decedent, being in pari materia, is repealed by the general negative words of the act of 1887, and, secondly, that it cannot be considered as excepted from such effect, and allowed to remain as an amendment to the act of 1827, because it is not “ reenacted and published at length ” as required by section 6 of article 3 of the constitution. The second proposition may be disposed of first. The act of 1887 does not undertake to amend the act of 1834, and therefore did not need to repeat its terms. The constitutional provision has reference to express amendments only. Its object, like that of section two of the same article, requiring each act to have its- subject clearly expressed in the title, was to secure, to the legislators themselves and others interested, direct notice, in immediate connection with proposed legislation, of its subject and purpose. The constitution does not make the obviously impracticable requirement that every act shall recite all other acts that its operation may incidentally affect, either by way of' repeal, modification, extension or supply. The harmony or repugnance of acts not passed with reference to the same’ subject can only be effectually developed by the clash of conflicting interests in litigation, and the settlement of such questions belongs to the judicial not the legislative department. No constitutional provision is involved in the present case. The words of the act of 1887, “ no judgment shall continue a lien,” etc., are general and negative, and prima facie therefore repeal everything in conflict with them. But they are not to be extended to subjects not within the legislative intent. They are part of the act 'of 1827, and are re-enacted without change, pro forma, in order to add the subsequent provision about terre tenants. The act of 1827 in its turn adopted them from the act of April 4, 1798, 3 Sm. L. 331, under which they had been given their broadest effect by this court in Fryhoffer v. Busby, 17 S. & B. 121; Bank v. Crevor, 2 Rawle, 224, and other cases. The same construction was apparently given to the act of 1827, though the absence of reference to it, even in cases which arose after its passage, and the continued recurrence to the act of 1798 are not a little remarkable. See Downey’s Appeal, 2 Watts, 297; Jack v. Jones, 5 Whart. 321, and Konigmaker v. Brown, 14 Pa. 269. In all of these cases it was held that, as against junior incumbrances, the lien of judgments expired in five years although the judgment debtor had died within that period. The act of Feb. 24, 1834, sect. 25, P. L. 77, changed the law in such cases by declaring that the lien should continue to bind the estate for five years without revival, and during -that term the judgments should rank according to their priority at the time of death. This act established a broad line of distinction between judgments against living defendants, the liens of which were limited to five years absolutely, and judgments against defendants who had subsequently died, the liens of which were ex tended five years from the date of death. The. act of 1827 was a supplement to the act of 1798, and both dealt directly, with the subject of judgments only. The act of 1834 was entitled “an act relating to executors and administrators,” and not only its title, but its seventy carefully drawn sections show that it was intended to deal directly only with that subject, and touched the subject of judgments' only incidentally in connection with the estates of decedents. The legislature therefore in .1887 had before it a clear distinction between classes of judgments, existing for more than half a century under separate statutes, and when under such circumstances it took up one of those statutes for amendment, we must assume that it legislated with that established distinction in view, until it shows a clear in-' tention to disregard or abolish it. Notwithstanding therefore the generality and the negative character of the language of the act of 1887 we are of opinion it has not affected the act of 1834. Decree affirmed.

Opinion by Mb. Justice Dean, The plaintiff is sheriff of Allegheny county. He was elected at the general election in 1890, and entered upon the duties of his office the first Monday of January; 1891. Actingonthe assumption that his office was a salaried one under the act of June 13, 1883, a supplement to the general act of 1876, and that he was not entitled to any of the fees taxed by the fee bill for the sheriff, he kept an itemized monthly, account of all fees •earned and received by him, and promptly paid those received each month into the county treasury, and on the second Monday of each month demanded from defendant his monthly salary for the previous month. For' the first seven months he -earned and paid into the county treasury, fees, $20,763.33. After deducting pay of sheriff’s deputies and clerks, there still remained a net balance to the county’s favor, for the seven months, of $8,550.02: The act before noticed purports to be an act fixing salaries of all county officers in counties containing over 500,000 inhabitants, and directs that the sheriffs of such counties shall be paid an annual salary of $15,000. Under the decennial census of 1890, Allegheny county had a population of' 551,959. The sheriff claimed that, under this act, the county should pay to him one twelfth of $15,000 each month. While admitting the office was a salaried one, the county denied that the amount of the salary was fixed for Allegheny county by the act of 1883, but alleged it was determined by the special act of March 6, 1872, passed for Allegheny county before the adoption of the new constitution. By this act the salary of the sheriff was $6,000 and mileage. While the court below evidently was of opinion that, the sheriff’s salary was $15,000 as fixed by the later act, yet, believing that' the law, as decided by this court in Bell v. The -County of Allegheny, 149 Pa. 381, ruled the ease against plaintiff, entered judgment on demurrer for .defendant. As a consequence, we have this appeal by plaintiff. The record does not show what would have been the annual compensation of the sheriff at a salary of $6,000 and mileage ; it may be safely assumed the whole would not have amounted to $15,000, otherwise he would have had no motive in making claim under the act of 1883. The stand taken by the county, in effect, avers the source of his compensation is a mixture of the two systems, salary and fees. One of the grievances of the' people, before the adoption of the constitution of 1874, was the large compensation of county ■officers in counties having a large population; this (see debates of constitutional convention, pages 304 and 332, vol. 8), was especially prominent in Philadelphia and-Allegheny coun ties, where it was alleged the receipts from fees were oiit of all proportion to the services rendered or responsibilities entailed; so, it was declared in section 5 of article XIV that, “ In counties containing over one hundred andfifty'thousand inhabitants, all county officers shall be paid by salary, and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” This section was a mandate to the legislature to provide by law a salary for all county officers in counties whose population made them subject to the constitutional provision : Perot’s Appeal, 86 Pa. 335. Therefore the legislature passed the act of March 31, 1876, entitled “ An act to carry into effect section 5," article xiv of the constitution, relative to the salaries of county officers, and the payment of fees received by them, into the state or county treasury, .in counties containing over one hundred and fifty thousand inhabitants.” The first section of the act enacts : “ That, in all counties in this commonwealth containing over one hundred and fifty thousand inhabitants, all fees limited and appointed by law to be received by each and every county officer therein elected, by the qualified voters of their respective counties, or appointed according to law, or which they shall legally be authorized, required or entitled' to charge or receive, shall belong to the county in and for which they are severally elected'or appointed ... . and none of said officers shall receive for his own use or for any use or purpose whatever, except for the use o*f the proper county .... any fees for any official service whatsoever.” The 2d, 3d and 4th sections of the act then specify, in elaborate detail, how the accounts of the fees shall be kept and verified. The 5th section declares that: “ All county officers within the counties to which this act applies .... and their several deputies and clerks, shall be paid for their services by fixed and specific salaries, which shall be a charge upon the treasury of the county to which each shall respectively belong, to the extent of the fees collected and paid.in by each officer respectively, or earned, where' fees are chargeable upon the county treasury.” The 6th, 7th, 8th, 9th, 10th and 11th sections relate to the adjustment of the salaries of the officers and clerks, where the-fees do not reach the amount of salaries, and provide that the county commissioners and controllers shall constitute a board for supervision and adjustment, and further provide for an appeal from their decision to the court of common pleas. The 12th section fixes the annual salary of the sheriff in counties containing over 800,000 inhabitants at $15,000. In those under 300,000 and over 250,000, at $6,500. In those under 250,000 and over 150,000, the same amount was fixed for the sheriff, but the salary was put at a lower figure than in the second classification, for some other of the county officers. Section 15 enacted that the salary so fixed should be in lieu of all fees and mileage now received. Sections 16, 17 and 18 provide that certain officers shall be paid quarterly, who shall be deemed county officers, and also when the act shall take effect. The plain command of the constitution in section 5, article xxv, to the legislature, was to fix by law salaries for county officers in counties containing over 150,000 inhabitants. That in obedience to this command the act of 1876 was passed, we think no lawyer now doubts, or ever has doubted. . After the census of 1880, on 11th of May, 1881, there was a supplement to the act of 1876 passed, which modifies the classification, so as to make a class between 300,000 population and 500,000. Then came the act of June 13,1883, entitled “ An act to fix the salaries to be paid county officers in counties containing over five hundred thousand inhabitants, being a supplement to an act approved 31st March, 1876, entitled ‘ An act to carry into effect section 5, article XIV, of the constitution, relative to salaries of county officers .... in counties containing over one hundred and fifty thousand inhabitants.’ ” The act contains but two sections; Section 1“ Be it enacted: that in counties containing over five hundred thousand inhabitants, the annual salaries of county officers shall be as follows, namely : Of the sheriff, fifteen thousand dollars,” and further, along with the sheriff’s, a schedule of the salaries of all other county officers. Then section 2 particularizes all the salaries to be paid under the act of 1876, so far as relates to counties containing over 300,000 inhabitants, and expressly repeals so much of said act as embraces that class ; and further directs that the supplement shall only affect officers elected after its passage. By the census of 1890, Allegheny county had a population of 551,959, so that, as far as population is concerned, it came within the terms of this supplementary act, and within the terms of the unrepealed provisions of the original act of 1876. But it is argued, the act of 1876 does not apply to Allegheny county, because all the county officers of that county were Salaried under the provisions of the act of 6th March, 1872, relating to Allegheny county, and the former being a general affirmative statute, does not, without positive repugnancy, repeal the particular or local statute. That this is a settled .rule of construction cannot be questioned; and, although it is manifest the constitution of 1874 sought to enforce uniformity of compensation of county officers in counties of the same class, the end must be attained by laws which leave no doubt of their intent to repeal local laws not in conformity with the general law. The rule of construction on this subject has been stated in Johnston’s Estate, 38 Pa. 511, where it is held, following Harcourt v. Fox, 1 Shower’s R. 520, an affirmative statute introductive of a new law on the same subject does imply a negative of the former law, if they are repugnant. Or, as stated in Dillon on Municipal Corporations, section 54, for which he cites cases in our own and many other states: “ It is a principle of very extensive operation, that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities'; but they do so, when this appears to have been the purpose of the legislature. I£ both the general and the, special acts can stand, they will be construed accordingly. If one must give way, it will depend upon the supposed intention of the lawmaker, to be collected from the entire course of legislation, whether the charter is superseded by the general statute, or whether the special charter provisions apply to the municipality, in exclusion of the general enactments.” We do not understand that the law, as thus stated,’is dissented from by either of the parties to the present suit; the contention turns on the application of it to the issue here ; the plaintiff contending that the manifest intention of the legislature, from the course and language of the legislation on the compensation of the sheriff, was to repeal the provisions of the act of 1872, at least so far as related to this officer; the defendant denying that any such intention appears, and averring that all the acts can stand without defeating the legislative intent. If, under the act of 1872, the office of sheriff of Allegheny county was a purely salaried office, there would be no such inconsistency between it and the act of 1876, as would work a repeal of the former; for, the mere fact, that under the last, a higher compensation was awarded sheriffs, than under the first, would only indicate a legislative intent that other sheriffs ■should be paid more. But in ascertaining the legislative mind, we must take into consideration, first, the moving cause of the general law. The members -of the general assembly were bound to enact the necessary laws to carry into effect the eon■stitution of 1874. .That said in unmistakable terms, “You must regulate by law the compensation, of all county officers, ■and, in all counties having over 150,000 population, they shall be paid by salaries, and they must pay all fees into the state or ■county treasury.” Here was a positive command that in this ■class of counties these officers must be paid by salaries and not •by fees; it was not to compensate them by part salary and part fees, but wholly by salary. As shown by the debates, the very ■object of the provision was to relieve the public in large counties from obnoxious exactions and exorbitant and vexatious charges, ■•prompted by the self interest of the officer, when the fees went into his own pocket. And in the same spirit, as shown by the first words of the first section of the act of 1876, the legislature obeyed this mandate : “ All fees .... received by each and every county officer .... shall belong to the county.” It then fixes the salaries which they were to receive, and this was all they were to receive. Now take the act of 1871 to which that of 1872 is a supplement. The first section is almost word for word the first section of the act of 1876, but it is followed by this significant qualification : “ Provided that the sheriff and coroner shall be authorized to receive and- retain for their own use the mileage allowed by law, in all cases where mileage is chargeable.” Every lawyer familiar with the taxation of sheriff’s costs under a fee bill, knows what a large proportion' of his charges, -especially in a county of the area of Allegheny, was made up of mileage, and the abuses which inevitably grew up under this practice. The fee for serving a writ could be verified by an inspection of the fee bill; the number of miles the sheriff or his deputies traveled to serve it, was, in many cases, incapable of verification, and conscious wrong was often submitted to. Did the legislature intend, by the act of 1876, that in the second most populous county in the commonwealth, the most prominent county officer should retain a large part of his fees and a large part of his power of exaction, in the face of the constitutional command? Or did they intend to embrace him, and all sheriffs receiving fees in counties of like population, in the language, “ In all counties in this commonwealth containing over one hundred and fifty thousand inhabitants, all fees . . . received by each and every county officer .... shall belong to the county?” In this essential particular, the two acts are fatally repugnant ; by the first, his compensation is part salary and part fees; by the last, wholly salary, and all fees belong to the county. They cannot stand together. The general act being in complete harmony with the constitution, and clearly passed to carry it into effect, the local act, as respects the sheriff, must give-way to the general act. This is substantially the same construction, as was put upon this legislation by President Judge Ewing in Com. v. Grier, 152 Pa. 176, in a case involving the compensation of the district attorney for the county of Allegheny. In that case, by the act of 1871 and supplement of March 6, 1872, this officer was to receive an annual salary of $4,000, and in addition fifty percent of the fees and percentages allowed by law on all forfeited-recognizances. It was held, in an opinion approved by this court, that the district-attorney, under the act of 1876, was entitled to a salary of §5,000, and all fees were payable into the county treasury; on the ground that the acts of 1871 and 1872 were irreconcilably inconsistent with the act of 1876, and were clearly intended to be repealed by the last mentioned act. It is argued by appellee that this view of the law is not in accord with that of Bell v. The County of Allegheny, 149 Pa. 381. That case involved the compensation of the county treasurer, which was fixed by the local acts of May 1, 1861, and March 11,1870. As presented in the court below, and on ap-. peal in this court, the sole question was, whether the salary of this officer was fixed by the local act of 1870, or by tbe general law. Under either act, it was assumed, by counsel and by the- court below, that he would be paid a salary. Not whether he should be paid fees and' salary under a local act or wholly salary under a general act. The local acts referred to, provided only a smaller salary than the general act; there was no repugnancy between them which negatived either. Here there is irreconcilable hostility between the principles on which' the statutes are founded; one is passed to strike down the fee system with its abuses; the other clings to and nourishes it. In the Bell case, as argued* both statutes accomplished the same end, that sought for by the fundamental law, compensation wholly by salary; in the case before us, if affirmed, the worst feature in the fee system, sheriff’s mileage, will be retained. In the opinion of this court, delivered by Justice Heydrick in Bell v. Allegheny County, supra, it is assumed throughout, that the question was whether a local salary act was impliedly repealed by a general salary act passed since the adoption of the constitution. The paper-books give no intimation that the compensation of that officer was partly fees. In Com. v. Grier, supra, President Judge Ewing distinguishes that case from Bell v. Allegheny County, because, in Bell’s case, the salary of the county treasurer had been definitely fixed without any fees, at the date of the adoption of the new constitution. It is suggested now, by appellee’s counsel, that the county treasurer, under another local act, that of 1872, was entitled to receive one dollar fee for each printed bond' in license cases. Whether the preparation and printing of this bond was intended to be an item of expense to be thus charged for, or a fee for services, is not’ clear. But, however this may be, this court, and all others, hear and decide cases on the issues presented of record; the judgments in them are authority for what is passed on and decided. They are not precedents for issues not raised until two years after final judgment. Bellv. Allegheny-County is the law of that case and all others like unto it. It is not authority in the cases of other county officers, where the contention is on radically different facts. It is not clear to us from the computation of fees earned and received that, the whole of plaintiff’s claim is allowable, therefore the judgment of the court below sustaining the demurrer is reversed at costs of appellee, and the record is remitted that the cause may be proceeded in to final judgment.

Opinion by Mb. Justice Mitchell, It was bad practice and a hardship on defendant for plaintiff after bringing a second action and proceeding to trial and compulsory nonsuit, to go back to his first action by an-alias summons therein. The costs of the nonsuit not having been paid, the plea in abatement to the alias in the first action was a good plea of lis pendens, and the court might well have refused to take off the nonsuit, and abated the action on the alias. But that was á matter within its discretion, and the nonsuit having been taken off, and the suit discontinued, and costs paid, there was no error in overruling -the plea in abatement. The issue of a new original instead of an alias in the first action was not equivalent to a discontinuance of the latter, as appellant argues. It could have no other force than of a second action begun while the first was pending. The real hardship to defendant is in treating a compulsory nonsuit under the statute after plaintiff’s evidence is all in, as an ordinary non-suit and not as a demurrer to evidence, which it really is, and which ought to be a bar to another action. But the practice in this respect is firmly settled: Bournonville v. Goodall, 10 Pa. 133. • The question to the witness Keyser .had an apparent propriety as going to show his interest or bias in the case, and therefore his credibility. When it was sought to make the defendant responsible for the witness’s conduct the defendant’s objection was sustained. If, after this, any improper comment was made by counsel upon the testimony it was for the court below, not for us, to correct. The third assignment of error is really the pinch of the case. The evidence of defendant’s negligence' was weak, but it could not be taken from the jury. One witness swore positively to facts which tended to show negligence, and however much he contradicted himself at the two trials, and however improbable his stoiy, his credibility was for the jury. The learned judge left it to them, with a pretty strong intimation of their duty to scrutinize it carefully. He would not have been justified in giving them a binding direction to disregard it. Judgment affirmed.

FRIEDMAN, Judge. Carol M. Captline and Equibank, N.A., co-executors of the Estate of Mike Mazzaro, (collectively, Mazzaro), appeal from an order of the Court of Common Pleas of Allegheny County (trial court) which, on remand, dismissed Mazzaro’s claim against Allegheny County (County) for compensation for the taking of the mineral estate in certain land located in Findlay Township. This case has a lengthy and involved background which is summarized as follows. In 1955, Mike Mazzaro acquired title to 104.085 acres of land in Findlay Township from Cos-grove Coal Company (Cosgrove Coal). In the deed, Cosgrove Coal expressly reserved all the mineral rights underlying the land. In 1958 and 1959, the County condemned the land “owned by Mike Mazzaro” for the establishment and maintenance of ah’ navigation and terminal facilities and petitioned for appointment of a Board of Viewers. Mazzaro received notice of the condemnation, but Cosgrove Coal did not. In 1961, a Board of Viewers awarded Mazzaro $71,980.00 in compensation and delay damages but did not allocate any amount to Cosgrove Coal, nor did the Board of Viewers make reference to the mineral interests. In 1965, Mazzaro acquired the subsurface mineral rights “[together with the appurtenances thereunto belonging and all the estate, right, title and interest, claim or demand whatsoever of [Cosgrove Coal]” by quitclaim deed from Cosgrove Coal’s successor, Kirk Industries. Mazzaro died in 1974, and his estate succeeded to his interest in the mineral rights. In 1979, the County Commissioners entered into a contract for grading, paving, drainage and lighting for extension of a taxiway at the airport which was constructed on the subject land; the contract gave the contractor the light to any coal excavated in the process of construction. After the contractor excavated the coal, Mazzaro filed a petition for the appointment of a Board of Viewers, claiming a de facto taking, and Mazzaro also filed a trespass action against the contractor. The County filed preliminary objections to the petition for appointment of viewers, and the contractors filed preliminary objections to the trespass action. The trial court consolidated the actions and sustained both sets of preliminary objections. Mazzaro appealed to our court. In an opinion dated May 2, 1983 (our 1983 opinion), we agreed with the trial court that the County had taken both the surface and mineral estates at the time of the 1958/59 condemnation and we also agreed with the trial court’s dismissal of the trespass action. However, we remanded the case for consideration of (1) whether Cosgrove Coal, the owner of the mineral estate, had received adequate notice in light of United States Supreme Court decisions and our decision in Curtis v. Redevelopment Authority of the City of Philadelphia, 482 Pa. 58, 393 A.2d 377 (1978), and (2) whether the statute of limitations had run as to a claim for compensation. Mazzaro filed a Petition for Reargu ment, which we denied; on further appeal, the U.S. Supreme Court denied certiorari. In a deposition following the remand, William N. Nicholls, who had been Director of the County’s Claims and Investigation Department at the time of the condemnation and of the Board of Viewers’ award, testified that the County did not notify Cosgrove Coal of the condemnation because, contrary to the trial court and our 1983 opinion, the County did not condemn the mineral estate reserved by Cosgrove Coal. On remand, the trial court considered only the portion of Nicholls’ testimony dealing with notice and refused to consider Nicholls’ testimony that the County did not condemn Cosgrove Coal’s mineral estate. However, the trial court did consider information received following our 1983 opinion but before the trial court issued its decision on remand which indicates that Mazzaro purchased the mineral rights by exercising an option which he had acquired in 1955. In its opinion following proceedings on remand, the trial court determined: (1) that Cosgrove Coal’s address was readily ascertainable at the time of the condemnation and that the County did not give Cosgrove Coal proper notice of the condemnation; and (2) that “the County acquired all interests that Mr. Mazzaro held in the surface and mineral rights as of the date of the taking”, and because Mazzaro did not seek compensation for loss of the option to purchase Cosgrove Coal’s mineral estate at the time of the 1958/59 condemnation, Mazzaro’s claim is barred by the statute of limitations. It is the appeal from this decision which is currently before us. On appeal, Mazzaro argues that (1) the trial court erred in determining that Mazzaro is precluded from obtaining compensation for the taking of the mineral estate; (2) the trial court erred in concluding that Mazzaro’s claim is barred by the statute of limitations; and (3) Mazzaro should proceed on remand before a Board of Viewers. We agree with all three of Mazzaro’s arguments. Our remand clearly directed the trial court to take additional information on whether Cosgrove Coal received reasonable notice of condemnation of its mineral interests. We also directed the trial court to answer the question of the applicability of the statute of limitations. The trial court followed our directive with regard to notice; however, in considering the statute of limitations question, the trial court did not rely on Curtis as directed but, instead, concentrated on the additional information that, at the time of the 1958/59 condemnation, Mazzaro, the owner of the surface estate, also held an option to purchase the mineral estate. We believe that the trial court’s emphasis on the option was misplaced. The trial court determined that Maz-zaro’s option created a contract right to purchase the mineral estate and that “the condemnation of the entire estate, including the mineral rights, rendered the exercise of the option to purchase the mineral rights impossible ... [so that], at the time of the condemnation, Mazzaro was entitled to seek damages for the value of his option.” (Trial ct. op. at 5.) The trial court reasoned that because Mazzaro failed to seek such damages at the time of the condemnation, the statute of limitations bars his present action for compensation. We agree with the trial court that Mazzaro’s option to purchase the mineral estate created a contract right and that Mazzaro could have sought compensation for the destruction of that contract right had he known of the taking of the mineral estate; however, we note that there is no evidence that Mazzaro knew of the taking of the mineral estate at the time of the condemnation. Moreover, we do not agree that Mazzaro’s failure to seek compensation for the extin-guishment of the option precludes the present action for compensation for taking of the mineral estate. Although the trial court recognized that an option is a contract right, it treated the option as if it were equivalent to a real estate interest. We believe that these are two separate interests and should be treated as such. What matters here is not whether Mazzaro’s option was destroyed, but whether the right to claim compensation for condemnation of the mineral estate is barred by the statute of limitations. Our analysis is guided by the Pennsylvania Supreme Court’s decision in Curtis. In Curtis, the Philadelphia Redevelopment Authority acquired land in 1962 by eminent domain without giving notice to the holder of a recorded easement over the property, just as the County here failed to give notice to the recorded owner of the mineral estate. When a subsequent purchaser from the Redevelopment Authority barred access across the property, the easement holder brought suit seeking to have his easement reinstated. Our Supreme Court ruled that the condemnation extinguished the easement but that the easement holder had a right to receive damages. Most important for our purposes here, the Supreme Court, in Curtis, determined that because the Redevelopment Authority had failed to give adequate notice at the time of the condemnation, the statute of limitations did not bar the easement holder’s right to compensation. In reaching this conclusion, the Supreme Court said: In Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court held that in order for notice to comply with due process, it must be reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to be heard. More precisely, in the context of an eminent domain proceeding, the Supreme Court in Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), held that a landowner whose name and address were on the tax rolls and easily ascertainable was denied due process when newspaper notices and postings which did not contain her name were the only form of notice given. ... [W]hen a record holder of an easement can be identified through investigation of land and tax records, any notice short of notice to the easement holder at the dominant tenement is insufficient. Curtis, 482 Pa. at 63-64, 393 A.2d at 379-80. Our Supreme Court also determined that the right to seek damages for extin-guishment of the easement accrued, and the statute of limitations began to run, in 1970 when the easement holder had notice of the extinguishment of his interest in the real estate. Here, the trial court assumed that because the County gave Mazzaro notice of the taking of the land “being owned by Mike Mazzaro”, Mazzaro had a responsibility to find out whether the County was also condemning Cosgrove Coal’s mineral estate thereby destroying Mazzaro’s option to purchase the mineral estate. The trial court also assumed that the statute of limitations began to run from the date of notice to Mazzaro of the condemnation of his interest in the real estate. We do not agree with either of these assumptions. First, the County’s notice of the condemnation of land owned by Mazzaro did not give rise to any affirmative obligation on Mazzaro’s part to inquire whether the County was also condemning Cosgrove Coal’s mineral estate; rather, the County had the burden of giving notice of the condemnation to the holders of all recorded interests. Moreover, because the County never gave notice of the condemnation of the mineral estate to Cosgrove Coal, the record owner of that estate, the right to seek damages for the condemnation of the mineral estate had not accrued at the time that Cosgrove Coal transferred its interest to Mazzaro. In fact, it was not until 1979 when the contractor excavated the coal that the owner of the mineral estate, by then Mazzaro, finally had notice of the condemnation. At that time, the owner’s right to seek compensation accrued and the statute of limitations began to run. Because a six year limitations period applies to a de jure condemnation and Mazzaro brought this action in 1981, this matter was brought well within the applicable limitations period. Accordingly, we reverse and remand, and we direct the trial court to send this matter to the Board of Viewers, with directions to the Board of Viewers to assess the total value of the surface and mineral estates in the land taken as of the date of taking used in the original Board of Viewers’ report, to subtract the amount already paid to Mazzaro and to pay Mazzaro additional compensation owed, if any. ORDER AND NOW, this 18th day of July, 1995, the order of the Court of Common Pleas of Allegheny County, dated April 4, 1994, is reversed, and we remand and direct the trial court to send this matter to the Board of Viewers, with directions to the Board of Viewers to assess the total value of the surface and mineral estates in the land taken as of the date of taking used in the original Board of Viewers’ report, to subtract the amount already paid to Mazzaro and to pay Mazzaro additional compensation owed, if any. Jurisdiction relinquished. . Pennsylvania recognizes three separate estates in land which can be held in fee simple separate and distinct from each other: the surface estate, the mineral rights estate and the support estate. Captline v. County of Allegheny, 74 Pa.Commonwealth Ct. 85, 459 A.2d 1298 (1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984). . On March 4, 1958 and on May 5, 1959, the Board of Commissioners of Allegheny County adopted resolutions condemning two parcels of land in Findlay Township, Allegheny County, owned by Mike Mazzaro. We refer to this as the 1958/59 condemnation. .(R.R. at 12(a).) . Mazzaro's de facto taking action was filed on January 28, 1981. The trespass action was also filed in 1981. . Captline. . We said: The trial court on remand shall consider the question of notice, in accordance with this opinion’s previous treatment of that issue. Once the Court determines when notice was provided to the owner of the mineral interest, it can then answer the question of the applicability of the statute of limitations, which was raised before, but not determined by, the court. Captline, 74 Pa.Commonwealth Ct. at 95, 459 A.2d at 1303. . According to Nicholls, he testified before the Board of Viewers as to the agreed upon price for the taking, before which he checked the assessments and the deed and discovered that the deed reserved Cosgrove Coal's interest in the mineral estate. In the deposition, Nicholls stated that the address and the name of Cosgrove Coal, the owner of the mineral estate, was a matter of record in the County and could be found on the assessment records and that when he testified on behalf of the County as to the damages to be paid to Mazzaro, he did not include the coal in his measure of damages because he knew that Mazzaro did not own the coal. (R.R. at 61(a)-63(a), 64(a), 65(a).) Finally, Nicholls testified that he never gave notice of the condemnation to Cos-grove Coal because: "They were not involved. There was no reason to give them notice.” (R.R. at 66(a).) . Although there seems to be no doubt that an option existed, the option itself has not been found and no one knows its exact terms. (S.R.R., Transcript of Proceedings, February 7, 1994, at 12.) . Because Mazzaro held an option to purchase the mineral estate, the trial court concluded that Cosgrove Coal’s right to compensation was limited to the value of its right to remove coal until 1965, when Mazzaro exercised his option, and the $900.00 option price. This would certainly be one means of assigning a value to Cosgrove Coal’s retained interest in the mineral estate. . Our scope of review of a trial court decision in an eminent domain matter is limited to determining whether the trial court abused its discretion, committed an error of law, or whether the findings and conclusions arc supported by sufficient evidence. In re Waite, 163 Pa.Commonwealth Ct. 283, 641 A.2d 25, appeal denied, 539 Pa. 657, 651 A.2d 543 (1994). . We said: [T]he County was required to undertake "reasonable steps” to provide actual notice to Cos-grove Coal. Unfortunately, we are unable to determine what “reasonable steps” would be in this case. The stipulated facts do not disclose whether Cosgrove Coal received actual notice, or whether Cosgrove Coal’s mailing address could have been ascertainable. Further evidence is necessary before a determination can be made as to whether posting and published notice alone satisfied the requirements of due process in this matter. Captline, 74 Pa.Commonwealth Ct. at 93, 459 A.2d at 1302. . The trial court’s emphasis on the option information is particularly puzzling in light of the fact that the trial court refused to consider the new information from Nicholls concerning the intended scope of the 1958/59 condemnation. The option information considered was no more relevant than the information not considered. . The trial court relied on Appeal of Synes, 401 Pa. 387, 164 A.2d 221 (1960). However, while we agree that Appeal of Synes is pertinent, we do not believe that it leads to the trial court's conclusion. In Appeal of Synes, the School Authority condemned properly' on which Synes held an option to purchase. Although Synes' down payment was returned, he sought compensation, arguing that his option made him the equitable owner of the property, and that, as such, he was entitled to damages for the condemnation. Our Supreme Court determined that because Synes had not elected to purchase by exercising the option, legal and equitable title remained in the existing legal owner. However, although Synes was not entitled to compensation for loss of an equitable interest in the land, the Supreme Court did indicate that Synes could be compensated for loss of his contractual right to purchase, and it remanded for a determination of the value of the option destroyed by the condemnation. Applying Appeal of Synes here, we conclude that at the time of the 1958/59 condemnation Cosgrove held both legal and equitable title to the mineral estate and all that Mazzaro held was a contractual interest in an option to purchase. A critical difference between this case and Appeal of Synes is that, in Appeal of Synes, the optionee knew that the property on which he held an option had been condemned. Had it been clear that the County intended to condemn the mineral estate on which Mazzaro held the option, Appeal of Synes indicates that Mazzaro could have sought compensation for the loss of his contract right at that time. However, the County's notice of condemnation of land "being owned by Mike Mazzaro is not adequate to give Mazzaro notice that the mineral estate owned of record by Cosgrove Coal was also being taken or that his option in that mineral estate was destroyed. .We recognize that the right to compensation for the taking of property is a personal interest which does not run with the land and is not normally transferred to subsequent purchasers. Appeal of Synes. However, in this case, Mazzaro, the subsequent purchaser of the mineral estate, also acquired Cosgrove Coal's personal right to receive compensation for the taking of the real estate interest. In our 1983 opinion we dealt with the transfer of the interest in compensation to Mazzaro, stating: "Generally, one who acquires title to property subsequent.to the time of taking is not entitled to bring an eminent domain proceeding. The trial court held that the quitclaim deed transferred Cosgrove Coal’s personal claim to Mazzaro. That ruling has not been contested on appeal.” Captline, 74 Pa.Commonwealth Ct. at 93, n. 11, 459 A.2d at 1302, n. 11 (citations omitted). . In Curtis, as here, the original eminent domain action occurred before enactment of the new Eminent Domain Code. Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§ 1-101 — 1-903. In Curtis, the Court noted: At the time of the taking in question, no statutorily defined form of notice to con-demnees was required. See Comment to section 405 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-405 (Supp.1978-79). See also E. Snitzer, Pennsylvania Eminent Domain § 405-1 (Supp.1978-79). Curtis, 482 Pa. at 63, 393 A.2d at 379. . The statute of limitations does not begin to run until a cause of action accrues. . At the time of the 1958/59 condemnation, Mazzaro held an option to purchase the mineral estate; this is a contract right, not an interest in real estate. Appeal of Synes. Even if Mazzaro had had notice of the taking of the mineral estate, he could not have claimed compensation for its taking because he did not own the mineral estate; his only remedy at the time of the 1958/59 condemnation would have been to seek damages for destruction of the option. Id. . In Curtis the Supreme Court determined the holder of the easement did not have any affirmative burden to inspect the servient estate over which the easement passed in order to be put on notice by posting of that property. The Court stated, "the burden was on the Authority to conduct a search for recorded interests and then to take reasonable steps to notify holders of such recorded interests. To hold otherwise would countenance the practice of the Authority of ignoring the recording system of this jurisdiction.” Id. at 65, 393 A.2d at 380. Here, likewise, the County bore the burden of searching for recorded interests and notifying the holders of those interests that it had condemned their property. . A six year statute of limitations applies to a de jure taking. Curtis. The statute of limitations for a de facto taking is twenty-one years. Section 5530(a)(3) of the Judicial Code, 42 Pa.C.S. § 5530(a)(3).

