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Opinion .by Mu. Justice Mitchell, The widow and heirs are entitled to the income of the real estate between the death of testator and the sale, unless the will has taken it out of the usual course of devolution and put it in the hands of the executors for the payment of debts. It is not a question of conversion, as the learned judge below rightly held, but of intent. The testator had large assets, but also large liabilities,- and tbe will indicates that he knew that a settlement of his estate in the usual course of law would leave little or nothing to his family. He had therefore the choice of letting the family get along-for a few years without income, in order that they might then have something saved, or of letting them take the chances of the income from the farms for a few months and .then have nothing. He plainly chose the first alternative. His will empowers his executors, of whom the widow was one, to keep his estate intact and undistributed for a period of five years, and during that period, at their discretion to sell and convey, or to mortgage or pledge any of his real or personal estate for the purpose of raising money for the payment of debts! At the end of the five years, or upon the settlement of the estate by the executors, distribution was to be made. Nothing could be plainer than the general intent and guiding, purpose of the testator to take his estate out of the ordinary legal devolution, and to prevent a present distribution of any of it to the heirs, in the hope of ultimate advantage. The power expressly given over the whole estate, real and personal, to sell, mortgage or pledge for payment of debts, necessarily includes the power to manage, to collect and apply the income of the whole for the desired purpose. This the executors have done. Decree affirmed.

OPINION OF THE COURT FLAHERTY, Justice. This is an appeal by allowance from an order of the Superior Court which reversed an order of the Court of Common Pleas of Erie County denying a motion to dismiss, on double jeopardy grounds, a charge of homicide by vehicle. The pertinent facts are as follows. On October 26, 1990, the appellee, Mary M. Caufman, struck a pedestrian with her automobile. As a result, on October 30,1990, a citation was issued to her for the summary offense of failure to drive at a safe speed. The pedestrian died as a result of her injuries on November 2,1990. On November 14, 1990, appellee pled guilty to the summary offense and paid the fine. The same day, a complaint was filed charging appellee with homicide by vehicle. At issue is the Superior Court’s reversal of the trial court’s ruling that appellee’s plea of guilt to the charge of driving at an unsafe speed did not bar prosecution of the homicide by vehicle charge. We reverse. Initially it is noted that this ease is governed by double jeopardy analysis rather than by the requirement in 18 Pa.C.S. § 110 that charges arising from the same criminal episode be joined for prosecution or the “compulsory joinder rale” set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). The statutory joinder requirement and Campana are inapplicable where, as here, the offense first prosecuted was a summary one. Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). Accord Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987). Presently, both the trial court and the Superior Court applied the double jeopardy rule announced by the Supreme Court of the United States in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which required that charges resting on proof of the same criminal conduct be joined for prosecution except where facts necessary to joinder were not discovered despite the exercise of “due diligence” by prosecuting authorities. 495 U.S. at 510, 516 n. 7, 110 S.Ct. at 2087, 2090 n. 7, 109 L.Ed.2d at 557, 561 n. 7. The trial court held that failure to consolidate the homicide by vehicle charge and the charge of driving at an unsafe speed was excused because the prosecution demonstrated due diligence in filing all applicable charges as soon as facts necessary to support the charges became known. Because the charge of homicide by vehicle was filed within just twelve days of the victim’s death and without knowledge of the entry of appellee’s plea to the summary charge, the court concluded that the prosecution acted with diligence. The Superior Court reversed, reasoning that the district attorney’s office was in possession of all necessary facts when appellee entered her plea on November 14, 1990, and that the due diligence exception was not applicable because there was sufficient time to have filed the homicide by vehicle charge before that date. We granted allowance of appeal to consider whether the due diligence exception of Grady was applied properly below. The Grady decision has, however, recently been expressly overruled by the Supreme Court of the United States in United States v. Dixon, 509 U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The holding of Dixon makes it unnecessary to reach the issue of due diligence in this case. Dixon cast aside the Grady analysis of whether multiple criminal charges rest on proof of the same underlying conduct, and reinstated the double jeopardy test that was followed prior to Grady. The Supreme Court stated: In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. See ... Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 [182] (1932).... The same-elements test, sometimes referred to as the “Blockburger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.... We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a “same-conduct” test to avoid the double jeopardy bar. The Grady test provides that, “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,” a second prosecution may not be had. 495 U.S., at 510, 109 L.Ed.2d 548, 110 S.Ct. 2084 [at 2087]. We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the “same offence,” U.S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks con- , stitutional roots. The “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. Dixon, 509 U.S. at — - —, 113 S.Ct. at 2856-2860, 125 L.Ed.2d at 568-573. The test approved by Dixon, to wit, the “same-elements” test of Blockburger, has long been followed in this Commonwealth. Commonwealth v. Allen, 506 Pa. 500, 510-14, 486 A.2d 363, 368-70 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). It requires a comparison of the elements of the offenses to determine whether “ ‘each [offense] requires proof of a fact which the other does not.’ ” Id. at 510, 486 A.2d at 368 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). Applying this test to the present case, it is clear that homicide by vehicle and driving at an unsafe speed are not the “same offence,” U.S. Const. amend. V. Prosecution of the homicide by vehicle charge is not, therefore, barred by the previous conviction for driving at an unsafe speed. Plainly, the elements of the two offenses are not the same. Each offense requires an element not required by the other. Homicide by vehicle requires that there have been a death caused by a criminally negligent or reckless violation of law. 75 Pa.C.S. § 3732 (homicide by vehicle); Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987). Driving at an unsafe speed obviously does not require that there have been a death; nor does it require criminally negligent or reckless behavior. 75 Pa.C.S. § 3361 (driving at safe speed). Likewise, the latter offense necessarily involves driving at excessive speed. Homicide by vehicle does not. See Matter of Huff, 399 Pa.Super. 574, 581-82, 582 A.2d 1093, 1096-97 (1990), aff'd, 529 Pa. 442, 604 A.2d 1026 (1992). Although proof of the homicide by vehicle charge will involve proof of the manner in which appellee was driving, “mere overlap in proof between two prosecutions does not establish a double jeopardy violation.” United States v. Felix, 503 U.S. 378, 379, 112 S.Ct. 1377, 1379, 118 L.Ed.2d 25, 34 (1992). Hence, double jeopardy does not bar ap-pellee’s prosecution for homicide by vehicle. The order of the Superior Court to the contrary must, therefore, be reversed. Order reversed. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., did not participate in the consideration or decision of this case. CAPPY, J., files a dissenting opinion. . The police investigator assigned to the case went on vacation before the victim’s death and did not return to work until just before November 14, 1990, thereby causing the delay in filing the homicide by vehicle charge. . The Superior Court noted, however, as did the trial court, that the manner in which summary traffic charges are handled in this Commonwealth makes it very difficult to ensure that a person does not plead guilty to a summary offense prior to being charged with a more serious offense. Once charged with a summary offense, one can plead guilty and pay the fine at any time within ten days after receipt of a summons and without a personal appearance in court. Pa.R.Crim.P. 62, 64. . The complaint charging homicide by vehicle alleges that, in addition to driving at an unsafe speed, appellee consumed alcohol and wove in and out of traffic and passed vehicles during nighttime hours in the midst of dense pedestrian and vehicular traffic.

SILVESTRI, Senior Judge. L. Washington & Associates, Inc. (Employer) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming a referee’s decision and order granting benefits to John Short (Claimant). Claimant was employed by Employer as a security guard. Claimant was discharged from his position with Employer on May 9, 1994. Thereafter he applied for benefits with the Philadelphia West Job Center stating in a summary of interview form that he was discharged from his position with Employer and that he was unaware of the reasons for said discharge. Because Employer failed to provide a written response regarding why Claimant was discharged, the job center, in a determination issued on June 9, 1994, granted Claimant benefits. Employer appealed the job center’s determination alleging that Claimant was discharged based upon his willful misconduct in violation of Section 402(e) of the Pennsylvania Unemployment Compensation Law. A hearing was scheduled before the referee for July 11, 1994. Only Lanxton L. Washington (Washington), the president and owner of Employer, appeared before the referee for the scheduled hearing. Washington testified that on May 9, 1994, while Claimant was on duty, a safe was stolen from the office building Claimant was supervising for Employer. Washington further testified that he investigated the incident and was told that Claimant was observed sleeping on the job that evening. Washington testified that he confronted Claimant with this information and that Claimant failed to deny that he had been sleeping. Washington further stated that two persons informed him in the course of his investigation of the robbery that Claimant had left a handicap door open which he was responsible for keeping locked throughout his shift. Claimant denied that he left the handicap door opened when confronted by Washington. Washington testified that Claimant was discharged for sleeping on the job and failing to lock a handicap door. The referee issued its decision and order on July 14, 1994, affirming the job center’s determination. The Board, on August 23, 1994 affirmed the referee concluding that Employer failed to meet its burden of demonstrating Claimant’s willful misconduct. The Board so concluded because Employer “did not provide any firsthand testimony establishing the claimant” was sleeping on the job or failed to lock a door as alleged. (R.R. 38). On appeal, Employer asserts that the Board erred in concluding that it failed to meet its burden of proving that Claimant committed willful misconduct based upon its failure to provide firsthand testimony establishing that Claimant was sleeping on the job, 1.e., that Employer submitted only hearsay evidence. Employer maintains that Claimant’s failure to deny he was sleeping on the job when confronted with this information by Washington constituted an admission, an exception to rule excluding hearsay evidence. Accordingly, Employer asserts that this testimony constituted substantial evidence supporting a finding that Claimant was, in fact, sleeping on the job. We agree and reverse the Board’s determination. It is without question that if Claimant was, in fact, sleeping on the job, such behavior would constitute willful misconduct disqualifying him from receiving unemployment compensation benefits. Kelley v. Unemployment Compensation Board of Review, 59 Pa.Commonwealth Ct. 304, 429 A.2d 1227 (1981). The only issue here is whether or not Employer presented evidence to support its allegation to this effect. Employer correctly points to the rule that one’s silence may constitute an admission, even in civil proceedings. Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873 (1952); Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963). Specifically, in Levin, the Pennsylvania Supreme Court set forth, in relevant part, the following regarding this rule: The rule is thus stated, in 31 C.J.S. Evidence, § 295: The failure of a party to reply to a statement made in his presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper ... Silence is considered an admission, only when the circumstances are such that one ought to speak and does not.... Levin, 412 Pa. at 327, 194 A.2d at 421. (Citations omitted). Here, we hold that the circumstances were such that “one ought to speak and does not.” Specifically, Claimant was confronted by the owner of the company he worked for pursuant to an investigation into a robbery which occurred at the location were Claimant was working as the posted security officer. He was told by his employer that his investigation into the matter revealed that he, Claimant, had been sleeping on the job. Surely, under these circumstances, Claimant, had he not been sleeping, should have responded; however, Claimant failed to do so. Accordingly, his silence constituted an admission of the asserted conduct. An admission is admissible in evidence as an exception to the hearsay rule in Pennsylvania. Further, an admission can be used as substantive evidence to prove the truth of the matter asserted. Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957). Here, Washington’s testimony that Claimant did not deny sleeping on the job when confronted with this information, constituted substantive evidence that Claimant was, in fact, sleeping on the job. As no evidence was presented to contradict this testimony, we conclude that there was substantial evidence of record presented by Employer demonstrating Claimant’s willful misconduct. Accordingly, the Board erred in its conclusion that Employer failed to meet its burden of demonstrating Claimant’s willful misconduct and we, therefore, reverse its decision and order. ORDER AND NOW, this 9th day of June, 1995, the order of the Unemployment Compensation Board of Review dated August 23, 1994 is reversed. . Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), which provides, in pertinent part, as follows: An employee shall be ineligible for compensation for any week— (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, ... . Our scope of review is limited to determining whether an error of law was committed and whether there was a capricious disregard of competent evidence, where, as here, the burdened party is the only party to present evidence and does not prevail. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). . We note our appreciation of the fact that Claimant failed to appear at the hearing before the referee and, thus, failed to present evidence contradicting the testimony given by Washington at the hearing. However, our review of the record demonstrates that Claimant was provided with notice of the hearing at his last known address and the rule in this Commonwealth has long been that a referee should decide unemployment compensation cases on their merits, even in the absence of one or both parties. Gadsden v. Unemployment Compensation Board of Review, 84 Pa.Commonwealth Ct. 375, 479 A.2d 74 (1984).

Opinion by Mb. Justice Mitchell, The learned judge below, conceding that if the question were between plaintiff and Montgomery it would have to go to the jury, wás of opinion that there was no sufficient evidence of knowledge or bad faith on the part of defendant, and therefore directed a verdict for him. The case discloses a plain and very gross fraud on the part of Montgomery, and the use of Hall the defendant as the instrument for the perpetration of it. Under such circumstances the question of fact alwaj's arises whether the person made the instrument was so used with his knowledge and consent, or was an innocent victim. Generally this is a matter for the •jury, for while they should not be permitted to draw conclusions from insufficient evidence, yet questions should not be taken away from them too easily, which depend on the inferences of knowledge and motive from a number of acts capable of different interpretations. The evidence in the present case, points strongly to the conclusion that Hall not only knew of Montgomery’s fraud, but participated in it. It is true there is no one fact established which can be said to prove it, but fraud is rarely capable of proof in that way. It is the chain of less direct circumstances all pointing the same way, until there seems no other reasonable mode of reconciling them, that must usually be.depended on in reaching a conclusion. The defendant was Montgomery’s brother-in-law ; he knew the boat w'as part of the assets of the Fishing Company, though the title may have been recorded in the names of the partners as tenants in common; he was a clerk at a salary of twelve hundred dollars; had never been in the fishing business, or had any acquaintance with it; made no examination of the boat, and no inquiry as to its value or its earning capacity; yet under such circumstances he gave a judgment note for an amount equal to nearly two years of his entire salary, and paid nothing, though he got a bill of sale which falsely recited the payment of the price in hand in lawful money. If there is any explanation of such a transaction con-. sistent with good faith, it should at least have the indorsement of a jury. The registry act of • the United States has very little to do with the case. It is for the protection of bona fide purchasers, not others. The defendant made his purchase first; if it was in good faith he got a good title, with the statute or without it; if it was fraudulent he got no title at all as against the plaintiff, and the statute will not help him. Judgment reversed, and venire de novo awarded.

Opinion by Mb. Justice McCollum, This is an appeal from an order of the court of common pleas commanding the register of wills of Philadelphia county to alter a record made on the 19th of September, 1878, by one of his predecessors in office. The first contention of the appellant is that the order was not authorized by the statute relied on by the appellees to sustain it. By this statute it is made the duty of the judges of the courts of common pleas of the several counties of the commonwealth as often as the register of wills of any county shall be superseded, and as much oftener as shall be requisite, to ascertain if the records, books, indexes and files of bis office be kept and left as the law contemplates, and, if neg-lect is apparent, to direct the deficiency to be performed by’ the proper officers. How is the duty thus, imposed to be discharged, and what is the scope of it ? There is nothing in the statute which suggests the necessity or propriety of the institution of proceedings by interested parties and -the formation of issues for the settlement of disputes between them. It is obviously a duty which may be performed by inspection. A petition for the performance of it is not required, nor a suggestion of inaccuracy in the record. No provision is made by the statute for bringing parties or witnesses into court or for the ascertainment of any fact by the production of testimony. It seems therefore that the judge charged with the duty in quéstion; is required to ascertain by an inspection of the records, books and papers of the office whether they are kept as the law contemplates. Apparent neglect in keeping them may be readily discovered by inspection, and it is the most satisfactory if not the only method of discharging the duty imposed by the statute. But the form of the proceeding in this case is not so objectionable as the purpose of it. A petition for the performance of the duty will not necessarily invalidate an order within the purview of the statute and proper to be made on inspection alone. The real and controlling question therefore is whether there is any statutory warrant for the order under review. The appel lees contend there is, and that it is to be found in the act of June 17, 1839. We have already referred to this act and the duty it enjoins. It undoubtedly gives the judges of the courts of common pleas supervisory power over certain work to be performed by the register. It requires them as often as he is superseded, “and as much oftener as shall be requisite,” to ascertain if the records, books and papers of his office are kept in conformity with law, and if neglect is apparent, to direct the performance of the deficiency occasioned by it.. But the power of supervision thus conferred is limited to the- work of the register in keeping and preserving the records, books, indexes and files of his office. • It does not extend to his judicial acts and decisions. From these an appeal lies to the orphans’ court. Admitting a will to probate is a judicial act. Recording it and issuing letters testamentary thereon are acts which naturally follow its admission to probate and constitute prima facie evidence of it. In the case before us it appears that an instrument purporting to be a certified and true copy of the will of Robert Coleman which was claimed to have been duly probated in Paris, France, was presented to the register of wills of Philadelphia county, Pa., who accurately recorded the same and issued letters testamentary thereon. ' He recorded -it as the law required him to record “ all original wills, after probate, and the copies of all original wills produced under the provisions ” of the act of March 15,1832. Fifteen years after recording it and issuing letters testamentary, during which time the record so made was regarded as authorized and authentic, this proceeding was instituted to change it. We regard the proceeding as unprecedented and founded upon a misapprehension of the true scope and meaning of the act of 1839. It follows from the views expressed that the order complained of was improvidently made. We do not deem it necessary or advisable at this time to discuss or consider the other questions raised in this case. All that we now decide is that the order of June 17, 1893, is null because the learned judge of the court below was not authorized to make it. Order reversed and set aside.

Opinion by Mb. Justice Fell, The mortgage upon which judgment was. obtained was executed by the makers of negotiable promissory notes, and pledged by them to secure the payment thereof. It was assigned by the payees to the plaintiffs when they became purchasers of the notes. Suit was brought on the mortgage, and judgment regularly entered after service and appearance; and it was not in dispute that the plaintiffs were innocent holders of the notes for value before, maturity and without notice of any defence. The application of the defendant, J. R. Littlejohn, to open the judgment in order that he might be let into a defence to the mortgage, had no equitable basis unless it appeared that he had a defence to the plaintiff’s claim on the notes. It was addressed to the judge sitting as a chancellor, and there was no ground for action by him in the absencé of evidence of an equity founded on a just defence to the plaintiff’s claim. As he presented no defence, and could make none, the rule was properly discharged. The judgment is affirmed.

Opinion by Mr. Cbtee Justice Sterrett, In March, 1893, the Orphans’ Court of Philadelphia appointed one of the appellants, Edward L. Mintzer, Sr., guardian of the person, and Francis EL. Thole, the other appellant, guardian of the estate of Walter A. Mintzer, a minor under the age of fourteen years. As directed by the court, said guardian of the estate gave bond with security in the sum of sixty thousand dollars. A few days thereafter, tile appellee, Horace P. Green, was appointed guardian of the person and estate of same minor by the Orphans’ Court of Delaware county, and thereupon presented his petition to the Orphans’ Court of Philadelphia, denying the authority of said court to make the first mentioned appointments. Testimony was taken, and the matter was so proceeded in that the jurisdiction of the Orphans’ Court of Philadelphia in the premises was fully sustained. Appellants then petitioned the Orphans’ Court of Delaware county to revoke the appointment of appellee, as guardian, etc. That application resulted in the following decree of November 9,1893: “that the appointment of the respondent, Horace P. Green, be revoked upon the petitioners paying the costs of this proceeding and of the proceedings in the Orphans’ .Court of Philadel phia for the revocation of the appointment of the petitioners, or indemnifying him against the same, and' that thereupon his account appended to the answer be confirmed, and he be authorized to pay and transfer to the petitioner, Francis H. Thole, the balance in his hands.” ■ While appellants have assigned error to the entire decree, they do not complain of the first clause 'thereof, revoking appellee’s appointment. Their objections are restricted to the terms and conditions annexed to said revocation, viz: the payment of all costs, including the costs of appellee’s fruitless litigation in the Orphans’ Court of Philadelphia or his indemnification against the payment of the latter, and the confirmation of the account which he voluntarily appended to his answer in this proceeding, and in which he claims-credit for $150 counsel fees, $100 to his surety as guardian, etc. ■ There appears to be nothing in the facts or circumstances of the case, as disclosed by the record, to justify either of said terms and conditions. The appellants were entitled to an unqualified revocation of appellee’s appointment. Before the latter undertook .to act he was fully aware that the Orphans’ Court of Philadelphia, upon the petition of the minor’s paternal grandfather, had assumed jurisdiction and appointed guardians of his person-and estate respectively. With-full knowledge of these facts, he asserted jurisdiction of the court that appointed him and denied the jurisdiction of-.the Orphans’. Court of Philadelphia. By presenting his petition to that court, he submitted himself to its jurisdiction; and -for the purpose of this ease the decree of that court, unappealed from, must be regarded as conclusive of the question of jurisdiction. We are not aware of any rule that in such circumstances would justify the imposition -of costs upon successful contestees, or warrant the unsuccessful contestant in claiming to be indemnified against the payment thereof. As to the costs incurred in the Orphans’ Court of Philadelphia, the jurisdiction of that court is primarily exclusive. We are, therefore of opinion that all the terms and conditions annexed to the decree revoking appellee’s appointment were unauthorized. So much of the decree as revokes and .annuls the appointment of appellee, as guardian of the person and estate of said minor, is affirmed, and the residue of said decree is reversed and set aside, with costs to be paid by the appellee.

Opinion by Mr. Justice Green, In the opinion we have, just filed in the case of Brown Bros. & Co. v. Billington, No. 247, Jan. Term, 1894, [reported above, page 76,] we have expressed at length the reasons why, upon the facts of the case, we regarded the transaction there in question as a bailment and not as a sale. In the present case the facts are substantially of the same character. Fisher never had any ownership of the cement, never paid anything for it, was not the consignee and did not have the bill of lading. The only right he did have to take the cement iii charge and to sell it was derived entirely from the contract with Monjo, who had paid the whole of the purchase- money. . By that contract he was to act merely as a selling agent for Monjo, and pay the proceeds of the sales to him. It was a bailment for sale only, and in no event was Fisher to become the owner of the cement. Upon these considerations, and for the reasons more fully expressed in the opinion in the case of Brown Bros. v. Billington we détermine this contention in the same manner and reverse the judgment of the court below. Judgment reversed and new venire awarded.

Opinion by Mb. Justice Dean, The domicile of Jane P. Roberts, the testatrix, at her death, was Harford county, Maryland. Besides some personal property, she was the owner of a farm of 52¿ acres in Abington township, Montgomery county. Her husband was William H. Roberts, who owned in his own right, some property in Maryland. They had six children: Charles W., Mary Jane, and Edward H., who lived in Maryland; Isaac L., William L.,and Ruth Ann, in Pennsylvania. On the 28th of July, 1881, while her husband was living, she made her will, wherein, after dividing her personal effects among her children, she disposed of the farm: “ I desire my farm to be sold as soon as it can be sold to advantage after my death, that is, if it is not sold before. But no one shall force a sale to get their share without the majority is willing for it, and one half the price I want to be secured in the farm while my dear husband lives, or if it is taken out, it must be secured in some other real estate, so as to keep the principal to be equally divided after my husband’s death, among all my children. My husband is to have the interest only while he lives. The other half I want- to be equally divided among my children, or if any of them is dead, their share is to be equally divided among their heirs. If any one owes us anything, take it out of their share, before giving it to them, and divide it among them all.” She then appointed her husband and two sons, Charles W. and William L., executors. The husband died in August, 18811 the testatrix partially administered on his estate, and survived him until October 2, 1888. Letters testamentary were taken out by both executors in Maryland, but Charles W., being a non-resident, declined to file the bond required in Montgomery county, and William alone took out letters there. In February, 1885, he sold the farm for $21,000, and for purpose of making a satisfactory title without proceeding in the orphans’ court, a conveyance, joined in by all the legatees, was made to. the purchaser. However, the executor, William L., received the purchase-money, and filed his second and final account of his administration in Montgomery county, September 3,1887, which, after-taking credit for payment of certain liens against the land discharged by the sale, and sundry other credits, showed a net balance for distribution of $11,613. Henry D. Sajdor, Esq., was appointed auditor to distribute. On claim made by the executor, the auditor deducted from Edward’s share, $850.12, the amount of certain costs and expenses incurred by William in a personal suit against him by Edward in the courts of Maryland, -in which William was successful. The allowance was made on the ground that, although the suit was against Wil liam, the fund in the hands of the executor would, have been diminished by the amount of Edward’s recovery, and, being a wholly unjust claim, as determined by final adjudication, Edward’s share ought to be charged with the expense of his groundless litigation. . The executor also claimed, that at the date of the will, Albert, Charles and Edward were indebted to their father on personal obligations and as surety, for money, which the testatrix intended by her will should be deducted from their shares in the fund realized from the sale of the Montgomery county farm, and that these amounts should be charged against them respectively in the distribution. This claim was also sustained by the auditor. Other questions, involving less important items, were raised and passed on by the auditor, and eleven exceptions were filed to his report and argued before the court. After careful consideration the court passed on all of them by a decree overruling some and sustaining others. The action of the auditor in allowing the costs and expenses of the executor in the individual suit of Edward against him in Maryland, and in deducting from the shares of Albert, Charles and Edward the debts owing their father, was overruled, and a redistribution ordered. From the decree confirming this last report we have this appeal. There are eight assignments of error, only the 5th, 6th and 7th of which call for special notice. The 5th complains of the decree in refusing the allowance of 'the expenses of the Maryland suit which ended in the judgment of the court of errors and appeals of that state against Edward and in favor of William. We think the learned judge of the court below rightly held that the expenses incurred by William in this suit had noplace in a distribution of the purchase money of the farm. It is true, indirectly the estate was benefited by the suit, for it was finally adjudged by the highest court'of Maryland that the courts of that state had no jurisdiction to distribute this fund, and that the orphans’ court of Montgomery county must make distribution ; see 17th Atlantic Reporter, 570. But the suit was not against William as executor. By attaching his land in Maryland, in a suit against him, William was compelled to defend. His defence established that Edward’s claim against him individually-had no foundation ; and, in so far as he had any claim, it was as legatee under his mother’s will, and that this could only be determined on a distribution of the purchase money of the farm in the orphans’ court of Montgomery county. Whatever costs William should recover are those incident to the judgment in his favor in Maryland, and must be collected under the laws of that state. He avers he was put to an expense for traveling hack and forth, counsel fees, etc., of $850.12, which Edward ought to pay him out of his share. But there is no warrant for such an allowance. It was his misfortune to have to defend against an unjust claim ; to successfully do so he incurred expense ; whatever is taxable in that suit follows the judgment in his favor. The suit was not against him as executor, and he can, in this distribution, make no claim on the fuud to even up matters between him and his brother as individuals. This the learned judge of the court below has very clearly demonstrated. But the 6th and 7th assignments seem to us better founded. It will be noticed, the will was made the 28th of July, 1881. The husband and father was present when it was executed, for, by his writing appended to it, he consents to its provisions. The testatrix contemplated his survivorship, and says : “ One half of the price I want to be secured in the farm while my dear husband lives,” and then appointed him one of the executors. Although he died the following month, and she survived ’nearly two years, their expectation as to life at the date of the will, as evinced by its terms, is to be considered in interpreting it. She as,ja, after providing a life interest in one half the purchase money of the farm for her husband, and making an equal distribution of the whole at his death: “ If any one owes us anything, take it out of their share before giving it to them, and divide it among them all.” Albert, Charles and Edward were, at that, time, indebted to their father. The auditor finds as a fact that this indebtedness was well known to the mother when she executed the will in the presence of the father. We think it quite clear that the testatrix meant by the expression, “ if any one owes us anything, take it out of their share,” any debts owing to either her or her husband by their children, and intended the father, as executor, to have the authority to deduct the debt from the share of the debtor in the purchase money of the farm. The auditor finds further, as a fact, that, 'after the mother’s death, at a meeting of the heirs, this was the interpretation put upon the will by them, and that they then agreed the amounts owing by them to their father should be deducted from their share in this fund. While such an agreement would not of itself have been sufficient to give the orphans’ court jurisdiction to determine the indebtedness between the father and his three sons, nevertheless it is corroborative of the construction put by the auditor upon the will; indicates that those interested so understood the will. The orphans’ court, in thus interpreting the will, and determining the indebtedness of the sons to the father, does not, usurp a jurisdiction belonging to the courts of Maryland; it only ascertains a fact necessary to the proper distribution of this fund under the will. The court must determine how much “anyone owes us,” the father and mother, before it can be taken “ out of their share.” The legatees take their shares by the' will with the condition attached, and can take them in no other right; the jurisdiction of the orphans’ court to ascertain the-amount owing the father, is just as clear as to ascertain any indebtedness to the mother. The learned judge of the court below was of opinion the language of the testatrix was too vague to warrant this construction. We think, in view of the whole will, the intent was manifest. Therefore appellant’s 6th and 7th assignments of error are sustained. All the other assignments are overruled, and the record is remitted to the court below, that distribution may be made in accordance with this opinion; the costs to be paid by appellees.

Opinion by Mr. Justice Mitchell, This proceeding is so irregular, and, happily for our judicial history, so entirely unprecedented, that it seems to require a recital of the -main facts. The judge, upon his own motion, without notice and without hearing any of the parties to be affected, on examination of the complaints and indictments in certain cases at the previous session of the court, and upon private inquiries, the nature and extent of which and the parties to whom addressed are known only to himself, made what he termed an adjudication of the office costs on said cases, and filed it subject to exception in writing by the respective officers concerned and a hearing upon the same.” Grosser violation of all judicial principles, short of actual dishonesty, cannot be conceived. No citizen could be deprived of the most trifling right, nor the meanest criminal be condemned, by an adjudication first and a hearing afterwards, yet in this case the money rights of sworn public officers, and the reputation of a member of an honorable profession are sought to be taken away by such method. Even if the result reached were correct, the method could not be tolerated. Conclusions based merely on the formal averments of complaints or indictments, without any knowledge of the evidence, or the real facts, could hardly help frequently going astray, and an examination of the only evideñce in this case, taken after the “ adjudication,” shows that the conclusions were as unjust as the proceeding was irregular. It is not desirable to incumber this opinion with a detailed review, but a few instances of error in fact may be referred to as illustrations. In item 3, Com. v. Archey, and Com. v. Good, the adjudication says: “ The two offences were committed by the two defendants together; .... but two indictments should have been found. Therefore costs can be.allowed . . . on but two indictments.” The deposition of the district attorney shows that the joint commission of the offence was denied by the prisoners, was a contested point at the trial, and that “ it would have been inexpedient for the due course of public justice to venture to jointly indict the defendants.” The question of expediency was for the district attorney, not for the judge, to determine. The responsibility for a misjoinder would have been on him, and he was entitled to his own judgment on the subject. If he carelessly or corruptly abused his_ discretion, there was plain and ample remedy by due .course of law, but no allegation of such abuse could be maintained in face of the fac^ that the joint commission of the offence was a material and contested point at the trial. In item 4, Com. v. McDonnel, the adjudication says: “ These cases are evidently duplicates; . . . . costs can be allowed only on one complaint and indictment.” The deposition of the district attorney shows that the cases had not been tried, so that even under regular proceedings the court had not yet acquired any jurisdiction over the matter of costs, but in fact the two indictments were for separate offences, committed at different places and at different times, though on the same day. No more striking demonstration could be made of the danger of basing a conclusion on the formal averments of the bill of indictment. Of the view expressed by .the learned judge in his opinion dismissing the exceptions, that the mere statement of the proposition is sufficient to show that more than one indictment would be oppression, it is enough to say that we do not concur in it, but the decision of that question in the first instance is neither for him nor for us, but for the district attorney, and the time for showing an abuse of his discretion, if any existed, had not yet arrived. As to the further view that the maximum punishment of assault and battery is sufficient to punish a large number of acts committed by the same person against the same prosecutor,' the lawmaking power has determined otherwise, and it is not for a judge who has not yet heard the case to say what indictment or what punishment would be sufficient. In items 5, 6, and 7, Com. v. Yeager, Com. v. Kemmerly and Com. v. Foulk, the adjudication says: “ These cases were entered on separate complaints by one and the same prosecutor, for the same offences. . . . The complaints on which the indictments were drawn should have been included in but one complaint and but one indictment found. This is an example of apparent multiplication of cases which the court will not allojV) and therefore costs will be allowed on but one complaint and one indictment.” It appears that no indictments were ever drawn in these cases, they having been settled before the grand jury met. This was a singularly unfortunate selection by the learned .judge, of an example, for it was not a conclusion wrong because founded on insufficient or misleading evidence, but gross carelessness in finding facts from evidence before him which plainly disproved their existence. That errors should occur is incident to humanity, but carelessness in a judge is never excusable, and least of all when he is stepping out of the regular course of judicial proceedings, even with -the best intentions, to affect the rights of others. If, as is implied in the opinion, costs were taxed to the district attorney as if for indictments which were never drawn, that was a serious error which demanded correction, but the district attorney was entitled to a hearing before-condemnation. In items 10,11, 12, 23, 24, 29 and 40, similar carelessness is shown in making orders disallowing costs on all but one complaint and one indictment in each ease; and in a like order in item 19 it is said: “ The grand jury ignored all four of the complaints sent up, and themselves incorporated all the defendants in one indictment.” In each of these instances the district attorney deposes that he consolidated the complaints, and drew a single indictment, and that the grand jury had nothing to do with the matter. It would thus appear that the district attorney himself did exactly what the learned judge condemns him for not doing. It is a very inadequate explanation or reparation to the officer unjustly condemned, to say, as the learned judge does in his opinion, that he “ used the word indictment inadvertently with the word complaint ” and that “ the court in using the phrase 1 costs can only be allowed on one complaint and one indictment ’ should have left out the word indictment. These were very slight clerical mistakes, but not of such a character as to affect the question of costs of the district attorney’s office.” An inadvertency which includes the district attorney in a condemnation meant only for committing magistrates requires ampler apology than this, and to call a mistake slight and clerical because it does not affect the officer’s pocket while it does seriously impugn his professional character shows a lack of judicial appreciation which exemplifies the dangers where a judge goes outside of his proper province. In regard to item 19, the learned judge in his opinion says, “We have no reason to change our view in this matter in our reinvestigation. We find that the information we then received directly was correct,” and proceeds to state what the grand jury did. What this information was, from whom obtained, whether under'Sanction of an oath or not, and what means of knowledge the informant had, are matters known only to the judge who assumed the functions of prosecutor, jury and court, and perhaps of witness also, if the-reference to what the face of the indictment shows, means to express his personal opinion from inspection of the paper. To set aside the sworn deposition of the district attorney on such information as this, is inquisitorial not judicial action. These examples will suffice. The opinion of the learned •judge in dismissing the exceptions is occupied chiefly by discussion which is wide of the mark. The matter which he undertook to examine, even in this irregular way, was not whether the offences charged could as matter of law he joined in single indictments, but whether, in the particular cases, they were properly separated. It is not intended in this opinion to say that a judge may not, of his own motion, initiate an investigation for the correction of evils in the administration of justice. He is the„responsible head of his court, and if he has reason to suspect wrongs or irregularities it is not only his right but his imperative duty to see to their correction. But he should proceed in an orderly and judicial manner, such as calling the attention of the grand jury to the matter, directing the district attorney to investigate, or, if the latter is interested, appointing a special prosecutor pro hac vice, or a commissioner with defined powers of inquiry, or conducting an open investigation himself at the proper time when a particular case is judicially before him. The legal remedies are ample and effective, but none of them permits ajudgment before a hearing. A judge never -serves either law or justice by proceeding lawlessly, or forgetting that a court is U tribunal where justice is judicially administered. Actual justice may be done and sometimes effectively by the summary action of a vigilance committee or a mob of lynchers, but it is not done judicially, and the dangers are such as no civilized community can afford to tolerate. Deliberate and orderly proceedings, including, as a foremost requisite, -a full and impartial hearing before judgment, are the inviolable safeguards of public justice as well as of individual liberty. With the best intentions, no doubt, and under the belief that the situation required extraordinary action, the learned judge nevertheless adopted a method which cannot be sanctioned. The whole proceeding'was non-judicial, void in form and in substance, and it is ordered to be struck off the record.

Opinion by Mb. Justice Mitchell, The learned court below treated the note as the • cause of action set out in the statement, aud we cannot say that it was in error in doing so. The procedure act of 1887 requires the statement to be accompanied by a copy of the note, etc., “ upon which the plaintiff’s claim is founded,” and the statement in the present case first avers the debt, and then follows it, in the same count, with a copy of the note, set out not according to its legal effect as in a common law declaration, but according to its exact form and tenor as required by the procedure act. In the anomalous and unscientific state to which our pleading is reduced by this act, it is impossible to predicate certainty of anything in regard to it, but this is not a common law declaration, and it has the general characteristics of a statutory statement on the note. The action being upon the note, the question of the right to recover on the original consideration, discussed by the appellant, is not before us. For the same reason the testimony of the witnesses Rowe and Conrad that they saw the money loaned, was not conclusive, and therefore the plaintiff’s first and second points were properly affirmed only with a qualification as to the bearing of the evidence on the real issue on the note. The defence being an alleged fraud in the alteration of the amount of the note, the door was thrown open to evidence bearing in any way on the nature of the transaction. The testimony therefore, that plaintiff, at about the time of the alleged loan, was borrowing a larger sum from the witness Wentz, was entirely competent. It might not under some circumstances be of much weight and was certainly not conclusive, but it bore on the probable truthfulness of the loan alleged on one side and denied on the other. So also the declarations of plaintiff before the family of defendant’s testator that nothing was due him, and his failure to mention this debt when inquiry was made at the inquest of lunacy, were properly admitted as bearing on the fact of the alleged loan. The learned judge however used certain expressions in his charge, no doubt inadvertently, which unduly increased the plaintiff’s burdens. Thus he said, “the defendant .... alleges that the note produced by Winters is not the note of Mowrer or that it was signed by him,” and again, “ If the whole evidence has satisfied you that the note produced was actually signed by George Mowrer as it now appears,” etc. We do not understand that Mowrer’s signature to the note was disputed. Plaintiff had a genuine note, and he was entitled to the benefit of a clear understanding of that fact by the jury as the basis of his ease. Tlie issue was whether he had fraudulently altered the amount. What the learned judge meant, no doubt, was that defendant denied that the note in its present form was signed by Mowrer, etc., but the expressions used unfortunately had a larger scope, and tended to give the jury the idea that the defence denied the execution of the note by Mowrer altogether. For this error we are obliged to send the case to another jury. • Judgment reversed, and venire de novo awarded.