Opinion bv Mb..- Justice McCollum, In getting off the defendant company’s car the plaintiff received an injury which she attributes to the negligence of the company and for which she seeks to recover compensation in this action. There is no reason to suppose that she would have been injured if in leaving the car she had conformed to a rule of the company which she observed in entering it. At each end of the car there were the usual conveniences for ingress and egress, consisting of a door, platform, steps and railing. It was a rule of the company well known to the traveling public that its passengers should enter and leave its cars where these conveniences were provided. The plaintiff was in a combination car, in.one portion of which there were seats for passengers'while the other part of it wa,s appropriated to baggage. In the baggage compartment there was a side door through which the baggage was received and discharged. When the train stopped at Excursion House the plaintiff, instead of going out at the rear, or front, end of the car where there were conveniences for safe and easy entrance and exit, got off through the side door, and in doing so jumped from the floor of the car to the ground and received the injury complained of. It was an act in plain violation of a familiar rule governing passengers in entering and leaving cars, and it constituted prima facie at least a bar to an action against the company for the injury caused by it. That the injury for which the plaintiff seeks compensation was so caused is beyond question. “ When a railroad company undertakes the transportation of a passenger for an agreed price the contract includes many things. On the part of the passenger his consent is implied to all the company’s reasonable rules and regulations for entering, oc cupying and leaving their cars, and if injury befall him by reason of his disregard of regulations which are necessary to the conduct of the business the company áre not liable in damages even though the negligence of their servants concurred with his own negligence in causing the mischief:" Sullivan v. The Philadelphia & Reading Railroad Company, 30 Pa. 234. Nothing short of paramount and justifying necessity will excuse a departure from these regulations, or render the company liable for an injury caused by it: Pennsylvania Railroad Company v. Zebe, 33 Pa. 318. There was no such necessity in this case. That thé car was crowded with passengers and'in consequence thereof egress from it was retarded somewhat and rendered less convenient than under ordinary conditions, furnished no justification of the plaintiff’s disregard of a reasonable regulation of the company. It nowhere appears in the testimony that she made an effort to get off the cars at the place provided for the accommodation and safety of passengers in leaving it, or that she was required to get off from it where she did. Neither the language of the conductor while she stood in the side door, nor the assistance he gave her in alighting, nor both combined, charged the company with responsibility, for the consequences of her careless act. It was in violation of a rule for the protection of passengers, it was obviously dangerous and she must be considered as having voluntarily assumed the risk involved in it. In such case something more is required to render the company liable than its employee’s consent to the passenger’s negligent act: 4 Am. & Eng. Ency. of Law, p. 766 and cases cited ; Pennsylvania Railroad Company v. Langdon, 92 Pa. 21. The specifications of error are overruled. Judgment affirmed.

Opinion by Mr. Justice Dean, This is an action of trespass against the defendant, sheriff of Chester county, for selling a car load of oats. It appears from the evidence that, on October 3, 1890, E. D. Hemphill, of West Chester, purchased from Bryan & Co., of Peoria, Illinois, a car load of oats at the price of 44 cents per bushel. The oats was shipped (car 3666) by Bryan & Co., on October 11th following, consigned to Hemphill, the shippers receiving from the carrying company a bill of lading. To this bill, the shippers attached a draft on Hemphill for $268.43, the price of the oats, and transmitted it through the Central National Bank of Peoria, to the First National Bank of West Chester for collection; delivery of the bill of lading to be made on payment of draft by consignee. The draft and bill of lading reached the West Chester bank October 22d, and inclosed with it'was another draft and bill of lading from the same shippers, Bryan & Co., on Hemphill for another car, No. 1292. This last draft was properly indorsed, and was at once paid. The bill of lading for the oats in the car 3666 had not been indorsed lay Bryan & Co., and the railroad company would not deliver the oats without such indorsement. Hemphill then requested the West Chester bank to return the bill for indorsement, and the same day wrote to Bryan & Co., informing them of their neglect, stating that he had requested'the bank to return the bill for indorsement, and as soon as that was' done, and the bill was returned, the draft would be paid. The West Chester bank, as requested, did return the bill to the Peoria bank, informing it that the railroad company would not deliver the car without the indorsement of Bryan & Co. on the bill of lading. On October 25th, Bryan & Co. replied to Hemphill’s letter of the 22d, that their indorsement of the bill of lading was unnecessary, and on the 28th Hemphill replied, that he had sent back the bill and draft, because the railroad company would not deliver the oats without such indorsement, and that he could do nothing else. On the receipt of the bill and draft by the Peoria bank, they handed them over to Bryan & Co., but instead of indorsing the bill of lading for return to West Chester, they destroyed the draft, took the bill of lading to the railroad agent at Peoria, surrendered it, took another of same date, October 11th, consigning same car to Styer & Bro., Manayunk, Pa. This conduct of Bryan & Co. is explained by the fact that in the interval oats had advanced in price about ten cents per bushel; as they had consigned to Hemphill at 44 cents, they now made a new draft on Styer & Bro. at 53-J cents per bushel for the same car, making, instead of the $268.43 drawn for on Hemphill, $332.50, drawn for on Styer & Bro. Bryan & Co. had this draft discounted by the Peoria bank, and indorsed the bill of lading to the bank. On the 29th of October, the car arrived on Hemphill’s siding, and he tendered the railroad company a certified check for the price of the oats, to save carrier’s demurrage,' but they declined to deliver it. On the 7th of November, Hemphill, as a creditor of Bryan & Co., issued a foreign attachment against them, and levied it on the car load of oats; on the 11th,of same month, at his instance, the Court of Common Pleas of Chester County ordered its sale as perishable property and the Peoria bank had due notice of this order. On the 18th, the oats was sold by the sheriff, in pursuance of the order of the court, for #229.91. The Peoria bank then brought suit, for use of Styer & Bro., against the sheriff for trespass. He contended at the trial that the sale to Hemphill could not be defeated until he refused to pay, and the bank, having knowledge of Hemphill’s position, stood in no better position, and that the facts were for the jury. The court, being of opinion that the return of the draft and bill of lading for indorsement was a refusal to pay, gave peremptory instructions for the plaintiff, and further instructed the jury that the measure of damages was the amount of the draft on.Styer & Bro., #832.50. The jury rendered a verdict accordingly, and defendant appeals, assigning, for-error the instructions as to liability of defendant, and as to measure of damages. The purpose of Bryan & Co. in shipping this oats, and drawing on Hemphill for the price, with bill of lading attached, the oats to be delivered on payment of the draft, was to retain title only for purpose of securing payment. The course of business and correspondence show this, beyond question. For every other purpose the title was in Hemphill, had he chosen to so regard it. The oats was in the same situation, as to title, as a consignment of goods delivered to a common carrier C. O. D. The fact that the carrier was not directly the agent of, the consignor for collection of the price, and that the end was attained by transmitting the bill of lading attached to a sight draft through banks, does not distinguish the transaction in its legal effect, from that, where the carrier is the agent for collection. There was just one reservation by the consignor, and that was that the physical possession of the goods should not pass to the consignee until he paid for them.' If Hemphill, on notification of the consignment and arrival of the oats, had declined to pay for them, the right of action in Bryan'& Co. against him for the price would have been complete. And when the. oats • arrived, if Hemphill had tendered the price to Bryan & Co., his title and right to possession would have been complete. There is not a break in the authorities on this point. This was not, as contended by the appellee, “ an arrangement ” for the sale of the oats to Hemphill; it was a sale, with a special reservation in the consignor of delivery, only, on payment of price ; and that reservation could only be exercised on Hemphill’s refusal to pay when notified of the arrival of the oats for delivery. Hemphill was ready to pay, but the carrier, because of an informality in the indorsement of the bill, declined to deliver. Then, while Hemphill was seeking to have this corrected, that he might pay for and receive the oats, the consignors, with a disregard of business honesty highly discreditable, re-consigned to another purchaser at a higher price. Hemphill, instead of tendering the price and asserting title, instituted suit against Bryan & Co., and levied a foreign attachment on the oats as theirs; then moved for the sale of the oats as the perishable property of Bryan & Co. In so doing, he deliberately disclaimed title in himself, averred title in Bryan & Co., and stamped the transaction with the same legal impress as that put upon it by appellees.. All the evidence, bearing on the knowledge of the bank, as to Bryan & Co.’s want of good faith, and tending to show collusion between them and the bank, as well as the numerous authorities selected and presented with so much discrimination by counsel for appellant, become -wholly immaterial in view of this unequivocal attitude taken by Hemphill. And the court was bound to take the same view of it, and assume, as Hemphill did, that Bryan & Co., the vendors, had resumed complete possession of the property, and exercised their right of disposition, when they re-consigned to Styer & Bro., and sold the draft on them with bill of lading attached to the Peoria bank. But we think the rule as to the measure of damages adopted-by the learned judge of the court below, in view of the facts, was not a correct one. The suit is against a public officer who obeyed his writ,'and seized the goods on the attachment. This was, technically, a trespass, and for.it the plaintiff is entitled to only nominal damages, for there were no circumstances of. outrage or oppression. The real damage was by reason of the sale, and this was by the direct orders of the court to save loss of perishable property, pending litigation. The sheriff had no choice and no recourse to parties; his duty was simply to obey. And the order of the court is a complete protection to him: 1 Am. & Eng. Ency. Law, 929; Zacharias v. Totten, 90 Pa. 291. In the case.last cited, the sale was by order of the court, of perishable property, pending interpleader proceedings, and this Court held that: “ All that, took place' subsequently to the granting of the rule appears to have been done under the direction of the court, and for everything so done the sheriff may justly claim protection, and plead that fact in justification.” As the levy of the attachment was the mere indorsement on the writ, the car not being disturbed, and the railroad company summoned as garnishee, the jury should have been instructed that plaintiffs were entitled to only nominal damages. The appellant’s 6th and 7th assignments of error are sustained, the others are overruled; the judgment is reversed, and a v. f. d. n. is awarded.

Opinion by Mr. Justice McCollum, It was shown on the trial, and not disputed, that from April 1,1888, to April 1,1889, Joseph Curt managed the Westminster hotel in Scranton as agent for the defendant, who was the owner of it, and that on the last mentioned date he leased the property and thereafter conducted the business on his own account. The plaintiffs in June, 1888, with knowledge of the capacity in which he was then acting, sold goods'for the hotel on his order, and continued to do so, from time to time, up to and including the 6th of August, 1890. All the goods were shipped, and charged on their books, to Joseph Curt, manager. It is admitted that the payments made on account of the goods so sold and delivered are sufficient to pay for the goods sold before April 1,1889, and therefore this action appears to be for goods sold after that time. This showing made a prima facie case for the plaintiffs for the balance of their account. But the defendant contended and introduced evidence to show that the sales made after April 1, 1889, were with notice to the plaintiffs that the relations between him and Curt were changed and that the latter was then acting for himself only. In support of this contention Curt testified that he told plaintiffs’ agent, on the 22d of March, 1889, that he had leased the property from the first of April and would have to be answerable for all bills that were unpaid. He produced a number of bills made out and sent to him by the plaintiffs, some of which were for goods sold before, and some for goods sold after April 1, 1889. Those for goods sold before that date were made to Joseph Curt, manager, and those for goods sold after it to Joseph Curt, but it is not pretended that they were all the bills he received from the plaintiffs during the twenty-six months that he purchased goods from them for the hotel. He also presented five checks, drawn by him, individually, in favor of the plaintiffs, but he did not allege that these were tile only checks they received from him, on account, or that the others were signed in the same manner. He testified that, after he leased the hotel he procured a new register on which he appeared as proprietor, but he admitted that he used the old register after that time, and did not state how long he used it or when he obtained the new one. The evidence thus summarized constituted the principal reliance of the defendant in his effort to show notice to the plaintiffs, and it was met, in rebuttal, by the testimony of their agent, who positively denied Curt’s statement in respect to notice on1 the 22d of March and distinctly asserted that he did not know of the change in the relations between Curt and the defendant until some time after the goods were sold. In view of the admitted and established facts we have stated, and of the evidence to which we have referred, the question of notice was clearly for the jury. Was the evidence fairly presented to them and were they correctly instructed in the law of the ease? We think there is no reasonable ground on which to base a negative answer to the first branch of this inquiry. As to the second branch of it there is very little, if any, room for contention. The learned judge charged the jury that the burden was on the defendant to show notice to the plaintiffs of the termination of the agency, and if they found the plaintiffs had such notice their verdict should be for the defendant. He called their attention to all matters bearing upon the question and fairly left it to them to find the fact upon a consideration of all the evidence. We think there was nothing objectionable in this: The fact to be ascertained was whether the plaintiffs knew that the agency was determined before- they sold the goods in question, and this the jury were to find from the testimony. Notice of the revocation of an agency may be shown by a written or oral, communication from the principal or agent, or by circumstances and a course of dealing incompatible with the want of it. In either case, if the evidence is conflicting, the jury must decide the question: Deford v. Reynolds, 36 Pa. 325. In accordance with these views we overrule the specifications of error. Judgment affirmed.

Opinion by Mb,. Chief Justice Sterrett, One of the questions presented by the testimony in this case was, whether the injuries resulting in the death of plaintiff’s husband were caused by the negligence of the defendant companies ; the other was whether any negligence of the deceased contributed to the fatal result. An examination of the evidence has convinced us that both were controlling questions of fact which, under the well settled rules of law, the learned trial judge was bound to submit to the jury for their determination. That was accordingly done in a clear, substantially correct and adequate charge, and a verdict was rendered in favor of the plaintiff, subject to the opinion of the court on the question of law reserved. Plaintiff’s averment of negligence, etc. was thus impliedly affirmed by the verdict, and the counter averment of contributory negligence, upon which the defendants relied, was in like manner negatived. Upon due consideration of the point reserved, it was rightly decided in favor of the plaintiff, and judgment was accordingly entered for the amount found by the jury. It is unnecessary to notice the specifications of error in detail. With the single exception of those relating to the question of law reserved, there is nothing in either of them that is sufficient to suggest even a reasonable doubt as to the accuracy of the general charge or any of the rulings complained of; and they are therefore dismissed without further comment. It was claimed by the defendants, as a conclusively established fact, that at the time of the accident plaintiff’s husband was sitting on the wheel of the brake in the rear of the car next the caboose, and was thus guilty of negligence that contributed to his injury. On that ground, the learned judge was requested to direct a verdict for the defendants, but instead of doing so he submitted all the testimony bearing on the question of the alleged contributory negligence of the deceased to the jury, with, proper instructions, and reserved for future consideration “ the question as to whether the alleged fact that the deceased was sitting on the wheel of the brake,” etc., “ was established as an undoubted fact by testimony of such character as makes it our duty to withdraw the case from the jury.” In thus reserving the question, and afterwards deciding it in favor of the plaintiff, he committed no error of which the defendants have any just reason to complain. If any regard is to be had to the hitherto well recognized line of demarcation between the duties of the court, as the expounder of the law, and those of the jury, as the constitutional triers of fact, he could not have decided otherwise than he did. It has been repeatedly said that negligence is the absence of care according to the circumstances, and is always a question for the jury when there is a reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the facts are either admitted, or established by undisputed evidence, it is the duty of the court to declare the law applicable to them; but when material facts are disputed or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are: Field on Damages, sec. 519; Railroad v. White, 88 Pa. 333; Railroad v. Werner, 89 Pa. 64; McGill v. Railway Co., 152 Pa. 334; Vannatta v. Railroad, 154 Pa. 273; Smith v. B. & O. Railroad, 158 Pa. 87. Tested by the principles recognized in these and many other authorities, the learned judge was clearly right in disposing of the reserved question as he did. Iiis action, in that regard, is fully vindicated in his opinion sent up with the record. Judgment affirmed.

Opinion by Mr. Justice Green, The parties litigant in tins case are in controversy over a single question of very narrow limits arising upon the construction of a coal mining lease. The question is whether a commission of 8 cents per ton is to be allowed as part of the expenses to be charged in determining the selling price of coal at the breaker. It is perfectly manifest that the literal meaning of the words employed in the lease is not the meaning of the parties. The subject of contention is the amount of royalty to be paid to the lessor for coal mined under the lease. The words of the lease on this subject are, “For all coal mined taken out and disposed of, above the size of pea coal, twenty five cents per ton shall be paid when such coal sells at an average of two dollars per ton or less at the breaker.” The coal in large quantities is no.t sold literally “at -the breaker,” but at distant points of delivery, and the custom of the trade is, in determining what is the selling price “ at the breaker,” to deduct from the price received by the shipper the cost of selling and transporting of the coal to the point of delivery. The cost of selling is represented by the commissions paid to selling agents, who conduct a business of selling coal at tide water, and other points, for the producers, otherwise called operators. The selling agents are paid by a commission, varying from 25 to 10 cents per ton, according to the size and quality of the coal sold. In the present case the defendant was in the habit of selling the coal produced from their leased mines through a firm named Williams & Peters, under a contract in writing made with them dated January 15, 1889, at a commission of 15 cents for all sizes above pea, and 10 cents for pea and smaller sizes. In the settlements for royalty between the plaintiff and defendant these commissions were always deducted from the selling price of the coal together with the cost of transportation, in order to determine the selling price at the breaker, and that was the uniform habit of doing the business up until March, 1892. At that time a new arrangement in the coal trade was made by which many producers agreed with the Philadelphia & Reading Coal and Iron Co. to sell them all their coal upon certain terms agreed upon. For the year now in question, from March, 1892, to March, 1898, the defendant company sold its coal to the Reading Coal and Iron Company under a written contract for that purpose. The purchase price was to be paid directly to the defendant company and the agency of Williams & Peters was suspended during that time. But Williams & Peters held a written contract for the sale of all the output of coal from these mines, which covered the year in question, and they declined to surrender their contract. Finally they were induced to agree with the defendant company that they would suspend their rights under the- original contract upon receiving from the defendant a commission of 8 cents per ton on all coal sold to the Philadelphia & Reading Coal and Iron Company. This agreement was to continue for seven years from March 1,1892, unless the defendant made default in the payments, and at the expiration of the term, or in the event of a default in the payments, • the original contract was to be restored and remain in full force and effect. It was in this state of the facts that the present question arose. Prior to the making of this new contract the original commissions of 15 and 10 cents per ton were always deducted from the selling price of the coal without objection on the part of the plaintiff. The freights were also deducted, and the resulting price was treated as the selling price at the breaker. Considerable testimony was taken to show that this was tbe uniform custom in all such contracts throughout the anthracite coal region and not a word of opposing testimony was taken. The plaintiff fared much better under the new arrangement than under the old, because the royalty which he received was increased by the difference between the new and the old rates. A better price also was obtained for the coal sold than under the old system and in that way also the royalty was increased. But the plaintiff desires also the 8 cents commission which the defendant was obliged to pay, and did pay, in order to obtain the privilege of selling. We know of no reason why this ungracious and unreasonable demand should be allowed. In strict construction of the words of the contract, if the deduction of commissions was allowed as part of the cost of selling the coal beyond the breaker, before the change was made, it was just as certainly a proper charge after that event. It still remained as a commission which had to be paid, and actually was paid, in order that the coal should be sold to the new purchaser. Williams & Peters were under no obligation to give up their contract, and if they choose not to do so except upon condition that a part of what they had originally received they should still receive, the part which they continued to receive was as much a lawful burden upon the selling price of the coal after, as before, the contract with them was made. Independently of that consideration the undisputed testimony showed that the meaning of the phrase “selling price at the breaker” was by universal usage, in winch this plaintiff participated, the actual selling price at tbe place of delivery less the cost of selling, and the freight. We are of opinion that the referee and the conrb below were entirely correct in their disposition of the case. Judgment affirmed.

Opinion by Mr. Justice Dean, Five adjoining buildings, forming a single store, at corner of Arch and Eighth streets, Philadelphia, were destroyed by fire, 23d of January, 1888. They were owned by Thomas K. Peterson, trustee, etc., who by lease dated June 15, 1887, rented them to Marietta Heller, this plaintiff, for the term of three-years from 1st of January, 1888, at an annual rental of $8,500, payable monthly, and she was in possession at the date of the fire. The Royal Insurance Company, this defendant, on 26th of January, 1887, issued to plaintiff a policy of indemnity against damage, to her interest as lessee of the buildings by fire in sum of $6,000. In the policy is this stipulation: “ It being understood that this policy is. to indemnify the-assured for any loss accruing to her by reason of having to pay rent for the within-described building (during) such time or times as the building may be untenantable by reason of fire or fires occurring during the continuance of this policy, loss not to be limited by date of expiration of the policy, it being understood that the sum insured is the annual rental of the property,, and the amount of loss is to be computed on the basis.” Peterson, the landlord, also took out in the Pennyslvania, Pire Insurance Company a policy covering the term of the lease, indemnifying him against loss of rents by fire in the sum of $8,500, in which was this clause: “ It is understood and agreed, that in case the above-named building, or any part thereof, shall be rendered untenantable by fire, this company shall be liable to the assured for the actual loss of rent ensuing therefrom, not exceeding the sum insured, which sliall be taken as the yearly rent of the premises, and this company shall be liable only for such proportion of any loss as the sum hereby insured bears to the annual rent of the building. The assured agreeing to rebuild or repair said premises in as short a time as the nature of the ease will permit. Loss to be computed from the date of the occurrence of said fire, and cease on said building being rendered tenantable. “ Note: In case the assured shall elect not to rebuild or repair said premises in as short a time as the nature of the case will admit, then the loss of rent shall be determined by the time which would have been required for such purpose. Pennsylvania Fire Insurance Company.” After the fire, the property was unoccupied for any puipose until the 24th of July following, a period of six months, when plaintiff entered into an agreement -with her landlord, that he would within seven months erect a new and better building on the lots covered by the old buildings, and make it larger by extending it over three adjoining lots; further, plaintiff agreed she would accept a lease of the new buildings for a term of five years at an annual rental of $17,000, payable monthly. There-were further stipulations, that nothing in the agreement was to affect plaintiff’s liability for rent under the old lease until the completion of the new building, and that the entry of the landlord for purpose of rebuilding was not to be deemed an eviction by him or a surrender by her. It was further stipulated, that nothing in the agreement was to affect the right of either on policies of insurance which each held for rent. After the fire, tins defendant denied any liability, except a proportionate one on loss of rent under both policies, which was, with interest, $3,096.50, and which it paid to plaintiff without prejudice to her alleged right to claim her entire loss. The Pennsylvania Company, although disclaiming all liability, paid the landlord $2,000, for benefit of Mrs. Heller. 'The plaintiff paid the landlord the rent for one year, the time the premises were untenantable, and claimed defendant was liable on its policy to her, for a balance of $3,000 with interest, payment of which being refused, she brought suit. The defendant filed affidavit of defense, averring that the agreement to rebuild was-a collusive arrangement between the parties at the suggestion of the landlord’s insurance company, by which that company was to escape any payment on account of the loss. The court, below entered judgment for want of a sufficient affidavit of defense; on appeal, this judgment was reversed, this court holding that the facts tending to show collusion would, if proved, relieve the landlord’s insurance company from payment of its proportion of the loss, and the evidence tending to show fraud was for the jury. The case is reported in 133 Pa. 152. When the record was remitted, the defendant, instead of pleading and .going to trial, filed a demurrer to plaintiff’s statement of facts as not being sufficient in law to warrant judgment the court below sustained the demurrer, and plaintiff appealed this court, in opinion by Chief Justice, see 151 Pa. 101, held that, under the circumstances as averred by plaintiff, the averment of fraud in the affidavit having dropped out of the case, she was entitled to recover on her claim set out of record; that the facts neither constituted an eviction by the landlord, nor a rescission of the contract under which the plaintiff was answerable for rent, and for aught that appeared, the transaction was a perfectly honest one; so the judgment was reversed and a procedendo awarded. On the trial of the case in the court below, considerable evidence was given tending to show correspondence and negotiations between the parties and the insurance companies, principally with a view to adjustment without suit of their respective rights; but the court being of opinion no available defense had been proved, at the close of the evidence directed a verdict for the plaintiff for $3,000 and interest. We now have this appeal, assigning six errors. It is-unnecessary to discuss them in detail. When the case was last here, Chief Justice Sterrett says, with this agreement before him: “ It neither constituted an eviction by the landlord, nor a rescission of the lease under which plaintiff was liable for the rent as to which she was insured by defendant company.” There is nothing new'in the case now to affect the correctness of this conclusion; the parties in open court abandoned any averment of fraud in the making of this agreement. That being the case, defendant’s liability remains according to its contract; that stipulates it was to “ indemnify the assured for any loss accruing to her by reason of having to pay rent for the within described building during such time or times as the building may be untenantable by reason of fire.” It was untenantable during the entire period covered by her claim, by reason of the fire; the occupation of the lot by the landlord for seven months in rebuilding, in no reasonable construction of this clause, rendered the premises tenantable, while the agreement with the landlord expressly stipulated her liability for rent was to continue during this period; therefore, what rent she paid was her loss, and this defendant contracted should be made good. Nor does the fact that the landlord paid over to her $2,000 received by him from the Pennsylvania Company, affect her contract right against this defendant. She received that from a source outside of and independent of her contract for indemnity, just as she might have received a gift of that amount from any friend who desired to aid her; defendant lost nothing, and the $2,000 did not even reimburse her in full for her loss. She paid rent for unoccupied premises, $8,500; she claims from this defendant $6,000, less the $3,000 already paid her; she has received from her landlord $2,000, leaving her still a loser for the year the building was not tenantable, $500. As is well said by the learned judge of the court below: “ Its (defendant’s) burden has not been increased, nor has it been deprived of any right it possessed. . . . The landlord and tenant had a lawful right to make the agreement they did make, and the risk and loss of the defendant company, not having been increased thereby, it is liable for the amount due on its policy.” The judgment is affirmed.