Opinion by Mr. Justice McCollum, The learned auditing judge regarded the legacy to Edith Norris as absolute and payable within one year from the death of the testatrix, and he accordingly directed that it should be paid to her guardian. Exceptions were filed to the adjudication, but upon argument and due consideration they were dismissed and it was confirmed "by a divided court. ' The. manner in which the case was decided indicates that there was room for disagreement respecting the questions involved in it. All concede, however, that in the decision of the case- the intention of 'the testatrix should govern and that it must be ascertained from her will. Th'e legacy in question was created by a codicil made nine years and six months after the will was executed. The terms in which it was given clearly import an absolute bequest, and standing alone justify the conclusion reached by the learned auditing judge. But it is contended that the will and codicil must be considered as one instrument and that construed as such they show the testatrix intended the legacy to Edith Norris as a substitute for the bequest to Cornelia Norris who died in 1874, and as the gift to Cornelia was contingent upon her attaining the age of twenty-one years, the gift to Edith is subject to a like contingency. In considering this contention it will be observed that there is no allusion in the codicil to a bequest to Cornelia, or to her death, nor anything whatever to indicate that the testatrix intended to annex any conditions to the legacy which she gave to Edith. The statement in the codicil that she had left the same amount to Mabel Ridgway is no qualification of the gift to Edith Norris, nor will it justify an inference that by it the testatrix meant to change in any respect the legacy she had given in the preceding sentence. There is no inaccuracy in the statement, because the legacy to Mabel Ridgway was the same in amount as the legacy to Edith Norris, but the fact that it was so did not impart to the'latter the qualities of the forrneE There is nothing in the will or codicil in the nature of an expression by the testatrix of a purpose to substitute the legacy in question for the legacy to Cornelia Norris, or to subject it to any contingency or limitation applicable to the bequest to Mabel Ridgway. A substitutional legacy is ordinarily one which is given instead or. place of a prior legacy to the same person. It has all the incidents and qualities of the precedent bequest for which it is substituted. li two legacies of equal amount are bequeathed to the same person in the same instrument or in a will and codicil thereto,, the second will be considered as substitutional unless it plainly appears that it was intended as cumulative. But there is no> presumption that a legacy bequeathed in the codicil to one person is a substitute for a legacy of the same amount bequeathed in the will to another person, nor does such a presumption arise from the mere fact that the legacy given in the will lapsed by the death of the legatee nine years before the codicil was-written. Buehler and Fairlamb’s Appeal, 100 Pa. 385, is cited as authority for the proposition that the legacy in question is substitutional. But we do not so regard it. In that case the-testator, after providing for the payment of his debts and bequeathing a portion of his estate to his widow, devised the residue to his children and directed how the net share of each child should be ascertained. In a codicil to the will he revoked the. devise to his son Robert and- expressly gave his share to-his wife. It was held that the mode pointed out for the ascertainment of the shares of the children was not changed by the codicil and that Robert’s wife was therefore eutitled to the share her husband would have received if she had not been substituted as a legatee in his stead. The decision was in strict, accordance with the expressed intention of the testator that. Robert’s wife should'have Robert’s share under the will. A resemblance between the case cited and the case at bar is not-discoverable. It is conceded that the gift to the children of the testatrix of the income of the residue of her estate was subject to the legacies which she gave to Mabel Ridgway and Cornelia Norris. The payment of these legacies was not postponed during the-lives of her children. They were payable when the legatees-respectively attained the age of twenty-one years. If both the-legatees were living they would have been entitled to and would have received their legacies before this time. In that-event the income bequeathed to the children would have been impaired to the same extent that it is by the adjudication complained of. In other words the children have from the estate under this adjudication all that they could have had if Cornelia Norris had attained the age of twenty-one years, and the- codicil had not been made. These matters are referred to not as affecting the construction of the codicil but as showing the intention and expectation of the testatrix at the time she made her will. In Wetter’s Appeal, 20 W. N. 499, the whole scheme of the will looked to the gift of the entire income of the estate (except the interest for a short time on $2,000) to the testator’s widow for life, and the postponement until her death or remarriage of all legacies. In a codicil to the will he bequeathed a legacy of $2,000 in trust for a charitable purpose and it was held that this like the other legacies was postponed during her life or widowhood. It is contended that Wetter’s Appeal is decisive against the adjudication in this case. We do not think so. In that case the postponement of the legacies was for the benefit of the testator’s Avife who was the primary object of his bounty. It was clearly the dominating purpose of the testator to secure to her the income from his estate during her life or widowhood, without any abatement or reduction, and the postponement of the legacy was deemed necessary in order to give effect to his manifest intention and preserve the general scheme of his will. In -this case we are not prepared to say that there is anything in the will, o'r otherwise shown, which would justify us in disregarding the plain language in which the testatrix bequeathed to Edith Norris the legacy in question. The specifications of error are overruled. Decree affirmed and appeal dismissed at the cost of the appellant.

Opinion by Mr. Justice Gbeen, In this case the plaintiff was an employee of the defendant. It was his duty at the time of the accident to empty bags of sugar upon a grating in the floor so that the sugar might be precipitated upon a screw conveyor which pushed it forward into a pan. The receptacle into which the sugar was dumped was a long box, the sides of which were composed of planks fifteen inches high, and at the bottom was a grating of iron bars two and a half inches apart, about half an inch thick, and about two and a half feet in length. The sugar was brought to the workman engaged in dumping, on trucks in bags, and two men lifted the bag, and turned out the sugar into the dump. . The plaintiff was the only witness examined on his behalf to prove the facts of the accident. He said he put one foot on the grate bars and the other foot on the outside and while standing in that position, with his foot crosswise the bars, the bars sank down and let his foot through and it was caught in the machinery below and badly crushed, so that amputation had to be performed. Another man, Joseph Novick, was working with him at the time. He was not called by the plaintiff, but by the defendant, and he testified that the plaintiff put his foot on the grate “and then the crush came.” The plaintiff being a workman was bound to prove, not only the fact of the accident, but also some specific negligence of the defendant which caused it. No proof of that kind was offered. No evidence was given to show, either that the bars were bent out of their position, either before or after the accident, or that they were broken. No proof was made that the bars were not strong enough to hold the plaintiff’s weight, or that there was any defect in the material of which they were made. The plaintiff testified that he had emptied twelve or fifteen bags before he was hurt and that in doing so he had stood in the same way as at the time of the accident, with one foot on the bars and the other outside the upright plank on the floor. He was asked on cross-examination, “ Q. Didn’t you see the grates before the accident at all? A. Yes, I did see them. Q. Then they were not covered with sugar so that you could not see them ? A. Sugar is always there but when they put the sugar there the sugar goes down. Q. Did you see the grates on that very day before your foot went in it? A. Yes, sir.” The plaintiff’s personal testimony therefore shows that he knew the grates were there, that the sugar ran down through them, and that there was machinery below them to remove the sugar as fast as it came down. Without looking into the adverse testimony at all it is manifest from the plaintiff’s own statement that he knew the structure upon which he set his foot, he knew there was machinery below it, he placed his foot there voluntarily and therefore took the risk, whatever it was, that was involved in that position. He did not testify that there was any defect in the bars, or that he had ever given notice of any to his employer, or to any agent of theirs, nor did he produce any testimony, other than his own, upon these subjects. He proved nothing but the fact of the accident, which, as we have repeatedly decided, is not sufficient to warrant a recovery by an employee against an employer. In Phila. & Read. R. R. Co. v. Hughes, 119 Pa. 301, in a similar case of an action by an employee against his employer, our Brother Clark, delivering the opinion said, “ The plaintiff undertook to trace the injury to the negligence of the. company, and until he can show some negligent act which was the proximate cause of his injury he cannot recover. We know that when Hughes stepped on the brake with his whole weight, it went down and he went with it. But whether the pin broke from any defect which a proper inspection would have disclosed, does not appear; that it broke at all is not shown; nor is there any evidence that the occurrence was owing to a dislocation of the key. It devolved upon the plaintiff to show negligence of the company, and that the negligence was the proximate cause of the injury. In this he has failed, and in the absence of proof on that point we cannot ascribe the accident to that cause. The judgment is reversed.” On the same subject and to the same effect are the cases of Allison Mfg. Co. v. McCormick, 118 Pa. 519; Mensch v. Pa. R. R. Co., 150 Pa. 598; Augerstein v. Jones, 139 Pa. 183, and Bradbury v. Kingston Coal Co., 157 Pa. 231. The rule in this class of eases is so very familiar, and so entirely unquestioned, that any elaboration of the decisions is quite unnecessary. The plaintiff was allowed to recover upon mere proof of the fact of the accident without any proof of any specific negligence of the defendant, and this is not enough under all the decisions. Nor is the case any better on the question of the release. That there was a formal release of all damages upon the payment of $300, that it was properly and formally executed and attested, that it was both read and explained to the plaintiff in his own language, and that the plaintiff kept the money and never returned or offered to return it, are facts incontestably established by the most satisfactory testimony. We have carefully read and considered all the testimony which was offered and received for the purpose of making out an allegation of fraud in the transaction, and have no hesitation in saying that it is entirely inefficient for that purpose. No chancellor could possibly decree the reformation of such an instrument upon such insufficient, flimsy and utterly unreliable testimony. After all the precautions that were taken by the counsel who drew the release and supervised its execution, including a formal certificate by both the interpreters that the subject of subsequent employment having arisen, the defendant’s counsel distinctly refused to agree to any promise of that kind, it cannot be tolerated that so solemn an instrument, so formally executed upon full consideration should be abrogated and set aside by the kind and character of testimony offered for that purpose. No man’s deed for the house he lives in would be safe if it could be destroyed by such testimony as this. The authorities aré most abundant to this effect and it is not necessary to cite them.' In the case of Gibson v. Railroad Co., 164 Pa. 142, we heard and disposed of, and rejected, a defense to a release of a similar character with this, and a bare reference to the case is enough for the purposes of the present contention. As we do not think the plaintiff is entitled to recover on the merits of his case the enlargement of the discussion on this branch of it is not essential. We sustain the first, second and eighth assignments of error. The others are not important. Judgment reversed.

Opinion by Mr. Justice Dean, This action was for damages for personal injuries from neg ligence of defendant; it was tried in tbe court below on January 25, 1895, in tbe absence of defendant’s counsel, and a verdict for $6,000 given for plaintiff. Tbe absence of counsel, Gavin W. Hart, Esq., was owing to his presence in this court at the argument of a cause in which he was of counsel for.appellee, Sheehan v. Railroad, on Supreme Court calendar for same week and for argument same day. The court below was moved for a new trial on this ground, which was refused, and judgment entered on the verdict. We now have this appeal by defendant, assigning for error the action of the court below in proceeding with the trial in absence of its counsel. Rule XLI. of the Supreme Court is as follows: “ That the hour list be suspended in the eastern district during the period assigned to the argument of cases from the county of Philadelphia. “ The argument of each cause shall be limited to one hour, unless the Chief Justice, upon an examination of the paper books, shall consider more time to be necessary. “Sixty causes shall be assigned to each week, and a list thereof shall be made up and published by the prothonotary on the Saturday preceding. Said causes shall be set down in the order of their term and number, and shall be numbered on said list consecutively. The first twelve cases on said weekly list shall be assigned for argument on Monday, and for each succeeding day of the week, except Saturday, the first twelve cases theretofore undisposed of on said list shall be assigned for argument. No cause on said list shall be continued when reached, except for a sufficient cause. Engagements of counsel in the lower courts will not be recognized as a reason for the continuance or postponement of a cause, except when they are actually engaged in a trial which has been commenced in a previous week and is unfinished.” As by the constitution the jurisdiction of the Supreme Court extends over the state, it must, as an inherent judicial power, necessary to the exercise of its jurisdiction, have authority to make rules, which, in its opinion, will enable it to dispose of the business which comes before it from every court in the state. Whether its rules, intended to speed hearings, are the very best to accomplish the purpose, or whether they in any particular instance operate hardly, are proper subjects of dis cussion in determining -whether they shall be abrogated or amended; but when adopted, such discussion is out of place in determining whether they should be recognized by the lower courts. If the Supreme Court have authority to adopt rules which in its judgment are necessary for the prompt transaction of the public business, we think no lawyer will doubt its power to enforce them; and this without regard to a difference of opinion as to their equitable operation. Clearly then, it is the duty of the lower courts to have regard to them, not because they, in all cases, are the best, but because, being in the judgment of the Supreme Court the best, it has adopted them. They then, necessarily, become a rule of action for the lower courts, in so far as their business is affected by them, because they are the law. The common pleas courts have power to adopt rules which shall facilitate the transaction of their business ; we have always rigorously sustained tiffs power, unless in rare cases, where the rules were in violation of law. We cannot, however, sustain a rule or an order, even though made with a view to compel prompt trial of an issue in the common pleas, if the effect of such rule is to deny other litigants them right to a hearing in an appellate court. In that case it is a manifest violation of law, and our judgment is final on that question. Besides, not only should we have the aid of the court below in the enforcement of rule XLL, because it is a lawful exercise of the power of this court, but also because it is a reasonable exercise of that power. There are in the commonwealth fifty-four judicial districts, with ninety-nine judges; from the final judgments and decrees of these courts there come before us annually, approximately, one thousand appeals which ought to be heard while this court is in session; after argument, many of these cases demand prolonged investigation and careful consideration; if we are to dispose of this litigation promptly, that disposition of it can only be accomplished by strict order of hearing and rigorous enforcement of the order by such rules as XLI. The court sits in Philadelphia five months; seven weeks of that time are set aside for hearing appeals from the courts of that county; and this, in view of the whole calendar, is all we can afford to give, and in our judgment all it is entitled to, exclu sively, in an equitable distribution of our time among all the litigants of the state. All the appeals assigned to the two Philadelphia periods are seldom got through with in that time; those not reached are heard as we can find time on weeks assigned to other counties, and if not heard then they go over for a year. To keep down the number of those that go over, many of them involving large sums of money, it is imperative upon us to insist on the presence of counsel when their cases are called. The rule is not for our convenience, but to promote the interests of suitors. In some cases, such as illness or recent death of counsel and like causes, the rule is relaxed, but not to suit the convenience of counsel who have causes for trial on the common pleas calendar; that, if permitted, would practically break up our calendar and continue about one half the cases for a year, and if such a course were allowed, it would not be three years until the Philadelphia list would be incumbered with cases which would not be reached for several years. This would be a denial of justice. In adopting and enforcing this rule, we appreciate the difficulties of the common pleas in disposing promptly of all the cases on their calendars in the order in which they are called, while this court is engaged on the list of appeals for Philadelphia; but their cases are more completely in their control than ours; the counsel and parties concerned, in most instances, all reside in the city; during our session they have twenty weeks for Philadelphia, while we have but seven; under such circumstances, not without inconvenience, we admit, but without seriously delaying suitors, such order could be añade by the lower courts as would guard against an adverse judgment to a client, while Iris counsel was attending to his professional duty in this court. But however this may be, the inconvenience to suitors in a few cases ought not to be permitted to work the eventual vexatious delay and gross injustice which otherwise would be suffered by all the parties to all the appeals from final judgments in all the courts of the city. In view, then, of these facts, and the further fact that areither the learned judge of the court below nor we can add aarything to the fifty-two weeks of the year, what is his plain duty ? As we see it, it is, not only in letter but in spirit, to recognize this rule, and to so arrange the trial list of causes before him that couorsel, by obeying it, shall not put in peril the interests of their clients. We think it not improbable, when the learned judge remarked: “I doubt the right of the Supreme Court to make any such rule, and I would like to test it,” he for the moment misapprehended our relations to each other and to the public. Neither he nor we, as against each other, have any rights to assert; both of us have only very plain judicial duties to perform ; the public alone have rights to be insisted on, and rights which both of us are bound to keep in mind; these are, to have justice administered without “ denial or delay.” If, in working together for this object, our rules or orders should, in rare cases, come into conflict, then the only question is, not which shall assert a right, but which has the authority to finally determine what shall best promote the public interests. We feel sure, a glance at the constitution, from which both oE us derive whatever judicial authority we have, furnishes a complete answer. If the authority to finally decide is reposed in us, then, we are bound to exercise it, not as asserting a right, but as performing a public duty. It would serve no good purpose to take up and discuss at length the conflicting statements of facts by the learned judge of the court below and the able counsel for defendant. The contradictions are more apparent than real, and such as usually árise where each of the parties, under a sense of injury, strenuously insists on what he conceives to be his personal rights, not regarding the situation from the standpoint of official duty; and although we have carefully considered the testimony, it would only, perhaps, aggravate the irritation were we to attempt to reconcile these conflicting statements. We believe each attempted to perform his duty as he saw it, though they do not seem to believe that of each other. Nevertheless, the main fact stands out prominently and unquestionably, that the court below disregarded, in spirit at least, a rule of this court, and thereby this defendant, in the absence of its counsel who was in attendance upon his duties in this court, was cast in a verdict for 16,000. Lawfully, defendant had a right to counsel; through no fault of its own, or of its counsel, but because of the erroneous ruling of the court below, it had none; the trial was not therefore lawful, and the judgment must be reversed. It is reversed accordingly, and a v. f. d. n. awarded.

BROSKY, Judge. This is an appeal by the Commonwealth from an order suppressing evidence gathered after a stop of appellee in New York State. The Commonwealth raises one issue for our determination, whether the court erred in applying a “good faith” exception found in' the New York Close Pursuit statute. We affirm. The facts relevant to the present case are neither complicated nor contested. At approximately 2:38 A.M. on March 15, 1997, Trooper David Cannon of the Pennsylvania State Police observed a vehicle driven by appellee travelling at, a high rate of speed on Route 5 in northeastern Pennsylvania not far from the New York State border. Trooper Cannon began following appellee and was able to ascertain his speed at approximately eighty-five (85) miles-per-hour (mph) in a fifty-five mph zone. Trooper Cannon activated his police lights and siren in an effort to get appelleé to pull his vehicle over. However, appellee continued for approximately two miles until approximately .7 mile into New York at which point he stopped and Trooper Cannon approached his vehicle. Trooper Cannon subsequently requested appellee to perform field sobriety tests which, in the judgment of Trooper Cannon, appellee failed. Appellee was then placed under arrest and transported back to Pennsylvania and charged with, inter alia, Driving Under the Influence. Appellee filed a motion to suppress based upon a violation of the New York Uniform Act on Close Pursuit, CPL 140.55. That Act provides, in relevant part: 2. Any peace officer of another state of the United States, who enters this state in close- pursuit and continues in this state in such close pursuit of a person in order to arrest him, shall have the same authority to arrest and hold in custody such person on the ground that he has committed a crime in another state which is a crime under the laws of the state of-New York, as police officers of this state have to arrest and hold in custody a person on the .ground that he has committed a crime in this state. 3. If an arrest is made in this state by an officer of another state in accordance with the provisions of subdivision two, he shall without unnecessary delay take the person arrested before a local criminal court which shall conduct a hearing for the sole purpose of determining if the arrest was in accordance with the provisions of subdivision two, and not of determining the guilt or innocence of the arrested person. If such court determines that the arrest was in accordance with such subdivision, it shall commit the person arrested to the custody of the officer making the arrest, who shall without unnecessary delay take him to the state from which he fled. If such court determines that the arrest was unlawful, it shall discharge the person arrested. As is readily apparent, the Act in question grants authority to make an arrest in New York State to a police officer of another state when that officer follows a person into New York in “close pursuit” for purposes of making an arrest. However, that Act requires that the officer making the arrest take the person arrested in New York State before a local criminal court “without unnecessary delay” whereupon the local court “shall conduct a hearing for the sole purpose of determining if the arrest was in accordance with the provisions of subdivision two,_” (Relating to close pursuit.) With the Commonwealth conceding a violation of the Act, the trial court granted appellee’s motion to suppress over the Commonwealth’s argument that the court should apply New York’s “good faith” exception caselaw. The case was certified for appeal and the present appeal followed. In our opinion the present case turns upon concepts of jurisdiction and sovereignty. There seems to be no question that Pennsylvania police officers are without inherent jurisdiction to make an arrest in New York State. See, generally, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), Opinion in Support of Reversal, Commonwealth v. Stair, 548 Pa. 596, 699 A.2d 1250 (1997), Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977), and 5 Am.Jur.2d §§ 69-72. Thus, the jurisdiction or authority of Trooper Cannon to make an arrest in New York State, if any, is gained only through the grace of New York State. That grace, in this instance, is found in the New York version of the reciprocal or uniform Act on close pursuit. There also seems to be no dispute that the New York Close Pursuit Act was violated. Under the terms of the Act, an individual arrested in New York by an out-of-state-police officer after being closely pursued into New York must be taken before a local criminal court which shall conduct a hearing to determine if the arrest was in compliance with the. Act. Since Trooper Cannon did not take appellee in front of a local criminal court to determine if the arrest complied with the Act, the arrest violated New York’s Close Pursuit Act and was therefore unlawful. The more significant question is what is the appropriate remedy for appellee’s “unlawful” arrest. The Commonwealth argues that since the New York Close Pursuit Act gov- ems the legality of the arrest, then New York easelaw should be applied as to determining the appropriate remedy for the violation. Since the Commonwealth is putting forth this .argument it is not surprising that New York courts have at least twice refused to suppress evidence where close pursuit statutes were seemingly violated- We cannot agree. Although it is quite proper to defer to New York law to determine whether or not the New York Statute has been complied with, there is no reason to refer or defer to New York law to determine policy matters relating to proper remedy for an unlawful arrest of a Pennsylvania resident by a Pennsylvania police officer for crimes committed in Pennsylvania. It is really a matter of sovereignty. Pennsylvania courts and Pennsylvania law must govern the rights of a Pennsylvania resident arrested by Pennsylvania police officers for crimes committed in Pennsylvania, even if the arrest is effectuated in New York State, not New York courts or New York law. We do not want or need New York law governing the rights of our citizens, or those committing affronts to our citizenry, any more than New York wants or needs our law governing their citizenry or affronts to their citizenry. As a matter of accountability, sovereignty and simplicity, it is for Pennsylvania to dictate how its police officers are to carry out their duties and the consequences for violating such dictates. The remedy for an illegal arrest in Pennsylvania is suppression of the fruits of the illegal arrest. See, Commonwealth v. Price, 543 Pa. 403, 672 A.2d 280 (1996), and Commonwealth v. Brandt, 456 Pa.Super. 717, 691 A.2d 934 (1997). Although New York State may be willing to excuse “good faith” violations of police illegality, Pennsylvania has not yet embarked upon that potentially “slippery slope.” To' reiterate, Pennsylvania courts must be empowered to implement the remedy of suppression for illegal arrests by its police officers, even if the arrest occurs outside Pennsylvania’s borders after a “hot pursuit,” if they are to maintain the accountability they have up till now demanded of police officers. Consequently, the trial court below properly suppressed the fruits of the unlawful arrest of appellee; Order affirmed. . Note, however, that at common law an officer may pursue a suspected felon into another jurisdiction in order to effectuate an arrest. 5 Am. Jur. § 72. Of course, appellee did not commit a felony in the presence of Trooper Cannon and this common law doctrine would not apply even if it is still considered valid today. . Although it seems likely that had Trooper Cannon complied with the Act and taken appellee in front of a local criminal court the arrest would have been validated by the New York court, we do not view ourselves as empowered to make that determination, nor can we view the violation of the Act as merely '‘technical” because it would likely have been ruled lawful. As stated above, Trooper Cannon’s authority to arrest in New York comes solely from the New York Act. Under that Act New York has, in effect, reserved the right to adjudicate an extraterritorial arrest by an out-of-state officer valid or invalid. There does not appear to be any provision in the Act which can extend this authority to courts of other states. Thus, although a police officer closely pursuing a suspect into New York for the commission of a crime in the police officer’s state which is also a crime in New York would operate under an apparent grant of authority, that authority would be essentially conditional authority subject to final validation by the New York criminal courts. If not validated by a local criminal court, as contemplated under the Act, that authority would have to be deemed void ab initio, and therefore the arrest would be without legal authority. . People v. Sampson, 73 N.Y.2d 908, 539 N.Y.S.2d 288, 536 N.E.2d 617 (1989) and People v. Junco, 35 N.Y.2d 419, 363 N.Y.S.2d 82, 321 N.E.2d 875 (1974). . Our decision here is limited to the circumstances presented in this case. Namely the extraterritorial arrest of a Pennsylvania resident by a Pennsylvania police officer for offenses occurring in Pennsylvania. A change in any of these circumstances could quite possibly affect the analysis contained herein as interests of comity between states and state sovereignty may compel different conclusions. .It is also important to our decision that we are extending to appellee greater rights than he would enjoy under New York law. We find this situation analogous to conflicts between constitutional rights under the Federal and State Constitutions. Pennsylvania is free to grant its citizens greater rights under its constitution than the Federal constitution provides, but not less. Commonwealth v. Labron, 547 Pa. 344, 690 A.2d 228 (1997). In the present case we are merely extending to appellee the same rights he would enjoy if the violation had occurred within Pennsylvania's borders!

NARICK, Senior Judge. The issue in this appeal is whether the decision of the Zoning Hearing Board (ZHB) of the Township of Collier is supported by substantial evidence. The ZHB held that Collier Stone Company (Collier Stone) failed to prove that it has operated a pre-cast concrete manufacturing operation on its property since 1948, which would have been four years prior to enactment of the zoning ordinance, and thus, the operation does not qualify as a non-conforming use. Because the ZHB’s decision is supported by substantial evidence, the decision of the Court of Common Pleas of Allegheny County (trial court), which reversed the ZHB, is reversed. Collier Stone currently operates a surface mine and stone quarry business on its property in Collier Township. In 1995, Collier Stone applied for a permit to use a portion of its property to manufacture pre-cast concrete products, which it actually was already manufacturing on the property for some period of time, the length of which is the basis of this dispute. The permit was denied by the Township’s zoning officer, and Collier Stone appealed to the ZHB, arguing that it has been manufacturing pre-cast concrete products since 1948 and thus, the manufacturing constitutes a legal non-conforming use because the Township did not enact a zoning ordinance prohibiting such use until 1952. At the hearing before the ZHB, Collier Stone presented the testimony of three Collier Stone executives, who testified that Collier Stone has manufactured pre-cast concrete products on its property since 1948. Collier Stone also offered into evidence invoices and purchase orders for concrete which were dated as early as 1970, thus implying that the concrete was used in manufacturing the pre-cast concrete products. In opposition to Collier Stone’s appeal, several neighboring property owners testified that no manufacturing activity occurred on Collier Stone’s property prior to 1985. One property owner entered into evidence a document ;prepared by Collier Stone that states that Collier Stone has manufactured concrete products from 1958 to the ■present. The ZHB concluded that Collier Stone failed to prove that it has manufactured precast concrete products on its property since 1948, based on three factors. First, neighboring residents credibly testified that no manufacturing occurred on Collier Stone’s property prior to 1985. Second, Collier Stone Was unable to produce any documentation suggesting that concrete products were manufactured as early as 1948, although they did have documentation which showed that they may have performed such manufacturing as early as 1970. And third, Collier Stone’s own document states that they began manufacturing concrete products in 1958. The trial court subsequently reversed the ZHB, on the following grounds: [E]ven taken as entirely true the testimony of the objectors [i.e., neighboring property owners] is not dispositive.... At best, the testimony establishes that any concrete operation at the site was not evident to a casual observer on the perimeter of the property. To demonstrate that a use is not apparent to its neighbors is not the same as establishing that it does not exist_ Thus, even accepted in its entirety, the Objectors’ testimony is not sufficient to defeat Collier’s claim of nonconforming use. (Emphasis in original.) Resolution of this case rests upon two well-established principles of law. First, the burden of proving the existence of a nonconforming use [i.e., a use that existed prior to the adoption of the zoning ordinance prohibiting such use] rests with the landowner asserting a non-conforming use. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279 (1994). Second, where the trial court receives no additional evidence, the ZHB’s decision must be affirmed unless there has been an error of law or an abuse of discretion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). An abuse of discretion occurs when the ZHB’s findings are unsupported by substantial evidence, which is defined as such evidence as a reasonable mind would find adequate to support the findings. Id. In this ease, contrary to the holding of the trial court and the assertion of Collier Stone, the ZHB did not disregard the testimony of the Collier Stone executives and base its decision solely on what the trial court and Collier Stone considered to be the dubious testimony of neighboring property owners. Furthermore, even assuming, ar-guendo, that this case did turn entirely upon the ZHB’s conclusion that the property owners’ testimony was more credible than that of the Collier Stone executives, the trial court overstepped its bounds in concluding that the landowners were merely “casual observers on the perimeter of the property” and thus not capable of credibly testifying that Collier Stone has not been manufacturing concrete products on the property since 1948. As acknowledged by the trial court, matters involving the weight and credibility of testimony are within the discretion of the ZHB. Tu-Way Tower Company v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744 (Pa.Cmwlth.1997). In concluding that Collier Stone has not maintained a concrete manufacturing operation on the property since 1948, however, the ZHB relied upon two additional compelling pieces of evidence. First, as noted above, Collier Stone’s own document states that Collier Stone has been manufacturing concrete products since 1958. This directly contradicts Collier Stone’s contention that it has been doing so since 1918. Second, while Collier Stone did produce evidence of purchase orders and invoices for concrete, thus implying that they purchased the concrete for use in manufacturing their pre-cast concrete products, the invoices and purchase orders are dated only as early as 1970. Thus, they have little probative value in determining whether Collier Stone has engaged in concrete manufacturing since 1948. While the ZHB may have been unable to pinpoint exactly when Collier Stone did begin manufacturing pre-cast concrete products, this it was not required to do. What was required at the ZHB hearing was for Collier Stone to prove that it was manufacturing pre-cast concrete products prior to enactment of the zoning ordinance in 1952, and the evidence is not only substantial, but overwhelming, that Collier Stone has failed to carry its burden of proof. As a final matter, we note that Collier Stone alternatively argues in its brief that its surface mining operation on the property is a legal non-conforming use and that, under Section 1101 of the Township zoning ordinance, one non-conforming use may be changed to another non-conforming use of the same or more restricted nature. A careful review of the record, however, shows that the entire thrust of both the testimony of Collier Stone’s witnesses and the arguments of its counsel before the ZHB involved then-attempt to prove that Collier Stone has been manufacturing pre-cast concrete products since 1948, as shown by the following summation by counsel for Collier Stone: Now, what we have established here tonight ... is the existence of a nonconforming use, and that use is the manufacturing of pre-cast concrete products on this property. Now, I believe we’ve established the existence of that use dating back to 1948. If it dates to 1948, there can be no question at all that this use can continue. The testimony and the evidence are that the use was a regular and recurring thing, it happened on the property from 1948 through the present. Indeed, neither the decision of the ZHB nor the decision of the trial court, which reversed the ZHB and held for Collier Stone, addressed any issue except whether Collier Stone has been manufacturing pre-cast concrete products since 1948. Our review of the record shows that this was the only issue at the ZHB hearing. Accordingly, the order of the trial court is reversed. ORDER AND NOW, this 1st day of April, 1998, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby reversed. FLAHERTY, J., did not participate in the decision in this case.

Opinion by Mr. Justice Dean, John L. Bogert, a citizen of New York, was a debtor, by judgment, of Caulfield, a citizen of Pennsylvania, plaintiff, in sum of $248. On this debt the plaintiff issued a writ of foreign attachment and levied it on a turret engine lath machine in the possession of Moore & White, of Philadelphia, averring the machine to be the property of Bogert. The machine was claimed by Yan Brunt, this defendant, who was permitted to interplead. The garnishees, Moore & White, at the suggestion of Yan Brunt, pleaded, nulla bona, and the issue thus framed came on for trial in the court below. From the answers of garnishees to the interrogatories and other evidence, defendant claimed the following facts were established: Bogert, in 1890, was a manu-, facturer of machinery at Flushing, New York; Yan Brunt was a resident of New York city, and had advanced to Bogert, prior to January 17, 1890, at different times money to the amount of $5,425. To secure payment of these advances Bogert executed and delivered to Yan Brunt a chattel mortgage on twelve machines, six of which were in a store in New York city, and six, among them that in dispute, remained in Bogert’s possession. This mortgage, under the laws of New York, was good if recorded, even as against creditors; it was not, however, recorded. The mortgaged machines were sometimes sold by Yan Brunt and sometimes by Bogert, the latter making bills of sale in Ms owu name, but generally with the consent and approval of Yan Brunt. On June 21, 1893, Bogert sold one of the mortgaged machines m Ms possession to Moore & White at the price of $800, payment to be made by note at four months, dated September 1, 1893, bearing interest thirty days after sMpment of machine. If, however, the purchasers, before September 1, should decide the machine was not satisfactory, Bogert was to retake it into his possession. Moore & White received the machine in June, 1893, and a bill of sale was rendered them by Bogert in Ms name. At this time about $3,400 of Yan Brunt’s debt secured by the mortgage had been paid him, leaving $2,000 still unpaid. On July 18, 1893, an obligation of Bogert to Yan Brunt, amountmg to over $1,000, part of the money secured by the mortgage, was about to mature; Bogert agreed with Yan Brunt, that the purchase money of the Moore & White machine should be appropriated towards payment of the $1,000, and forwarded a note to Moore & WMte in sum of $850, to be signed by them, and wMch in the letter inclosing it he said was to be transferred to Van Brunt; the next day, Yan Brunt wrote Moore & WMte, statmg Bogert had assigned to him the purchase money, and requesting them to send to him the note. To this, Moore & WMte replied to Van Brunt, that as soon as they had accepted the machine they would notify him. On September 7, Yan Brunt agam wrote Moore & White requesting them to forward the note; to this they replied, the machine was not satisfactory; that they would not accept it, and would return it to Bogert; to this Van Brunt replied, the machine was subject to his order by virtue of his agreement with Bogert; to this Moore & White replied, the machine had been attached by Caulfield, the plaintiff in this suit. On these facts, of which there was evidence, the learned judge of the court fielow peremptorily directed a verdict for plaintiff; no charge or opinion is filed. It was argued, not without reason, that no collusion between Bogert and Van Brunt, or intention on part of either to defraud creditors, was proven; therefore, we assume that under the authority of Clow v. Woods, 5 S. & R. 275, and the long line of cases which follow it, the court was of opinion the transaction was constructively fraudulent as to creditors. But was it ? From the evidence the jury could have found the transaction between Bogert and Van Brunt was not tainted by actual fraud. True, the mortgage had not been recorded, and was not valid as against New York creditors for that reason ; but it was good as between the parties, and as between them the legal title to the machine was in Van Brunt. With the presumed consent of the latter the machine is placed in the possession of Moore and White on an optional sale. By arrangement between Bogert and Van Brunt there is an equitable assignment of the purchase money to the latter, of which Moore & White had notice. If believed, this clearly carried with it to Van Brunt the right to possession of the machine when Moore & White declined to consummate the purchase. The actual possession of the machine ceased to be in Bogert when he put it in possession of Moore & White ; the right to the possession, when they refused to keep it, had passed to Van Brunt by the assignment of the purchase money and notice of the assignment to Moore- & White; there was no longer a right in Bogert to demand possession as against his assignee, Van Brunt. It is not important that under the optional sale the payment was not of a thing in esse; the machine itself was existent; one or the other passed to Van Brunt, defendant, on the contingency of acceptance by Moore & White. Equity will support assignments of contingent and expected payments, where the agreements are fairly entered into, and it would not be against public policy to enforce them: Story’s Equity, sec. 1040; Field v. The Mayor, 6 N. Y. 179. And anything which shows an intent to assign on one side and receive on the other will operate as an equitable assignment: 3 L. C. in Eq. 307. As between Bogert and his creditors his actual continued possession of the machine under an unrecorded mortgage would have been constructively fraudulent, but when he transferred the actual possession to Moore & White, and then by the assignment to Van Brunt relinquished the right to reclaim possession, and Van Brunt asserted his right by notice to Moore & White, the elements of constructive fraud under the statute of 13th Elizabeth are absent. Moore & White then were mere bailees of Van Brunt if the facts be established as defendant avers them. If in their possession as bailees, the machine was not subject to seizure at the suit of Bogert’s creditors. This is the decision in Linton v. Butz, 7 Pa. 89, where it is held that if the chattel sold be in the actual possession of the bailee of the debtor, and the vendor does not retake possession, the sale is good as against creditors. In determining the questions involved in a transaction of this nature, where the actual possession of the personal goods is not in the debtor at the time of the seizure by the creditor, much depends on the intent or good faith of the parties. Clow v. Woods, supra, is based on the apparent want of change in the situation after the sale or transfer; that must not seem to be which is not; the retention of possession by the debtor of that which he has sold misleads his creditors, and therefore is constructively fraudulent as to creditors. But where the chattel is in the actual physical possession of another than the debtor at the time of transfer no creditor can be misled to his hurt. We think the case was one for the jury. It was for them to find from the evidence, whether the transaction between Bogert and Van Brunt was collusive and fraudulent as to creditors. If it was not, there was no such possession or right of possession in Bogert as renders it constructively fraudulent as to this plaintiff. The judgment is reversed and a v. f. d. n. awarded.

Opinion by Mr. Justice Mitchell, The grounds set up in the affidavit of defense do not traverse the obligation declared upon in the statement but are in the nature of confession and avoidance, in reduction or set-off to the payment sued for. In such cases the averments must be specific as to the amounts claimed in reduction, so that plaintiff may if he choose, elect to admit them and take judgment for the balance: Gould v. Bush, 13 W. N. 29; Watson v. Galloway, 1 W. N. 109. In this respect the affidavit is entirely wanting. The first ground is a general averment of failure to comply with the terms of the lease, with no specification of the particulars and no averment of damages. The second is also a denial of compliance with the covenants of the lease with the specification of two particulars, a, failure to pay water rents to the extent of $25.00 and h, subletting without consent. The first was allowed by the court in reduction of the amount of judg ment given, although the affidavit was only that the rent was unpaid “ at the time of the notices and demands ” and not at the time of suit brought. The averment as to subletting without consent does not allege any damages. The third ground, that at the time of making the lease there was a collateral agreement to remove a stable on the demised premises to the adjoining lot is subject to the same objection, besides lacking the necessary averment that the agreement set up was an essential part of the contract without which the lease would not have been signed. The last ground of defense is that the premises were to he yielded up in as good repair as when received, and that on the contrary, the-same were in a very dilapidated condition, had been allowed to become so with intent to defraud the defendant, and that to put them in good and sufficient repair will require the expenditure of $620. This, in spite of its vagueness and generality, would have some plausibility were it not for the fact that appears in the pleadings, that the premises when leased were a vacant lot, and that the only building on it was to be thereafter erected by the lessee of a size, style, cost and subsequent use entirely in his own discretion. In view of this fact the affidavit is simply impudent. Judgment affirmed.