CERCONE, President Judge Emeritus: ¶ 1 This is an appeal from an order that granted summary judgment in favor of Defendants/Appellees Gwynedd Development Group, Inc., Gwynedd Venture Associates, Inc., Theophile J. Mignatti, Jr., Au-gie W. Mignatti, Joseph A. Mignatti, and Daniel J. McNichol (hereinafter collectively referenced as “Appellees” or “Defendants”). We affirm. ¶2 Appellant, Michael P. Meyer, initiated the action underlying this appeal in October of 1988 for the purpose of recovering over $139,000 in real estate commissions allegedly owed to him for his services in marketing and selling dwelling units in a residential plan known as “The Village at Gwynedd.” The matter has followed a complex procedural course over a ten and one-half year period, including requests for temporary restraining orders and an interlocutory appeal by allowance on a collateral matter. See Gwynedd Development Group, Inc. et al. v. Department of Labor and Industry, Bureau of Labor Standards, 666 A.2d 365 (Pa.Commw.1995), appeal granted in part, 544 Pa. 218, 675 A.2d 1220 (1996). ¶ 3 The Honorable Richard S. Lowe aptly explained the factual history of the case as follows: Around August, 1985 Mr. Meyer entered into a written agreement with “defendants” under which Meyer was hired as the marketing and sales director for a real estate development known as the “Village at Gwynedd[.”] That letter, dated August 29, 1985, on the letterhead of Historic Venture Associates, Inc., provided that Mr. Meyer was to be marketing and sales director for the Village at Gwynedd. He was to be paid commissions on sales, with a bi-weekly draw against commissions of $1,000.[00], plus $250.[00] travel expenses. Mr. Meyer carried out his responsibilities and successfully marketed and sold numerous units at the Village at Gwyn-edd. For a time he was paid his agreed upon compensation. As of July, 1997 he earned commissions in excess of $139,-000.[00], for which he has not been paid. When Mr. Meyer began his employment he had discussions with defendant Theophile J. Mignatti, Jr. Mr. Meyer asked whether he would need to keep his real estate salesperson’s license active, and was told by Mr. Mignatti that this would not be necessary because he would be an employee of Gwynedd. The pace of sales slowed in late 1987 or early 1988. Plaintiff asserts, and we assume for purposes of this Motion, this was the result of poor construction management by defendant Gwynedd and a down turn in the economy. Around that time Mr. Mignatti approached Mr. Meyer and asked if Mr. Meyer could obtain a broker’s license in order to enable Gwynedd to use the multiple listing services. The dispute between the parties arose around that time. Trial Court Opinion, dated 9/2/99, at 3-4 (footnote omitted). ¶ 4 As previously noted, the litigation between and among the parties wended its way through the courts over a time period exceeding ten years. Ultimately, in July of 1999, the Trial Court granted Appellees’ motion for summary judgment. See Order dated July 1, 1999, docketed July 2, 1999. Appellant’s timely notice of appeal followed. On August 2, 1999, the Trial Court directed Appellant to file a Concise Statement of Matters Complained of on Appeal. Appellant complied on August 10, 1999. ¶ 5 The present appeal raises two issues for our consideration: A. DID THE LOWER COURT ERR IN FINDING THE PENNSYLVANIA REAL ESTATE LICENSING AND REGISTRATION ACT, 63 P.S. § 455.1010 ET SEQ., APPLIED TO APPELLANT/PLAINTIFF MICHAEL P. MEYER IN THIS PARTICULAR TRANSACTION? B. DID THE LOWER COURT ERR IN FINDING THAT APPELLANT/PLAINTIFF MICHAEL P. MEYER WAS REQUIRED TO BE LICENSED AS A BUILDER-OWNER SALESPERSON IN ORDER TO FILE SUIT AND RECOVER COMPENSATION FOR SERVICES RENDERED ON BEHALF OF APPELLEE/ DEFENDANT GWYNEDD DEVELOPMENT GROUP, INC.? Appellant’s Brief at 3. Our scope of review over a trial court’s order granting summary judgment is plenary. Feden v. Consolidated Rail Corporation, 746 A.2d 1158, 1161 (Pa.Super.2000). However, our standard of review is limited. We will reverse the judgment entered only if we find that the trial court committed an abuse of discretion. Id. In this context, abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Id. ¶ 6 Summary judgment properly may be entered only if (1) there is no genuine issue of material fact as to a necessary element of the cause of action which could be established by additional discovery or an expert report, or (2) after completion of discovery and production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action. Campanaro v. Pennsylvania Electric Company, 738 A.2d 472, 476 (Pa.Super.1999), citing Pa.R.C.P. 1035.2. When reviewing the propriety of a trial court’s grant of summary judgment, we must view the record in the light most favorable to the non-moving party and determine whether the moving party established that no genuine issue of material fact exists, thus entitling it to judgment as a matter of law. In making this determination, the non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute are resolved in favor of the non-moving party. Summary judgment is appropriate in only the clearest of cases. Id. (citations omitted). Accord Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). ¶ 7 Appellant first contends that the Trial Court erred in applying the Pennsylvania Real Estate Licensing and Registration Act (the “Act”), 63 P.S. §§ 455.101-455.902, to Appellant’s role in effectuating the land sales at issue in this case. We cannot agree with Appellant’s position in this matter. The Act establishes specific standards of conduct and licensing which pertain to all persons engaged in the sale or transfer of real property within this Commonwealth. See, e.g., 63 P.S. § 455.301, infra. The sales underlying this case consisted of property transfers from the builder, a corporate entity engaged in the business of constructing and selling housing, to laypersons purchasing residential units. “A principal purpose of the Act is to protect buyers and sellers of real estate, the most expensive item many persons ever buy or sell, from abuse by persons engaged in the business.” Kalins v. Commonwealth, State Real Estate Commission, 92 Pa.Cmwlth. 569, 500 A.2d 200, 203 (1985). ¶ 8 Appellant cites to Winthrop & Co., Inc. v. Milgrom, 447 Pa.Super. 140, 668 A.2d 557 (1995) and to Gruber v. Owens-Illinois, Inc., 899 F.2d 1366 (3d Cir. 1990) for the proposition that the Act does not pertain to real estate transfers devolving from “sophisticated business transactions.” We note initially that the decisions of the Third Circuit Court of Appeals are not binding on Pennsylvania Courts, even when a federal question is involved. Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 947, 952 (Pa.Super.2000). Nor is the Third Circuit’s interpretation of Pennsylvania state law binding upon the Superior Court, although we may at times find its reasoning to be persuasive. Id. ¶ 9 The Third Circuit case cited by Appellant, Gruber v. Owens-Illinois, Inc., stems from a parent corporation’s efforts to divest itself of the stock and assets of a Pennsylvania subsidiary corporation. The subsidiary owned real property as part of its business assets. The Third Circuit held that the person who acted as a “business finder-broker” to facilitate the sale was entitled to seek his sales commission on the stock transfer, notwithstanding the fact that he was not licensed as a real estate broker in Pennsylvania. As such, the case implicates interests not at issue in the present appeal, which deals only with the sale of residential units to ordinary buyers and in no way concerns sophisticated commercial transactions involving stock or corporate interests. ¶ 10 Winthrop stems from the efforts of a “business broker” who was not licensed in Pennsylvania as a “real estate broker” to recoup commissions in connection with the sale of a commercial cleaning business and “related real estate.” This Court held that the broker could recover his fees and commissions on that portion of the transaction attributable to the sale of the business. Winthrop applies the underlying rationale of Gruber which this Court found persuasive as it pertains to arms’ length dealings between sophisticated parties. Because the procedural posture of the case precluded the development of a full record, the Winthrop Court remanded to the trial court for a determination of whether a transaction prohibited under the Act had occurred. ¶ 11 The facts in the present case, as found by the Trial Court, demonstrate that Appellant was engaged, on a commission plus draw basis, to market and sell dwelling units in a residential plan to ordinary homebuyers. See Trial Court Opinion at 3, 5-6. The certified record supports the Trial Court’s conclusion in this regard. See, e.g., Exhibit “P-1” (Letter of Understanding between T.J. Mignatti, Jr. of Historic Venture Associates, Inc. and Michael P. Meyer) and Exhibit “P-2” (Employment Agreement between Gwynedd Development Group and Michael P. Meyer). We thus conclude, as did the Trial Judge, that unlike the situation in Winthrop & Co. or in Gruber, the present case does not implicate sophisticated buyers trading or purchasing stock or business interests in corporate entities that happen to own real property as part of the business assets. We agree with the Trial Court’s determination that the Act most certainly pertains to Appellant’s sales of the residential properties in the Village of Gwynedd. ¶ 12 The real estate sales at issue in this case occurred between July of 1987 and August of- 1988. At that time, the Act contained the following provisions that govern the questions presented by this appeal: Unlawful to conduct business without license or registration certificate It shall be unlawful for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity of a broker or salesperson, limited broker, limited salesperson, builder-owner salesperson, rental listing referral agent or cemetery company within this Commonwealth without first being licensed or registered as provided in this act, unless he is exempted from obtaining a license or registration certificate under the provisions of section 304. 63 P.S. § 455.301 (footnote omitted, emphasis added) (amended June 1990 by substituting the terms “cemetery broker” and “cemetery sales person” for “limited broker” and “limited salesperson” and amended July of 1990 by adding the terms “campground membership sales person” and “time-share salesperson”). We note that even the mere introduction of a willing buyer and a willing seller comes within the purview of this provision. See Harrison v. Soffer, 221 Pa.Super. 275, 289 A.2d 752, 756 (1972). See also Golibart v. Reamer, 415 Pa.Super. 623, 610 A.2d 56, 58-59 (1992), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992) (the Act barred an individual who was not a licensed real estate broker from recovering a fee for finding investors in a development). ¶ 13 A “builder-owner salesperson” is: Any person who is a full-time employee of a builder-owner of single and multifamily dwellings located within the Commonwealth and as such employee shall be authorized and empowered to list for sale, sell or offer for sale, or to negotiate the sale or exchange of real estate, or to lease or rent, or offer to lease, rent or place for rent, any real estate owned by his builder-owner employer, or collect or offer, or attempt to collect, rent for the use of real estate owned by his builder-owner employer, for and on behalf of such builder-owner employer. The term does not include any person employed by an owner of real estate for the purpose of managing or maintaining multifamily residential property: Provided, however, that such person is not authorized or empowered by such owner to enter into leases on behalf of the owner, to negotiate terms or conditions of occupancy with current or prospective tenants or to hold money belonging to tenants other than on behalf of the owner. The term “negotiate,” as used in this definition does not mean the transmission of information between the owner and current or prospective tenants, such as retail amounts, building rules and regulations or leasing determinations, so long as the owner retains the authority to make all such decisions. 63 P.S. § 455.201 (Definitions). A “salesperson” is: Any person employed by a licensed real estate broker to fist for sale, sell or offer for sale, to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate or to negotiate a loan on real estate or to lease or rent or offer to lease, rent or place for rent any real estate or collect or offer or attempt to collect rent for the use of real estate for or in behalf of such real estate broker. No person employed by a broker to perform duties other than those activities as defined herein under “broker” shall be required to be licensed as a sales person. Id. A “broker” is: Any person who, for another and for a fee, commission or other valuable consideration: (1) negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate; (2) negotiates the listing, sale, purchase, exchange, lease, financing or option for any real estate; (3) manages or appraises any real estate; (4) represents himself as a real estate consultant, counsellor [sic], house finder; (5) undertakes to promote the sale, exchange, purchase or rental of real estate: Provided however, that this provision shall not include any person whose main business is that of advertising, promotion or public relations; or (6) attempts to perform any of the above acts. Id. ¶ 14 The question of whether a person fits within one of the above definitions encompassed by the Act is one of law to be decided by the trial court. Golibart, 610 A.2d at 58. In this case, the Trial Judge found that for all real estate sales pertinent to this case, Appellant actually served as a “builder-owner salesperson,” a capacity in which he was not licensed to function pursuant to the Act. See Trial Court Opinion at 3-4. We agree with the Trial Court’s assessment of the facts of record in this case. ¶ 15 Appellant concedes that the records of the Pennsylvania State Real Estate Commission indicate that his real estate salesperson’s license was placed in escrow, and he is listed as “inactive,” from July 15, 1985 until May 18,1989. Appellant’s Brief at 4. As noted above, the relevant real estate transactions occurred in 1987 and 1988, when Appellant’s real estate license was in escrow. Appellant also essentially admits that he was never registered as a “builder-owner salesperson.” See Appellant’s Brief at 15-16. The certified record certainly fails to indicate that Appellant was ever so licensed, and the Trial Court found that he was not. Trial Court Opinion at 1. Additionally, the Trial Court found that Appellant was not a “broker” as that term is defined by the Act. Id. (In fact, the dispute that led to Appellees’ refusal to pay Appellant the disputed commissions arose, at least in part, because Appellant was not licensed as a broker, and Appellees wanted him to obtain a broker’s license. See Trial Court Opinion at 4.) ¶ 16 Pennsylvania law clearly precludes any person from recovering a commission or a fee for the transfer of an interest in real property if that person was required to be licensed pursuant to the Act, and was not so licensed at the time of the transaction: Civil suits No action or suit shall be instituted, nor recovery be had, in any court of this Commonwealth by any person for compensation for any act done or service rendered, the doing of which is prohibited under the provisions of this act by a person other than a licensed broker, sales person, limited broker, limited salesperson, builder-owner salesperson or rental listing referral agent, unless such person was duly licensed and registered hereunder as broker or salesperson at the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service. 63 P.S. § 455.302 (amended June and July of 1990 with the same substitutions and additions applied in § 455.301, supra). Relying on the above statutory provisions, Judge Lowe concluded that the transactions at issue in this appeal constituted sales of an interest in land of the type which are covered specifically by the Act. See Trial Court Opinion at 2-6. Under the circumstances of this case, we agree with the Trial Court’s holding that Appellant is precluded by section 455.302 of the Act from bringing suit or recovering any commissions or fees for his activities on Appel-lees’ behalf. There is no dispute of material fact that would permit Appellant to circumvent the full impact of this statutory provision. Consequently, the Trial Court was correct in granting summary judgment to Appellees. ¶ 17 We understand why Appellant contends so strongly that Appellees should be estopped by their conduct from enforcing the Act in this case. While we in no way condone Appellees’ actions, we cannot grant the relief Appellant requests. The simple truth, as the Trial Court correctly held, is that the Act admits of no exception for estoppel that would permit a Pennsylvania Court to order quantum meruit relief. See id. at 4. ¶ 18 Order affirmed. ¶ 19 KELLY, J. files a Dissenting Opinion. . On May 21, 1996, our Supreme Court granted allowance of appeal limited to the following issue: Whether the Wage Payment and Collection Law violates due process by virtue of the prejudgment execution on an employer's assets if the employer fails to post a bond. . We are cognizant of the fact that the Legislature enacted extensive amendments to the Act in 1990 and 1996, well after the Kalins decision was filed. However, none of these modifications in any way altered the underlying purpose of the Act which is to protect the public from abuse by those who are engaged in the business of trading real estate. . The terms of Appellant's employment contract, as set forth in these exhibits indicated that he was entitled to receive a biweekly draw against commissions of $1,000 plus expenses of $250 for travel. Both of these items were drawn against the sales commissions which were to be calculated only after the settlements occurred on the units Appellant sold. See Exhibit "P-1” (Letter of Understanding) at ¶ (c). . None of the exceptions listed in the pertinent version of section 455.304 pertains to the present appeal. See 63 P.S. § 455.304, Historical and Statutory Notes, Purdon's Supplementary Pamphlet (1995) (listing nine statutory exemptions to the licensing requirements of § 455.301 which were applicable between 1982 and 1990, the relevant timeframe of this case.). . Harrison was decided under the predecessor statute to the Act, the Real Estate Brokers License Act of 1929 (the Real Estate Brokers Act), which was repealed and substantially modified in 1980 by the Act at issue in this case. However, section 436(a) of the Real Estate Brokers Act and section 455.301 of the Act contain substantially the same operative language. Compare section 455.301, supra, with: License required (a) From and after January 1, 1930, it shall be unlawful for any person, copartnership, association, or corporation to engage in or carry on the business, or act in the capacity of a real estate broker, or a real estate salesman, within this Commonwealth without first obtaining a license as a real estate broker or real estate salesman from the [Department [of Public Instruction of Pennsylvania].... 63 P.S. § 436(a) (repealed, 1980 and replaced by section 455.301 of the Act). See Harrison, 289 A.2d at 756-758 (concurring opinion by Cercone, J. discussing the impact of section 436). . This definition was amended in June and July of 1990. See 63 P.S. § 455.201, Historical and Statutory Notes, Purdon’s Supplementary Pamphlet (1995). The 1990 amendments deleted the second and third sentences from the definition of “builder-owner salesperson” which was applicable between 1982 and 1990.

. FLAHERTY, Judge. Beverly Sanders (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) which affirmed an order of the Workers’ Compensation Judge (WCJ) that granted Marriott Corporation’s (Employer) petition to suspend and dismissed Claimant’s reinstatement petition as moot. We affirm. On February 26, 1996, Claimant was working as a general service food worker primarily making pizzas. On that date, Claimant suffered a work-related injury when she fell at work. A Notice of Temporary Compensation Payable was issued. Thereafter Claimant received total temporary disability benefits under a Notice of Compensation Payable (NCP) dated August 30, 1996. In October 1996, Claimant filed a reinstatement petition, alleging that “THE EMPLOYER STOPPED PAYING ME MY WORKER’S COMPENSATION BENEFITS AS OF SEPTEMBER 1, 1996 WITHOUT LEGAL CAUSE. I AM STILL UNABLE TO WORK DUE TO MY INJURY OF FEBRUARY 2, 1996. I REQUEST REINSTATEMENT OF MY COMPENSATION BENEFITS PLUS PENALTIES, INTEREST AND ATTORNEY’S FEES [sic, capitalization as in the original].” Claimant’s Petition to Reinstate, Certified Record. In addition, Claimant made a request for penalties, interest and attorney’s fees. In its answer to the reinstatement petition, Employer responded to Claimant’s averment that Employer ceased making compensation benefits in relevant part as follows: “Denied. Strict Proof Demanded. By way of further response the Claimant has and continues to receive temporary disability benefits at the rate of $175.97 per week, based upon an average weekly wage of $195.52, under a notice of Compensation Payable dated August 30, 1996.” Employer also denied Claimant was entitled to interest, penalties or attorney’s fees. Employer also filed a petition to suspend on the basis that Claimant had failed or refused to undergo reasonable and necessary medical care. In that petition to suspend, Employer declared that the date of the most recent payment of compensation was October 26, 1996. Employer also requested supersedeas. On the same day as filing the petition to suspend, Employer filed a petition requesting that the WCJ order Claimant to undergo a physical exam. In response to Employer’s petition to suspend, Claimant filed an answer denying that she failed to undergo reasonable treatment. The petitions were assigned to a WCJ who conducted hearings and took evidence. On March 18, 1997, the WCJ entered an interlocutory order granting Employer’s supersedeas request as of January 6,1997. In support of its petitions, Employer presented the medical testimony of Dr. Lubeck who examined Claimant. Dr. Lu-beck testified that Claimant suffered from posttraumatic headaches but that this condition did not prevent her from returning to work. Employer also presented the testimony of Dr. Tahmoush who examined Claimant on June 5, 1996 and again on July 17,1996. After his initial examination of Claimant, Dr. Tahmoush noted Claimant suffered from posttraumatic headaches and a shoulder strain. He recommended that Claimant not return to work until she had a course of physical therapy for her shoulder and medication for her headaches. After his second examination of Claimant on July 17, Dr. Tahmoush concluded that the therapy and medication improved her ability to work and her medical condition. Dr. Tahmoush scheduled a follow up appointment in four weeks. Claimant did not return for any follow up care though. Dr. Tahmoush released Claimant to full employment, opining that a two-month period of physical therapy and medication were sufficient to restore Claimant to gainful employment. A final appointment with Dr. Tahmoush was scheduled for Claimant on October 23, 1996 but Claimant failed to keep this appointment also. Employer also presented the testimony of David Tolbert, its manager at Claimant’s place of employment. Tolbert was informed that Claimant was released to return to work. Tolbert contacted Claimant informing her to report to work on August 28, 1996 for a start up meeting. Tolbert testified that Claimant reported to the start up meeting and picked up her uniform. Tolbert gave Claimant her work schedule indicating that she was to report to work on September 2, 1996. Claimant failed to report to work as scheduled on that day and has not returned to work. Tolbert testified that Claimant did not contact him or any of her supervisors to inform them about her absence. Claimant testified on her own behalf. Claimant conceded that she received the notice from Employer regarding her being medically cleared by Drs. Lubeck and Tah-moush to return to work on August 22, 1996. Claimant also admitted that she had not treated with any physician until she was referred to Dr. Karpin by her attorney representing her in the compensation proceedings. Claimant also presented the testimony of Dr. Karpin who first saw Claimant on October 17, 1996. Dr. Karpin opined that Claimant could not return to work. The WCJ credited the testimony of Dr. Lubeck in that Claimant was capable of returning to her time of injury position. The WCJ further credited the testimony of Drs. Tahmoush and Karpin only to the extent that they conform with the opinions of Dr. Lubeck. The WCJ specifically stated that the “testimony of Dr. Karpin is found not to be credible or persuasive that Claimant remains disabled from work.” WCJ’s Finding of Fact (F.F.) No. 15. The WCJ found Claimant to not be credible regarding her expressed inability to return to her time of injury job. Accordingly, the WCJ granted Employer’s suspension petition, suspending Claimant’s compensation benefits as of September 2, 1996. He further dismissed Claimant’s reinstatement petition as moot as well as Employer’s petition to compel Claimant to undergo a physical exam. Claimant appealed and the Board affirmed. Claimant now petitions this court for review. Claimant frames the only issue as: did the Board err as a matter of law in affirming the WCJ’s decision where Employer, on its own, without authority and in flagrant violation of the Workers’ Compensation Act, suspended benefits, which were payable pursuant to an open NCP from September 1, 1996 through March 13,1997 when Employer’s supersedeas request was granted. Claimant argues that Employer unilaterally ceased making wage replacement payments to her in September 1996 without any legal authority to do so in clear violation of established caselaw. See, e.g., Gillis v. Workers’ Compensation Appeal Board (Willits Roofing), 725 A.2d 257 (Pa.Cmwlth.1999); Winkelmann v. Workmen’s Compensation Appeal Board (Estate of O’Neill), 166 Pa.Cmwlth. 154, 646 A.2d 58 (Pa.Cmwlth.1994), allocatur denied, 540 Pa. 609, 655 A.2d 996 (1995) and; Cunningham v. Workmen’s Compensation Appeal Board (Inglis House), 156 Pa.Cmwlth. 241, 627 A.2d 218 (1993). Claimant urges that this court reverse the Board’s order and that Employer be directed to pay total disability benefits from September 1,1996 through March 13, 1997, the period during which Employer allegedly unilaterally suspended payments. See Claimant’s Brief at p. 14. In response, Employer argues that “there is no evidence whatsoever regarding a cessation of claimant’s benefits.” Employer’s brief at p. 6. Claimant does not controvert Employer’s assertion. Moreover, Employer notes “no penalty may be imposed ... without proof of a violation of the [Workers’ Compensation] Act or of a rule of the Department [of Labor] or Board.” Employer’s brief at p. 6, Accord Spangler v. Workmen’s Compensation Appeal Board (Ford), 145 Pa.Cmwlth. 56, 602 A.2d 446, 448 (1992). Of course the fact that there is no evidence of record to support a finding that Employer ceased making payments is not meaningful until one knows who bore the burden to produce evidence of the payment or lack of payment. Where as here, Claimant is seeking penalties for the Employer’s purported violation of the Act, the burden of producing such evidence and persuading the factfinder of the credibility of such evidence is the burden of the Claimant. Shuster v. Workers’ Compensation Appeal Board (Pennsylvania Human Relations Commission), 745 A.2d 1282, 1288 (Pa.Cmwlth.2000)(“This Court has held that a violation of that Act or its regulations must appear in the record for a penalty to be appropriate.... Therefore, once a claimant files a penalty petition, the onus is on him or her to establish a violation of the Act or its rules or regulations.”) (citation omitted). Having ascertained that it was Claimant’s burden to produce evidence of a violation of the Act or its regulations, namely, to produce evidence that Employer ceased making payments, we now examine the record to determine if Claimant produced such evidence. We have thoroughly reviewed the record especially the transcript of the proceedings before the WCJ occurring on May 16, 1997 wherein Claimant testified before the WCJ and the deposition transcript of Tolbert. Nowhere in the record is there any evidence whatsoever that supports the bare allegation of the Claimant contained in her reinstatement petition (which Employer specifically denied) that Employer ceased paying benefits. Claimant never once testified that Employer ceased making payments. We note that the WCJ made no specific finding of fact regarding whether Employer ceased making payments or not. However, our review of the record reveals that if the WCJ had made a finding that Employer ceased making payments, the record being devoid of any evidence whatsoever in this regard, such a finding would be without substantial evidence in support thereof. Although Claimant alleged in her reinstatement petition that Employer ceased payment of benefits as of September 1, 1996, we note that petitions are not evidence until formally offered and admitted into evidence. See, e.g., 34 Pa.Code § 131.52(c) entitled “First Hearing Procedures” which provides in relevant part that the WCJ “shall place in evidence as Bureau exhibits current Bureau documents with the same injury date and pertaining to the same claim, with the exception of the Employer’s Report of Occupational Injury or Disease and pleadings of the parties.” (emphasis added). This rule of practice in the Workers’ Compensation area is consistent with the common law regarding pleadings. See Buehler v. United States Fashion Plate Co., 269 Pa. 428, 438, 112 A. 632, 634 (1921)(“While the pleadings in a case determine the issues, primarily they are not evidence for any purpose, unless made so by act of assembly.”). While Claimant could have formally sought to introduce her petition into evidence, she did not do so. See also Miller v. Workers’ Compensation Appeal Board (Community Hospital of Lancaster), 737 A.2d 830 (Pa.Cmwlth.1999). In Miller, a claimant sought to utilize an alleged admission by the employer made in its answer. We noted that in order to do so, claimant would have had to formally introduce employer’s answer into evidence. We held that because claimant failed to offer employer’s answer into evidence, the answer could not constitute evidence and thus there was no “evidence” of record of the employer’s alleged admission. Thus, as in Miller so also here, Claimant failed to introduce the pleadings into evidence, as a result, there is no evidence to support a finding by the WCJ that Employer unilaterally ceased making payments. Just as petitions which are not formally offered and accepted into evidence are not evidence, briefs filed in this court are not part of the evidentiary record and assertions of fact therein which are not supported in the evidentiary record created below may not form the basis of any action by this court. Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 265, 272 A.2d 465, 466-67 (1971)(“Apparently, the court took into consideration facts alleged in the briefs, but briefs are not part of the record and the court may not consider facts not established by the record); Federal Land Bank of Baltimore v. Sustrik, 367 Pa.Super. 582, 533 A.2d 169, 175 (1987)(“However, a brief, and the statements contained therein, is [sic] not part of the record which an appellate court can take cognizance of without contravening established law to the contrary.”). See also Miller v. Department of Public Welfare, 99 Pa.Cmwlth. 392, 513 A.2d 569, 570 n. 5 (1986)(“Included in Petitioner’s brief to this Court are some statistical studies of the availability of such jobs. Petitioner did not introduce any of these studies into evidence at her hearing before the Board so we are precluded from considering them now.”). Thus, the bare assertion of fact in Claimant’s brief filed in this court that Employer ceased making payments to her, which assertion is otherwise not supported in the evidentiary record created below, cannot legally form the basis of any action by this court. Because there is no evidence in the evidentiary record created before the WCJ to support a finding that Employer ceased making payments to Claimant, we are unable conclude that the WCJ abused his discretion in not awarding penalties against Employer. Neither can we find fault with the WCJ’s failure to order the Employer to pay compensation benefits from September 1, 1996 until March 13, 1997 where Claimant adduced no evidence whatsoever that. Employer did not pay compensation benefits during the relevant period. Claimant does not argue in her brief to this court that the suspension of her benefits beyond March 13, 1997 was in error. Indeed, Claimant specifically states that “claimant request[s] that the Board’s order affirming a suspension of benefits as of September 2, 1996 be modified to reflect a suspension of March 13, 1997....” Claimant’s brief at p. 8. Accordingly we do not address the propriety of the WCJ’s suspension of Claimant’s wage replacement benefits beyond March 13, 1997. Claimant only argues that the date upon which the WCJ found the suspension to have been proper, i.e., September 2, 1996, was an incorrect date and that the proper date should have been March 13, 1997, the date of the WCJ’s grant of supersedeas. Claimant premises this argument on the alleged but unproven “fact” that on September 2, 1996, Employer unilaterally ceased making payments to her and that the WCJ’s grant of suspension of that date improperly validates Employer’s illegal actions. If there were evidence of record to support a finding that Employer did in fact unilaterally cease making payments to Claimant and the WCJ found such evidence credible, we would have no hesitancy in holding that the WCJ’s mere grant of suspension as of September 2,1996 did not serve to retroactively validate Employer’s unilateral cessation of payments as of that date. See, e.g., M.A. Bruder & Son v. Workmen’s Compensation Appeal Board (Harvey), 86 Pa.Cmwlth. 353, 485 A.2d 93 (1984)(WCJ cannot retroactively justify employer’s unilateral cessation of payment of benefits by grant of retroactivé suspension of benefits). However, no such evidence exists and no such finding of fact was made. Thus, we -cannot say that the WCJ’s suspension of benefits as of September 2, 1996 constituted an improper retroactive validation of Employer’s unilateral cessation of making payments because we cannot conclude that the Employer did in fact cease making payments as of that date. Accordingly, the order of the Board is affirmed. ORDER AND NOW, this 12th day of July, 2000, the order of the Workers’ Compensation Appeal Board, docketed at A98-1269 and dated August 9, 1999 is hereby affirmed. . By order of this court dated, September 29, 1999, Claimant was excused from filing a reproduced record. Hence, citations are to the certified record. . Appellate review over an order of the Board is limited to determining whether constitutional rights were violated, an error of law was committed or whether substantial evidence supports the WCJ's findings of fact. Sheridan v. Workers’ Compensation Appeal Board (Anzon, Inc.), 713 A.2d 182 (Pa.Cmwlth.1998). . Act of June 2, 1915, P.L. 736, as amended, 77P.S. §§ 1 — 1041.4; 2501 — 2626. .Although in her statement of question presented Claimant lists the date of March 17, 1997 as the ending date for making wage replacement benefits; it is obviously an error. Elsewhere in her brief Claimant acknowledges that March 13, 1997, the date of the WCJ's interlocutory order granting Employer's supersedeas, was the last date of Employer's responsibility for wage replacement benefits. See Claimant’s brief at pp. 8, 11, 12 & 14. . Although Claimant filed a reinstatement petition, it was not necessary to do so. Once a notice of compensation issues, the liability of the employer to make wage replacement payments continues until a legally recognized event, such as an order from an appropriate tribunal terminates such liability. Sheridan v. Workers’ Compensation Appeal Board (Anzon, Inc.), 713 A.2d 182 (Pa.Cmwlth.1998). Where the employer unilaterally ceases making such wage replacement benefits, the proper petition to file is a penalty petition which places the initial burden on the claimant to produce evidence that a violation of the Act or its rules or regulations occurred. Shuster. Once the claimant produces such evidence, the burden then shifts to the employer to prove that it did not violate the Act or its rules or regulations. Id. In contrast, in a reinstatement petition, a claimant bears the heavier burden of proving generally that 1) through no fault of her own, her earning power is again affected by the work-related injury and 2) the physical disability caused by her original work related injury continues. Magulick v. Workers' Compensation Appeal Board (Bethlehem Steel Corp.), 704 A.2d 176 (Pa.Cmwlth. 1997). Thus, if as alleged by Claimant herein, Employer did in fact unilaterally cease making wage replacement benefits, Claimant need only have filed a penalty petition. A reinstatement petition, with its heavier burden, is properly filed when wage replacement benefits have been legally terminated, suspended or modified. See Section 413(a) of the Pennsylvania Workers' Compensation Act. We note that the form of a petition filed is generally not controlling. See, e.g., Schriver v. Workers' Compensation Appeal Board (Dept. of Transportation), 699 A.2d 1341 (Pa.Cmwlth.1997). Although the form of the petition is generally not controlling, it may well help to focus counsel’s attention as to what needs to be proved in order to merit relief. Here, in one sentence in her brief Claimant requests that the "the Board’s order affirming a dismissal of the reinstatement petition be reversed....” Claimant’s brief at p. 14. However, it appears that Claimant was only seeking "reinstatement” of her benefits for the period of September 2, 1996 to March 13, 1997 and not thereafter. See, e.g., Claimant’s Petition for Review at ¶ 3A(4) filed in this court wherein she states "the WCJ failed to grant claimant's [reinstatement] petition for the period during which defendant took a unilateral suspension.” (emphasis added). However, as we note above, Claimant failed to produce any evidence before the factfinder that Employer did in fact unilaterally cease making payments, thus, there is no basis in the record for reversing the WCJ’s denial of her request to "reinstate" her benefits for that period of time.