Per Curiam, A careful examination of the record in this case with special reference to the specifications of error has satisfied us that neither of them should be sustained. All that need be said in vindication of the decree dismissing appellants’ petition will be found in the clear and concise opinion of the learned president of the orphans’ comet. On it the decree is affirmed and appeal dismissed, with costs to be paid by appellants.

Per Curiam, The opinion of the learned court below on the motion to take off.the nonsuit is so full, clear and convincing, that for the reasons there stated, and upon the authorities cited, we affirm the judgment in this case.

Chief Justice Mercur. delivered the opinion of the court, The report of the Master and the opinion of the court are so full and clear that we deem it unnecessary to review the several questions presented in detail or at length. We will therefore refer to a few matters which we think control the case. Equity is part of the law of this Commonwealth; yet a bill in equity will not lie where there is a complete and adequate remedy at-law. Is there such a remedy given to repair the wrong charged in this case ? Here the municipal authorities seek to collect assessments under an ordinance passed in March, 1882, for the construction of a sewer which in fact had been constructed the year before, and for which no valid ordinance then authorized the assessment. In providing for the construction of sewers in cities of the third class, one of which is represented by the appellants, the 47th section of the Act of 23d May, 1874 (Purd. Dig. 1922, pi. 134), requires an estimate of the costs and expenses of constructing a main sewer, and authorizes the city councils to provide by ordinance for assessing the same upon the lots and lands within the sewer district where “the work is to.be done.” The freeholders to be appointed shall assess the esti mated expense of such sewerage on all the lots and lands in the district where the sewer “is to be constructed or reconstructed.” After the assessments are made the council may-designate the percentage necessary to pay for such portion of any main sewer as “they shall have determined to construct or reconstruct.” The portions of the section which we have quoted, as well as other parts thereof, show very clearly that all the steps ■therein specified must precede the construction of the sewer to authorize the assessment of the costs thereof on the adjoining lots. Section 1 of the Act of 1st May, 1876, provides that, the councils of cities of this Commonwealth, except cities of the first class, shall not pass any ordinance authorizing the construction inter alia of any sewer before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and also cause a schedule to be made showing the cash value of the property liable to pay for such improvement, and the estimate, map or plan, and schedule, shall be. attached to the ordinance before its passage, and shall remain on file in the proper office for the benefit of all persons interested. It further provides that any ordinance which shall be passed by the councils authorizing such work “ before the provisions of this Act are complied with shall bo null and void and of no effect.” The appellants constructed the portion of the sewer in question before they complied with the requirements of the Act of 1874, or with any other statute authorizing the same. As no statute justified their action, they had no power to pass an ordinance authorizing the imposition of taxes to pay for the sewer previously constructed contrary to express law. An assessment therefor is in the nature of a tax. The right of imposing a tax is an attribute of one of the highest powers of government. To entitle a municipal corporation to recover from the abutter the expense of constructing a local improvement on or in the street, it must comply with all conditions precedent, whether prescribed by Act of Assembly, charter or ordinance: 2 Dill. Municipal Corp., § 811. Conceding an appeal might lie under the statute from the irregular assessment of a tax, yet that is not this case. This tax is not under the statute, but in direct conflict with it. The ordinance being null and void, equity has jurisdiction to enjoin the officials against the enforcement thereof: Shirk v. Bucher, 3 P. F. S., 94 ; St. Clair School Board’s Appeal, 24 Id., 252; Conner’s Appeal, 7 Out., 356. It is well said in Bisp. Eq., 434, jurisdiction in equity depends not so much on the absence of a common law remedy as upon its inadequacy. In this case an appeal from the specific tax would have been inadequate to correct the whole evil. All property owners on the street in which the sewer is constructed are interested in the question presented. Equity seeks to prevent unnecessary litigation by disposing in one proceeding of all the questions which arise affecting so many persons. In the present case we think any common law proceeding inadequate to properly settle the rights of all the parties. We think it unnecessary to answer in detail the authorities cited. We see nothing therein to convict the court of error. Decree affirmed and appeal dismissed at the costs of the appellants.

Opinion by Mr. Justice Williams, The common school system of this state is the creature of the school law of 1854. It was intended to cover the state, to be administered under general laws, and to be fostered and sustained in part at least by public moneys paid out of the state treasury. The scheme contemplated the division of the state into school districts upon the line of existing civil divisions. Each township, borough and city was made a separate school district with the right to elect its own board of school directors. In cities divided into wards each ward was made a sub-district with power to elect a board of directors, to the care of which the schools and school property therein was committed, subject to a supervisory control by a central or city board composed of one member from each of the ward boards within the city. In the city of Pittsburg, this general system was somewhat modified by a local law passed in 1855. It was again modified by another local law in 1869. From the last date, 1869, down to the present time, the schools in the several districts or sub-districts in the city of Pittsburg have been regulated and conducted in accordance with the law as it then stood. The system was well understood, was easy of management and secured to the people of each district that measure of local control over the schools which it was the purpose of the general law of 1854 to give. In 1895 the legislature undertook to overturn this system and substitute another in its stead. For this purpose an act was passed entitled “ An act to establish and regulate the affairs of school districts and sub-school districts in cities of the second class, and to repeal all local and special laws inconsistent therewith.” The draughtsman of this act seems to have been apprehensive that it might not be held effective for the repeal of the local acts of 1855 and 1869 which were applicable not to cities of the second class, but to the city of Pittsburg by name; and for this reason, no doubt, another act was drawn, and introduced into the legislature simultaneously with the one just referred to, providing only for the repeal of the two obnoxious local laws, those of 1855 and 1869. These bills made their journey through both houses pari passu, and reached the executive and received his approval upon the same day. What is their effect upon the common school system of Pittsburg ? The court below held that the first of these acts was unconstitutional and void, but that the second or repealing act was valid. This led to the conclusion that the old system was effectually overturned and that no new one had been provided to take its place, and it left the boards of school directors and the schools under their care in a state of perplexity and confusion calculated to impair if not practically to destroy their usefulness. This appeal brings the conclusions of the learned judge before us for consideration. It is contended that he was in error in holding the act that provides a new system for cities of the second class to be local and therefore unconstitutional, as its provisions include all the members of the class of cities to which it relates. It is true that the classification of cities was upheld in Wheeler v. The City of Philadelphia, 77 Pa. 338, but the object of classification is very clearly stated in the act of 1874 that provides for it. It is to facilitate municipal government. The common school system of tins state rests on the general law of 1854, it is largely supported by state appropriations, and is under the general supervision of a state superintendent. School directors are by no means municipal officers. They are hot invested with any of the municipal powers nor are they charged with the performance of municipal functions. An attempt to regulate the affairs of school districts by local or special laws is expressly forbidden by the constitution in art. 3, sec. 52, and until the common schools can be regarded as a part of the municipal machinery necessary for the government of cities, this act which relates to cities of the second class must be treated as local in its character. Many efforts have been made to make the classification of cities for municipal purposes serve as a warrant for local legislation on subjects having no possible relation to municipal government, but this court has uniformly refused to sanction them. In Davis v. Clark, 106 Pa. 377, the act under consideration attempted to regulate mechanics’ liens with reference to the class of cities in which the building against which the lien was filed might be located. In Scowden’s Appeal, 96 Pa. 422, the effort was to fix the place at which sessions of the several courts should be held for the trial of causes in counties having a certain number of cities of a given class, and at a given distance from the county seat. In Weinman v. The Railway, 118 Pa. 192, an attempt had been made to regulate street railways according to the classification of the city in which they might happen to be located. In Ruan Street, 132 Pa. 257 and in Wyoming Street, 137 Pa. 494, the manner in which the right of eminent domain should be exercised, and the power of the legislature to establish a different system for fixing the value of property taken in different classes of cities was considered. The right of the legislature to provide different modes for the collection of school and county taxes in different cities has been under examination in many cases. In every instance we have asserted the same rule, saying that the effect of classification must not be carried beyond its purpose as declared in the original classification law, and that a law relating to any other subject though embracing all the cities of any given class, or of all the classes into which cities are divided, is local and unconstitutional if the subject be one upon which local and special legislation is forbidden. The regulation of the affairs of school districts is such a subject. It is distinctly named in the list of subjects enumerated in the fifty-second section of art. 3 upon-which “ The general assembly shall not pass any local or special law.” The precise point was under consideration in the appeal of the City of Scranton School District, 113 Pa. 176, and we there held that “ if an act regulating the affairs .... of school districts either produces or may produce local results it offends against article third of the constitution and is therefore void.” The act now before us was passed to establish a local system. Its results were intended to be local, and only local. They can by no possibility be anything but local. It is therefore squarely within the rule laid down in the appeal of the Scranton School District, as well as squarely within the words of the constitutional prohibition. It is beyond the power of the legislature to enact, and absolutely void. The learned judge of the court below was right in his conclusion upon this subject, and the assignments of error relating to this question are overruled. We come now to consider the other or repealing act. This is a local law passed to effect the repeal of the local acts of 1855 and 1869. Such a law is not necessarily within the constitutional prohibition. To hold that it was would make the road to uniformity much more difficult than was intended. The repeal of local laws is ordinarily made to open the way for the operation of general laws within the territory from which the local law had previously excluded them. Still it is true that such a law is local within the meaning of sec. 55 of art. 3. Particularly is this true when the object of the repealing act is not to make way for a general law but for another local one. In such case it is such a local law as the constitution declares shall not “ be passed unless notice of the intention to apply therefor sba.n have been published in the locality where the matter or thing to be affected shall be situated.” It is conceded that no notice of an intention to apply for the passage of a law repealing the local acts of 1855 and 1869 was ever published in the city of Pittsburg. If this fact was not admitted our question might not be as free from difficulty as it now is. It is admitted. It was so treated in the court below. We have then a local law passed to repeal one local law in order to make way for another. It affects the people of the city of Pittsburg. They have a right to notice of the intention to apply for it. It now appears that without notice the parties interested procured the passage of this local law in plain violation of the constitution. If it appeared that this question had been considered by the legislature and that body had decided that sufficient notice had been given, or if the committee to which the bill was referred had reported that the constitutional requirement as to notice had been complied with, we might feel ourselves concluded by such action. But there is not the faintest suggestion to be found anywhere that the subject of notice was ever before the mind of the legislature or attracted the attention of the promoters of the bill. If we should hold that, as a general rule in the absence of any recital or proof upon the subject, notice should be presumed, yet the presumption cannot prevail when it is a conceded fact in the case that no notice was given. The only question then presented is over the validity of an act passed in the face of a clear and positive constitutional prohibition. The learned judge of the court below was of opinion that as the form and manner of publishing notice was prescribed by the act of 1874, the legislature of 1895 having equal power in the premises was not bound by the directions of its predecessor but might disregard them at its pleasure. The power of the legislature to repeal the act of 1874 cannot be doubted, but it had not been exercised. When this act was introduced hito the legislature and when it came up on its final passage, the act of 1874 was in full force, and the citizens of Pittsburg had a right to rely upon the observance of its provisions. The point made however does not relate to a compliance with the forms of the act of 1874, but with the substance of the constitutional provision that makes notice in the locality, and by publication, an indispensable prerequisite to the passage of a local law. The legislature of 1895, though not bound by the directions of its predecessor was bound by the fundamental law, and its power to pass the repealing act depended on compliance with its mandate. We cannot agree therefore with the learned judge in regard to the validity of the repealing act. It is invalid. The acts of 1855 and 1869 are in full force, and the system of schools, school districts and school directors built upon them in the city of Pittsburg has undergone no change whatever. The decree of the court below must therefore be reversed, and the record remitted, in order that the court below may proceed to determine the questions before it as though the legislation of 1895 relating to this subject had never been passed. The costs of this appeal should be paid by Lincoln School District.

Opinion by Mr. Chief Justice Sterrett, This case, in which the plaintiff is appellant, was argued with No. 141, July term, 1896, supra , in which some of the defendants appealed from the same judgment. In an opinion just filed in the last-mentioned case, the judgment has been reversed and the record remitted to the court below. That virtually disposes of the appeal in this case, and the same is dismissed with costs to be paid by appellant.

Per Curiam, This suit against the two omnibus companies was brought to recover damages for personal injuries suffered by the plaintiff while she was a passenger in an omnibus belonging to the first named defendant, resulting from a collision of one of the other company’s omnibuses with the vehicle in which she was riding. The right of the plaintiff to recover against both or either of the defendants depended on questions of fact which were solely for the consideration of the jury. Testimony was introduced for the purpose of showing, on the one hand, that the collision was brought about by the carelessness of the drivers of both omnibuses, and, on the other hand, that it was due solely to the negligence of the driver of the Diamond Street omnibus. Each of the companies, respectively, endeavored to prove that the collision resulted solely from the negligence of the other company’s driver. The testimony was more or less conflicting, but it was all proper for the consideration of the jury. It was accordingly submitted to them in a clear and adequate charge which appears to be free from substantial error. The jury found for tbe plaintiff against both companies, and judgment on tbe verdict was entered against both as joint tort feasors. One of tbe defendants, tbe Omnibus Company General, is bere alone complaining of tbe rulings of tbe learned trial judge. Tbe first subject of complaint is bis refusal to charge that there was no evidence “ of negligence on tbe part of tbe Omnibus Company General, and tbe jury are instructed to find a verdict in its favor.” In view of tbe fact that there was evidence of negligence, on its part, quite sufficient for tbe consideration of tbe jury, it would have been plain error to have given tbe instructions requested. There was no error in tbe rubng complained of in tbe second specification; nor in that part of tbe charge recited in tbe third specification. Considered as a whole, tbe charge, — as we have already said, — was adequate and free from substantial error. Tbe remaining specifications, complaining of the inadequacy and misleading character of tbe charge, etc., are destitute of merit, and may be dismissed without further notice. If appellant considered it important that tbe jury’s attention should be called to tbe matters referred to in tbe 5th and 6th specifications, be should have requested tbe court to do so. Judgment affirmed.

Opinion by Mr. Justice Williams, The policy sued on in this case was issued to a manufacturing company and covered the buildings, machinery, fixtures and appliances in daily use in the business of the company. The rules of construction applicable to such a contract of insurance are well settled. The object of the contract is indemnity against tire loss by fire of the business plant, or any portion of it, while used and occupied by the owners in the manner and for the purposes for which it was designed. If its provisions are susceptible of two or more interpretations, that one should be adopted that will make the contract effective for the protection of the insured. In other words the contract should be liberally construed in aid of the indemnity which was in contemplation of the parties who made it. W. & A. Pipe Lines v. Insurance Co., 145 Pa. 346. Again, an insurance company issuing a policy upon a business plant, or any portion of it, is chargeable with knowledge of the customary methods of conducting the business in which the property insured is used. Pipe Line v. Insurance Co., supra. This rule is not limited to insurance upon property in use for manufacturing or other business purposes. It was applied in the construction of a policy issued upon a dwelling house in Doud v. Citizens’ Insurance Company, 141 Pa. 47, and in Roe v. Dwelling House Insurance Co., 149 Pa. 94. It was applied to a policy of insurance upon a horse in Haws v. Fire Association of Phila., 114 Pa. 431. Still another rule of construction is that the circumstances surrounding the making of the contract and affecting the subject to which it relates form a sort of context that may properly be resorted to for aid in determining the meaning of the words and provisions of the contract: Bole, Assignee, v. New Hampshire Fire Insurance Company, 159 Pa. 53; Graybill v. The Penn Township Mutual Fire Insurance Co., 170 Pa. 75. An application of these rules to the policy before us will dispose of this appeal. The plaintiff was a manufacturing company engaged in the foundry and machine business. Its plant consisted of two buildings veTy near to each other, and the machinery, fixtures and appliances used in their business. One building was called the “ pattern shop ” and seems to have been mainly used for making patterns and storing them when not in use. The other was called the “ foundry and machine shop ” in which the easting was done and such further work as was necessary to fit the castings for the uses intended. The nature of the business required the company to use its patterns in the foundry and machine shop only, and when not in use they were kept in the pattern shop as a convenient place for storage. The policy covers the entire plant, viz, both buildings and their contents. The fire affected only the foundry and machine shop and what was within it at the time the fire took place, but this included certain patterns then in actual use in the ordinary course of the plaintiff’s business, but which were described in the policy as in the pattern shop where they were kept when not in use. As the pattern shop was not involved in the fire the insurance company denies its liability for the loss of the patterns because they are described in the policy as in that building, and because in the printed part of the policy the undertaking of the insurer is stated as an undertaking to insure the property real and personal described in it “ while located and contained as described herein and not elsewhere.” The location of all the property insured is stated in the policy in these words. “ All situate corner of Fourth avenue and Martin street.” This was the location of the business plant at the time of the fire, and all the machinery, fixtures, tools and appliances were in their proper places as part of the plant and in actual use as such, when the fire occurred. We have no doubt that they were protected by the policy while so located and used, and the well settled rules of construction to which we have referred require us so to hold. In Graybill for use v. The Penn Township Mutual Fire Insurance Company, supra, substantially the same question was presented. The insured was engaged in business as a butcher and dealing in both fresh and smoked meats. The policy covered the butcher shop and contents, and the smoke house and contents. The butcher shop was consumed by fire and the smoke house was not. The contest was over the liability of the insurance company for the smoked meats that had been taken from the smoke house and stored in a room used for that purpose in one corner of the butcher shop. We held that the policy was to be construed in the light afforded by the customary modes of conducting the business and the facts as they were communicated to the agent of the company by whom the insurance was effected at the time the parties were in negotiation. The jury found that the words “contents of the smoke house,” as understood by the parties, included the smoked meats in store as well as those undergoing the process of smoking. So in this case; if this insurance was upon a going mill or factory in which the tools, machinery and patterns were in regular and continuous use for the purposes of the business of the owners, the contract of insurance must be construed in the light of' that fact, liberally, in aid of the insured. It was not an insurance upon goods in store, in terms, and unless it becomes so-in the light of the facts appearing in the evidence, there is no-legal reason that we can see why the plaintiff should be held to be concluded by words that could not have been intended to apply to a business in actual progress, and that ought not to be so. construed even if the insurer intended thereby to escape-from the obligation assumed by the policy. It would enable-an insurer after receiving the money of the manufacturer for-an insurance upon his business appliances, to say to him in effect, “ Close your factory or forfeit the money you have paid. us. To secure tbe benefit of your policy, you must leave everything unmoved.” Nothing short of a stipulation of this sort incorporated into the policy in words capable of no other construction could induce us to aid in the perpetration of such injustice. The judgment is reversed and it is now decreed that judgment be entered in favor of the plaintiff on the special verdict. Mitchell, J., dissents.