ORDER PER CURIAM: AND NOW, this 27th day of July, 2000, the Petition for Allowance of Appeal is hereby granted, limited to the following issue: Whether the trial court erred in denying Petitioner’s requested charge as to criminal negligence as it pertains to 75 Pa. C.S. § 3735, homicide by vehicle while driving under the influence.

BROSKY, J. ¶ 1 This is an appeal from a judgment entered in Appellee’s favor in a products liability action. Appellants raise four issues for our consideration, which we restate as follows: whether the court erred in preventing Appellants from referencing, for any reason, a chair manufactured by Appellee that possessed the design feature Appellant’s expert opined would remedy the defect the chair in question possessed; whether the court erred in refusing to preclude testimony of misuse of the chair; whether the actions of the court demonstrated prejudice and bias against Appellants and whether the charge of the court was incorrect with respect to critical aspects of the case? We vacate the judgment and remand for a new trial. ¶ 2 Appellant, Monali Phatak, avers that she sustained personal injury in August 1993, while at work, when a chair in which she was sitting tipped forward causing her to fall from the chair. The chair, manufactured by Appellee, was a “standard' secretarial chair,” with four legs/outriggers emanating from a central spindle. The accident occurred while Ms. Phatak was leaning forward attempting to pick up a pen that she had dropped on the floor. At trial, Appellants averred that the chair was defectively designed in that the legs/outriggers did not extend all the way out to the end of the seat of the chair. This design, according to Appellants, made the chair unstable and prone to tipping over but could have been easily remedied by merely extending the legs a few inches so that they extended past the edge of the seat. Appellee introduced evidence that Appellant had been sitting with her legs wrapped around the base or outriggers and argued that this “misuse” of the chair was the reason the chair tipped and she fell from it. ¶3 At trial, in support of their legal theory, Appellants attempted to introduce evidence that Appellee manufactured chairs which contained the exact design feature that they assert would have rendered the chair in question “safe.” However, they were prevented from doing so. After the close of evidence the jury found, by special interrogatory, that the chair was not defective. Thus, judgment was entered for Appellee. Appellants filed post-trial motions for new trial, but were denied relief. This appeal followed. ¶ 4 Appellants first assert that the Court erred in refusing to allow them to introduce, for any reason, evidence that Appel-lee currently designed and marketed models of chairs that lacked the alleged design defect that Appellants assert the chair in question possessed. We agree. ¶ 5 With respect to the grant or refusal to grant a new trial upon allegations of error in the admissibility of evidence we have stated: Decisions regarding the admissibility of evidence are within the discretion of the trial court and will be reversed on appeal only if the trial court abused its discretion or committed an error of law. ... We will grant a request for a new trial based upon a trial court’s evidentia-ry rulings only if those rulings not only are erroneous, but also are harmful to the complaining party. ... Evidence is relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more or less probable, or supports a reasonable inference or presumption about the existence of a material fact. (Citations omitted). Southard v. Temple University Hospital, 731 A.2d 603, 615 (Pa.Super.1999). ¶ 6 Reduced to its bare essence, Appellants’ theory of liability was that the chair Appellant was seated on, and from which she fell, featured a defective design in that the chair overhung the legs or “outrig gers” creating an increased potential for tipping over. The chair in which Appellant was seated featured legs that stopped a few inches short of the perimeter of the chair. They alleged that a chair design that featured longer legs/outriggers would have had more stability and been less prone to tipping when there was a weight shift away from the center of the chair. In fact, Appellee manufactured other chair models where the legs/outriggers extended to the perimeter of the chair. Appellants attempted, in two specific contexts, to introduce evidence that Appellee manufactured other chairs with the design feature they argue made the chair safer, and were foiled in each attempt. ¶ 7 The first attempt occurred while Appellants’ expert was describing the alleged defect and the “simple and direct” method for remedying the defect. Appellants’ counsel desired to have the expert identify a chair in the courtroom with a similar design to illustrate what he was talking about. This chair happened to be a Model S — 11 chair manufactured by Appellee. The Court sustained a defense objection to the identification. ¶ 8 The second attempt came after Ap-pellee’s expert witness asserted that extending the outriggers would have created an “unbelievable” and “unacceptable” safety/tripping hazard to people walking by, or around, the chair. After Appellee’s expert made these assertions, Appellants’ counsel attempted to cross-examine him by utilizing Appellee’s 1997 catalog which featured chairs with the design feature Appellee’s expert had indicated would provide an “unbelievable” and “unacceptable” hazard. However, Appellants were thwarted in their attempts at this cross-examination and in their attempts to question Appel-lee’s corporate representative on rebuttal as to this matter. ¶ 9 The attempts to introduce evidence that Appellee manufactured chairs with outriggers extending past the perimeter of the chair implicates at least four admissibility/evidentiary issues, evidence by demonstration, evidence of an alternative design, evidence of a subsequent design change/remedial measure and rebuttal/impeachment. Since Appellants’ counsel was essentially prevented from arguing the basis for which he wished to introduce the evidence, we must consider all the bases for admission argued on appeal. ¶ 10 Citing to Mendralla v. Weaver Corp., 703 A.2d 480 (Pa.Super.1997), Appellants assert that they should have been allowed to refer to other chairs manufactured by Appellee to demonstrate the “feasibility” of producing a chair with the design feature they proffered. We agree. Mendralla clearly states that evidence of a subsequent design change is probative of the feasibility of an alternate design. Id., 703 A.2d at 484, n. 2. As such, based upon this reason alone, the evidence should have been allowed. ¶ 11 Also at issue is evidence of an alternative design. It would seem that this was the primary focus of the trial court in denying Appellant an opportunity to show or refer to another chair. This fact is evidenced by the Court’s response to the objection of Appellee’s counsel. Appellee’s counsel asserted, while objecting, “what’s at issue here is this chair,” to which the court replied, “right.” N.T. 4/5— 7/99, at p. 253. Nevertheless, it appears that the court erred in this respect. In Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985), we indicated that in a defective design case it is relevant to show the “state of the art” in design safety at the time the product was manufactured. Both Gottfried, and Connelly v. Roper Corp., 404 Pa.Super. 67, 590 A.2d 11 (1991), seemingly support the practice of allowing reference to other similar products for purposes of showing alternative design features available at the time the product in question was manufactured. In other words, such evidence is allowed to show the “state of the art” of safety design at the time in question. Consistent with this principle there would seem to be no impediment to including other products of the defendant manufacturer if they otherwise fell within the ambit of this rule. ¶ 12 Also with respect to this issue of admissibility of the subject evidence, Appellants lastly assert that they should have been allowed to cross-examine Appellee’s expert and/or enter other evidence that Appellee manufactured chairs in which the legs extended past the perimeter of the chair after Appellee’s expert asserted that doing so would have created an “unbelievable” and “unacceptable” hazard. We agree with this contention as well. ¶ 13 In the case of Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169, 1172 (1997), our Supreme Court indi cated the proper focus of a litigant in a products liability case: It is well established that the concept of strict liability allows a plaintiff to recover where a product in “a defective condition unreasonably dangerous to the consumer or user” causes harm to the plaintiff.... Pennsylvania law requires that a plaintiff prove two elements in a products liability action: that the product was defective, and that the defect was a substantial factor in causing the injury- Specifically, in a design defect case, the question is whether the product should have been designed more safely. (Citations omitted). Appellee defended the design of its chair by arguing that not only was it “safe” as designed, but that incorporating the design Appellants proffered would have created a substantial hazard to other workers. There can be no question that terms such as “safeness” and “defective” are terms of art subject to relative meaning. As our Supreme Court stated in Spino, “the question is whether the product could have been designed more safely.” This passage suggests an analysis of relativity. A manufacturer could build automobiles to more closely resemble tanks. This might make them safer but, from a societal standpoint, it is unlikely doing so would be viewed as a valid trade-off, particularly if, in the process, other danger is created. In Riley v. Warren Manufacturing, Inc., 455 Pa.Super. 384, 688 A.2d 221 (1997), we discussed some of the factors that go into this analysis, which had been first introduced in the case of Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984). We mentioned: The gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design.... The Court also cited to additional factors, which included: (1) The usefulness and desirability of the product — its utility to the user and to the public as a whole. (2) The safety aspects of a product — the likelihood that it will cause injury, and the probable seriousness of the injury. (3) The availability of a substitute product which would meet the same need and not be as unsafe; (4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility- (5) The user’s ability to avoid danger by the exercise of care in the use of the product. (6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (7) The feasibility on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance. These additional factors were derived from an article by Dean John Wade of Vanderbilt University, “On the Nature of Strict Tort Liability for Products,” 44 Miss.L.J. 825, 837-38 (1973). (Citations omitted). Thus in determining whether the design of a product is “defective” or “unreasonably dangerous,” or whether a product could have been designed “more safely,” many factors could seemingly be weighed by the jury in reaching the ultimate conclusion whether a product was defective or not. ¶ 14 The question before us, as we see it, is whether an assertion that a design change would make a product “unbelievably hazardous” to other persons enters into the equation of whether the product is “defective” for products liability purposes. We think the answer is yes. Accordingly, by interjecting this factor into the equation in the present case Appellee “opened the door” and its assertion should have been open to rebuttal, including the introduction of evidence that Appellee, itself, utilized this design feature in certain of its chairs. ¶ 15 Among the factors quoted above for determining whether a product is “defective” is “the adverse consequences to the product and to the consumer that would result from a safer design.” This factor would seemingly implicate the contention made here. If, in fact, making the chair in question “safer” for its occupant also created an “unbelievable hazard” to others, the risk-utility is essentially negative. The safety utility to the occupant would seemingly be outweighed by the extra risk created to others. The same could be said if, as used in example above, an automobile were made to resemble a tank. It might make its occupants safer, but if in so doing it creates an unacceptable hazard to other motorists or pedestrians, the risk-utility is negative and the product design feature should be thought of as a negative, not a positive. ¶ 16 Similarly, one of the “additional factors,” quoted above, also supports this analysis. One of the “additional factors” reads “the usefulness and desirability of the product — its utility to the user and to the public as a whole.” If, as Appellee contended, extending the outriggers would have created an “unbelievable tripping hazard” to others, its overall “usefulness,” “desirability” and “utility” would be adversely affected. Thus, Appellee’s contention must be thought of as having had a bearing on the determination of whether the chair was defectively designed. ¶ 17 In a similar context we indicated that a defendant’s expert’s testimony suggesting that introducing a specific design feature would have been impractical opened the door to evidence that the design was practical. This included the introduction of evidence that the same manufacturer had later incorporated the exact design feature in question. The case making this holding was the above-discussed Duchess v. Langston Corp., 709 A.2d 410 (Pa.Super.1998), and the design feature in question was an interlock device. ¶ 18 Duchess involved a plaintiff who sustained injury to his hand, including the loss of fingers, when his hand was grabbed by moving rollers in a box-making machine. The theory of products liability was that the machine was defectively designed because it did not have an interlock (cutoff) device that would have shut down the rollers when an ink shield had been removed. The defendant’s expert had testified in a manner that this Court characterized as questioning the practicality of installing an interlock device. Yet, the defendant had, in fact, installed an interlock device in subsequent versions of the machine in question. When the plaintiff attempted to introduce evidence that the defendant had incorporated an interlock device he was precluded from doing so. We reversed. In this Court’s opinion, the expert’s testimony invited rebuttal and allowed the introduction of the evidence. ¶ 19 In the present case the issue of the safeness of extending the outriggers was a matter made relevant by Appellee’s assertion that doing so would create an “unbelievable hazard” to others. Since, as determined above, the safeness of the proposed design feature was a factor that was relevant to the determination of whether the chair was “defectively designed,” Appellants should have been allowed to introduce evidence that Appellee manufactured other chairs incorporating this design feature. As we stated in Duchess, “the fact that appellee’s (sic) subsequently incorporated the interlock made it more likely than not that the interlock was not impractical. Thus, we agree with appellant’s contention that once appellee’s expert questioned the practicality of the interlock, appellants should have been permitted to show that the interlock had been incorporated on the machine.” Id., 709 A.2d at p. 415. Similarly, the fact that Appellee extended the outriggers on certain of its other chairs certainly rebuts the assertion that doing so creates an “unbelievable hazard” to other workers. Thus, Appellants should have been permitted to introduce that evidence. ¶ 20 Both Appellee and amicus, Pennsylvania Defense Institute (PDI), address the applicability of Duchess, but neither adequately refutes the premise above. The entire discussion of Duchess in amicus’ brief relates to the issue of a remedial measure/design change. While this discussion had relevance to the matters discussed in the first part of the opinion, PDI’s brief does not discuss the opening of the door and rebuttal aspects of Duchess. ¶ 21 In contrast, Appellee’s brief does address the rebuttal aspect of Duchess briefly, but simply argues that Appellee’s expert here did not discuss practicality. While this is true, in our opinion the premise of Duchess does not hinge solely upon the introduction of a praetieality/feasibility issue. Any matter relevant to the design defect determination interjected by a defendant would also implicate the holding of Duchess. The essence of the Duchess holding as to the cross-examination/rebuttal matter was that the defendant made an assertion that related to the design defect determination thereby allowing the plaintiff to rebut the assertion. Moreover, in Duchess the assertion, in essence, discredited the design feature proffered by the plaintiff, which entitled the plaintiff to show that the defendant had indeed incorporated the design discredited by the expert. Here, Appellee’s expert discredited the proposed design by suggesting it would create an “unbelievable hazard.” Thus, Appellants were entitled to show that Appellee in fact incorporated this design feature in some of its chairs. ¶22 For the various reasons discussed above, we conclude that the Court erred in preventing reference to other chairs manufactured by Appellee that featured the design feature in question. Furthermore, like the Duchess court, we believe this error requires the granting of a new trial. Consequently, we shall grant Appellants a new trial. ¶ 23 Our decision to vacate and remand is premised entirely upon the analysis set forth above. Since none of the issues raised by Appellants will provide greater relief than that already granted we express no opinion as to the merits of the other issues raised by Appellants. For the reasons detailed above, we must vacate the judgment appealed from and remand for a new trial. ¶ 24 Judgment vacated. Remanded for a new trial. Jurisdiction relinquished. ¶ 25 ORIE MELVIN, J., files a Concurring Opinion. MUSMANNO, J., joins both this Opinion by BROSKY, J. and the Concurring Opinion by ORIE MELVIN, J. . When Appellants’ counsel began to ask the expert witness whether there were any chairs in the courtroom that featured the design he had been discussing, Appellee’s counsel quickly objected and the objection was, likewise, rather promptly sustained. Appellants' counsel then requested a sidebar discussion but the request was denied. . Obviously, rebuttal was not implicated in Appellants’ attempt to refer to the chair during direct examination of their expert witness. . We acknowledge that there appears to be at least confusion, if not outright conflict, in our caselaw on this matter, or at least the appearance of such. See, comment,. Pa.R.E 407. Connelly v. Roper Corp., 404 Pa.Super. 67, 590 A.2d 11 (1991), indicates that subsequent design changes are not admissible to prove defective design because what is at issue is the design at the time the subject product was manufactured. Connelly, however, would seemingly allow evidence of other design alternatives that existed at the time the subject product was manufactured as would Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985), which also concluded that subsequent safety features were irrelevant to the safety of .a product manufactured previously. Duchess v. Langston Corp., 709 A.2d 410 (Pa.Super.1998), appeal granted, in part, 556 Pa. 435, 729 A.2d 69 (1999), seemingly departed from Connelly and Gottfried, by allowing a subsequent design change/improvement to be introduced to prove a design defect. The Duchess panel justified this decision by noting that the type of device at issue, the interlock, was widely used at the lime the machine in question was manufactured. The Duchess court also justified its decision by arguing that it was evidence of a "subsequent repair” and fell under Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984). Matsko held that evidence of a recall on a product was admissible in a strict liability case and further held that the so-called "subsequent repair” rule should not be applicable in a products liability case. Judge Del Sole, dissenting in Duchess, found the majority’s reliance upon Matsko "misplaced” noting that a subsequent design change was not a “subsequent repair.” Duchess, 709 A.2d at p. 416. With respect to Mendralla, although the discussion on the matter was sparse, Mendralla seemingly departed from Connelly and Gott-fried asserting that subsequent design changes are relevant and admissible to demonstrate the feasibility of alternative designs. While the Court’s discussion on the matter was relegated to a footnote, its holding was quite explicit. Since Mendralla was decided by this court sitting en banc, the Court had the authority to modify prior precedent of the Superior Court and it is probably best viewed as having done so in Mendralla, at least until such time as further guidance is provided. Moreover, as a panel of the Superior Court we are not free to ignore its holding. In any event, we note that the Pennsylvania Supreme Court has granted allowance of appeal in Duchess limited to the following issue: "Did the Superior Court err in reversing judgment in favor of Petitioner finding that evidence of a subsequent design change was admissible as a subsequent repair as opposed to a subsequent remedial measure?” Consequently, more definitive guidance may be provided by that court in due time. . In Gottfried, which involved injury occurring when opening a can of nuts, we noted that the Appellant there had been permitted to show cans manufactured by others at the time the subject can had been made. In Connelly, which involved injury caused by a snowblower, the Appellants were permitted to introduce evidence that certain design features they asserted should have been incorporated were available at the time the unit was manufactured. . Although Appellee evidently manufactured a chair with outriggers extending past the perimeter of the chair, it is unclear from the record whether Appellee did so at the time the chair involved in the accident here was manufactured or at some later time.

ORDER PER CURIAM: AND NOW, this 6th day of February, 1997, there having been filed with this Court by Joseph A. Battist his verified Statement of Resignation dated January 8, 1997, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of Joseph A. Battist be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