Mr. Justice Trunkey delivered the opinion of the court, Section 9 of the Act of April 10th, 1848, P. L., 450, was enacted for the express purpose of affording relief and protection to sheriffs and other officers in case of difficulty arising in the execution of process against goods and chattels taken or entitled to be taken under such process, by reason of claims made to such goods by persons not being the parties against whom such process was issued. Upon application of the sheriff or other officer it may be lawful for the court from which the • process issued, to call before it by rule the party issuing such process and the party making such claim, and thereupon to exercise for the adjustment of the claim, and the relief and protection of the sheriff or other officer, all the powers necessary, and make such rules and decisions as shall appear to be just under the circumstances of the case. Only the officer can apply for the rule, and it is not made the imperative duty of the court to award the issue on his application. Neither the claimant nor the party who issued the process has right to demand an issue; the statute was not passed for their benefit: Bain v. Funk, 61 Pa. St., 185. The Act was designed for the relief of the officer,and to that end, when the claimant and plaintiff in the execution or other process appear in response to the rule, the one to maintain his claim and the other to repel the claim, .the court may exercise all necessary powers for its adjustment. If the adjudication be in favor of the claimant, both the officer and the plaintiff are protected by the interpleader proceeding in all that was done in pursuance thereof' or under the direction of the court. The officer and plaintiff in the execution are not trespassers while in good faith pursuing the remedy provided by law. But if the officer, by direction of the plaintiff in the process, actually seizes the goods and interferes with the enjoyment or disposal thereof by tlie claimant, be being the owner, and unnecessarily delays making application for the rule, both are liable for all damages they caused to the claimant up to the time the sheriff presented his petition: Zacbarias v. Totton, 90 Pa. St., 286. That decision does not apply to a case where the claimant did not appear to answer the rule, or declined to become a party to an issue. Within a few months after the enactment of 1848, with reference to the practice, the District Court of Philadelphia remarked that if the claimant “neither file his narr. nor give the bond, the court, on motion of the sheriff or the plaintiff in the execution will make an order that the claimant be barred of any action against the sheriff or any one acting by his authority, saving, however, his light of action against the plaintiff and all others: ” Rump v. Williams, reported in Troubat and Haly’s Practice: and the rule is incorporated into the text in the late edition by Brightly, § 1142. This rule of practice was based on the contemporaneous construction of the statute, that it did not mean to compel the owner of goods seized on process issued against another man, to become a party to an issue iu the interpleader proceeding and there establish his right, under pain for 1ns neglect or refusal of losing all remedy for the trespass committed by the plaintiff in such process. Such construction and the rule seem to have been accepted without question until the pending ease, and though not conclusive, were they against the obvious meaning of the statute, if tlie meaning be doubtful the doubt will be solved in their favor. Iu 1861 it was directly decided by the District Court, that the failure of a person who claims goods which have been taken in execution against another to interplead under a sheriff’s rule, does not divest his title, and therefore in an action by the execution creditor against the sheriff the latter is not precluded from showing that the goods belonged to said claimant. “ The Interpleader Act goes quite far enough in saying that a man whose property is taken wrongfully under a writ against another man shall lose his remedy against the sheriff for taking it, unless he will give security and submit to a particular mode of trying tbe question: ” Commonwealth v. Megeo, 4 PliiL, 258. These rulings relative to the question presented in this record are consistent with the intendment of the statute. In ease the rule is granted upon tlie sheriff’s application, the claimant will be barred of any action against the sheriff, whether he files a narr. or refuses to come into court to establish his title. If he so comes in, be will also be barred of any action against the plaintiff. But lie may not elect to become a party in a proceeding which results only in establishing his title and consequent release of the goods from the levy. The levy may have done damage; he may be unable to give the bond with security, whereupon the goods will be sold and the money put in their place. He may choose to sue the plaintiff in the execution and recover the value of his goods at the time they were taken, without regard to the sum they brought at a sheriff's sale. There is nothing in the statute which relieves a plaintiff in an execution or other process, who directs the seizure of the property of a person not being a party against whom such process was issued, from liability in trespass, unless under a sheriff’s rule, the owner voluntarily becomes a party to the adjudication of his claim. Judgment affirmed. Gordon and Sterrett, JJ., dissented.

Opinion by Mr. Justice Green, The master found that the plaintiff was arrested upon proceedings by warrant of arrest under the act of July 12, 1842, abolishing imprisonment for debt: that the fraud alleged against him was that he represented himself to be a person of full age to certain merchants of whom he had purchased goods upon credit and thereby obtained the goods and thereafter refused to pay for them on the ground that he was a minor and not responsible for them. The master also finds that upon the hearing of the complaint before the judge who granted the warrant a postponement of the further proceedings was ordered until June 16, 1884, and that on the 14th of June, 1884, Williams while under arrest as aforesaid executed and delivered to the defendant who was his attorney at law in the case, a deed of general and voluntary assignment of all his property, real, personal and mixed for the benefit of his creditors: That the assignee duly recorded the deed, had the property appraised, gave the proper bond as assignee, took possession of the personal property assigned, or a great part of it, converted it into money, and also collected certain accounts due to the assignor. The master further finds that upon giving the deed of assignment the plaintiff was discharged from arrest by the judge who heard the cause and also that the plaintiff was at the time he executed the deed of assignment under twenty-one years of age. We regard these findings as entirely sufficient to show that the plaintiff obtained his discharge by availing himself of the provisions of the 13th and subsequent sections of the act of 1842 which regulate the proceedings for obtaining a discharge by insolvent debtors. The only serious question in the case therefore is the validity of the deed of assignment thus executed. We can see no reason why it is not an entirely valid and binding instrument. It was given in the course of a judicial proceeding to which the plaintiff was lawfully subject notwithstanding his minoriiy. By means of a decree obtained at his instance, and the fruits of which he accepted and enjoyed, he procured his discharge from arrest by executing a deed of assignment for the benefit of his creditors in strict accordance with the law. That law is applicable to all persons alike who become subject to its provisions. The plaintiff was not bound to avail himself of those provisions. He could have remained under arrest. But when he invoked the aid of the law to be extricated from his position he must necessarily do those things which the law requires to be done in order to get the benefit of its provisions. The act of 1842 makes no distinction of persons in describing those who may obtain its benefits. It expressly says that “ Any person committed as above provided etc. may present a petition to the court of common pleas of the county in which he shall be im prisoned, or in which the said suit is pending or to the judge thereof, praying that he may assign his property and have the benefit of the provisions of this act.” There is no limitation in the act which excludes persons under disabilities. “ Any person ” means every person. If persons who are minors should be excluded by reason of their disability to make contracts, they would be deprived of the benefits of the act, and that would be a hardship to which they ought not to be subject without express words of exclusion. There are no such words in the act and of course we cannot put them there. When therefore the act extends its benefits to all persons it must be held to confer capacity to make the necessary deed of assignment by which alone those benefits can be obtained: There is no straining of the law in putting upon it tins construction. It is a perfectly familiar principle that, “ a saving from the operation of statutes for disabilities must be expressed or it does not exist:” Warfield v. Fox, 53 Pa. 382. “A law general in its nature binds minors and femmes covert, and there is a multitude of statutes by winch the rights of such persons are affected though they are not specifically named.” To the same effect are Hunt v. Wall, 75 Pa. 413; Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76; and many other cases. In the ease of The People v. Mullin, 25 Wendell, 698, the precise question was before the Supreme Court of New York under a statute “relative to voluntary assignments by a debtor imprisoned in execution in civil cases, 2 R. S. 31.” It was said by the Chief Justice, “that an infant as well as an adult was entitled to the benefit of the act which is general in its terms, viz: ‘ every person, may at any time petition ’ etc. Besides the relief from imprisonment being so highly beneficial to the petitioner his act in making an assignment must in law be regarded as valid notwithstanding his nonage.” We are clearly of opinion that the deed of assignment in the present case was in no sense invalid on account of the minority of the assignor at the time of its execution. The assignments of error are all sustained. It is obvious however that an account' should be filed by the assignee. As he avers his entire willingness to do so and as we hold the deed of assignment to be a valid instrument, it will be his duty to file an account without further delay. The decree of the court below is reversed at the cost of the appellee, and it is ordered that the defendant file an account of his trust, the costs of this proceeding to be paid by the appellee.

JOHNSON, Judge: The Commonwealth appeals from the order that quashed the criminal information filed in Warren County against Daniel C. Wittenburg. The Commonwealth argues that Section 110 of the Crimes Code does not mandate the conclusion that Wittenburg’s actions on November 17, 1996, constituted a single criminal episode. We hold that a single criminal episode is not implicated in this case, and, further, that the policies behind Section 110 are not advanced by such a conclusion. Accordingly, we reverse. On November 17, 1996, Wittenburg, then age 16, went on a crime spree that encompassed several Pennsylvania counties. At approximately 4:35 p.m. on that date, Wit-tenburg robbed a Uni-Mart in Marienville, Forest County. Wittenburg returned to his parents’ home in Butler County, where he showered, and then took his parents’ automobile and his father’s .357 Magnum handgun. Wittenburg left his parents’ home at approximately 5:50 p.m. At 6:30, Witten-burg telephoned his former girlfriend and told her that he had robbed one store, that he intended to commit additional robberies, that he had his father’s gun, and that if he was chased by the police he would “go out with a bang.” Wittenburg asked the girlfriend to telephone his parents and tell them that he would not be home. At 6:48 p.m., Wittenburg robbed a Uni-Mart in Emlenton, Venango County, taking aspirin, cigars, and cash. At 8:00 p.m., Wit-tenburg entered the Sparkle Car Wash in Kane, McKean County, took several items from the attached store, and left without paying for his gas. The two employees at the car wash knew Wittenburg and did not initially think that he was serious about the robbery; they changed their minds, however, when he fired the .357 Magnum handgun into an overhead canopy. After Wittenburg fled the scene, the employees called 911 and alerted area police that a maroon Pontiac had been involved in an armed robbery and was traveling westbound on State Route 6. At 8:15 p.m., Wittenburg entered a tavern in McKean County and demanded service. The bartender requested identification, and Wittenburg brandished the .357 Magnum. The bartender gave Wittenburg a shot of alcohol and then fled to the back room to call the police. Before leaving, Wittenburg fired several shots into the mirror behind the bar. At 8:30 p.m., Officer Delbert C. Lowe of the Sheffield Township, Warren County, Police Department observed Wittenburg’s vehicle travelling on State Route 6. Noticing that the vehicle matched the description that had been given by the employees of the car wash, Officer Lowe followed the car. Shortly thereafter, Officer Lowe was joined by Corporal Robert Lucia of the Pennsylvania State Police (Warren Barracks), and both police cars attempted to stop Wittenburg’s vehicle. The chase involved speeds in excess of 80 miles per hour, during which Wittenburg repeatedly fired his gun at the officers’ vehicles. Additional State Police vehicles formed a road block on State Route 6 in front of Wittenburg’s vehicle. Wittenburg maneuvered through the roadblock, but then lost control of his car and drove into a ditch. Wittenburg exited his car, and twice fired his gun at the approaching Corporal Lucia. Several officers repeatedly ordered Witten-burg to put the gun down; they heard Wit-tenburg yell in reply, “Shoot me you mother f* * *ers.” After seeing Wittenburg shoot at Corporal Lucia, the officers returned fire and Wittenburg was wounded. He was then arrested. Wittenburg was charged in Warren County on November 30, 1996, with attempted homicide, aggravated assault, reckless endangerment, fleeing from a police officer, and several firearms offenses. The court conducted several hearings and authorized discovery relating to the issue of whether Wit-tenburg should be tried in juvenile court. Ultimately, the court denied Wittenburg’s request to be tried as a juvenile. On April 9, 1997, Wittenburg was charged in Venango County with robbery and firearms offenses in connection with the Uni-Mart robbery. The Venango County court accepted a negotiated plea from Wittenburg on June 24, 1997, in which Wittenburg agreed to plead guilty to the robbery charge in exchange for the Commonwealth’s agreement to nol pros the remaining Venango County charges. Wittenburg’s attorney filed a motion to quash the Warren County charges on July 2, 1997. The parties agreed that the court should consider the motion to quash utilizing the testimony garnered at the prior hearings in the case. Subsequently, the court found that the charges against Wittenburg filed in Venango County were part of the same criminal episode as the charges filed in Warren County. Based upon 18 Pa.C.S. § 110, the court found that all charges in connection with this criminal episode should have been tried together, and that Wittenburg’s Venan-go County guilty plea precluded a trial on any other charges relating to this incident. Accordingly, the court quashed the Warren County information and dismissed the charges with prejudice. The Commonwealth now appeals. Section 110 provides, in pertinent part, as follows: § 110. When prosecution barred by former prosecution for different offense Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: * * * * (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense[.] 18 Pa.C.S. § 110(l)(ii). “Section 110, by barring criminal prosecution for offenses arising from the same criminal episode on which a previous prosecution was based, effectively creates a rule of compulsory joinder.” Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995). This compulsory joinder rule serves two distinct policy considerations: (1) to protect a criminal defendant from the governmental harassment of being subjected to successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983). Stated another way, the purpose behind Section 110 is to “shield the accused from duplicitous, sequential trials. Such trials promise unnecessary delay, unnecessary expense to the accused and the Commonwealth, unnecessary duplication of judicial resources, and unnecessary aggravation to the accused and witnesses.” Commonwealth v. McPhail, 547 Pa. 519, 530 n. 4, 692 A.2d 139, 144 n. 4 (1997). Section 110(l)(ii) will only bar the instant prosecution if: (1) the Venango County prosecution resulted in an acquittal or a conviction; (2) the Warren County prosecution is based on the same criminal conduct or arises from the same criminal episode as the Ven-ango County prosecution; (3) the Venango County prosecutor was aware of the Warren County charges before commencing the trial in Venango County; and (4) the Warren County charges and the Venango County charges were within the jurisdiction of a single court. Bracalielly, supra. Here, Wittenburg pleaded guilty in Venango county to robbery. “A guilty plea constitutes a conviction for purposes of pursuing further prosecution pursuant to 18 Pa. C.S. § 110.” Id. at 470, 658 A.2d at 760. Thus, the first requirement is satisfied here. In addition, there is no dispute that the Venango County prosecutors had knowledge of the pending Warren County charges at the time that they initiated the Venango County proceedings. The Venango County presen-tenee report notes that Wittenburg was currently residing in the Warren County jail. Accordingly, the third requirement is also satisfied in this case. Regarding the requirement that all charges be within the jurisdiction of a single court, the Pennsylvania Supreme Court recently addressed this issue in McPhail, supra. The Commonwealth correctly points out that McPhail is a plurality decision, and thus has limited precedential value. However, despite the lack of a majority rationale in McPhail, the result of that decision is clear: it can no longer be disputed that courts of common pleas have statewide jurisdiction and may preside over trials that concern events which take place beyond the territorial limits of the county in which the court sits. See, McPhail, supra, at 530, 692 A.2d at 144 (Opinion announcing the Judgment of the Court), id. at 542, 692 A.2d at 150-51 (Cappy, J., concurring), id. at 530, 692 A.2d at 145 (Justice Nigro Concurs in the Result). See also Commonwealth v. Kirkland, 700 A.2d 482, 484 (Pa.Super.1997) (following McPhail and concluding that courts of disparate counties each have subject matter jurisdiction over the criminal proceedings that concern crimes committed in both counties). Thus, we conclude that the instant charges against Wittenburg were within the jurisdiction of a single court. Nevertheless, the Warren County prosecution will be permitted to proceed against Wittenburg unless we determine that the crimes in Warren and Venango Counties were part of a single criminal episode. “The term ‘same criminal episode’ can be amorphous and troublesome to apply.” Bracalielly, supra, at 471, 658 A.2d at 761. The determination of what constitutes a single criminal episode must not be approached in a rigid or hypertechnical manner that would defeat the purposes underlying Section 110. Id. Rather, when determining what constitutes a single criminal episode, we consider (1) the temporal relationship between the acts in question and (2) the logical relationship between the acts. Id.; see also Hude, supra, at 491-92, 458 A.2d at 182. In determining whether a number of offenses are “logically related” to one another, a court should inquire into whether there is a substantial duplication of factual and/or legal issues presented by the offenses; if there is substantial duplication, then the offenses are logically related and must be prosecuted at one trial. Id. Here, Wittenburg was charged with robbery and firearms offenses in connection with the Uni-Mart robbery that occurred at 6:48 p.m. on November 17, 1996, in Venango County. The charges filed in Warren County concern- the shoot-out and high speed chase that occurred on State Route 6 beginning at approximately 8:30 p.m. on that same date. We recognize that these two incidents have a close temporal relationship. Although this temporal factor is important, however, it is not dispositive. We must consider the logical relationship between the two incidents. In Venango County, Wittenburg pleaded guilty to robbery, and certain firearms offenses were nol prossed. A nol pros is neither a conviction nor an acquittal; consequently, section 110 does not apply to the Venango County firearms charges. See Commonwealth v. Perillo, 426 Pa.Super. 1, 4-6, 626 A.2d 163, 165 (1993). In Warren County, Wittenburg is charged with attempted homicide, aggravated assault, reckless endangerment, fleeing from a police officer, and fire'arms offenses. Thus, the charges are not duplicated; the elements of the crimes that would be proven in Warren County, are quite distinct from those relating to the Venango County robbery charge. Further, the officers who participated in the Warren County car chase and shoot-out were not witnesses to Wittenburg’s activities at the Uni-Mart. Thus, had a trial occurred in Venango County, the Warren County officers could not testify regarding Wittenburg’s commission of the robbery; the clerk who was in the Uni-Mart at that time would have been called to identify Wittenburg as the robber. This case is therefore dissimilar from Hude, where the Pennsylvania Supreme Court held that Section 110 barred a second trial because the Commonwealth’s case revolved around the testimony of the same witness that had been used during the first trial. Hude, supra. This case is more similar to Bracalielly, which involved a defendant who sold drugs to police officers in both Allegheny and Butler Counties during a span of less than three weeks. Both police investigations used the same confidential informant. Our supreme court found that Section 110 did not bar the second trial in Allegheny County, in part because “no law enforcement officer from Allegheny County participated in the Butler County transactions, and no law enforcement officer from Butler County participated in the Allegheny County transactions.” Bracalielly, supra, at 473-74, 658 A.2d at 762. The court reasoned that proof of each individual instance of possession and delivery in each county would not rest solely on the credibility of a single witness, but would instead require testimony from completely different police officers and expert witnesses as well as the establishment of separate chains of custody. Id. Thus, even though the same informant was used, the crimes did not present a substantial duplication of issues of fact and law such that a logical relationship between the crimes was established. Id. It is possible that, if Wittenburg had stood trial in Venango County, the Warren County officers may have been called to testify about the goods stolen from the Uni-Mart and Wittenburg’s possession of the .357 Magnum; these items were recovered in the car in Warren County. However, we are mindful that “a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between the offenses.” Bracalielly, 540 Pa. at 472, 658 A.2d at 761. We hold that Wittenburg’s possession of these items in Warren County is such a de minimis duplication of issues. Considering all the circumstances of the offenses here involved, we conclude that separate trials of the two incidents would not involve a substantial duplication of factual or legal issues. Thus, the incidents are not part of the same criminal episode and Section 110 will not bar the Warren County charges from proceeding to trial. Id. Cf. Commonwealth v. Hockenbury, 549 Pa. 527, 701 A.2d 1334 (1997)(finding that two incidents of receiving stolen property were not the same criminal episode; both incidents involved jewelry stolen in the same burglary but were three months apart and occurred in different counties); Commonwealth v. Lane, 442 Pa.Super. 169, 658 A.2d 1353 (1995)(holding that two offenses were not part of the same criminal episode simply because the defendant was arrested for committing robbery and for drug offenses at the same time and because he possessed one of the robbery items at the time of the arrest); Commonwealth v. Walton, 405 Pa.Super. 281, 592 A.2d 335 (1991) (where offenses of illegally possessing a firearm and of making a false report to police were committed at different locations and more than nine hours apart, the offenses were not part of the same criminal episode). Wittenburg argues that these offenses are part of the same criminal episode because all of the Warren County offenses occurred while police officers were attempting to apprehend Wittenburg for the offenses committed in Venango and other counties. Witten-burg relies upon the following statement: “Two separate offenses may constitute the same criminal episode if one offense is a necessary step toward the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission.” Commonwealth v. Walton, 405 Pa.Super. 281, 592 A.2d 335, 337 (1991). Lane, supra, at 172, 658 A.2d at 1355. After review, we conclude that these factors do not apply to the instant case. First, it is clear that the robbery in Venango County is not a necessary step toward the accomplishment of the crimes with which Wittenburg is charged in Warren County (attempted homicide, aggravated assault, reckless endangerment, and fleeing from a police officer). The language used in Lane is similar to the statutory definition of a criminal attempt, “any act which constitutes a substantial step toward the commission of th[e] crime.” 18 Pa.C.S. § 901(a). None of the Warren County charges require robbery as a prerequisite to their commission. Wittenburg argues, however, that the Warren County high-speed car chase and the resulting crimes occurred because of Wit-tenburg’s attempt to either secure the benefit of his previous crimes or to conceal his complicity in the prior crimes. The trial court seemingly agreed, stating: “The events in Warren County were either an attempt to escape prosecution for the Venango and McKean County crimes or they were, as the Defendant stated, an attempt to provoke a shoot-out with the police as he had predicted prior to the Venango County crime.” Trial Court Opinion, dated August 13, 1997, at 17. The allegation that Wittenburg was attempting to conceal his commission of the crimes is belied by his activities on the night in question, including his telling a robbery victim his name and his knowingly robbing a store where he knew a friend to be working at the time. Further, after study, this Court can find no support for the proposition that Wit-tenburg’s subjective state of mind at the time that the crimes occurred is relevant to our analysis. Instead, we find that it would defeat the policies behind Section 110 if we were to permit a criminal defendant to dictate through his subjective intent when this section should apply. Rather, we must look at the objective facts and determine whether (1) the defendant would be subjected to governmental harassment by successive trials, and (2) the judicial process would be burdened by repetitious litigation. Hude, supra. This is not to say that the criminal defendant’s intent should never be considered when making the determination that a series of criminal acts constitutes a single criminal episode. In the interests of justice, however, courts must not permit a criminal defendant to decide to plead guilty to a lesser crime in one county in an attempt to escape prosecution for a more serious crime in another. This Court recently considered a similar question in Commonwealth v. Cicconi, 439 Pa.Super. 81, 653 A.2d 40 (1995). In Cicconi, the appellant entered the home of his cousin and sexually assaulted her. He was then charged with rape, involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault. While a trial was pending, the Commonwealth sought to amend the criminal information to include a burglary charge based upon the same incident. Cieco-ni objected to the amendment, and it was denied. Thereafter, the Commonwealth filed a second information that charged Cicconi with the burglary. Cicconi pleaded guilty to the burglary charge. He then filed a motion to quash the first criminal information, alleging that the Commonwealth had violated Sec tion 110 because all charges arose from the same criminal episode. The trial court granted the motion to quash. In reversing, this Court discussed the policies behind Section 110 before concluding that the Cicconi’s “procedural maneuvering was motivated by a desire to escape prosecution for rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault ... [and this] is not the type of protection intended by Section 110.” Cic-coni, supra, at 88-89, 658 A.2d at 44. We noted that Cicconi, as well as the Commonwealth, could have petitioned for joinder of the two criminal informations. We stated that “[t]he relatively drastic remedy of Section 110 should only be applied when an accused has not foregone the opportunity of moving to join all offenses in one prosecution. To hold otherwise is simply to foster chicanery by defense counsel.” Id. at 87, 658 A.2d at 43 (citation omitted). We further stated: “This type of maneuvering [is] condemned by this Court as gamesmanship by the defendant.” Id. In this case, the Warren County charges were initiated against Wittenburg on November 30, 1996. Wittenburg pleaded not guilty after his arraignment on January 23, 1997. On March 11, 1997, Wittenburg filed a petition seeking to transfer the action to juvenile court. Pursuant to this request for a transfer, Wittenburg was twice examined by a psychologist, Dr. Charles Steinmeyer, and the Warren County court conducted two days of hearings, on April 3 and May 2, 1997. Between the two hearings, on April 9, 1997, Wittenburg was charged in Venango County. Then, after the Warren County court denied Wittenburg’s request for a transfer on May 2,1997, Wittenburg agreed to plead guilty in Venango County. Eight days later, Witten-burg sought to quash the more serious offenses pending in Warren County under the aegis of Section 110. Although Wittenburg’s actions are not as egregious as those of the defendant in Cicco-ni, we hold that the drastic remedy of precluding trial in Warren County is not appropriate in this case because the policies behind Section 110 would not be served by such a result. Warren County expended considerable resources in adjudicating the issue of whether to try Wittenburg as an adult. Moreover, the Venango County guilty plea occurred before the Warren County trial in part because of Wittenburg’s request for the juvenile decertification proceedings. Under the circumstances, it would be unjust to permit the guilty plea on the lesser charge of robbery to thwart Wittenburg’s trial on the attempted murder and related Warren County charges. In conclusion, we hold that the Warren County and Venango County incidents are not part of the same criminal episode. Further, because we find that Wittenburg will not be subjected to governmental harassment by successive trials, nor will the judicial process be unduly burdened by permitting the Warren County prosecution to proceed, we conclude that the trial court erred in quashing the Warren County charges under Section 110. Accordingly, we will reverse the order of August 13, 1997, reinstate the original charges filed in Warren County against Wittenburg, and remand the matter for trial. Order REVERSED. Charges REINSTATED. Case REMANDED for trial. Jurisdiction RELINQUISHED.