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

OPINION CAPPY, Justice. Robert Baker (hereinafter “Appellant”) appeals from the order of the Superior Court which affirmed' the order of the trial court sentencing him to, inter alia, ninety days imprisonment. We reverse for the reasons stated below. On September 28, 1993, Appellant was cited by a Lebanon City Police officer for driving under a suspended license, D.U.I. related, 75 Pa.C.S.A § 1543(b). On February 15,1994, Appellant was found guilty by a District Justice. On March 17, 1994, Appellant, acting as his own counsel, filed a notice of appeal for a de novo trial in the Court of Common Pleas of Lebanon County. That court originally scheduled the trial for May 25, 1994. On May 24, 1994, Appellant, still acting as his own counsel, filed a written motion for continuance of the trial. Appellant failed to comply with the Lebanon County local rule of court which required that he provide a self-addressed stamped envelope so that he could receive a copy of the court’s signed order granting or denying the motion. The motion for continuance was granted and the hearing was rescheduled to June 29, 1994. Appellant, having received no copy of the order indicating the rescheduled date, failed to appear on June 29, 1994 and was found guilty in absentia. Subsequently, the trial court found as a fact that Appellant did not provide a self-addressed stamped envelope. Appellant filed an appeal to the Superior Court, claiming that his right of procedural due process had been violated because he had not been given notice of the rescheduled hearing. The Superior Court denied Appellant any relief and affirmed on the basis of the trial court opinion which reasoned that Appellant’s failure to comply with the Lebanon County court local rule caused Appellant’s lack of notice, and, as such, Appellant cannot be heard to complain of his lack of notice. Before this court, Appellant claims that the Lebanon County court local rule and its procedure is unconstitutional as violative of procedural due process in that it denied Appellant notice of the hearing. However, because we find that the Lebanon County Clerk of Courts failed to fulfill its obligation under Pa.R.Crim.P. 9025, we find it unnecessary to reach the constitutional issue. See Commonwealth v. Dillworth, 431 Pa. 479, 483, 246 A.2d 859, 861 (1968). See also In re Fiori, 543 Pa. 592, 600, 673 A.2d 905, 909 (1996); Commonwealth v. Tarbert, 517 Pa. 277, 301-02, 535 A.2d 1035, 1047 (1987) (Papadakos, J., concurring); Commonwealth v. Richman, 458 Pa. 167, 187, 320 A.2d 351, 357 (1974)(Pomeroy, J., concurring)(“Our court has a well-founded reluctance to decide issues of constitutional law when disposition can be had on some other adequate ground.”). In his brief to this court, Appellant does raise an issue of the proper interpretation of Pa.R.Crim.P. 9025 and what it requires. Appellant essentially suggests that the Lebanon County court local rule is inconsistent with Pa.R.Crim.P. 9025. Appellant states: Notwithstanding, the due process issue, there is statutory [sic] guidance in the Pennsylvania Rule[s] of Criminal Procedure. Under Pa.R.Crim. Rule [sic] 9025, formerly Pa. R.Crim.P. Rule 9024, the Rule states the following: “Upon receipt of an Order from a Judge, the Clerk of Courts shall immediately docket the Order and record in the docket the date it was made. The Clerk shall forthwith furnish a copy of the Order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof.” Prior to January 1, 1994 there was a provision in this Rule that said “except as may be provided by local Rules”. This was deleted for all cases commencing after January 1, 1994. This provision may leave the notice requirement ambiguous from the period of January 1,1994 until September 1,1994 when new Amendments were introduced into the Rules of Criminal Procedure. Appellant’s Brief at 9-10. Pa.R.Crim.P. 9025 currently reads as follows: Upon receipt of an order from a judge, the clerk of courts shall immediately docket the order and record in the docket the date it was made. The clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney and shall record in the docket the time and manner thereof. The predecessor of Pa.R.Crim.P. 9025 was the former Pa. R.Crim.P. 9024 and read as follows: Upon receipt of an order from a judge, the clerk of court shall immediately docket the order and record in the docket the date it was made. Except as may be provided by local rules, the clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof. (Emphasis added). The emphasized words appearing in the former Pa.R.Grim.P. 9024 permitted local rules to provide otherwise than the statewide rule. Those precise words were dropped from the successor rule, presently Pa.R.Crim.P. 9025. Thus, under current Rule 9025, local rules may not deviate from the practice provided for in the statewide rule. Accordingly, depending upon which version of the statewide rule is applicable to this case, the local rule may either deviate from the statewide rule or it may not. Appellant suggests that Pa.R.Crim.P. 9025 as revised is clearly inconsistent with the local rule as interpreted by the lower courts. Appellant seems unsure, however, as to whether the newer version of the statewide rule as presently embodied in Pa.R.Crim.P. 9025 applies or whether the earlier version of the rule as embodied in former Pa.R.Crim.P. 9024 applies. The Commonwealth does not share Appellant’s uncertainty. The Commonwealth asserts that the earlier version of the rule as embodied in former Rule 9024 applies. The Commonwealth argues that the “final form of the [revised] Rules was not effective until September 1,1994, after Appellant had been determined to be guilty of the offense and after Appellant’s sentencing in this matter.” Commonwealth’s Brief at 9. The “Note” following present Rule 9025 provides guidance as to which version of the statewide rule is applicable herein. The Note reads as follows: NOTE: Formerly Rule 9024, adopted October 21, 1988, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 199k; renumbered Rule 9025 and Comment revised June 2, 1994, effective September 1, 1994. (emphasis added). As the emphasized language indicates, the revised Rule 9025 (i.e., the Rule without the language “Except as may be provided by local rules”) was applicable to cases in which the determination of guilt occurred on or after January 1,1994. As Appellant herein was first found guilty on February 15, 1994, the revised Rule 9025 applies. Therefore, the Lebanon County court local rules may not provide otherwise than the statewide rule. The apparent source of confusion for the litigants as to which version of the statewide rule applied arose because of the language in the Note which provided that former Pa. R.Crim.P. 9024 was renumbered to the present Pa.R.Crim.P. 9025 effective September 1, 1994. Although the renumbering of the Criminal Procedural rules did not take effect until September 1, 1994, the linguistic revisions (which excised the language “Except as may be provided by local rules”) clearly became applicable to cases where guilt was determined on or after January 1, 1994. Having decided which version of the statewide rule applies, we must now determine what Rule 9025 means as applied to this case. Pa.R.Grim.P. 9025 provides that the Clerk “shall forthwith furnish a copy of the Order.” (emphasis added) We note that the Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction. Commonwealth v. Reeb, 406 Pa.Super. 28, 593 A.2d 853 (1991), alloc. den., 530 Pa. 665, 610 A.2d 45 (1992). Cf. Pa.R.A.P. 107. With this principle in mind we recall that “[tjhe word ‘shall’ as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed.” Commonwealth v. Sojourner, 513 Pa. 36, 41-42, 518 A.2d 1145, 1148 (1986) (citations omitted). Though this is a rule of statutory construction, it is applicable as well in the context of procedural rules. Notwithstanding the general rule that “shall” is mandatory, we are aware that the word “shall” has also been interpreted to mean “may” or as being merely directory as opposed to mandatory. See e.g., Commonwealth ex rel Bell v. Powell, 249 Pa. 144, 94 A. 746 (1915) (interpreting “shall” as “may”); Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 341 A.2d 95 (1975)(interpreting “shall” to be merely directory as opposed to mandatory). In observing that the word “shall” can be ambiguous given that it may be interpreted in at least one of two ways, we have stated that [ e]xcept when relating to the time of doing something, statutory provisions containing the word “shall” are usually considered to be mandatory, but it is the intent of the legislature which governs, and this intent is to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other. Francis v. Corleto, 418 Pa. 417, 428, 211 A.2d 503, 509 (1965) quoting, Pleasant Hills Borough v. Carroll, 182 Pa.Super. 102, 106, 125 A.2d 466, 468 (1956). When there is ambiguity in the procedural rules promulgated by the Pennsylvania Supreme Court, the intent of the Supreme Court is controlling. Commonwealth v. Dorman, 272 Pa.Super. 149, 156 n. 8, 414 A.2d 713, 717 n. 8 (1979). As this court is the promulgator of Pa.R.Crim.P. 9025, we find it unnecessary to resort to the rules of statutory construction which are but tools in aid of uncovering the intent of the promulgators/legislators; presumably, we are aware of our intent in enacting Rule 9025. Accordingly, by utilizing the word “shall” in Rule 9025, this court intended that it be mandatory. Therefore, the Clerk of Courts has a mandatory duty to furnish a copy of orders by mail or personal delivery to each party or attorney. Here, the Clerk of Courts failed to comply with this mandatory duty. The trial court found in essence that this mandatory duty imposed upon the Clerk of Courts by Pa.R.Crim.P. 9025 was rendered non-mandatory by Appellant’s failure to comply with the local rule. The trial court ruled “[u]nder our local rules it is Defendant’s [i.e., Appellant’s] duty to take affirmative action, either by enclosing a stamped addressed envelope or by coming to the Clerk of Courts’ office, to determine whether his motion has been granted or denied----” Commonwealth v. Baker, No. 94-10220, slip op. at 2 (C.P. Court of Lebanon County, Criminal Division Oct. 19, 1994). This interpretation of the local rule clearly renders the local rule inconsistent with Rule 9025. The trial court’s interpretation of the rule shifts the burden of “furnishing a copy of the order, by mail or personal delivery” from the Clerk of Courts, upon whom Rule 9025 places the burden, to the movant. As this is inconsistent with Rule 9025, the local rule as interpreted by the lower courts cannot be given effect. See Pa.R.Crim.P. 6(b)(1) (“Local rules shall not be inconsistent with any general rule of the Supreme court or any act of the Assembly.”); Feingold v. SEPTA 512 Pa. 567, 572, 517 A.2d 1270, 1272 (1986) (“local rules cannot be construed so as to be inconsistent with the prevailing state-wide rules.”) In this regard we find Commonwealth v. Reyes, 531 Pa. 72, 611 A.2d 190 (1992) instructive. In Reyes, a local rule permitted defendants to file a pretrial omnibus motion to suppress with the Clerk of Quarter Sessions in Philadelphia, who then, according to the local rule/custom, placed a copy of the motion in a bin for the District Attorney. Apparently, someone from the District Attorney’s office would pick up the motions left in that bin once or twice a week. In Reyes, the Commonwealth alleged that no service of the motion to suppress had been made upon the Commonwealth and that it had no notice of the motion, and, therefore, it was unprepared to argue the merits of the motion. Due to delay in trial caused by the Commonwealth being unprepared to argue the suppression motion^ the Defendant moved for dismissal based upon a violation of Pa.R.Crim.P. 1100. The trial court dismissed the charges, finding that the Commonwealth did not act with due diligence as required by Rule 1100. The trial court relied upon its local rule, reasoning that because the local rule was complied with, it is presumed that the Commonwealth received notice of the motion to suppress in the absence of proof that the local rule had not been complied with. This court reversed, reasoning that Pa.R.Crim.P. 9023(b) squarely places the burden of service upon the moving party and “[b]y contrast, the local custom ... shifts the burden of effectuating service and the giving of notice from the movant and places that burden on the Clerk of Courts, who gratuitously acts as the District Attorney’s mailbox. This is unacceptable practice and must cease forthwith.” Reyes, 531 Pa. at 77, 611 A.2d at 193. Likewise here, Pa.R.Crim.P. 9025 places the burden of furnishing a copy of the order by mail or personal delivery squarely upon the Clerk of Courts; the lower courts’ interpretation of the local rule clearly shifts the burden to the movant. As Reyes found such a shifting of the burden unacceptable as being inconsistent with the statewide rule, so likewise in this case, the shifting of burden is inconsistent with Rule 9025 and, as such, is not enforceable. We wish to be clear as to our holding today. From our reading of the local rule, it is not at all evident that the way in which the lower courts interpreted the local rule in this case is compelled by the language of the rule. Indeed, the local rule is silent as to the effect of noncompliance. There is not one word of the local rule which absolves the Clerk of Courts from its mandatory duty to furnish a copy of the order to each party or their attorney. Accordingly, we do not hold that the local rule as written conflicts with Rule 9025; rather, we hold that the local rule as interpreted and applied in this case conflicts with Rule 9025. The lower courts interpreted the local rule as absolving the Clerk of Courts from fulfilling its mandatory duty to furnish a copy of the order when the local rule is not complied with. As the lower courts did not create the mandatory duty, they are not empowered to negate the mandatory duty by means of enacting or interpreting local rules. In other words, in the absence of some general rule to the contrary, courts are not prevented from requiring that litigants provide addresses or envelopes or even to bear the costs of the court associated with sending orders, etc.; however, courts may not render void mandatory duties imposed upon them or their employees or the parties by statewide rules as a price for non-compliance with a local rule. Accordingly, the Order of the Superior Court is reversed. This case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished. ZAPPALA and CASTILLE, JJ., concur in the result. . The local rule at issue reads as follows: Upon the filing of any order, motion, petition, or rule for disposition by the Court, the filing attorney shall provide the Prothonotary with copies of the order, motion, petition or rule and a stamped, addressed envelope for each counsel of record. The Prothonotary shall conform the copies and serve counsel as required by law or rule of court. This is Lebanon County Court of Common Pleas Civil Rule 15(D) which was incorporated in the local criminal procedural rules by Lebanon County Criminal Rule No. 2 which reads as follows: The Lebanon County Court of Common Pleas — Civil Division Rules insofar as they are applicable and are not inconsistent with these Rules and the Pennsylvania Rules of Criminal Procedure, are hereby adopted as rules governing the business of these Courts. . Appellant asserted in the courts below and in this court that he was unaware of the local rule and its requirements. . As the issue of whether a local rule of court conflicts with a statewide rule presents a pure question of law, our standard of review is plenary as with any question of law. Ertel v. Patriot-News Company, 544 Pa. 93, 99, 674 A.2d 1038, 1041 (1996).

ORDER PER CURIAM: AND NOW, this 22nd day of January, 1997 the Petition for Allowance of Appeal is granted limited to the issue of whether a formal inquest is necessary before a coroner may act as an issuing authority.

PETITION FOR REINSTATEMENT ORDER PER CURIAM: AND NOW, this 22nd day of January, 1997, upon consideration of the Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 18,1996, the Petition for Reinstatement is granted. Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement. NEWMAN, J., dissents.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT FLAHERTY, Chief Justice. As in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), the sole issue in this case is whether an informer wearing a consensual wiretap may, without judicial approval, enter another individual’s home to record his conversations electronically for use by the police in an undercover investigation. We held in Brion that under Article I, Section 8 of the Pennsylvania Constitution, an individual’s right to privacy in his home should remain inviolate. The judgment of the Superior Court is reversed in part and affirmed in part. The facts in Brion are virtually identical to those in the present case. In Brion, the police sent a confidential informer, wearing a wiretap, to Michael Brion’s home to purchase illegal drugs. The police failed to obtain judicial approval for the informer’s body wire. The informer entered Brion’s home and made the purchase, all the while transmitting the conversation to monitoring agents who recorded it and introduced it in Brion’s trial after the trial court denied a pretrial suppression motion. Brion was found guilty on all charges. Post-verdict motions were filed alleging that the trial court erred when it failed to suppress the taped conversation, and the trial court granted Brion’s motion for a new trial. Superior Court reversed and we granted allocatur. On appeal, we held that “[bjecause there was no determination of probable cause by a neutral judicial authority, the ... body wire violated Article I, Section 8 and the tape recording ... should have been suppressed.” Brion at 262, 652 A.2d at 289. Accordingly, we reversed. Appellant in the present case, Jerry Leon Selby, was charged with twenty-two criminal counts resulting from an investigation of drug trafficking in Lancaster, Pennsylvania. In the course of the investigation, the police sent an informer, wearing a consensual wiretap, into the appellant’s residence. The police failed to obtain judicial approval for the informer’s body wire. At trial, the Commonwealth and defense counsel stipulated that the Commonwealth would proceed with only counts three and four. In count three, the Commonwealth alleged that appellant delivered a packet of heroin to a police informant at the informant’s home. In count four, the Commonwealth alleged that appellant delivered ten packets of heroin to the same individual (wearing a body wire), at appellant’s home. Appellant filed an omnibus pretrial motion to suppress the tape recording of the transaction in count four on the basis that the recording was obtained in violation of both the United States and Pennsylvania Constitutions. The trial court denied the motion and after a jury trial appellant was convicted of both counts. The trial court denied appellant’s post-verdict motions and sentenced him to five to ten years imprisonment on count three and six to twelve years imprisonment on count four. The Superior Court affirmed and appellant filed a timely petition for allowance of appeal to this court. We granted allocatur, but held disposition of the case pending the outcome of Brion. The Commonwealth mischaracterizes the issue as one not of constitutional rights but as one of retroactivity in the application of Brion and then engages in a laborious analysis of retroactivity. Since we held this case pending the outcome of Brion, it is clear that we expected this case to be controlled by the outcome of Brion. If this were not so, then retroactivity would be an issue. Even if retroactivity were the issue, the general rule is that a “new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Considered in the light of the Cabeza rule, the illogic of holding this case pending Brion and then reaching the opposite result in an analytically indistinguishable situation defies explanation. For these reasons, the order of the Superior Court with respect to count four is reversed and remanded for proceedings consistent with this opinion. The order of the Superior Court with respect to count three is affirmed. NIGRO, J., concurs in the result. CASTILLE, J., files a dissenting opinion. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins.

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

ORDER PER CURIAM: AND NOW, this 13th day of May, 1998, the Petition for Allowance of Appeal is here by GRANTED. The parties are directed to address the following issue: Whether the Commonwealth Court erred when it determined that Petitioner had failed to sustain his burden of proving that he was unable to give a conscious and knowing refusal of chemical testing.

NARICK, Senior Judge. This Court must determine whether the Court of Common Pleas of Greene County (trial court) properly denied requests for judgment notwithstanding the verdict (JNOV) or a new trial following a jury trial. This consolidated appeal arises from a motor vehicle accident which occurred in March 1993, on Interstate 79 (1-79) at the Waynes-burg, Pennsylvania exit. Based upon the law and our review of the record, we affirm, as modified. The facts are as follows. Appellee Carl Anderson (Anderson) was injured when the truck he was driving for Burlington Motor Carriers, Inc. (Burlington) struck the disabled tractor-trailer driven by Bernard Elam (Elam) for David Clack and D & C Trucking Company (D & C Trucking). At the time of the accident, 1-79 was a four-lane, limited access highway with two northbound lanes and two southbound lanes. Construction was underway in the left northbound lane and the accident occurred within that construction zone. Elam lost control of the tractor-trailer he was driving for D & C Trucking on the rough pavement. His truck jackknifed, coming to rest on the right shoulder, but within 6-12 inches of the paved portion of the highway. Elam turned his flashers on but failed to use any reflective warning devices, such as flares or triangles, to warn oncoming vehicles. Anderson, soon thereafter, followed, driving the Burlington tractor-trailer. Anderson experienced the same rough road and also lost control of his vehicle; however, he struck the disabled tractor-trailer driven by Elam and sustained serious injury. Anderson commenced a personal injury action against Elam and D & C Trucking. Burlington, Anderson’s employer, instituted a property damage action against the Department of Transportation (DOT) and D & C Trucking. D & C Trucking also commenced a property damage action against DOT, Golden Triangle and Burlington. The trial court consolidated the three causes of action. Before trial, DOT filed a motion in limine, in which D & G Trucking joined, to preclude Anderson from introducing and recovering medical expenses and lost wages paid or payable by workers’ compensation. The trial court denied the motion, as well as D & C Trucking’s request for binding instruction on this issue. During the June 1996 trial, Anderson argued that Elam and D & C Trucking were negligent because Elam had failed to place reflective warning devices behind his tractor-trailer, in accordance with state and federal regulations. At the close of Anderson’s case, counsel for D & C Trucking moved for compulsory non-suit on the ground that Anderson had failed to establish that any conduct on part of D & C Trucking had caused the accident.. The basis of this claim was that the accident would have occurred regardless of whether or not reflective warning devices had been placed behind D & C Trucking’s tractor-trailer. The trial court denied the motion for compulsory non-suit. The jury returned a verdict in favor of Anderson and against D & C Trucking only. However, the jury also found that Anderson was causally negligent himself, and allocated 41 percent liability against him. D & C Trucking filed post-trial motions, requesting, inter alia: 1) JNOV on the ground that Anderson had not established that any negligence by D & C Trucking was a cause-in-fact of Anderson’s accident; 2) JNOV on the ground that, as a matter of law, the conduct of D & C Trucking was not a proximate cause of Anderson’s accident; 3) a new trial on the ground that the trial court erred in denying the motion in limine to preclude Anderson from seeking recovery of medical expenses and lost wages paid or payable by workers’ compensation; and 4) a new trial on the ground that the trial court erred in permitting the testimony of an economist on the issue of lost wages. The trial court denied all of D & C Trucking’s post-trial motions. Anderson and Burlington filed post-trial motions requesting a new trial as to DOT and Golden Triangle on the grounds, among others, that the trial court refused to charge the jury on certain requested points. The trial court also denied these motions for post-trial relief. Elam and David Clack, individually, and D & C Trucking appealed to this Court from the judgments entered against them, arguing that despite the absence of reflective warning devices to alert oncoming motorists of the location of D & C Trucking’s vehicle, that the evidence failed to establish any negligence that could be a substantial factor in causing Anderson’s accident. Anderson and Burlington filed cross-appeals against DOT and Golden Triangle. Six appeals have thus been consolidated before this Court. Elam and D & C Tracking first claim that they should be awarded JNOV or a new trial on the ground that Elam’s failure to employ reflective warning devices could not have been a proximate cause or cause-in-fact of Anderson’s accident. Anderson and Burlington assert to the contrary, that Elam was negligent in failing to place reflective warning devices behind the jackknifed tractor-trailer. The trial court denied the request because negligence and causation issues are questions for jury to decide based upon the evidence. We agree with this holding. At the time of Anderson’s accident, Pennsylvania statutes and federal regulations required a tractor-trailer, which has become disabled to place reflective warning devices, such as triangles or flares, at distances of 100 and 200 feet behind the trailer. 75 Pa.C.S. § 4530; 49 C.F.R. § 392.20. Because of this statutory duty, Anderson asserts that the jury correctly determined Elam’s negligence caused the accident. Pennsylvania courts have generally held that the question of negligence and causation is a jury question. Thus, we hold that the trial court properly allowed the jury to consider Mr. Elam’s failure to comply with the statutory and regulatory requirements con- ceming warning devices, as such failure deprived Anderson of the opportunity to either stop or slow down and avoid the serious accident. The trial court properly submitted the questions of Elam and D & C Trucking’s negligence and causation to the jury. Because there was sufficient evidence upon which a jury could find that Elam was negligent, and based upon our scope of review in determining whether a new trial should or should not be granted, we believe this negligence could have been found by a jury to be a substantial factor in causing Anderson’s accident. Next, Elam and D & C Trucking argue that the trial court erred in permitting Anderson to introduce and recover medical expenses and wage loss benefits paid or payable by workers’ compensation. Both D & C Tracking and DOT filed a motion in limine to exclude evidence of medical expenses and wage loss benefits which are paid or payable by workers’ compensation based upon the Pennsylvania Motor Vehicle Responsibility Law at 75 Pa.C.S. §§ 1720, 1722. However, Anderson’s counsel stipulated that workers’ compensation had been submitted in Indiana, and thus argued, Pennsylvania law did not apply. The trial court agreed and denied the motion, holding that Pennsylvania law did not apply because Indiana had more significant contacts with the workers’ compensation subrogation issue, citing Davisk v. Gidley, 417 Pa.Super. 145, 611 A.2d 1307 (1992). Indiana’s Workers’ Compensation Act at Sections 22-3-2-13 and 22-3-3-23, provide for subrogation rights of the employer. While neither Burlington nor its workers’ compensation carrier asserted a subrogation interest at any level of the litigation, Indiana law gives an employer the permissive right to commence an action, at law for the collection of a subrogated claim against any third person in whom legal liability for damages exists at any time within one year after the acceptance of the compensation awarded notwithstanding the provisions of any statute of limitation to the-contrary. Standard Accident Insurance Co. v. Pet Milk Co., 118 Ind.App. 477, 78 N.E.2d 672 (1948). Therefore, Burlington may still assert its subrogation interest if such claim is brought within one year after the acceptance of the compensation awarded Anderson. It is because the trial court did not consider Indiana’s statute of limitations that we modify its decision solely on this issue. Finally, Anderson and Burlington assert that the trial court failed to properly charge the jury regarding the duties and negligence of DOT and Golden Triangle as persons in possession and control of the highway. The trial court ruled that the requested points for charge were either denied or denied as covered in other instructions. Anderson and Burlington assert here that the trial court’s failure to read the requested points was reflected by the jury verdict in favor of Golden Triangle and DOT, and in the finding of the high percent of contributory negligence assigned to Anderson. We do not agree. The trial court charged the jury on the general law of negligence, ordinary care and duty of care, substantial factor and duties which a possessor or owner of land owes another. The trial court also charged the jury regarding DOT’s construction contract with Golden Triangle. It is clearly the law of this Commonwealth that when reviewing a trial judge’s charge to the jury it must be viewed as a whole. Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). A reviewing court will seldom reverse the judgment of a jury based on error in a charge unless that error is one, which provided incorrect or misleading statements as to a material fact. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). Because jury instructions must be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury in its deliberations, Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 592 A.2d 1377 (1991), we will not grant a new trial. Unless the charge as a whole can be demonstrated to have caused prejudicial error, there will not be a reversal for isolated in accuracy. Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). A charge should be found adequate unless the issues are not made clear to the jury; the jury is confused by what the judge said or there is a statement in a charge that amounts to a fundamental error. Id. When reviewed as a whole the trial court’s charge to the jury adequately and correctly charged the jury with regard to the possibility of negligence and liability on behalf of DOT and Golden Triangle. We have carefully reviewed the jury charge and hold that the trial court adequately instructed the jury on the issues presented. Therefore, based upon our careful review of the record, we hold that the trial court correctly denied the post-trial motions. Accordingly, we affirm, as modified. ORDER AND NOW, this 30th day of April, 1998, the order of the Court of Common Pleas of Greene County in the above-captioned matter is hereby affirmed, as modified, as Appellant, Burlington Motor Carriers may still file a subrogation action under Indiana law for one year after the acceptance of the compensation award by Anderson. . Elam waved down a passing motorist and went to telephone for help. . D & C Trucking joined Golden Triangle Construction Company (Golden Triangle) as an additional defendant. DOT contracted with Golden Triangle for the highway construction. . The jury found that DOT had been negligent, but that its negligence was not a substantial factor in bringing about Anderson’s injuries. The jury also found Golden Triangle not negligent. . This issue was not pursued in the appeals before this Court. . Our scope of review is limited when reviewing a trial court’s denial of a defendant’s request for JNOV. JNOV should not be granted if there is reasonable support for a verdict in favor of the plaintiff. Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965). JNOV cannot properly be entered where there is any evidence upon the record from which the jury could have found a verdict for the plaintiff. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970). In considering a motion for JNOV, a reviewing court must consider the evidence presented at trial as well as all reasonable inferences which may be drawn therefrom in light most favorable to the verdict winner. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). In order to obtain a new trial, the moving party must demonstrate in what way the claimed trial error caused an incorrect result. Scarborough v. Lewis, 359 Pa.Super. 57, 518 A.2d 563 (1986). In ruling on a motion for a new trial, the court must view all the evidence, Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970), and if the trial court concludes that the judicial process has effected a serious injustice, only then should it grant a new trial. Smith v. Barker, 368 Pa.Super. 472, 534 A.2d 533 (1987). . Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949); St. John v. Kepler, 360 Pa. 528, 61 A.2d 875 (1948); Purol, Inc. v. Great Eastern System, Inc., 130 Pa.Super. 341, 197 A. 543 (1938). .Elam and D & C Trucking rely on Klena v. Rutkowski, 432 Pa. 509, 248 A.2d 9 (1968), to support their position that they were not the proximate cause of the accident. However, Kle-na is distinguishable because the driver there admitted that he saw the disabled vehicle prior to the collision even though no warnings were displayed. ■ Here, no testimony exists that Anderson saw Elam’s disabled tractor-trailer or the flashers, which Elam alleges he had turned on. . Burlington’s home office is located in Indiana. The tractor-trailer Anderson was driving was also titled in Indiana. . In Dovish, the Court held that the law of the state in which the worker obtained compensation benefits was controlling for purposes of determining whether the carrier was entitled to intervene and seek subrogation.-

ORDER PER CURIAM AND NOW, this 4th day of June, 1998, the Petition for Allowance of Appeal is GRANTED LIMITED to whether an insurer must be served with a claim petition Before the fifteen day answer period begins to run. This case is to be orally argued.

Chief Justice Mercur delivered the opinion of the court, This is an attempt to enjoin the appellees against the use of the water of a small stream, which flows through their lands. It unites with another stream of about the same size, in forming the larger one on which the appellants own lands and mills some six miles below the junction of the two smaller streams. The complaint is that the appellees so use the water of the stream on their lands, as to greatly lessen the flow thereof, during a portion of the year, to the mills of the appellants, to their injury. That such is now the effect of the appellees’ use,of the water, in a dry season, when the streams are low, is undoubtedly correct. It is a well recognized rule that a riparian proprietor may, jure naturae, divert water from a stream for domestic purposes, and for the irrigation of his land; but to what extent he may do the latter in any particular case, depends on whether it is reasonable, having due regard to the condition and circumstances of other proprietors on the stream; he should not so divert it as to destroy or materially diminish or impair the application of the water by other proprietors:' Washb. on Easements *240 ; Miner v. Gilmour, 12 Moore, P. C., 155; Elliot v. Fitchburg R. R. Co., 10 Cush., 191; Embrey v. Owen, 6 Exch., 353. The present case involves not only the question of the right of the riparian owner to divert the water at the time it was first done, but if it was then wrong, the further question whether the right so to do, lias not been exercised and enjoyed so long as to make valid the continued exercise thereof? What then are the controlling facts found by the Master? They are, that about forty years before this bill was filed, the predecessors in title of the appellees built a low dam across the stream, and cut a sluice or ditch therefrom by which the waters were led into their meadows adjoining. A gate was put at the entrance of the ditch by which the quantity allowed to flow could be checked or shut off when desired; this use of the waters under a claim of right, has continued for about forty years, whenever the owners of the meadows thought they needed watering. It did not flow constantly over the meadows, as there were times when for several months, they did not need the water, yet during that portion of each and every year, when the growth of the grass would be promoted by irrigation the water was so used. Such use of the water was continuous and uninterrupted except when they did not want it, and closed the gates. He further found that the dam is no higher, the ditches no larger, nor the quantity of water diverted any greater than when the dam was originally constructed. On the contrary that three acres less of meadow land are now irrigated than while it was in possession of the former owners; that a number of ditches through which the water formerly flowed for irrigating purposes are now abandoned and closed; that the water now taken from the creek is less than was formerly taken, but it has not decreased proportionately with the diminution of water in the creek. At the time the water was first diverted from the stream, and for many years thereafter it does not appear to have caused any ip jury to the property now owned by the complainants. The injury results from the gradual diminution of the volumé of water flowing in the stream, which has been tlie ease for several years. While the dam which diverts the water remains no higher, and the ditches which led the water from the stream, and returned it thereto, are unchanged, and the appellees use less water than formerly, yet the appellants claim in consequence of the diminished flow of water in the stream, the effect of the diversion, at first harmless, has now become injurious, and therefore the use of the water should be enjoined against. In support of this view the general rule as declared in Washb. on Easements, § 49 is invoked that tlie time from which the period is to be reckoned in computing the duration of a continuous enjoyment is when the injury or invasion of right begins, and not the time when the party causing it began that which finally creates the injury. The correctness of this rule ma]*- be conceded yet it is not applicable to the facts of the present case. If the injury here was caused, by a change of the dam or of the ditches, or by suffering the latter to become filled up or clogged: Poll}’ v. McCall, 37 Ala., 20, or by applying the water to a different use, or if the injury was caused by any late act, either of omission or of commission on the part of the appellees, it might be said they had previously only begun the work which caused the injury; but such is not this case. Here the whole action and work of the appellees is a continuance only of that which was done on the ground foily years ago, and the water continues to be used for the same purpose now as then. It is held in Stricklerv. Todd, 10 S. & R., 63, to be welt settled law, if there has been an uninterrupted and exclusive enjoyment for more than twenty-one years of water in any particular way, it affords a conclusive presumption of right in the party so enjoying it, equal to a right by prescription. The same rule is substantially declared in Hoy v. Sterrett, 2 Watts, 327; Darlington v. Painter, 7 Barr, 473; Wheatley v. Chrisman, 12 Harris, 303. The law presumes a grant of the easement, the extent of which is measured not by the actual or average depth of the water at any given point, but by the nature and extent of the obstruction itself: Gehman v. Erdman, 15 W. N.C. 278. When one uses an easement whenever he sees fit without asking leave or without objection, the use is adverse; and an adverse enjoyment for twenty-one years gives an indisputable title to the enjoyment: Garrett v. Jackson, 8 Harris, 331. The work on the ground was not only under a claim of right, but it was open, visible, and notorious. The parties who owned the property below could foresee and anticipate the ultimate effect of the diversion of the water as well as the parties who caused it. The fact that they may not have foreseen the probable diminution of the quantity of water which would flow iri the stream, cannot deprive the appellees of any of their rights arising from their possession and enjoyment of the water for nearly twice the number of years necessary to give a right thereto by prescription. Judgment affirmed.

Mr. Justice Clark delivered the opinion of the court, On the 18th May, 1870, Joseph H. Gery disappeared from his home in the city of Beading, leaving his wife, Elizabeth Gery, and four daughters, Sarah, Anna, Mary, and Lucy E. Gery, and has not since been heard from. On the 17th May following, B. B. Longaker & Son brought suit against him, in the Common Pleas of Berks county, and, on the 30th June, 1870, obtained judgment by default for $155.66; this judgment was subsequently revived by scire facias, judgment having been taken by default after two returns of nihil habet. Although the wife and children of the defendant continued to reside in the city of Beading, the writs of scire facias were not served upon them, nor was a copy left at the dwelling house, in the presence of anv adult member of the family. On the 11th March, 1879, Joseph T. Gery, who was the father of Joseph H., died intestate, possessed of a considerable estate, real and personal, in Montgomery county. After his decease, upon petition of certain of his heirs at law, an inquest of partition was awarded, by the Orphans’ Court of that county, as to his realty; the petition set forth, inter alia, as follows: “ That said Joseph T. Gery died intestate on March 11th, 1879, leaving surviving him no widow, but four children, to wit: Amanda E. Gery, Jesse H. Gery, Thomas H. Gery and Joseph H. Gery, but the said Joseph H. Gery has been absent from his home and unheard from since the 13th May, 1870 ; that the said Joseph H. Gery has a wife or widow living, named Elizabeth, and had living the following named children, to wit: ‘Sarah,’ &c., ‘all minors, none of whom have guardians,’ ” &c. The court thereupon appointed Joseph Fornanee guardian ad litem for the four minor daughters-of said Joseph H. Gery, and the case was so proceeded with, that on the 13th October, 1879, the heirs were called to accept or refuse the purparts reported by the inquest. Jesse H. Gery and Thomas H. Gery responded to the call, but the record' recites, that “ Joseph H. Gery, third eldest son and heir of said decedent, on being called failed to appear, and it not being satisfactorily proven to the court whether the said Joseph H. Gery was living or dead, directed that Joseph Fornance, guardian ad litem for the children of said Joseph H. Gerv, should be called, &c., and said guardian being called, declined, &c.” The said purparts were then adjudged to said Jesse and Thomas H. Gery at the valuation, and they were directed to give bonds with security in double the amount “ coming to each of the other heirs,” which was done accordingly. The obligors in the bonds, given to secure the shares that of right would have belonged to said 'absentee, if living, “ are held and firmly bound unto Joseph H. Gery, third eldest son and heir of Joseph T. Gery, late,” &c., “ and in case the said Joseph H. Gery died before his father, then to his heirs or legal representatives.” On 15th March, 1880, Elizabeth Geiy, the wife of the said Joseph H. Gery, presented her petition to the Orphans’ Court of Berks county, asking for the appointment of a trustee clurante absentia under the provisions of the Act of April 11th, 1879. The petition was accompanied by affidavits of persons who knew Joseph H. Gery whilst he lived in the city of Reading, and who deposed to the fact of his having been away and not heard from since May, 1870. Upon the presentation of this petition and affidavits the Orphans’ Court of Berks county appointed Jesse Gery, the oldest brother of the said Joseph II. Gery, trustee as prayed for. This trustee afterwards received and receipted for the amount of the several recognizances, taken in the Orphans’ Court of Montgomery county, securing the interest on share of Joseph H. Gery or of his heirs, and also for that distributive share of the personal estate, and, on the 16tli November, 1880, filed bis account in the Orphans’ Court of Berks county, which account was finally confirmed on 22d January, 1881, showing a balance in bis bands of §5,905.14; this is the fund now for distribution. R. B. Longaker & Son claim, in this distribution, to Lave a sum sufficient to satisfy their judgment awarded to them out of this fund, and whether they are so entitled is the matter to be determined. The rule is now well settled, for most judicial purposes, that the presumption of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time they were last known to be living: Best on Presumptions, § 140 ; 2 Greenleafs Ev., § 278 ; Innis v. Campbell, 1 ltawle, 373 ; Whitesides’ Appeal, 11 Harris, 114 ; Williams’ Estate, 8 W. N. C., 310. This period of time, as respects Joseph Iff. Gery, elapsed on the 13th May, 1877; after that day, according to the facts clearly established, he was in the law presumed to be dead. The original judgment of It. B. Longaker & Son having been obtained at a time when the presumption of the defendant’s life still prevailed, it matters little whether or not the revival thereof was valid or invalid, as the original judgment is sufficient evidence of a, lawful claim upon the fund for distribution, if that fund were the defendant's estate. But does this fund represent the assets and estate of Joseph II. Gery, so as to enable his creditors to participate therein? The appointment of a trustee, durante absentia,, imports no more than that the fact has been made known to the court, in the form and manner prescribed by law, that the alleged absentee has been absent from his usual place of abode, that his whereabouts have not been known for a period of at least one year, and that he has left an estate, without any person to tako charge of it. It adjudicates nothing as to his being alive or dead, for that is precisely what is not known, and nothing as to his estate ; it makes no provision for notice, and is therefore a proceeding purely ex parte in its character. Although alleged to have an estate, the absentee may, in fact, have none ; those who claim adversely are not made parties, and cannot therefore be concluded by the decree. Whether or not he has an estate may, as in this case, depend upon the date of liis death. He may therefore be fairly supposed to have an estate when he has none, to be alive when he is dead, or dead when, in fact, he is alive. The proceeding is therefore wholly under the control and direction of the court, and the final disposition of the trust estate must, of necessity, depend upon the development of the truth as to the cause of the absence. It is true, that at the time of the appointment of the trustee, in this case, the period which limits the presumption of life had already expired, but no adjudication, as to Joseph H. Grery’s death, could be had in this form of proceeding, and the trustee entered upon his trust and held the trust property subject to the control and direction of the court, for such uses as to right and justice might belong, when the truth was known and had been established. The purpose of the provision is to prevent spoil and destruction of the estate, during the absence of the supposed owner, or until his death is shown. It follows, therefore, that the trust is but a temporary and provisional one, and that the fund is not necessarily the estate of the absentee. In a distribution of moneys in the hands of an executor or administrator, the fund, from whatever source derived, is necessarily part of the decedent’s estate, and participation in it is limited to those who claim through the decedent, either as creditors, legatees, or next of kin: McBride’s Appeal, 22 P. F. S., 481. In this case, however, the trustee is rather in the nature of a stakeholder, and the distribution is to those who in justice and equity are entitled. Nor do we discover anything in the record of the proceedings in the Orphans’ Court of Montgomery county, the effect of which is to adjudicate the ownership of this fund. The opinion, filed in the court below, contains a statement of the several sums received by the trustee, out of the realty and personalty of Joseph T. Gery, deceased, the whole amounting to $6,240.85 ; referring to that sum the learned judge says : “ This amount was decreed by the Orphans’ Court of Montgomery county to Jesse Gery, trustee of the said Joseph H. Gery, and was the amount coming to the said Joseph H. Gery out of his father’s estate.” The record exhibits no legal adjudication or decree to that effect; on the contrary, the doubt, as to the real ownership of that share, is spread all over the record, the proceedings throughout being written in the alternative. Elizabeth Gery is represented as his wife or widow; Joseph H. Gery, his wife, and the children are all made parties to the partition, the latter being represented by guardians ad litem; Joseph H. Gery was called to accept or refuse the real estate at the valuation, and as he did not answer the guardian ad litem of the children was called, and the privilege extended to them ; and the recognizances, securing this interest or share in the estate, were drawn to Joseph H. Gery, third eldest son, &c., and in ease he died before his father, then to his heirs and legal representatives; this was not strictly accurate in expression, perhaps, as the heirs are entitled by re presentation, and not bv substitution, but the meaning is obvious and apparent. These several sums of money were paid to, and received by, the trustee under a right, real or supposed, arising from his appointment, without question in any respect, and in advance of any lawful adjudication as to the actual beneficial ownership ; and the fund so received is now brought before the court to be applied to whom it may belong’. If it now appeared, by positive and direct proof, that Joseph H. Gery bad, in fact, ¿lied on the day he disappeared, it certainly cannot be doubted that we would distribute this fund, so held in trust and awaiting adjudication, to those upon whom the estate devolved; and as the presumption of death after the lapse of seven years is as effective as direct proof of the fact, we cannot see how any doubt can exist as to tbe parties entitled here. it follows from what has been said that the appellants are entitled as heirs of their grandfather, and not as the heirs of their father, and that R. 15. Longaker & Son, as creditors of the father, cannot therefore participate in the fund. The decree of the Orphans’ Court of Berks county is, therefore, reversed, and it is ordered, that the record be remitted, that distribution may be made in accordance with this opinion.

Mr. Justice Trunkey delivered the opinion of the Court, At the time of the accident the plaintiff was engaged in dangerous work, most of the circumstances of which are stated in the opinion of the court below on refusing the motion to take off the nonsuit. Had the learned judge put more stress on the conduct of the defendant it is probable that he would have submitted the case to a jury. The testimony warrants belief that while the work was in progress the defendant went to the men on the upper floor, complained of slow performance, and ordered the men to “go ahead and get the stock up;” that prior to that occasion the men removed the planks before calling to those below that they were ready, but that time they were not removed because there was “ too much of a hurry ; ” and that the plaintiff heard the defendant say “ all right,” which was the signal for the horse to start, and the horse was started without the plaintiff knowing whether or not the planks had been removed. The act of the defendant was closely connected with the fall of the plank. He was earnestly, if not angrily, pressing the laborers to haste, and giving them orders, which he had not done before; and it would have been strange ■had they exercised their usual caré and thoughtfulness. If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it. A prompt and faithful employee suddenly called upon by a superior to do a particular act, cannot be supposed to remember at the moment a particular danger incident to its performance, of which he had previous knowledge; and it would be most unreasonable to demand of him the thought and care which might be exacted when there is more time for observation and deliberation : Wharton on Negligence, § 219. Like principle should be applied to the facts in this case. When the plaintiff was hurt he was working under the eye and voice of his employer who was urging speed, and saj-ing “all right.” Ho might have looked to see whether the planks were removed, and he might have taken time to have placed the jack-rafter at the foot of the gin-pole before starting the horse; but is it reasonable to exact such care of a laborer when his employer suddenly comes into the place of a foreman, pei'sonallv directs the work, and gives emphatic orders to move quickly ? The care to be exacted of the plaintiff is just that which laborers of ordinary prudence would exercise under like circumstances, and if the plaintiff did exercise it his action shall not be defeated on the ground of concurrent negligence. Although the plaintiff was an actor in the act which resulted in his injury, whether he exercised due care under the circumstances is a question for the jury. He must show a ease clear of his concurrent negligence, a ease resulting exclusively from the negligence and wrong of the defendant, but when the measure of care which he ought to Lave exercised shifts with the circumstances, or when the care which ought to be exacted from an employee has been varied by the conduct of his employer, the jury alone can determine whether he negligently performed his duty. Only when the plaintiff’s testimony clearly shows his concurrent negligence, may the court order nonsuit on that ground. We think the testimony ought to have been submitted, and the first three assignments are sustained. The fourth assignment is not well taken. No foundation was laid for admission of the rejected testimony. Judgment reversed and procedendo awarded.

Per Curiam, This case appears to have been tried on its merits without strict regard to the questions of fact presented in the affidavit of defense. Testimony was accordingly introduced that war ranted the learned trial judge in charging as complained of in the first specification. After such testimony has been received, without objection, and the case submitted to the jury on the evidence thus before them, it is too late to complain of the introduction of testimony that was not strictly relevant under the issue presented by plaintiff’s statement and the defendant’s answer thereto. We find no error in the record, of which the defendant has any just reason to complain. Judgment affirmed.

Per Curiam, We find nothing in this record that would justify us in sustaining any of the assignments of error; nor do we think that either of them presents any question that requires discussion. Judgment affirmed.

ORDER PER CURIAM: Order affirmed.

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.

OPINION CASTILLE, Justice. In March of 1991, a jury found appellant guilty of first-degree murder and sentenced him to death in connection with the 1982 murder of the victim, Kathy Fair. On April 4, 1995, this Court upheld the conviction but reversed the death sentence and remanded for a new sentencing hearing. On December 5,1995, a second sentencing hearing was conducted. The new sentencing jury found one aggravating circumstance (a significant history of felony convictions involving the use or threat of violence to the person), and no mitigating circumstances, and again set the penalty at death' as required by law. On September 19, 1996, the trial court denied appellant’s post-trial motions. This direct appeal followed. For the reasons expressed herein, we affirm the judgment of sentence imposed by the Court of Common Pleas of Lebanon County. In all eases where the death penalty has been imposed, this Court is required to conduct a review of the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 600 Pa. 16, 26, 454 A.2d 937, 942 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). On direct appeal, following the imposition of appellant’s first death sentence, this Court determined that appellant’s conviction for first-degree murder was supported by sufficient evidence. May, 540 Pa. at 247, 656 A.2d at 1339. The record demonstrated that appellant murdered the victim by stabbing her multiple times with a short, single-edged knife, and buried her under leaves and brush in an isolated location in the countryside. Accordingly, because this Court vacated only the sentence and not the conviction, we need not re-address the issue of sufficiency of the evidence. The first issue raised by appellant arises from a discussion held in chambers regarding the nature and extent of a “life without parole” jury instruction. Prior, to the commencement of the second sentencing hearing, appellant filed a motion requesting a jury instruction that a sentence of life imprisonment means incarceration for the remainder of the defendant’s natural life without the possibility of parole. The trial court granted appellant’s motion conditioned upon the Commonwealth’s raising the issue of appellant’s future dangerousness. In its opinion issued November 30, 1995, the trial court concluded that if it were to issue the instruction, the Commonwealth could request an instruction that the Governor of Pennsylvania may pardon a prisoner or commute a life sentence. A lengthy discussion about the jury instruction took place in chambers on December 6, 1995. The Commonwealth indicated that it would not raise future dangerousness, and requested the judge to instruct the jury with respect to commutation and pardon if any instruction was given that life imprisonment means no possibility of parole. Ultimately, the court concluded: Well, what I am going to tell them is that life imprisonment in Pennsylvania means life imprisonment without eligibility for parole. I would also be telling them that in Pennsylvania, a defendant may be eligible for, a pardon issued by a Governor or a commutation of his sentence granted by the Governor after recommendation of the Pennsylvania Board of Probation and Parole. (N.T. 622-623). Appellant’s counsel objected to the court’s mentioning the possibility of commutation or pardon, and further indicated that a life imprisonment without parole instruction would not be requested under the circumstances. Appellant now contends that his second death sentence should be vacated. He asserts that under the United States Supreme Court’s holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), he was entitled to have the jury instructed that in Pennsylvania, a life sentence means incarceration for life without possibility of parole. He further asserts that it was error for the court to agree to include the additional instruction that the Governor of Pennsylvania could pardon or commute the life sentence of any prisoner. An examination of Simmons and its progeny reveals that appellant’s claims are devoid of merit. In Simmons, the defendant was convicted of the murder of an elderly woman. During closing arguments at the penalty phase, the prosecution argued that in fixing the defendant’s punishment, the jury should consider his future dangerousness. The defendant’s counsel asked the court to instruct the jury that, under South Carolina law, a sentence of life imprisonment did not carry any possibility of parole. The trial court refused to grant the requested instruction, and the defendant was sentenced to death. The Supreme Court reversed, ruling that the defendant had been denied due process of law. The Court reasoned that the jury reasonably may have believed that the defendant could be released on parole if he were not executed, thereby creating a false choice between sentencing the defendant to death and sentencing him to a limited period of incarceration. The, Court held that where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible. 512 U.S. at 155, 114 S.Ct. at 2189. This Court considered the proper scope of Simmons in Commonwealth v. Speight, 544 Pa. 451, 677 A.2d 317 (1996), cert. denied, — U.S. -, 117 S.Ct. 967, 136 L.Ed.2d 852 (1997). There, the defendant argued that his trial counsel had been ineffective for failing to request a jury instruction that a life sentence means that he must spend his natural life in prison without the possibility of parole after the jury had asked the trial court , for the definition of a life sentence. We held that under Simmons, a jury must be informed that life means life without the possibility of parole only when the prosecutor injects concerns of the defendant’s future dangerousness into the case. In Speight, the prosecutor had not made the defendant’s future dangerousness an issue; therefore, no Simmons instruction was required. Here, appellant reasons that by raising the aggravating circumstance of a significant history of felony convictions involving the use or threat of violence to the person, the Commonwealth injected the issue of his future dangerousness into the sentencing hearing. This claim is meritless. The Commonwealth did not argue to the jury that appellant would be dangerous in the future. Rather, the prosecutor specifically stated in chambers that he would not be arguing appellant’s future dangerousness to the jury and he made no mention of it in his closing argument. The aggravating circumstance of appellant’s prior record for violent felonies addressed only appellant’s past conduct, not his future dangerousness. In Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995) cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996), we affirmed the death penalty convictions of the defendant where one of the aggravating circumstances was that the defendant had been convicted of other felonies involving the threat or use of force. During the penalty phase, evidence was admitted that the defendant had pleaded guilty to aggravated assault and robbery in the past. We held that no Simmons instruction was required because the issue of future dangerousness had not been raised. 541 Pa. at 250 n. 15, 662 A.2d at 640 n. 15. Thus, the aggravating circumstance raised by the Commonwealth in the instant matter did not inject the issue of appellant’s future dangerousness into the penalty phase. Appellant asserts that the trial court’s proposed Simmons instruction was not truthful because it is the Board of Pardons which has the authority to make recommendations to the Governor, and not the Pennsylvania Board of Probation and Parole. Initially, we note that it was not error for the trial court to indicate that it would allow an instruction that while a life sentence did not allow for the possibility of parole, there was the possibility that the governor would commute appellant’s sentence. See Commonwealth v. Marrero, 546 Pa. 596, 687 A.2d 1102 (1996), cert. denied, — U.S. -, 118 S.Ct. 434, 139 L.Ed.2d 334 (1997) (holding that prosecutor’s explaining the commutation process to the jury during closing arguments was a fair response to defense counsel’s anticipated argument that a life sentence meant that appellant would spend the rest of his life in prison). While the trial court incorrectly phrased its proposed instruction to indicate that the Pennsylvania Board of Probation and Parole could make a recommendation of clemency instead of the Board of Pardons, this error was harmless. First, as discussed supra, appellant was not entitled to a Simmons instruction, and the erroneous instruction was not given to the jury. Further, at the conference in chambers, appellant’s counsel’s limited the scope of his objection to the proposed instruction to the court’s giving notice about commutation. (N.T. 619, 625). Appellant’s counsel did not object on the basis that the court’s proposed instruction was untruthful. The Commonwealth and the court mentioned several times throughout the conference that the governor could commute a sentence at the recommendation of the Pennsylvania Board of Probation and Parole, and appellant’s counsel did not object or seize the opportunity to correct their mistakes. See N.T. 612, 620. Additionally, the transcript of the conference reveals that it was the mere mention of the possibility of commutation, and not the court’s misstating which agency may recommend commutation, that gave rise to counsel’s decision not to seek a Simmons instruction. See N.T. at 606-26. Accordingly, the trial court’s unintentional error in its proposed instruction is of no consequence and does not entitle appellant to a new penalty hearing. Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), this Court has an duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the findings of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. After reviewing the record below, we conclude that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor. In addition, we further find that the evidence was sufficient to establish the aggravating factor found by the jury that appellant had a significant history of felony convictions involving violence. The parties stipulated that appellant had been previously convicted of two counts of criminal attempt to commit homicide, aggravated assault, and rape in connection with the stabbings of two teenage girls and the rape of one of them in the same wooded area where the victim’s body was found. Moreover, in accordance with Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, 454 A.2d 937, 942 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983), we must conduct a proportionality review as to appellant’s sentence of death. Here, since the jury found one aggravating circumstance and no mitigating circumstances, the jury was statutorily required to impose a sentence of death. 42 Pa.C.S. § 9711(e)(l)(iv). Since the sentence of death was mandatory, we have conducted an independent review of similar cases in which the sentence of death was made mandatory by the finding of at least one aggravating factor and no mitigating circumstances and conclude that the sentence of death imposed upon appellant is not disproportionate to the sentences imposed in similar cases. See Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300 (1994); Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995); Commonwealth v. Williams, 541 Pa. 85, 660 A.2d 1316 (1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 717, 133 L.Ed.2d 671 (1996). Accordingly, we affirm the sentence of death imposed upon appellant, Freeman May, by the Court of Common Pleas of Lebanon County. ZAPPALA and NIGRO, JJ., file concurring opinions. . 18Pa.C.S. § 2502(a). . Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335 (1995) (Castille, J., dissenting). This Court vacated the sentence on the ground that the aggravating circumstance found by the jury, that appellant committed murder during the commission of the felony of rape, was invalid because the jury had not been instructed on the elements of rape. . 42Pa.C.S. § 9711(d)(9). . 42 Pa.C.S. § 9711(c)(l)(iv) requires the jury to sentence a defendant to death if it unanimously finds at least one aggravating circumstance and no mitigating circumstances. . Effective June 25, 1997, the General Assembly repealed 42 Pa.C.S. § 9711(3)(h)(iii), pursuant to which this review was required. However, we continue to review for proportionality all cases on direct appeal in which the sentence of death was imposed prior to that date. See Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997) (Act 28 does not apply retroactively). . Within ninety (90) days of the date that the sentence of death is upheld by this Court, the Prothonotary of this Court is directed to transmit to the governor's office the full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court pursuant to 42 Pa.C.S. § 971 l(i).