Mr. Justice Gordon delivered the opinion of the court, That the verbal alteration of a scaled contract makes the entire agreement, including the writing, parol, is a doctrine now so well established as to preclude all doubt or hesitation. Vicary v. Moore, 2 Watts, 451, has been regarded as a leading case, and has been steadily followed, down to the ease of Carrier & Baum v. Dilworth, 9 P. F. S., 406. But it is equally true, as stated in McManus v. Cassidy, 16 Id., 260, that when the eause of action arises on a sealed instrument, the form must be debt or covenant, and the exception is only where the specialty has been so far altered by parol as to make substantially a new contract. The contract in baud, however, was never altered either in fact or intention. When we take up and examine the special averment in the narr., we find the alleged variance to consist of certain alterations made in the execution of the work, such as the taking down of the stack instead of throwing it down; sinking the foundations deeper than provided for in the specifications, and for additional timber and extra work furnished and done in and about the erection of the building. But for all this the contract itself, in express terms, provides: “The said Hart shall change the quantity or character of the work and materials called for by the said plans and specifications at any time the said architect shall so direct, and the price thereof shall be reasonable and proportionate so far as may be, whether it shall be added or subtracted from the consideration hereinbefore mentioned. Any change or alteration made by the said William C. Hamilton & Son, or said architect, shall not invalidate the agreement, and the cost thereof shall be agreed upon and endorsed on this agreement, before said alterations are made. If the said Hart and the said Hamilton & Son are unable to agree as to such cost, whether as an addition- or deduction, said cost shall be determined by the architect, whose decision on all points affecting this agreement and the alterations thereof, shall be final and conclusive on both parties, and the said John D. Hart hereby expressly covenants and agrees that he will conform to and comply with and carry out all the decisions of the said architect, and the said Hart further agrees to give bond for the sum of ten thousand dollars with surety for the prompt performance of this contract, and will furnish a release of liens for all work done and materials furnished.” Here is the most ample provision made for every alteration that may be required, either in the work or material, done or furnished, in and about the construction of the premises, and also the manner in which the cost thereof shall be settled. Admitting, then, all the allegations made in the plaintiff’s narr., and in his bill of particulars, yet do they not alter or. vary the specialty in the slightest degree; its provisions include them all, and they could only be enforced by the action of covenant. The case of Shaeffer v. Geisenberg, 11 Wr., 500, is in point, and rules the controversy against the plaintiff. It was there held, that while a contract under seal, for a special purpose, exists, the rights of the parties thereto are fixed by it, and, unless it be abandoned, the remedy of either party for a breach thereof, is covenant and not case. There, as here, the contract provided the manner in which alterations and extra work should be made, and the price settled; it was, therefore, adjudged that for the cost of such extra work the remedy was on the agreement, and that the action of assumpsit could not be maintained. The judgment is reversed.

Chief Justice Mercur delivered the opinion of tho court, It is true on an appeal from tho decision of a justice of the peace to tho Common Pleas the statute provides that the cause shall be decided in the said court on its facts and merits only, and no mistake in the form of the action shall prejudice either party in the court to which the appeal shall be made. This however assumes that the justice of the peace had jurisdiction of tbe cause of action. An action on the case for a tort is not within the jurisdiction of a justice of the peace. Objection to Ms jurisdiction may be taken at any stage of the case. If the justice has not jurisdiction the Common Pleas cannot have it on appeal: Collins v. Collins, 1 Wr., 887. To sustain the plea of former recovery in the present case, the plaintiff in error gave in evidence the record of a judgment obtained against liim before a justice of the peace. He however had appealed from that judgment, and filed tho same in the Common Pleas. The transcript showed the action to be in ease for a tort for' consequential damages, not within the jurisdiction of the justice. This was fatal to the ease, and on motion it would have been tbe duty of tbe court to dismiss the action: Goddard v. McKean, 6 Watts, 337. Practically the canse was as effectively terminated by the plaintiff therein suffering'a nonsuit. It ended the ease. The effect is not the same as if the party appealing had withdrawn his appeal. If this had been the ease the effect would have been to reinstate the judgment. In the present ease the defendant in the judgment appealed therefrom. During the pendency of that appeal the judgment was superseded. The case was an action pending. Thereupon the plaintiff therein by suffering a non-suit, not only put the case out of the Common Pleas, but left no judgment before the justice. It follows the learned judge was right in holding that the voluntary nonsuit was no bar to another suit for the same cause of action, in a court having jurisdiction of the case. Judgment affirmed.

SMITH, Judge. The Township of Center and the Center Area School District (Taxing Authorities) appeal from an order of the Court of Common Pleas of Beaver County that reversed a decision of the Beaver County Assessment Board (Board) and reinstated the status of Gateway Rehabilitation Center, Inc. (Gateway) as a charitable institution exempt from real estate taxation. The Taxing Authorities state the question involved as whether Gateway is an institution of “purely public charity” as required by the Pennsylvania Constitution, legislation and case law. I. Gateway was founded by Dr. Abraham Twerski and St. Francis Hospital. Dr. Twer-ski was then the director of psychiatry at St. Francis, and it provided seed money for the venture. Gateway owns three parcels of land in Beaver County. Situated on one is a four-story, in-patient treatment facility; on another is a residential structure known as the Rutter Halfway House; on the third is a building used to store equipment and supplies. Gateway is licensed as a drug and alcohol treatment facility by the state Department of Health. It provides treatment to numerous government-sponsored patients eligible for Medicaid, and it receives Medicaid payments for in-patients entitled to such benefits, but the amount received does not cover the cost of treatment. Gateway also provides in-patient care to inmates and persons on pre-parole status under the supervision of the Department of Corrections. Gateway renders services at charges below cost in many instances, especially to in-patients of agencies such as the Department of Corrections. It has operated at a loss since 1990 or 1991. Gateway receives funding from public sources such as the Office of Vocational Rehabilitation and also receives payments from insurance and health maintenance organizations. From 1991 through 1996 Gateway provided drug and alcohol abuse evaluations to individuals at no charge; it also provides educational programs without charge to personnel of staffs of other agencies that work with individuals addicted to drugs and alcohol. The Twerski Endowment Fund was established in 1982 through contributions totaling approximately $800,000; as of 1996 it was valued at over $1,600,000. This fund is restricted and cannot be used for general fund deficits. Although the income from this fund has been used to provide in-patient care for some 20 people in the last five years, it is an underused source of funding for Gateway projects, including in-patient treatment. The LaCasa Fund, which was used to serve one patient in 1994 and none in 1995, also is an underused source of funding. Gateway is currently involved in a number of “satellite” programs, including one in-patient program at Westmoreland Hospital and several outpatient programs. The cost in 1996 for Gateway to treat in-patients was $190 per day, whether payment was made by a public agency, insurance or the individual. In 1995 Center Township and the Center Area School District challenged the real estate tax exemption that Gateway had enjoyed since it began operations in Beaver County. At the hearing before the Board, Gateway presented documentation relating to its founding, such as its articles of incorporation, by-laws, corporate charter and letter of exemption from federal income taxation. It also presented testimony from three executives concerning Gateway’s history and charitable purpose, its organization and admission procedures and its financial operations. Because Gateway presented no documentation in support of this testimony, which was characterized as hearsay, the Board decided by a vote of two to one that Gateway had not met its burden to prove its entitlement to exemption from real estate taxes. The Board expressly stated that it made no determination of whether the testimony, if credited, would meet the legal test for exemption. On appeal Gateway presented a more extensive case to the trial court, including audited financial statements. The trial court concluded that Gateway had met each part of the test set forth by the Supreme Court in Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985), for determining whether an entity qualifies as a “purely public charity” under Article VIII, Section 2 of the Pennsylvania Constitution, and it reversed. II. Whether an institution is one of “purely public charity” is a mixed question of fact and law, and the trial court’s decision is binding absent an abuse of discretion or a lack of supporting evidence. G.D.L. Plaza Corp. v. Council Rock School Dist, 515 Pa. 54, 526 A.2d 1173 (1987). The test set forth in Hospital Utilization Project is that an organization must (a) advance a charitable purpose; (b) donate or render gratuitously a substantial portion of its services; (c) benefit a substantial and indefinite class of persons who are the legitimate subjects of charity; (d) relieve the government of some of its burden; and (e) operate entirely free from profit motive. The Taxing Authorities first challenge the trial court’s determination that Gateway’s operation advances a charitable purpose. They acknowledge the broad definition of “charitable purpose” as “ ‘something done or given for the benefit of our fellows or the public.’ ” Taylor v. Hoag, 273 Pa. 194, 197, 116 A. 826, 826 (1922) (quoting Knight’s Estate, 159 Pa. 500, 502, 28 A. 303, 303 (1894)). They refer, however, to the codification of the Hospital Utilization Project test in the definition of “Charitable organization” in the Department of Revenue’s regulations at 61 Pa.Code § 32.1. Specifically, they cite sub-part (i)(E) of that definition, relating to operating entirely free from profit motive, in connection with Gateway’s' maintaining surplus funds, and subpart (i)(B), relating to donating or rendering gratuitously a substantial portion of services, and the requirement of considering the percentage of income used to provide charitable services. They assert that Gateway no longer advertises free care and that it competes with other providers for allegedly profitable contracts to house prisoners without providing treatment. The nature of Gateway’s activity is that of helping to restore lives broken by addiction to alcohol or other drugs. This is clearly within the relevant portion of the definition in Section 32.1, namely subpart (i)(A), which refers to “gifts of services or property for general public use which are designed to benefit an indefinite number of persons from an educational, religious, moral, physical or social standpoint.” (Emphasis added.) The Taxing Authorities’ allegation that Gateway’s contracts with the Department of Corrections and the Board of Probation and Parole to house prisoners are profitable is contrary to the trial court’s finding that Gateway renders services at below cost in many instances, particularly to in-patients of state agencies such as the Department of Corrections. Trial Court Opinion, Finding of Fact No. 9. Yet the Taxing Authorities do not challenge the record support for this finding or cite any evidence for their allegation that the contracts are profitable. This Court sees no lack of record support for or abuse of discretion in the trial court’s determination that Gateway advances a charitable purpose. Next is the issue of rendering gratuitously a substantial portion of an organization’s services. The Taxing Authorities allege that. Gateway at present does not donate or render gratuitously any of its services. They assert that there is no evidence of record that Gateway has ever used any of the Twerski or LaCasa funds for charitable purposes. They note that the Twerski Fund has grown substantially over the years, and they assert, in essence, that Gateway’s failure to use that Fund invalidates Gateway’s claims that it operates at a loss. The Court observes that these allegations again are contrary to the trial court’s findings.' The trial court expressly found that the Twerski and LaCasa Funds had been used to provide inpatient care, although it concluded that the Funds were “underused.” The Taxing Authorities appear to believe that anything less than totally free services, start to finish, cannot qualify as services rendered gratuitously. As Gateway argues, however, this is not the law. The Supreme Court stated in St. Margaret Seneca Place v. Board of Property Assessment, Appeals and Review, County of Allegheny, 586 Pa. 478, 486, 640 A.2d 380, 384 (1994): “The requirement that an institution donate or render gratuitously a substantial portion of its services does not imply a requirement that the institution forgo available government payments which cover part of its costs, or that it provide wholly gratuitous services to some of its residents.” The trial court here found that Gateway receives Medicaid payments for eligible in-patients but that the amount received does not cover the cost of their treatment; that Gateway has operated at a loss since 1990 or 1991; and that public payments represent 77 percent of Gateway’s daily income from services. Trial Court Opinion, Findings of Fact Nos. 7, 12, 23. The trial court also found that Gateway provides other services free of charge, including evaluations of prospective patients (always free regardless of ability to pay) and education programs for staffs of other facilities that treat drug and alcohol dependent patients. As Gateway emphasizes, this Court recently reiterated in Mt. Macrina Manor Inc. v. Fayette County Bd. of Assessment Appeals, 683 A.2d 935 (Pa.Cmwlth.1996), quoting Hospital Utilization Project, that the determination of whether a portion of services donated is “substantial” is to be made based on the totality of the circumstances, and the word does not imply a magical percentage. The Court concludes that the record supports the trial court’s determination that Gateway provides a substantial portion of its services gratuitously. The Taxing Authorities question whether the patients of Gateway are legitimate subjects of charity. They cite this Court’s statement in Metropolitan Pittsburgh Nonprofit Housing Corp. v. Board of Property Assessment, Appeals and Review, 28 Pa.Cmwlth. 356, 368 A.2d 837 (1977), aff'd, 480 Pa. 622, 391 A.2d 1059 (1978), that low and moderate-income families paying below-market rents in a housing project because of beneficent federal legislation were not automatically objects of charity. Gateway points out that the Supreme Court stated in St. Margaret Seneca Place, 536 Pa. at 487, 640 A.2d at 384, that “people whose costs are only partially covered by Medicaid payments are manifestly legitimate objects of charity and people who ‘cannot afford to pay.’ ” The Taxing Authorities also note that in Council Rock School Dist. v. G.D.L. Plaza Corp., 91 Pa.Cmwlth. 176, 496 A.2d 1298 (1985), aff'd, 515 Pa. 54, 526 A.2d 1173 (1987), this Court concluded that the organization seeking a tax exemption, which had established a housing complex for elderly and handicapped citizens, provided no services to its tenants apart from transportation, which was not the sort of “essential care” provided by institutions that had been granted exemptions in other eases. The Court observes that this argument attempts to shift the focus from whether those benefited are the legitimate objects of charity. Further, although tax exemption was denied in that case for the reason stated, the Court concluded that the elderly and handicapped residents were legitimate subjects of charity. As to the question of providing “essential care,” the Court believes that the suggestion that there is a comparison between providing transportation to otherwise self-sufficient residents and Gateway’s efforts to free its patients from destructive chemical dependence refutes itself. On the issue of relieving government of some of its burden, the Taxing Authorities note the Supreme Court’s explanation in Young Men’s Christian Ass’n of Germantown v. Philadelphia, 323 Pa. 401, 187 A. 204 (1936), that an institution that relieves gov- eminent of some of its burden through its charitable activities confers a pecuniary benefit upon the body politic, and the exemption from taxation is a quid pro quo for the provision of services that government would otherwise have to provide. The Taxing Authorities cite In re Salem Crossroads Historical Society, 106 Pa.Cmwlth. 452, 526 A.2d 1257 (1987), where this Court concluded that an organization’s desire to recreate a mid-1800s way of life could not be regarded as relieving government from some burden. They refer also to Community Service Foundation, Inc. v. Bucks County Board of Assessment and Revision of Taxes, 672 A.2d 373 (Pa.Cmwlth.), appeal denied, 546 Pa. 696, 687 A,2d 379 (1996), where the Court stated that a non-profit entity does not relieve the government of some of its burden simply by being paid to do the government’s work. Gateway responds first by stating that the Department of Corrections requested Gateway’s assistance in developing a program to treat and rehabilitate prisoners to reduce the rate of recidivism. Gateway refers also to its program under which some parolees who are again arrested for the use of alcohol or drugs are sent to Gateway for treatment rather than being returned to prison. Other than the existence of programs for treating patients from the Department of Corrections, these points were not the subject of specific findings by the trial court. Gateway also refers to testimony it provided citing studies estimating the enormous social cost of alcohol addiction in terms of lost productivity, automobile accidents, violent crime and health care. Additionally, it notes that the Supreme Court in St. Margaret Seneca Place held that a nursing home’s paying a substantial portion of the cost of Medicaid patients, who comprised about half of its residents, fulfilled the requirement of relieving government of some of its burden. See also Mt. Macrina Manor (state had assumed certain burdens by participating in Medicaid program, and a nursing home’s subsidizing nursing care and medical services to those unable to afford them relieved government of some of its burden). The Court agrees that through Medicaid coverage for Gateway’s services and through state and county agencies’ association with Gateway to provide care and treatment, government has undertaken to provide the type of service that Gateway offers. Further, no great leap of inference is required to conclude that the Department of Corrections seeks treatment for inmates in the hope of reducing recidivism, with all of its attendant costs, including the cost of incarceration. Because the trial court’s determination that Gateway provides a substantial portion of its services gratuitously is supported in the record, the Court finds no abuse of discretion or lack of record support for the determination that Gateway relieves government of some of its burden. Finally, the Taxing Authorities contend that Gateway does not operate entirely free from profit motive. . They contrast Council Rock School Dish, where the nonprofit corporation was found to operate without a profit motive, when its officers as well as its directors received no salary, it had not profited from operating the project, and all excess revenues were designated to inure to the benefit of the project. Here, the Taxing Authorities assert that Gateway’s officers are compensated in amounts comparable to those paid in the for-profit sector and that nothing in the transcript suggests that all excess revenues inure to the benefit of the project. Without citing the evidence relied upon, the Taxing Authorities assert that since Gateway amended its bylaws in October 1994 it has bid on contracts with the Department of Corrections, and it currently houses prisoners without any contractual obligation to provide drug or alcohol treatment. Gateway responds with citation to the record elaborating on the trial court’s general finding that Gateway has operated at a loss since 1990 or 1991. It notes that members of its Board of Directors serve without compensation, and it asserts that compensation of its three highest-paid officers (two of whom are psychiatrists) in 1994 in total amounts (including deferred compensation) of $130,000 or less is not excessive in view of the nature of their positions and their education and experience. From a review of the record developed in this case, the Court concludes that the trial court’s determination that Gateway operates entirely free from profit motive is supported by substantial evidence in the record and does not constitute an abuse of discretion. Accordingly, the order of the trial court is affirmed. ORDER AND NOW, this 3rd day of April, 1998, the order of the Court of Common Pleas of Beaver County is affirmed. . Gateway’s former Director of Treatment Programs, Sharon Eakes, testified that the Twerski Fund was established around 1982 in response to the problem of erratic funding streams. It was conceived initially as a loan fund, but in practice money taken from the Fund to pay for patient care has not been repaid, and the Fund now is regarded as a free-care fund. N.T., pp. 13-14. The President and Chief Executive Officer, Kenneth Ramsey, testified that Gateway undertook a fundraising campaign to establish a pool of money, of which the earnings would be used to pay for treatment of indigent patients and the principal would not be invaded. Id., p. 98. The Court notes that it makes little difference to a patient whether treatment is paid for with money from the Twerski Fund or is carried on Gateway’s books as an operating loss, so long as the patient or his or her insurer is not paying the cost. . Gateway’s exhibit summarizing the evidence from its financial statements on its operating losses, Ex. 6-A, shows operating expenses exceeding operating revenues in a range of $190,-267 for 1991 to $718,491 for 1993. These shortfalls are shown as being offset, sometimes entirely, by non-operating revenue and contributions. . On cross-examination, Kenneth Ramsey, President and Chief Executive Officer of Gateway, was questioned closely by counsel and the trial court concerning Gateway's three separate contracts with the Department of Corrections and the types of services provided under them. He described one as being for a treatment phase of 45 days, providing intensive treatment relating to drug and alcohol problems that in most cases contributed to an inmate’s arrest. The second phase, reimbursed at a lower rate, is again for 45 days and is similar to a halfway house setting, involving preparation for work and for the communily. The third phase is for people who have been on probation or parole but who have violated the requirements; they are returned to Gateway for additional in-patient treatment for varying periods as an alternative to return to a correctional institution. N.T., pp. 187-189. In regard to one contract, a letter from the Department of Corrections following a pre-proposal conference listed questions and answers that included a statement that drug and alcohol coun-selling was not part of the Request for Proposal. Intervenors’ Ex. F, p. 30. Ramsey responded to the trial court, however, that Gateway's mission had not changed and that provision of general counselling did not preclude drug and alcohol counselling. N.T., p. 208. On redirect examination he stated that the nature of Gateway's relationship with the Department of Corrections was that Gateway serviced only people with a history of drug and alcohol abuse. N.T., p. 226. . The Taxing Authorities also argue that Gateway did not meet the requirement of Section 204(a)(3) of the General County Assessment Law, Act of May 22, 1933, as amended, that an institution of charily demonstrate that it is "maintained by public or private charity_” This contention was not raised before the trial court, and it is therefore waived. Pa.R.A.P. 302(a).