FRIEDMAN, Judge. The City of Philadelphia (City) appeals from two orders of the Court of Common Pleas of Philadelphia County (trial court), each of which holds the City in contempt for failing to comply with a September 6,1991 consent decree (Consent Decree) governing conditions in the City’s prison system and orders the City to pay monetary sanctions for its noncompliance. Because this court lacks jurisdiction over the matter, we quash the City’s appeal. The tangled history of this case spans over twenty-five years; a brief history of the litigation is important to an understanding of the current appeal. In 1971, five prisoners in the City’s prison system (Prisoners) filed a class action suit in equity in the trial court against City officials seeking injunctive relief from conditions of confinement alleged to violate the Prisoners’ constitutional and statutory rights. Jackson v. Hendrick, 509 Pa. 456, 503 A.2d 400 (1986). In 1972, the trial court held that the Prisoners’ conditions of confinement violated their constitutional and statutory rights and amounted to cruel and unusual punishment under the federal and state constitutions. Id. The trial court ordered the City to- take immediate action to improve prison conditions. Id. Throughout the course of the twenty-five year litigation, the parties have entered into a series of consent decrees which set forth the measures that the City must take to provide for constitutionally adequate living conditions, services and programs for inmates in the City’s prison system. The parties are currently bound by the Consent Decree. The Consent Decree imposes obligations on the City with respect to virtually every aspect of prison life and empowers the trial court to impose monetary fines for noncompliance with the Consent Decree. On November 9,1995, the Prisoners filed a motion for contempt of court that triggered the instant dispute. The Prisoners alleged that the City was not in compliance with the Consent Decree in various areas of prison life, including: failure to provide sufficient staffing of correctional officers and social workers; failure to provide the requisite services and programs to inmates; failure to provide minimally required personal supplies; and failure to provide vocational training. On October 2, 1996, following hearings on the motion for contempt, the trial court entered an order holding the City in contempt for violating five provisions of the Consent Decree and fining the City $2,252,-500.00. (R.R. at 890a.) In determining whether this court has jurisdiction to consider this appeal, it is essential to provide a timeline of the procedural events that followed the trial court’s October 2,1996 order. • On October 25, 1996, the City filed a Motion for Reconsideration in response to the trial court’s October 2,1996 order. (R.R. at 907a.) • On October 28, 1996, the City filed an appeal of the trial court’s October 2, 1996 order to the Superior Court of Pennsylvania. (R.R. at 10a.) • On November 19, 1996, the trial court entered an order vacating the October 2, 1996 order pending reconsideration. • On December 5, 1996, the City withdrew its appeal to the Superior Court. (R.R. at 11a.) • On March 11, 1997, the trial court entered an order reinstating its October 2, 1996 order and amending the fine to $2,095,000.00. (R.R. at 920a.) • On March 13, 1997, the City filed an appeal of the trial court’s October 2, 1996 order and March 11, 1997 order to this court. (R.R. at 924a.) The Prisoners now argue that this court lacks jurisdiction to consider the City’s appeal. We agree. I. Trial Court’s November 19, 1996 Order Our discussion of the procedural defects involved in the instant appeal begins with the trial court’s November 19, 1996 order that attempted to vacate the trial court’s previous October 2, 1996 order. The November 19, 1996 order, however, was null and void because the trial court lacked jurisdiction to vacate the order. A. Trial Court Untimely A court may only modify, rescind or vacate an order within thirty days after it is entered. 42 Pa.C.S. § 5505; 3 Standard Pa. Practice 2d § 15:55; see also Pennsylvania Dep’t of Transp., Bureau of Driver Licensing v. Duncan, 144 Pa.Cmwlth. 261, 601 A.2d 456 (1991); Municipal Council of Monroeville v. Kluko, 102 Pa.Cmwlth. 49, 517 A.2d 223 (1986). Here, the trial court vacated its October 2,1996 order on November 19, 1996, more than thirty days after October 2, 1996. Thus, on November 19,1996, the trial court lacked jurisdiction to vacate the October 2,1996 order; as a result, the November 19, 1996 order was null and void. See Kluko (categorizing trial court’s belated attempt to rescind its order as a nullity); 3 Standard Pa. Practice 2d § 15:57 (providing that “[b]e-cause the statutory period is jurisdictional, it cannot be waived by the parties, and any belated attempt at modification of an order is a nullity.”) The City argues that this court has jurisdiction to consider its appeal because the trial court acted in a timely manner by orally vacating the October 2, 1996 order -within thirty days, during the October 31, 1996 hearing in which Judge Greenspan stated that “we are today vacating our [October 2, 1996] order_” (October 31, 1996 H.T. at 17.) We cannot accept the City’s argument that the trial court vacated its October 2, 1996 order on October 31,1996. As indicated above, 42 Pa.C.S. § 5605 permits a trial court to vacate an order only within thirty days after it is entered. For an order to be effective, however, it must be “entered.” See Schoff v. Richter, 386 Pa.Superior Ct. 289, 562 A.2d 912 (1989). Until an order is filed with the Prothonotary, an order is not considered to have been entered. 3 Standard Pa. Practice 2d § 15:53. The date that an order is entered is the date that the order is filed with the Prothonotary. Stotsenburg v. Frosty 465 Pa. 187, 348 A.2d 418 (1975); Vanleer v. Lerner, 384 Pa. Superior Ct. 558, 559 A.2d 577 (1989); Pine Township Citizens’ Ass’n v. Pine Township Bd. of Supervisors, 27 Pa.Cmwlth. 533, 367 A.2d 740 (1976). But see Pa. R.A.P. 108; Pa. R.A.P. 905(a); Yeaple v. Yeaple, 485 Pa. 399, 402 A.2d 1022 (1979). Here, the trial court’s order vacating its October 2, 1996 order was not filed with the Prothonota-ry until November 19,1996; thus, that order was not entered until November 19, 1996. Because the trial court attempted to vacate its October 2, 1996 order on November 19, 1996, more than thirty days past the October 2, 1996 order, the trial court’s November 19, 1996 order was untimely. B. Superior Court Retained Jurisdiction Because the trial court’s November 19, 1996 order, was entered more than thirty days after the October 2, 1996 order, it was null and void. Moreover, the November 19, 1996 order nonetheless would have been null and void because the trial court’s October 2, 1996 order had been appealed to the Superi- or Court of Pennsylvania on October 28,1996 and, thus, the trial court was without jurisdiction to enter its November 19,1996 order. It is well established that after an appeal is taken from a trial court’s order, the trial court no longer has jurisdiction to proceed further in the matter. Pa. R.A.P. 1701(a). Here, the City filed an appeal to the Superior Court on October 28, 1996. and did not withdraw its appeal until December 5, 1996. Thus, from the period of October 28, 1996 through December 5, 1996, the trial court was not permitted to vacate its October 2, 1996 order or proceed otherwise in the matter. See Estate of Merrick, 432 Pa. 450, 247 A.2d 786 (1968) (holding that a decree could not be changed by the lower court from the date upon which the appeal was taken until the date of its discontinuance). Because the trial court attempted to vacate its October 2, 1996 order during the time period that it did not have jurisdiction to do so, the resulting November 19, 1996 order was null and void. We recognize that, pursuant to Rule 1701(b)(3), a trial court retains jurisdiction to proceed further in a matter even after an appeal has been filed when an order expressly granting reconsideration has been timely filed. Here, however, the time requirement mandated by Rule 1701(b)(3) has not been satisfied. Pursuant to Rule 1701(b)(3), after an appeal from an order is taken, a trial court retains jurisdiction to grant reconsideration of the order if two requirements are met. First, an application for reconsideration of the order must be filed timely in the trial court. Pa. R.A.P. 1701(b)(3)(i). Here, this requirement has been satisfied because the City filed a Motion for Reconsideration of the October 2, 1996 order in the trial court on October 25, 1996, within the thirty day time period. (R.R. at 10a); see Note following Pa. R.A.P. 1701 (addressing subdivision (b)(3)). Second, an order expressly granting reconsideration of the prior order must be filed in the trial court within the time prescribed for the filing of a notice of appeal of the order. Pa. R.A.P. 1701(b)(3)(ii). Here, this requirement has not been satisfied because the trial court’s order vacating the October 2, 1996 order was filed on November 19, 1996, forty-eight days after October 2, 1996. Because the trial court failed to rule on the City’s Motion for Reconsideration within the thirty day period, the Superior Court of Pennsylvania assumed jurisdiction over the appeal and the trial court was divested of its power to consider the Motion for Reconsideration. See Pennsylvania Dep’t of Transp., Bureau of Driver Licensing v. McMahon, 539 Pa. 1, 650 A.2d 36 (1994); Schoff (holding that an order granting reconsideration will only be effective if it is made and entered on the docket before expiration of the applicable appeal period). In short, the trial court lacked jurisdiction to enter the November 19, 1996 order, both because that order was untimely and because the Superior Court retained jurisdiction over the matter; thus, the November 19, 1996 order that attempted to vacate the October 2, 1996 order was null and void. As a result, the trial court never vacated its October 2, 1996 order, and it remained in effect. II. Trial Court’s March 11, 1997 Order The trial court’s March 11, 1997 order must be characterized as an “adjudication” of the City’s October 25, 1996 Motion for Reconsideration. Because the trial court failed to strictly adhere to “Rule [1701(b)(3) which] requires reconsideration to be expressly granted,” Schoff, 386 Pa. Superior Ct. at 291, 562 A.2d at 913, the trial court had no jurisdiction to enter the March 11, 1997 order; thus, it, too, is null and void. Failure to expressly grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration. Schoff, see Note following Pa. R.A.P. 1701. Here, the trial court’s March 11, 1997 order did not expressly grant reconsideration and, thus, the trial court lost its power to act on the City’s Motion for Reconsideration. As a result, the March 11, 1997 order, too, was null and void, leaving the October 2,1996 order intact. Accordingly, because the City’s appeal was not filed until March 13, 1997, more than thirty days after October 2, 1996, and because there is no other order from which the City can timely appeal, we quash the appeal. ORDER AND NOW, this 27th day of March, 1998, the City of Philadelphia’s appeal, dated March 13, 1997, is quashed for lack of jurisdiction. . Before this court en banc, the City and the Prisoners argued the merits of the City’s appeal. At oral argument, however, President Judge Colins requested that the parties submit post-argument letter-briefs addressing whether this court has jurisdiction to consider the City’s appeal. This court may raise the issue of jurisdiction sua sponte. Davis v. City of Philadelphia, 702 A.2d 624 (Pa.Cmwlth.1997). Because we are constrained to conclude that this court lacks jurisdiction to consider the City’s appeal, the merits of the appeal will not be addressed. . In 1986, our supreme court, noting the long period of time that had elapsed since the initial findings of unconstitutional conditions in the prison system, remanded the Prisoners’ case to the trial court and ordered a new hearing on the status of the City’s prison conditions. Jackson. On remand, the parties negotiated a new consent decree, entered August 4, 1988. Subsequent to the August 4, 1988 consent decree, the Prisoners filed a contempt petition, and, on July 29, 1990, the trial court held the City in contempt. The City filed a notice of appeal, but, upon further negotiation, the parties entered into an Amended Agreement of Settlement which the trial court approved on September 6, 1991 (the Consent Decree), (R.R. at 12a-82a); the City subsequently withdrew its appeal. The September 6, 1991 Consent Decree has governed this case since that date. .Previously, on March 23, 1993, the Prisoners filed a motion for contempt, complaining that the City was in violation of the Consent Decree. The trial court found the City in contempt and or- . dered the City to pay a $1,220,000.00 fine. (R.R. at 96a.) On October 20, 1994, the Prisoners again filed a motion for contempt. As a result, the parties entered into the Stipulation of January 17, 1995, wherein the City admitted that it was not in full compliance with certain provisions of the Consent Decree. (R.R. at 97a.) In Februaiy 1995, the Prisoners filed another motion for contempt; the Stipulation of May 18, 1995 resulted. (R.R. at 104a.) On March 20, 1995, the trial court held the City in contempt for violations relating to the October 20, 1994 motion for contempt and imposed a $701,500.00 fine. The City filed a Motion for Reconsideration of the trial court’s contempt adjudication, but withdrew the motion in connection with a third stipulation agreement, the Stipulation of August 22, 1995. (R.R. at 108a.) The Stipulation of August 22, 1995 provided that “[I]f the City is not in full compliance with the provisions of the Consent Decree and Stipulation of January 17, 1995 by October 1, 1995, [the Prisoners] will seek the liquidated damages for each day of non compliance.” (R.R. at Illa.) The November 9, 1995 motion for contempt at issue here followed. The Prisoners filed a supplemental motion for contempt on February 12, 1996. (R.R. at 135a.) . For purposes of this opinion, we have identified all orders by the date in which the order was entered, or filed, in the Prothonotary’s office, rather than the date upon which said order was signed by the judge. See infra pp. 105-106. . 42 Pa.C.S. § 5505 (emphasis added) provides: Modification of orders Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed. As we discuss, infra, if an appeal has been taken, such as here, the trial court is immediately divested of jurisdiction of the matter, except in limited circumstances. .3 Standard Pa. Practice 2d § 15:55 provides that "a final order may be altered during the 30-day period, but normally cannot be modified, rescinded or vacated after 30 days have passed." • (footnotes omitted.) . The City relies on Commonwealth v. Grady, 309 Pa. Superior Ct. 187, 455 A.2d 112 (1982) and Altemose Construction Co. v. Building & Construction Trades Council, 449 Pa. 194, 200 n. 6, 296 A.2d 504, 508 n. 6 (1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973) to argue that Judge Greenspan’s oral statement was a court order that should be dated October 31, 1996. These cases, however, are distinguishable from our case and cannot support the City’s proposition. In Grady, a sentencing judge orally pronounced the sentence at a sentencing hearing but, subsequently, the judge increased the sentence when he issued a written order after the sentencing hearing was completed. The Superi- or Court of Pennsylvania held that the earlier oral sentence was binding because, otherwise, appellant’s sentence would be increased and the increase would violate the Double Jeopardy Clause of the United States Constitution. Clearly, our case does not involve facts or issues similar to those in Grady. Alternóse is also distinguishable from our case because Alternóse was an action in equity, not at law, and the entry of an adjudication in equity is controlled by Pa. R.C.P. 1517(b). See also 10 Standard Pa. Practice 2d § 65:2. In Altemose, a judge issued a decree on June 5, 1972 in the nature of a preliminary injunction. On June 12, 1972, the judge issued an oral decree continuing the preliminary injunction. On August 30, 1972, in compliance with court rules, the judge filed an opinion consisting of the court’s findings of fact, discussion and conclusions of law with respect to the June 12, 1972 decree. Attached to the opinion, the judge included a decree, also dated August 30, 1972, that was a verbatim decree of that entered initially on June 5, 1972 and continued by oral decree on June 12, 1972, which was transcribed and filed with the Prothonotary. Our supreme court considered the August 30, 1972 decree to be a written formalization of the June 12, 1972 oral decree, from which the appeal was taken, and not a new decree entered on August 30, 1972. However, our case is neither factually nor legally analogous to Alternóse. In Alternóse, the date on the August 30, 1972 decree was of no consequence because it merely formalized what ‘ was in the earlier decree that had already been entered in accordance with Pa. R.C.P. 1517(b). . We note that Pennsylvania courts have acknowledged that results from this rule may be harsh; however, the courts have nonetheless strictly construed the statutory limit of 42 Pa.C.S. § 5505 because it serves a very definite function. See Pennsylvania Dep’t of Transp., Bureau of Driver Licensing v. Axsom, 143 Pa.Cmwlth. 99, 598 A.2d 616 (1991), overruled on other grounds by Shapiro v. Center Township, Butler County, 159 Pa.Cmwlth. 82, 632 A.2d 994 (1993), alloc. denied, 537 Pa. 635, 642 A.2d 488 (1994); 3 Standard Pa. Practice 2d§ 15:57. . Rule 1701 provides: (a) General Rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter. . The City argues that an order vacating a prior order "is the ftmctional equivalent of an express grant of reconsideration for purposes of ... Rule 1701 [ (b)(3)].” We need not address the merits of this argument because the time requirement mandated by Rule 1701(b)(3) has not been satisfied. . Rule 1701(b)(3) (emphasis added) provides: (b) Authority of a Trial Court or Agency After Appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may: (3) Grant reconsideration of the order which is the subject of the appeal or petition, if: (i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and (ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration. .A notice of appeal must be filed within thirty days after an order is entered. Pa. R.A.P. 903(a). Here, a notice of appeal would have to be filed by November 1, 1996, thirty days after October 2, 1996. . The trial court’s March 11, 1997 order that attempted to reinstate and amend the October 2, 1996 order could not have accomplished this because, as discussed, the trial court’s October 2, 1996 order had never actually been vacated. Further, the October 25, 1996 Motion for Reconsideration had not been expressly granted within the time prescribed for the City’s filing of a notice of appeal from the trial court’s October 2, 1996 order. . Rule 1701(b)(3) permits a trial court to grant reconsideration of an order if 1) an application for reconsideration is timely filed, and 2) an order expressly granting reconsideration is timely filed in the trial court. See supra pp. 106-107. Here, only the first requirement is satisfied. Id. . The Note following Pa. R.A.P. 1701 states: If the trial court or other government unit fails to enter an order "expressly granting reconsideration” (án order that "all proceedings shall stay” will ■ not suffice) within the time prescribed by these rules for seeking review, [Rule 1701(a)] becomes applicable and the power of the trial court or other government unit to act on the application for reconsideration is lost. . Following oral argument, this court granted the City’s Post-Argument Application to Submit Additional Case Citation. Because of our disposition in this case, we find that Harris v. City of Philadelphia, 137 F.3d 209 (3rd Cir.1998) is not relevant to our decision.

Opinion by Mr. Chief Justice Sterrett, The rule of public policy which avoids, at the instance of the cestui que trust, purchases made by agents for sale is practically absolute in its character. Courts of equity view such transactions with jealous eye; and it is only under special circumstances ' amounting to a dissolution of the trust relation, when the parties have dealt at arms length, that their validity is recognized: Davoue v. Fanning, 2 Johns. Ch. 254. And the reasons are obvious. On the one hand, the : elation which such agents bear is confidential, and disarms the vigilance of their principals; it affords peculiar facilities for obtaining exclusive information in respect of the property intrusted to them for sale; their employment implies that they have superior advantages for making sales, and that they will use every effort and means to obtain the highest price for the benefit of their principal. On the other hand, their individual interest is to purchase at the lowest price, and places them in a position which is inconsistent with the faithful and proper discharge of the duties of the trust. The opportunity will naturally lead to temptation to abuse, and, as was aptly said by Mr. Chancellor Kent in Davoue v. Fanning, supra, be “ poisonous in its consequences. The cestui que trust is not bound to prove nor is the court bound to judge, that the trustee has made a bargain advantageous to himself. The fact may be so and yet the party not have it in his power, distinctly and clearly, to show it. There may be fraud, as Lord Hakdwicke observed, and the party not able to prove it.” Thus an agent by virtue of his trust relation, may discover valuable minerals in the land, and locking the knowledge in his breast, take advantage of it in making a contract with his cestui que trust; if he deny it, how can the court find the fact ? “ The probability is that a trustee who has once conceived such a purpose will never disclose it, and the cestui que trust -will be effectually defrauded: ” Ex parte Lacey, 6 Ves. 627. So he may take advantage of his superior knowledge of the market and skill in manipulation to obtain results beneficial to himself. “It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation that the rule does and will permit the cestui que trust to come, at his own option, and without showing actual injury, and insist upon having the experiment of another sale: ” Davoue v. Fanning, supra; or as was held in our own case of Swisshelm’s App., 56 Pa. 475, treat the purchase as inoperative in respect of the land unsold by the trustee, and compel an account of the proceeds of sale made by him to innocent purchasers for value. “This is a remedy that goes deep, and touches the very root of the matter; ” Davoue v. Fanning, supra; Leisenring v. Black, 5 Watts, 303; Parshall’s App., 65 Pa. 224; Rice v. Davis, 136 Pa. 439; Murphy v. O’Shea, 2 J. & S. 420. The cestui que trust must it is true move within a reasonable time; but what shall amount to a reasonable time will depend on circumstances and lies in the discretion of the court. In the absence of special circumstances, which may lengthen or shorten the time, the analogy of the law is followed: Marshall’s Est., 138 Pa. 285. These appellants misapprehend the rationale of this rule. They insist that because, as they claim, the sale was satisfactory to Mrs. Rich, the rule has no application. Conceding that in the first instance it was satisfactory, that fact would not take away her option to rescind; for these appellants then and for a long time afterward ostensibly maintained toward her the character of agents for sale, and willfully concealed the fact of their own interest; they maintain their character of inconsistency even now by claiming not only title as purchaser, but commissions as agents for sale. Roll, whom they first reported as the purchaser, confessedly knew nothing of it; the alleged interest of Gillespie and Neeb is more than doubtful, and, if it ever existed, was soon parted with; to all practical intents and purposes these agents were the real purchasers without the knowledge of their cestui que trust: Rosenberger’s App., 26 Pa. 67. However Mrs. Rich may have felt in the first instance in regard to the sale, it is not likely that it would have been satisfactory had she been fully informed of the facts. When she gave her agents a minimum price, it was manifestly intended as a guide to them in negotiating sale, and implied a just expectation on her part, and an engagement on theirs, that they would make an honest endeavor to obtain a higher price. If Roll, Gillespie and Neeb were really intending purchasers, the obvious course was that these agents for sale should take competitive bids; they did not occupy the position of middlemen with equal duty to both; their primary duty was to Mrs. Rich. But, so far as appears, no bona fide effort was made by them to perform this duty; instead, Mrs. Rich was asked to take less, and when this was refused they hastened to avail themselves of the minimum price in their own interest; and had already made large profits before Mrs. Rich’s discovery of the facts. If they could realize profits for themselves, they could and should have done so for their cestui que trust; that was their employment and that their undertaking; and equity will treat that as done which ought to have been done. To sustain the purchase' made in these circumstances would work “actual injury” to Mrs. Rich, tend to encourage breaches of trust and violate a wise rule of public policy. Having taken action in time, the plaintiff was entitled to the relief which the decree of the court below is intended to secure, Decree affirmed and appeal dismissed with costs to be paid by appellants, and it is ordered that the record be remitted to the court below for further proceedings.

Chief Justice Mercur delivered the opinion of the court, It is well settled law in Pennsylvania that the common law of England which deems a river a public highway only so far up from its mouth as the tide flows, does not apply to our large streams, such, among others, as the Susquehanna and its north and west branches. One reason given for so declaring the law was said in Carson v. Blazer, 2 Binn., 475, to be tbe fact that in England the streams in which the tide does not ebb and flow are small, while in this state they are large. The law thus announced in 2 Binn. has been approved and affirmed in Shrunk v. Schuylkill Nav. Co., 14 S. &. R., 71; Johns v. Davidson, 4 Harris, 512; Barclay Railroad and Coal Co. v. Ingham, 12 Casey, 194; Zimmerman v. Union Cana. Co., 1 W. & S., 346. These and other cases have also settled the law that when a navigable river, which is held to he a public highway under the common law of this state, is made the boundary of a grant by the commonwealth, the title passes to low-water mark, but no further. It is to small streams not navigable that the principle of usque ad filum aquae applies : Ball v. Slack, 2 Whart., 538; Coovert v. O’Conner, 8 Watts, 470; Johns v. Davidson, supra; Flanagan v. City of Philadelphia et al., 6 Wr., 219. Turning then to the able report of tbe Master confirmed by tbe court, it appears that tbe borough of Wilkes-Barre was bounded on tbe northwest by the Susquehanna river at low-water mark. When the city was afterwards incorporated its boundary went no further into tbe river. The township, out of which the borough and the city were carved, was bounded by the river. In like manner the townships situate on tbe opposite side of the river were bounded by the river. The land covered by water situate between the two boundaries was not so granted as to be within any of the municipalities named. The coal underlying the same has since been granted by tbe commonwealth, but it has not been attached to the city of Wilkes-Barre, nor have the boundaries of the city been extended so as to bring it within the limits thereof. Whether this body of coal ought to be subject to taxation, or whether the legislature may not at any time declare it shall be, and provide by what authority it shall be taxed, are questions not before us now. We merely bold, under existing laws the city of Wilkes-Barre has no power to impose taxes on this coal land lying outside of its territorial limits. Decree affirmed and appeal dismissed at the cost of the appellant.

Chief Justice Mercur. delivered the opinion of the Court So much of Art. IX, Sect. 8, of the Constitution of 1874, as is now necessary to consider, declares that the debt of any county, city, borough, township, school district, or other municipality or incorporated district,.....shall never exceed seven per centum on the assessed valuation of the taxable property therein, nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election, in such manner as shall be provided by law. As the debt of this city did not exceed seven per centum of such assessed valuation at the time of the adoption of the Constitution, the latter part of this section does not apply to the present case. The proposed increase of debt is in itself less than two per centum of the assessed value of the taxable property; but added to the previously existing debt, makes the aggregate indebtedness more than two per centum. The contention is whether this can be done without the previous assent of the electors in the manner prescribed by the Constitution. As we have shown, one clause thereof declares the city shall not increase its indebtedness “to an amount exceeding two per centum ” without such assent. There is no warrant in the Constitution to sustain the proposition that the city may now and from time to time as it sees proper, within the maximum limit of seven per centum, increase the indebtedness by successive steps if each increase be less than two per centum. Each action is not sanctioned by either the letter or the spirit of the Constitution. It is not one specific increase of more than two per centum that is forbidden. It is an aggregate indebtedness exceeding that per centum that is prohibited. Sections two and three of the Act of 20th April, 1874, Pur. Dig. pages 1928-29, repeat the language of the Constitution and provide for elections in furtherance thereof. The argument that ignores the aggregate indebtedness and considers the addition only, thereto, proves too much. It would nullify the right of the electors to vote on the question of increase altogether. By successive increases, each less than two per centum, the city might have the aggregate indebtedness reach the seven per centum without a vote of the electors. Up to that per centum the city would deny the right of the electors to vote on the question of increase, and beyond that per centum the Constitution itself prohibits any increase. It follows the learned judge was clearly right in holding that without submitting the question to a vote of the qualified electors of the city and obtaining their assent, the indebtedness of the city cannot be increased so as to aggregate in all more than two per centum upon the assessed value of the taxable property therein. Decree affirmed and appeal dismissed at the costs of the appellants.

Chief Justice Mercur delivered the opinion of the court, We think the appellant took the property of his mother charged with the trust which she stamped upon it during hpr life. When she had the undoubted power of disposing of her property, she created the trust. The appellant accepted it. He reduced the terms thereof to writing, subscribed his name thereto, read it to his mother, and asked her if it was right. She answered yes. On the day after her funeral he gave the declaration of trust to the life tenant therein mentioned, and paid to the latter during her life the sum stipulated. He also gave to his mother’s grand niece, Kate, the watch in pursuance of the trust. After his written acceptance of the trust, and his continued recognition of the obligation thereby imposed on him, he cannot now successfully deny it. If he had refused assent to the dying request of his mother, she might have selected some more constant trustee. Decree affirmed and appeal dismissed at the costs of the appellant.

Mr. Justice Paxson delivered the opinion of the court, The ruling of the learned judge of the court below as contained in the first assignment of error was evidently made with some hesitation, and with a view to end the case in the event of the jury finding a verdict for the plaintiff. The verdict however was for the defendant. Under such circumstances it would have been entirely proper for the plaintiffs to have moved for a new trial. This has not been done and we must dispose of the case as we find it. A careful examination of the testimony fails to disclose any authority in the secretary and treasurer of the plain tiff‘to make the alleged agreement releasing the defendant Balderston from liability on the note. Such authority is not found in the charter or by-laws; it was not given by any action of the corporation, and it cannot be implied from its course of business. That the secretary had authority to renew the note may be conceded. This, however, did not imply or involve the right to release a debtor of the corporation from a previous liability. Such power must be expressly given or it must be implied from a course of dealing known to and sanctioned b]r the corporation. Nor does the case come within the line of authorities which hold that where a note or other security is obtained by an agent by representations unauthorized by his principal, the latter cannot retain the benefits and at the same time disavow the act of his agent. The company plaintiffs obtained nothing from Balderston to which they were not entitled. Balderston was admittedly liable on the note of which the notes in suit were a renewal. His position therefore, has not been changed. He gave no consideration for the alleged release, and the secretary had no authority to agree to it. The remaining assignments do not require discussion. Judgment reversed and‘a venire facias de novo awarded.

Mr. Justice Paxson delivered the opinion of the court, The only question in this ease is, whether there was a sufficient acknowledgment of the debt to take it out of the Statute of Limitations. The testimony relied upon for that purpose was that of the plaintiff below. He said : “ When I got to Henry Landis, I said, I come for money, and he said, 1 will pay you six hundred dollars iu thirty days on the note (this note,)I will pay you the rest as quick as I can, but you must not be too hard on me......The old lady, Mrs. Henry Landis, spoke up saying, Roth, we will pay you every dollar if we have to pay it out of our pocket. Henry said, yes we will pay you.” The learned judge charged the jury that “If it be true that this was all said, the latter part of their expressions is sufficient in the judgment of the court to enable the jury to find a positive promise.” The jury so found. This subject has been so frequently and elaborately discussed that we may be excused from going over the ground again at'length, and it is sufficient to indicate the rule as laid down by the authorities, and then apply it to the facts of this case. In Miller v. Baschore, 2 Norris, 366, it was said: “In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specification of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay.” In the later case of Palmer v. Gillespie, 14 Norris, 340, it was held that the promise to pay need not be express. It was said by Justice Mebcub : “It is not essentially necessary that the promise be actual or express, provided that the other necessary facts are shown. A clear, distinct or unequivocal acknowledgment of the debt is sufficient to take a case out of the operation of the statute. It must, be an admission consistent with a promise to pay. If so, the law will imply the promise, without its having been actually or expressly made. There must not be uncertainty as to the particular debt to which the admission applies.” The meaning of which is that where the debt is identified beyond all doubt, and distinctly acknowledged, the law will imply a promise to pay it; but it is not a subject for a jury to guess at. 'In the casé in hand the debt was not sufficiently identified. In the conversation testified to by the plaintiff there is not a word as to the date of. the note, its amount, or the balance due thereon. The note itself was not produced, and there is no evidence that the plaintiff had it with him. There is no certainty as to what debt or what note was referred to: any uncertainty either in the acknowledgment or identification of the debt is fatal: Burr v. Burr, 2 Casey, 284. In that case there was one actual payment on account, but this court held the debt was not identified. The evidence there was as follows: “Mother says, can thee let me have a little interest money on that note which I hold of thine? ” He said, “how much would thee like, mother? ” She said, “four or five dollars, and he gave her seven.” There was no evidence of the existence of any other note between the parties, yet it was held that the acknowledgment was insufficient. The present case is certainly no stronger, and as Burr v. Burr has been constantly followed to the present time, we are constrained to reverse this judgment. Judgment reversed and a venire facias de novo awarded.

The opinion of the court was delivered, Per Curiam. The plaintiffs below claimed under a treasurer’s sale for the non-payment of taxes. The validity of that sale is attacked, but the former owners did not return the land as the Act of Assembly contemplates they shall, nor did they pay the taxes thereon. When unseated land subject to taxation is sold, the title of the real owner passes to the purchaser, in whatever name it be assessed and sold, even if the person in whose name it was sold has not title thereto: Sbranch v. Shoemaker, 1 W. & S., 166. It is the land itself and not the owner of it, that is debtor to the public charge. The question of the identity of this tract being the one that was assessed and sold, as well as whether there was such a severance of a part'of this tract by a distinct line of demarcation so as to leave the rest unseated, were well and carefully submitted to the jury. The law was correctly declared. We see no error in the record. J udgment affirmed.

Mr. Justice Sterrett delivered the opinion of the court, If the case stated contained an unqualified admission or averment of fact that at the time plaintiff entered on his official duties as Recorder of Deeds in Luzerne county, the population of the county was over one hundred and fifty thousand and less than two hundred and fifty thousand, there might be something on which to base a judgment in his favor; but, there is no such admission or avermeut therein. The averment in the second paragraph, “That in 1880, when the last decennial census was taken, the population of Luzerne county was one hundred and thirty-three thousand and sixty-six,” is distinct and positive, but the succeeding averment, viz: “and when plaintiff entered on his official duties the population of Luzerne county was over one hundred and fifty thousand, and less than two hundred and fifty thousand, based upon the rea sons incorporated in the following paragraph,” is obviously a mere inference of fact from the data contained in the third paragraph of the case stated. The inference thus drawn from the facts, embodied in that paragraph, may possibly be correct, but it is wholly unwarranted. It is at best only a method of forming an approximate estimate. The only legally recognized method of determining the poptilation of any particular county or district is by resorting to the last preceding decennial census ; and, according to that the population of Luzerne county is less than one hundred and fifty thousand. We do not say it is not competent for the Legislature to provide some other or additional mode of determining the fact; but, until some other legal provision is made, we must be governed by the only recognized rule applicable to the subject. In Luzerne County v. Griffith, 1 Kulp, 297, this court said: “In the absence of express legislative declaration of the fact, or of any other method provided by the Legislature for ascertaining it, the last preceding decennial census is to be resorted to as the best evidence of the population of a county in case of classification of counties by population.” In the light of existing legislation, we have no doubt that for the purposes of classification under the various Salary Acts, each county must, remain in the class in which the last census found it until it is transferred to another class by a subsequent census. The United States decennial census is the only official determination of population that we now have; and the inconvenience and injustice that would necessarily arise from accepting any ,unofficial guide to the classification of counties, for salary purposes, cannot well be overestimated. Legislative and judicial apportionments are both based on population determined by the last preceding census. The Constitution provides that “ whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district; but, in Commonwealth ex rel. Chase v. Harding, 6 Norris, 851, we held that such separate districts can only be formed after a decennial census showing the requisite population. The cases, it is true, are not exactly parallel, but the analogy is very close. The radical error committed by the learned judge of the Common Pleas was in assuming the case stated contained an unqualified admission that the county contained a population of over one hundred and fifty thousand when plaintiff below entered on the duties of his office. This was a mistake. It contains no such admission. The statement as to population at that date, as we have already noticed, is at best but a mere inference of fact drawn from other facts which are assumed to be true. To sanction such a mode of determining population at any given time would lead to interminable trouble and confusion. The question, as to the manner of ascertaining what the population of a county is, did not arise in Monroe v. County of Luzerne, 7 Out., 278. The present Chief Justice, delivering the opinion of the court in that case, saj^s: “By what mode that population shall be ascertained does not arise in this case. The agreement of the parties settles several questions relating to the population. We therefore take that agreement as the starting point.” The question, in that case, grew out of the erection of Lackawanna county in 1878, and does not rule the point upon which this ease turns. In that case the facts in regard to the population in the respective parts composing the old and the new county were distinctly stated' as they appeared by the census of 1870. Judgment reversed, and now judgment for defendant below on the case stated.

Mr. Justice Gordon delivered the opinion of the court On the 26th day of April, 1880, in consequence of the explosion of a locomotive boiler belonging to the defendant below, John Leslie, the engineer, was killed .outright, and Frank Mason, the fireman, was so injured that he died on the 4th of May following, and these actions were brought by their widows severally for damages resulting to them from the death of their respective husbands. As these actions are in all respects similar, they were, in this court, argued together, and for this reason we will dispose of both in the same opinion. Certain questions which arose in the court below have been settled by the verdict; among others, the insufficiency of the boiler for the work it was intended to do, and the fact that Leslie and Mason did not by any act of commission or omission contribute to the accident. There were also certain legal principles recognized by the court below, about which there was and can be no serious dispute, as that the burthen of proof was on the plaintiffs to show negligence on part of the defendant or its agents; that there could be no recovery if the accident resulted from the negligence of a fellow-servant; that this master was bound to furnish safe appliances and tools with which its servants might accomplish the work they were required to do, and that it could not bo held liable if competent and careful mechanics were employed in the manufacture and repair of the boiler. In all these particulars the court properly instructed the jury, and they would seem to cover the entire case. Nevertheless we have some assignments of error founded on exceptions taken to the rulings of that court. We are told that it was a mistake for the learned judge to affirm the plaintiffs’ first point because of its containing the word “adequately” as follows; “that the defendant company was bound to keep and maintain the engine‘Wyoming’in such a condition as to be reasonably and adequately safe for Mason the deceased, to be upon and use.” But as, according to Webster, ‘adequacy’ means simply ‘sufficiency; sufficiency for a particular purpose,’ we cannot see where in this instruction there was error. The boiler ought to have been sufficient for the purpose intended, and if it was not the company was responsible for the absence of such sufficiency; indeed, in this alone the neglect, if any, is found. But the court below was asked by the counsel for the defendant to say that the workmen in the shop at Sayre, who repaired the boiler, were, under the evidence, fellow-servants with Leslie and Mason, and that there could be no recovery for the negligence of such co-employees. To this the court made answer as follows : “That is denied. It is true that Mr. Weaver testified that he had under him Slowey, who made these repairs, and he had also under him the engineer and fireman of the gravel train; and as Slowey repaired this engine by his direction, it is claimed on the part of defendant that because they were all under Weaver, therefore they were fellow-servants, and that if the engine was not reasonably, carefully and well repaired, the plaintiff cannot recover, because Slowey and Mason were fellow-servants. I do not think it follows necessarily, because Weaver swears that he is the master mechanic of the shop, and I think that whatever was done under him would bind the defendant.” We think this answer accords with the general tenor of our Pennsylvania decisions, and unless we propose a new departure, and conclude that the servant is to have no protection whatever from the carelessness of his master, we must support this ruling of the court below. Plow a boiler maker employed in a machine shop can be regarded as a co-employee with a fireman and an engineer engaged in running a locomotive on a railroad, in the sense of making the latter responsible for the negligence of the former, is something that is difficult to understand. The only possible connecting link between them was the superintendent, Weaver, but as he stood in the place of the defendant company in the department over which he was placed, he is not to be regarded as an employee but as a principal: Mullan v. The Steamship Company, 28 P. F. S., 25. What business had Leslie and Mason in or about the company’s machine shop any more than they had about the shop of any other firm or individual ? The boiler was condemned as unfit for use, and was taken from these men for the purposes of repair, and afterwards, when it was supposed to have been made safe, it was returned to them and they were required to use it as a machine fit for the intended purposes. The fact was, as the jury found, it was not safe, and not fit for the use to which it was put; it blew up, and destroyed the lives of the men who had charge of it, and the question now is, upon whom is the blame to rest if not on the master? And how are Leslie and Mason to be charged with the negligence of men with whom they had not the remotest practical connection? Are we to strain a point against these laborers and raise a theoretical connection between them and the boiler maker in order to shift the responsibility from the master to the servant ? Neither on disposition nor authority can we approve a proposition so clearly wrong as this. Says Dr. Wharton in his work on Negligence, sec. 232: “a master is bound when employing a servant to provide for the servant a safe working place and machinery. It may be that the person by whom buildings and machinery are constructed, are servants of the common master, but this does not relieve him from his obligation to make buildings and machinery adequate for working use. Were it otherwise, the duty before us, one of the most important of those owed by capital to labor, could be evaded by capitalists employing their own servants in the construction of buildings and machinery. In point of fact, this is the case with most great industrial agencies, but in no cáse has this been held to relieve the master from the duty of furnishing to liis employees, material, machinery, and structures, adequately safe for their work.” The learned author, in support of what he thus propounds, cites, among others, the case of Ford v. Fitchburg Railroad Company, 110 Mass. 240. A case very much like the one in hand, and in which the duties of the master to his servants are well and ably stated by Mr. Justice Colt. It is there, as in many other cases, held, that the legal rule which exempts the master from responsibility'’ for accident resulting to those in his employ, or from those occurring through the neglect of co-laborers, does not excuse him from the exercise of reasonable care in supplying and maintaining suitable implements for the performance of the work required. Nor are those agents who are charged with the business of supplying the necessary machinery, to be regarded as fellow-servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be regarded as the neglect of the master. So is the employer equally chargeable whether the failure is found in the original tool, or machine or in a subsequent want of repair by which it becomes dangerous. There can, indeed, be no essential difference in these particulars, and the only question is, whether the defect from which the accident arose, was known, or might, by the exercise of reasonable diligence, have been known to the master or his agents. What has been above stated accords, we think, with the general tenor of our own authorities, and among others O’Donnell v. The Railroad Company, 9 P. F. S., 241. We must, therefore, refuse to sustain the exceptions of the plaintiffs in error, and approve the rulings of the court below. Judgment in each case affirmed.

FORD ELLIOTT, Judge: This is an appeal from the judgment of sentence entered on May 23, 1994, in the Court of Common Pleas, Criminal Division, Beaver County. For the reasons set forth below, we vacate the judgment of sentence and find entrapment of the appellant as a matter of law. Because our vacatur moots the issue of the propriety of appellant’s sentence raised by the Commonwealth, as well as the other issues raised by appellant, we do not reach those issues. A brief review of the record is appropriate at this time. Following a trial by jury, appellant was found guilty of four out of five counts of possession, possession with intent to deliver, and delivery of a controlled substance. The basis for appellant’s conviction was a series of five cocaine sales to a paid government informer between January 1991 and June 1991. According to the record, appellant sold between one-half and one ounce of cocaine to the paid informer, Bill Vranesevich, and two undercover agents on January 30, 1991, February 6, 1991, February 14, 1991, June 14, 1991, and June 21, 1991. Appellant argues that the verdicts on all charges should be set aside because he was entrapped as a matter of law. The basis for appellant’s argument is that the behavior of the paid confidential informant, Bill Vranese-vich, who contacted appellant within two weeks of appellant’s release from a drug rehabilitation center, rose to the level of egregiousness to support entrapment as a matter of law. (Appellant’s brief at 19.) In order to decide this issue, we must first review the law of entrapment in Pennsylvania, and, in particular, entrapment as a matter of law. The defense of entrapment is codified at 18 Pa.C.S.A. § 313 and provides in pertinent part that: (a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by ... (2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. (b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment. The law of entrapment has evolved over the years in Pennsylvania. Today, Pennsylvania employs the so-called “objective” test for entrapment, whereas the federal courts utilize the “subjective” standard. The objective test was first enunciated by Mr. Justice Frankfurter in his concurrence in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J. concurring, joined by Harlan, J. Douglas, J. and Brennan, J.). As the notes to the Pennsylvania Standard Jury Instructions on the defense of entrapment explain: Section 313 follows Model Penal Code, Proposed Official Draft, § 2.13 (1962) except that it eliminates a Model Penal Code requirement that the defense be tried by the court. Section 313 adopts the ‘objective’ approach to entrapment which is new to Pennsylvania law.... The old Pennsylvania law required that the defendant be an otherwise innocent person until the police or their agent, through creative activity, planted the idea to commit a crime in his mind and induced him to do so ... Crimes Code § 313 and Model Penal Code § 2.13 follow the minority view of the United States Supreme Court as articulated by Justice Frankfurter in his concurring opinion to Sherman v. United States ... This view — the objective approach — conceives the entrapment defense as aimed at deterring police wrongdoing. The defense provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule. The focus of the defense is on what the police do and not on what kind of person the particular defendant is — whether he is innocent or predisposed to crime. Pa.Crim. Suggested Standard Jury Instructions, Subcommittee Note § 8.313 (Pa.Bar Institute, 1985) (citations omitted). Further insight into the law of entrapment in Pennsylvania is provided by our supreme court in Commonwealth v. Weiskerger and Commonwealth v. Clapps, 520 Pa. 305, 554 A.2d 10 (1989), in which that court adopted our analysis of the objective standard which we articulated in Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976): Thus, the test for entrapment has shifted in emphasis from a consideration of a particular defendant’s readiness to commit crime, a subjective test, to an evaluation of the police conduct, an objective test, to determine whether there is a substantial risk that the offense will be committed by those innocently disposed. To determine whether an entrapment has been perpetrated in any particular case, therefore, the inquiry will focus on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime. Weiskerger/Clapps, supra at 311, 554 A.2d at 13, citing Jones, supra at 310-11, 363 A.2d at 1285. This court addressed the objective standard in general and entrapment as a matter of law in particular in Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984). In Thompson, this court found entrapment as a matter of law in a case in which a young, attractive, female police officer exploited her femininity to lure Thompson into obtaining drugs for her, after chiding him repeatedly when he failed. Id. 484 A.2d at 160-162. Thompson was a middle-aged, married, male police officer with a mentally retarded daughter at home and was the subject of an undercover investigation. The female police officer conceded that she engaged in an ongoing flirtation with Thompson, allowing him to kiss her, put his arms around her in public, and introduce her to his friends prior to his obtaining drugs for her. Id. at 164. There was also uncontradicted testimony that all meetings and telephone calls were at the initiative of the undercover officer. Id. In finding entrapment as a matter of law, the Thompson court stated: The test for entrapment in Pennsylvania under section 313 is an objective one which ‘focus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.’ ... This statute represented a significant shift in Pennsylvania law, in that it rejected the then-existing use of a subjective test in entrapment cases, i.e., a test which focused on the defendant’s predisposition to commit the crime. While the judicial focus in entrapment cases had changed, the case law has been consistent in Pennsylvania in holding that the determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law.... Thus, after the defense of entrapment has been properly raised, the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense. Id. at 340-341, 484 A.2d at 163-164 (citations and footnotes omitted) (emphasis added). Accord, Commonwealth v. Mance, 422 Pa.Su per. 584, 588-590, 619 A.2d 1378, 1380 (1993), aff'd, 539 Pa. 282, 652 A.2d 299 (1995); Commonwealth v. Phillips, 439 Pa.Super. 428, 654 A.2d 591 (1995). Prom the foregoing, it is clear that we must begin our analysis of appellant’s claim that he was entrapped as a matter of law by looking to the egregiousness of the police conduct in the instant case, and by examining the record to determine whether there exists a dispute as to the operative facts. Initially, we note, as did the trial court, that there are many disputed facts in this case; however, our careful review of the record reveals that the operative facts are not in dispute. “Operative facts” in the instant case are those that are necessary for appellant to prove by a preponderance of the evidence that he was entrapped. Under the objective test for entrapment, these would be facts that go to the course of conduct of a government officer or agent that “ “would fall below standards to which common feelings respond, for the proper use of government power.’ ” Thompson, supra at 342, 484 A.2d at 165, quoting Sherman, supra at 382, 78 S.Ct. at 825, 2 L.Ed.2d at 856. A brief summary of the operative facts in the instant case is therefore appropriate. First, appellant had just completed a drug rehabilitation program less than two weeks before Vranesevieh, the paid police informer, contacted him for the first time. Second, there is evidence unrefuted by Vranesevieh that he was told about appellant’s rehabilitation experience. Third, there is evidence uncontradicted by Vranesevieh that Vranesevich appealed to his prior friendship with appellant, his need for a friend to see him through the death of his mother, and the sympathy engendered by his own admission that he had been through rehabilitation and was “clean” now in order to convince appellant’s wife to relay a message to appellant. Fourth, Vranesevieh did not contradict evidence that he used his need for money to help defray the medical expenses associated with his mother’s terminal disease, and appellant’s susceptibility to an offer of “a free high” at a point at which he was struggling to “stay clean,” to induce appellant to sell him cocaine. Fifth, all of the transactions were at the instigation of Vranesevich; appellant did not contact the informer or the narcotics agents to set up additional purchases during the lengthy hiatus between February and June. Having briefly summarized the operative facts of the instant ease, we next engage in a more detailed account of these facts as they are supported by the record. According to Vranesevich’s testimony, Vra-nesevich approached the Attorney General’s office about becoming a paid informer in late October 1990 upon returning to western Pennsylvania after more than five years in Florida. (Notes of testimony, 2/17/93 at 555a, 575a-576a.) Vranesevieh testified that he and appellant had been as close as brothers from the mid-to-late-1970’s until the early 1980’s, having spent several years working together on a daily basis to rebuild appellant’s vintage Camaro. They continued to do things together even after appellant had a one-night affair with Vranesevich’s wife in the mid-1980’s. (Notes of testimony, 2/17/93 at 574a-576a.) Vranesevieh further testified that he was working on a number of cases for the government already when, on January 19, 1991, he decided to stop by appellant’s family-owned business to see his old buddy and to introduce him to undercover narcotics agents James Liptak and Larry Fuksa. The agents were introduced to appellant as coworkers. (Notes of testimony, 2/17/93 at 534a, 566a, 583a.) Until Vranesevieh brought appellant to the narcotics agents’ attention on January 19, the agents did not know appellant. (Notes of testimony, 2/17/93 at 570a.) The events leading up to that first meeting on January 19th follow. Appellant’s wife, testifying for the defense, stated that Vranesevieh called appellant at home on January 12, 1991, just twelve (12) days after appellant was discharged as an outpatient from Greenbriar Treatment Center. Appellant’s wife answered the phone and told Vranesevieh that she and appellant had just “been through a lot,” and that she did not want Vranesevieh or any of appellant’s other former “drug buddies” to call him or bother him. In response, Vranese-vich said that he, too, had been through a drug rehabilitation program, that he was clean, and that his only reason for calling was that his mother was dying of cancer and he needed a friend. Out of sympathy for Vra-nesevich, appellant’s wife gave appellant the message. (Notes of testimony, 2/18/93 at 687a-689a.) Vranesevich testified that he “did not recall” having this telephone conversation with appellant’s wife; however, when asked under oath if appellant’s wife would be lying if she testified that such a conversation took place, Vranesevich responded: “I wouldn’t call her a liar, no. I just don’t recall that conversation happening.” (Notes of testimony, 2/17/93 at 559a.) Appellant also introduced evidence that his family had persuaded him to agree to the drug rehabilitation program, and that after he was released, his wife and mother were actively monitoring his telephone calls and restricting his cash resources in an effort to help him stay “clean.” (Notes of testimony, 2/18/93 at 670a-725a.) This testimony was corroborated by Vranesevich, who acknowledged that the family was screening appellant’s calls at home and at work. (Notes of testimony, 2/17/93 at 563a.) Vranesevich persisted in calling, however, resorting to the use of an “alias” to get past the switchboard at appellant’s place of employment. (Notes of testimony, 2/17-18/93 at 563a, 704a-708a.) Vranesevich testified that he and appellant worked out the use of the alias together; however, appellant testified that Vranesevich invented the alias, and that appellant went along with it. (Notes of testimony, 2/17-18/93 at 563a, 794a.) While the testimony conflicts, it is not testimony that goes to the type of inducement at issue in this case; therefore, it is not decisive on the issue of entrapment as a matter of law because it does not address an operative fact. Both Vranesevich and appellant testified that drugs were not discussed at the first meeting between Vranesevich, the narcotics agents, and appellant on January 19, 1991. (Notes of testimony, 2/17-18/93 at 565a, 752a.) Rather, the main subject of discussion appeared to be Vranesevich’s desire for a new kitchen for his recently purchased home, and his wish to have appellant, whose family owned a kitchen remodeling business, give him an estimate as to the cost of such a project. (Notes of testimony, 2/17/93 at 564a-567a.) In addition, prior to the January 23, 1991 meeting, the first meeting at which drugs were apparently discussed, Vranesevich admitted that he had heard from both appellant and his wife that appellant had just been released from rehabilitation. (Notes of testimony, 2/17-18/93 at 558a, 568a, 754a.) Vranesevich testified that he did not feel the need to tell Agent Liptak that appellant had just been released from rehabilitation at the time because he thought appellant was “just kidding.” (Notes of testimony 2/17/93 at 568a.) Agent Liptak testified, however, that Vranesevich told the agent “somewhere later on,” but during the investigation, that appellant had recently been through treatment. (Notes of testimony 2/17/93 at 621a.) This testimony was uncon-tradieted by Vranesevich, who testified only that he “did not recall” whether he told the agent about appellant’s attempted rehabilitation. (Notes of testimony 2/17-18/93 at 567a, 621a.) Nevertheless, the record is clear that Vranesevich asked appellant to sell him some cocaine, in exchange for which appellant could keep some for his own use. (Notes of testimony 2/17/93 at 541a.) Appellant had no prior criminal record, nor was his rehabilitation part of a plea agreement with the Commonwealth. From the foregoing, then, the record establishes that a government agent, taking advantage of his past close friendship with appellant, and playing upon appellant’s sympathy, approached an individual who had just completed an extensive drug rehabilitation program for the purpose of inducing him to resume his use of drugs. We turn next to the nature of the drug transactions. The five drug transactions in which appellant participated had the same pattern. First, appellant would meet Vranesevich and the two narcotics agents at an appointed rendezvous. Sometimes this was a restaurant or bar, sometimes a parking lot, and sometimes appellant’s garage. The “buyers” would then give appellant between $1,000 and $1,900 to purchase the desired amount of cocaine, ranging from one-half to one ounce. Appellant would then leave the “buyers,” having arranged a time and place to deliver the cocaine to them later in the day. Next, appellant would meet with his “source” to purchase the cocaine and would then go to his home to measure and “cut” the cocaine, taking one-sixteenth of an ounce for his own use. Finally, appellant would meet again with the three “buyers” to deliver the cocaine. (Notes of testimony, 2/17-18/93 at 537a-556a, 584a-605a, 755a-776a.) While Vranesevich’s testimony as to the exact location of these rendezvous conflicted at times with Agent Liptak’s, his own, and/or appellant’s, all agreed to the general format. In addition, testimony was uncontradicted that appellant had no money with which to purchase drugs until it was furnished by the police because his family had him on an allowance of five dollars ($6.00) per day throughout this entire period. (Notes of testimony, 2/18/93 at 772a.) There ivas conflicting testimony as to whether Vranesevich had a side deal with appellant for a cut of the cocaine, and Vranesevich testified, once again, that he “did not recall” whether he ever used cocaine as part of the investigation of appellant. (Notes of testimony, 2/17-18/93 at 541a-542a, 561a, 570a, 757a, 761a-763a.) Nevertheless, none of the testimony regarding a “side deal” is central to the issue of inducement and is therefore not an operative fact. Finally, it was undisputed that all five transactions were at the instigation of the police; appellant made no effort to contact his “buyers” during the period from February to June 1991. (Notes of testimony, 2/17— 18/93 at 633a-634a, 771a.) Having thus reviewed the operative facts of the instant case, we turn next to the operative facts of other Pennsylvania cases finding entrapment as a matter of law for guidance. We have already reviewed the facts of Thompson, supra, a case in which an attractive female undercover police officer lured a fellow male officer into obtaining drugs for her in exchange for the promise of sexual favors. Thompson, supra at 333-40, 484 A.2d at 160-63. More recently, this court was confronted with a fact pattern similar to the instant case in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991), a case in which the defendant was found entrapped as a matter of law. While appellant argues that Wright is on all fours with the instant case, the Commonwealth argues that Wright is distinguishable. We agree with the Commonwealth; however, we find that the distinction is one of which the difference is to the benefit of appellant. The Wright court, relying heavily on the analysis in Thompson, found entrapment as a matter of law under the following set of facts. In exchange for a probationary sentence, Ken Doran agreed to help gather information concerning drug dealing on the Penn State campus. Toward that end, Doran cultivated a friendship with Wright and, in reliance on that friendship, asked Wright to purchase some marijuana for him “as a favor,” alleging that Doran’s work prevented him from purchasing it for himself. The police were fully aware of all of Doran’s actions and made up the lies he told Wright. Wright received neither drugs nor money for his efforts, his only form of compensation being reimbursement for gas money and two cartons of lemonade. Wright, supra at 277-283, 578 A.2d at 514-516. In finding entrapment as a matter of law, the court focused heavily on the fact that Doran’s testimony corroborated Wright’s as to the operative facts, including Wright’s reasons for engaging in the drug transactions. The court also noted the heavy degree of police involvement in fabricating lies about Doran’s inability to purchase the drags for himself. Id. at 277-279, 290-294, 578 A.2d at 514, 521-522. In the instant case, we have an even moi'e egregious set of uncontradicted “operative facts”: a targeted “seller” released from an intensive drug rehabilitation program within two weeks; appeals to sympathy and friendship to convince appellant’s wife to tell appellant that the informant wished to contact appellant; appeals to sympathy and susceptibility to drugs to induce appellant to return to drag use and to traffic in drugs; and no effort on the part of appellant to engage in drug transactions with the police officers during the lengthy hiatus between February and June. While the level of actual police involvement in creating the inducement is not as high in the instant ease as it was in Wright, nevertheless, the case before the court presents exactly the kind of situation that the defense of entrapment was intended to address. Appellant argues, and we agree, that under the facts of this case, the conduct of the government agent described above rises to the level of outrageousness supporting our finding of entrapment as a matter of law. As we have already noted, when § 313 was enacted, the legislature adopted the objective analysis of entrapment enunciated by Justice Frankfurter in his concurrence in Sherman, supra. Both the Wright and Thompson courts relied heavily on Justice Frankfurter’s analysis in Sherman. It is therefore instructive to review the facts of Sherman and the analysis of Justice Frankfurter with an eye toward the case before us. Sherman, as in the instant case, involved a recovering drug addict. In Sherman, the informant met the petitioner at a doctor’s office where both were being treated for narcotics addiction. A mild friendship based on their common problem developed. In time, the informant asked petitioner if he knew of a good source of narcotics, or if he could supply the informant with a source because the informant was not responding to the treatment. Despite the petitioner’s attempts to avoid the issue, the informant persisted. Petitioner finally succumbed to the pressure of the informant’s alleged suffering. Id. at 371, 78 S.Ct. at 820, 2 L.Ed.2d at 850-851. Subsequently, government agents observed petitioner give narcotics to the informant in return for money supplied by the government on three separate occasions. Id. The majority of the Sherman Court held that the petitioner had been entrapped as a matter of law. In so holding, however, the Court relied on the subjective test for entrapment; namely: [Whether] ‘the criminal design originate[d] with the officials of the government, and they implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce[d] its commission in order that they may prosecute.’ Id. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851, quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413, 417 (1932). As noted supra, Pennsylvania no longer follows the subjective analysis of the Sherman majority; rather, it has adopted the objective analysis of the Sherman concurrence. As a result, the only issue is: whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power. Sherman, supra at 382, 78 S.Ct. at 825, 2 L.Ed.2d at 856 (Frankfurter, J. concurring). As Justice Frankfurter explained: The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the government to bring about conviction cannot be countenanced. Id. at 380, 78 S.Ct. at 824, 2 L.Ed.2d at 855 (Frankfurter, J. concurring). That is surely our case today. It is hard to imagine what public policy is served by allowing the police or their agents to approach recovering drug addicts, newly discharged from rehabilitation programs to which they have submitted of their own free will, to lure them back into narcotics use. As the Sherman concurrence stated: The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime. Id. at 384, 78 S.Ct. at 826-827, 2 L.Ed.2d at 858 (Frankfurter, J. concurring). The Commonwealth argues that the instant case is controlled by Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977), a case in which the police had no knowledge of the informant’s conduct. As our review of the record indicates, however, Agent Liptak admitted being told that appellant had recently completed a drug rehabilitation program. (Notes of testimony, 2/17/93 at 621a.) Furthermore, even if Agent Liptak did not know exactly how many times Vranesevich called appellant, or what the particular persuasive measures employed by Vra-nesevich were, nevertheless, we agree with the Sherman Court that the Commonwealth must take responsibility for the acts of its agents. Even using the subjective test for entrapment, with its strong component of criminal predisposition on the part of the accused, the Sherman majority found that the petitioner had been entrapped as a matter of law when the government allowed its informant, as part of a plea agreement, to approach a recovering addict and urge him to return to his narcotics habit. Although the government in Sherman likewise claimed ignorance of the tactics used by its informant, the Sherman Court stated emphatically: The Government cannot disown [an informant] and insist it is not responsible for his actions.... [The informant] was an active government informer ... In his testimony the [government] agent in charge of the case admitted that he never bothered to question [the informant] about the way he had made contact with petitioner. The Government cannot make such use of an informer and then claim disassociation through ignorance. Id. at 373-75, 78 S.Ct. at 821-22, 2 L.Ed.2d at 852. Finally, § 313 itself demands such accountability, applying as it does to “[a] public law enforcement official or a person acting in cooperation with such an official." 18 Pa.C.S.A. § 313(a) (emphasis added). Lastly, we note that our finding of entrapment as to the first offense necessitates our finding entrapment as to all counts. As the Sherman Court stated: It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. Id. The Pennsylvania Standard Jury Instructions echo this analysis: The defense [of entrapment] provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule. Pa.Crim. Suggested Standard Jury Instructions, supra at Subcommittee Note § 8.313. As such, the fruit of the first entrapment, like the fruit of an illegal search, cannot be utilized by the Commonwealth in its case against appellant. We do not decide today that the police may never approach a person who has recently been released from a drug rehabilitation program; the Commonwealth may very well, in certain cases, be able to create a factual question for the jury on this issue. Entrapment as a matter of law is, ironically, fact specific. All we decide today is that, based upon the uncontroverted testimony at trial on the operative facts of this case, appellant was entrapped as a matter of law where: 1) a former very close friend; 2) appealing to the bonds of friendship and the sympathy engendered by the alleged impending death of his mother; 3) and claiming that he, himself, had been through rehabilitation and was now “clean”; 4) approached appellant repeatedly about selling drugs in exchange for which appellant could have a “free high”; 5) all the while knowing that appellant was just out of rehabilitation and that his family was doing everything in its power to help him remain drug-free. As the Thompson court, in reliance upon the Sherman concurrence, stated: Although entrapment necessarily must be decided on a case-by-case basis, impermissible activity may include ‘[ajppeals to sympathy, friendship, the possibility of exorbitant gain and so forth.’ Thompson, supra at 343, 484 A.2d at 165 (citing Sherman, supra). We do not, and are not asked to, decide today whether this particular appel lant was ready to sell drugs when Vranesevich first approached him, nor whether he would have sold drugs to someone else if Vranesevich had not made the offer. As this court stated in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985): Pennsylvania’s entrapment statute addresses the concern over ‘unconventional’ investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant. Id. at 328, 488 A.2d at 1149 (emphasis added). All we decide is that the government has a responsibility to ensure that the tactics used by its informants do not fly in the face of the goal of the state to reduce, not increase, illegal drag use, even if by only one person. For the foregoing reasons, the judgment of sentence is vacated, and jurisdiction is relinquished. . Appellant raises seven (7) issues on appeal: I. Whether the verdicts on all charges should be set aside on the basis that defendant was entrapped as a matter of law; II. Whether the verdicts on the charges in the informations at Nos. 599 and 600 Pittsburgh 1992 should be set aside on the basis that the Commonwealth’s evidence was so contradictory that it failed to establish these crimes beyond a reasonable doubt; III. Whether defendant should be granted a new trial on the basis that the trial court refused to admit mental health records of the informant, a key government witness, which contained his admissions of dishonest and deceitful conduct; IV. Whether defendant should be granted a new trial on the basis that the trial court refused to admit expert medical testimony regarding the susceptibility of a recently recovering cocaine addict to participate in a cocaine transaction in exchange for cocaine as inducement as that issue related to the entrapment defense; V.Whether defendant should be granted a new trial on the basis that the trial court refused to admit expert testimony on the issues of the inadequacy and absence of investigative reports and absence of investigative techniques; VI.Whether defendant should be granted a new trial on the basis that the trial court erred by charging the jury on voluntary intoxication under the facts of this case; VII.Whether defendant should be granted a new trial on the basis that the court erred by giving the voluntary intoxication charge to the jury in response to the jury’s only question during deliberations, when the jury only asked for the definition of entrapment. . 35 P.S. §§ 780-113(a)(16), (30). . The only conflicting testimony on this issue was the discrepancy between what Vranesevich told Agent Liptak at the time of the first meeting, and what Vranesevich testified to under oath at trial. See notes of testimony, 2/17/93 at 565a-567a. . As previously noted, appellant had no prior convictions for drug trafficking and his rehabilitation program was not a part of a plea agreement with the government, in exchange for parole. On the contrary, the Commonwealth concedes that appellant went into rehabilitation at the behest of family members, who were doing everything in their power to help appellant overcome his addiction.

Opinion by Mr. Justice McCollum, We are unable to discover anything in the first, second and third specifications of error which calls for a reversal of this judgment. Strictly speaking the register itself was the best evidence of what was written or printed upon it. The fourth, fifth and sixth specifications raise substantially the same question that was raised and passed upon in Perrine v. Jermyn, just decided [the preceding case.] In that case as in this the principal matter complained of was the instruction in relation to notice of the revocation or termination of the agency. Our ruling in that case applies to and governs this. The specifications of error are overruled. Judgment affirmed.