Mr. Justice Paxson delivered the opinion of the court, This was an appeal from the refusal of the court below to grant an issue to determine the validity of the last will and testament of Joshua P. B. Eddery, deceased. The questions presented were 1st, whether the testator was of sound mind at the time of the execution of the will; and 2d, whether said will and codicil were procured by undue influence, fraud, imposition or duress. The latter branch of the inquiry maybe dismissed with the remark that we find nothing in the evidence to sustain it. Nor is there anything to bring the case within the ruling of Cuth bertson’s Appeal, 1 Out., 168, and Wilson v. Mitchell, 5 Id., 495. Nor are we in any doubt as to the first proposition. We have read, the large mass of testimony with care without being convinced that the court below erred in denying the issue. To sustain a verdict against this will would be to do a great wrong. The true rule is that such a case should not go to the jury at all when the court in the exercise of a sound legal discretion would not sustain the verdict: Cauffman v. Long, 1 Norris, 72 ; Wilson v. Mitchell, supra. It would serve no good purpose to discuss the evidence in detail. It would make the opinion of inconvenient and unreasonable length. A few general observations are all that is required. The testator was altogether a remarkable man. He was born of colored parents in Virginia about 1798. His mo the being a slave he shared her condition of servitude as the law then stood, until his father purchased the freedom of his mother and the children. Joshua, the testator, subsequently removed from Virginia to Columbia, Pennsylvania, and about the year 1885 came to Philadelphia, where he resided until his death in September, 1882. He had little if any education, yet could read and write to some extent, and was able to keep his accounts in a rude way. He appears always to have attended closely to business; was at one time a barber ; kept an oyster saloon and fruit stand ; later in life engaged in real estate operations and loaning money; was close if not miserly in liis habits, and died leaving an estate in houses and personal property variously estimated at from $100,000 to $150,000. His calling for some time prior to bis death was that of a clergyman of the Colored Methodist Church, and he appeared to have enjoyed considerable reputation. It was alleged at one timo that lie was convicted of forgery, but the record of that case shows the granting of a new trial and no subsequent proceedings. We are bound in the absence of evidence to the contrary to assume that the new trial was granted because of insufficient evidence. It is manifest that he was a man of strong personality, of vigorous mind and will, and not easily turned from his purpose. As was to be expected, an ignorant man of this description, possessed of a large estate, and living alone in two small, illy furnished rooms, was the recipient of a large amount of disinterested advice in regard to the proper disposition of bis property by will, in addition to suggestions as to aiding particular charities during bis life. He was in the habit of saying that be looked to the Lord for guidance in making liis will, which, for a Christian clergyman, was neither heterodox in theology, nor bad in law. That he was shrewd enough to keep the matter of his will to himself, taking into his confidence only bis lawyer who prepared it, and one or two friends, is plain from the testimony; that he purposely misled some of the anxious inquirers is equally clear. A lie is never justifiable for any purpose, yet if there are any circumstances which would give it a color of excuse, it is the case of just such a man as this, pestered with gratuitous advice, and constantly appealed to for money in aid of particular persons or charities. If, as was said by Justice Grier in Turner v. Hand; 8 Wall., Jr., 88, a man be addicted to telling lies about his will, we could not on this account pronounce him unfit to manage his affairs or dispose of his property. Testators sometimes take a peculiar pleasure in misleading anxious relatives, particularly collaterals, in this manner. 1 remember a case tried before me where a childless old -woman, possessed of a considerable estate, seemed to have taken a mischievous delight in deceiving her nieces and nephews. She promised her estate to them all, and deceived them all — but one. It was not considered to affect her testamentary capacity. There were a number of witnesses who expressed the opinion that the testator was unfit to make a will. The opinion of many of them may be brushed aside as wholly worthless by reason of their lack of knowledge and judgment in such matters. A witness must know what testamentary capacity means before we can attach any weight to his testimony, else no man’s will would be safe. Some of the witnesses gave reasons for their opinions which are utterly worthless. As an illustration, Bishop Payne said: “A miser (referring to the testator,) is one who has mistaken gold for God, and property for blessedness. Such a person, in my opinion, is insane, and is therefore incapable of making a judicious will, such as Christians ought to make in view of the teachings of Jesus Christ, especially such as a Christian minister ought to make in view of his responsibility to Christ.” This standard is too vague for practical purposes. Another witness thought no colored man is competent to make a will after he is fifty years of age, though a white man may be. Another witness said : “ I don’t think he was capable of performing the duties of making a will, as he frequently had said that the law had not helped him out in the way he should dispose of his property.” The two subscribing.witnesses, Gould and Thompson, appear to have had no doubts as to his testamentary capacity when they signed the will in that capacity, and before they knew its contents. They both swore before the Register that at that time they considered testator to have testamentary capacity. They appear since to have changed their minds. Gould testified in this proceeding: “ From my observation of the decedent and the facts, I must concede that his memory was very poor, and his judgment not what I would think would be sound.” Thompson said : “ From his condition in 1881, I thought he was not in a condition to make a will, either mentally or physically. From July he did not possess testamentary capacity. Told me several times he did not know what be was worth.” Such declarations as the latter are of very little value. A man may say he does not know what he is worth by reason of fluctuating values, or it may be an evasive answer to an impertinent question. In either event it does not even tend to prove want of testamentary capacity Moreover, a number of contestant’s witnesses who thought him incapable of making a will were among those who were disposed to aid him by advice in doing so, and the thought naturally suggests itself that if the will had been in accordance with their wishes it would have materially influenced their views of bis testamentary capacity. Without going into detail the evidence in support of the will is overwhelming. It is in the main given by intelligent witnesses with ample opportunities of information. We have here the case of an old colored man with sufficient mind and business sagacity to acquire a large fortune, much of it the result of his own labor, frugality and thrift; to take care of it even in old age; during all the time he is charged with being an imbecile he occasionally officiated and preached in his church; he presided at and attended the meetings of various societies; he administered the communion at liis church, and solemnized several marriages; attended actively to business, and was shown by witnesses on both sides to have a good knowledge of his property and its value. These are the kind of facts which a court should look at in determining a testator’s capacity, and in the face of them the testimony of a crowd of ignorant witnesses, not experts, as to a testator’s unsoundness, goes for nothing. To permit a jury under such circumstances to set aside a will in order to give effect to their own notions of what a testator should do with his property under given circumstances, in other words to make a will for him, would be-to put many estates in peril, and destroy that assurance which now every man has, that after his death the property for which he has toiled and saved shall go according to the directions of his last will and testament. Nor is there anything in the disposition of this property which tends to throw a doubt over the ease. It is true he cuts off Ms grandchildren with a small sum, but the reasons therefor appear to have been satisfactory, at least to the testator. He gives the bulk of his estate to his nephew and to his brother. The former had been brought up by him from a child, and there is little doubt he took commendable pride in liis integrity and success. His brother appears to have done the testator a grievous domestic wrong, which at one time troubled and clouded his life. But this was forty years ago, and amicable relations were restored long before his death. If he forgave his brother it was not inconsistent with his religious profession. Aside from all this, a man like this testator, who has amassed a fortune, by a frugality which denies to its possessor even the comforts of life, may be depended upon to leave the hard-earned and harder saved fruits of his toil to some one whom be at least believes will not squander it in idleness and dissipation. This seems to be the key-note to this will. Upon the whole, we are of opinion that it would be a grievous wrong to allow any jury to set aside this will upon the evidence adduced, and for this reason we sustain the court below in denying the issue prayed for. Decree affirmed and the appeal dismissed at the costs of the appellant.

Opinion by Mr. Justice Fell, This is an appeal from the judgment entered in an action of ejectment brought to recover the coal and minerals in a tract of land in the possession of the defendants. From the admitted facts it appears that in September, 1883, Irvin conveyed the tract to Flynn. In November, 1883, Flynn conveyed to Jose, excepting and reserving the coal and minerals, and at the same time conveyed the one half part of all the minerals reserved to H. B. and J. F. Powell. In the same year Jose conveyed to John Lantzy, one of the defendants. At the time of the conveyance by Irvin to Flynn the taxes for 1882 and 1883 were unpaid, and in 1884 the land was sold for these taxes and purchased by Lantzy. In 1888 Lantzy conveyed the coal to the Blubaker Coal Company, the other defendant. In 1894 the plaintiff purchased of Flynn the remaining half interest in the coal, and brought this action of ejectment. The land was unseated, and the legal title to the entire property was in Irvin at the time the taxes for 1882 and 1883 were assessed. The case presented is that of a sale of unseated lands for taxes which were assessed before the severance of the title to the surface from that to the minerals, and a purchase of the whole by the owner of the surface; and the question is whether the title so acquired is good as against the owner of the minerals. The regularity of the proceedings which resulted in the sale is not questioned, and the validity of the title depends upon the question whether the defendant Lantzy was forbidden by any rule of legal policy to acquire a title at a sale for taxes charged in part against his own land, and whether the title so acquired, if otherwise good, is affected by any equity growing out of the relation which the owner of the surface and the owner of the minerals bore to each other. The rule that one cannot, by a purchase at a tax sale caused. by his failure to pay taxes which he owed the state or which he was otherwise legally or morally bound to pay, acquire a better title or a title adverse to that of other parties in interest, rests upon the principle that one cannot profit by Iris own wrong and build up or acquire a title founded upon his own neglect of duty. The rule has been recognized in this state in Chambers v. Wilson, 2 Watts, 495; Coxe v. Wolcott, 27 Pa. 154, and Reinboth v. Zerbe Run Co., 29 Pa. 139, and a multitude of cases in other states, most of which will be found cited in Black on Tax Titles, sec. 273, note. The purchase operates as a payment only: Cooley on Taxation, p. 501, second edition. The rule however should be restricted to cases where it was the duty of the purchaser to pay the tax: Oswald v. Wolf, 129 Ill. 200; Lybrand v. Haney, 31 Wis. 230; Sands v. Davis, 40 Mich. 14; Moss v. Shear, 25 Cal. 38. In the opinion in Blackwood v. Van Vleit, 30 Mich. 118, Judge Cooley, criticising the decision in Lacey v. Davis, 4 Mich. 140, in which it was held that a person entering into possession of land under a claim of title while a tax which was a lien thereon was unpaid could not acquire a title by purchase at a subsequent sale for the tax, says that in the cases relied on in Lacey v. Davis, the party who was precluded from acquiring a title at a tax sale was either in possession of the land when the tax was assessed and upon that ground was chargeable with its payment or by contract or otherwise it had become his duty to other parties concerned to make payment, and “ To preclude any person from making and relying on a purchase of land at a tax sale there must be something in the circumstances of the case which imposes on him a duty to the state to pay the tax, or something which renders it inequitable as between him and the holder of the existing title that he should make the purchase.” In speaking of taxes on unseated lands which were not a charge against the owner it is said in Coxe v. Gibson, 27 Pa. 160, that there was nothing in reason or law to prevent the holder of a defective title from purchasing a better one at a tax sale. The taxes under which the sale was made in this case were on unseated lands, and there was no personal responsibility on the owner therefor; the land alone was liable: Hunter v. Cockran, 3 Pa. 105; McCormack v. Russell, 25 Pa. 185; Logan v. Washington Co., 29 Pa. 373. Was there a community of interest which gave rise to a duty, or anything in the relation of the parties which made the purchase by Lantzy inequitable ? The rule which applies to a trustee or to one occupying a fiduciary relation is stated in the notes to Keech v. Sanford, 1 Leading Cases in Equity, p. 62, 4th Am. ed., to be this: “ Whenever one person is placed in such relar tions to another, by the act or consent of that other or by the act of a third person or of the law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated.” And the rule is said to apply as far as the principle and morality and policy upon which it is founded extend. In this state it has been enforced against joint tenants and tenants in common in a number of cases, among them Weaver v. Wible, 25 Pa. 270; Lloyd v. Lynch, 28 Pa. 419; Gibson v. Winslow, 46 Pa. 380, and Maul v. Rider, 59 Pa. 167, where there had been the purchase of an outstanding title, or of the interest of one of the parties by the other at a sheriff’s sale. But the owner of mineral rights holding by virtue of a reservation in a deed is neither a tenant in common nor a joint tenant with the owner of the surface. Each has a separate estate: Neill v. Lacy, 110 Pa. 294; see also Plummer v. Hillside Coal & Iron Co., 160 Pa. 483, and Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. 114. After the severance of the surface from the minerals by a conveyance they form separate estates : Caldwell v. Fulton, 31 Pa. 475; Caldwell v. Copeland, 37 Pa. 427; Penn. Salt Co. v. Neel, 54 Pa. 9. And each is separately the subject of taxation: Logan v. Washington Co., 29 Pa. 373; Sanderson v. Scranton, 105 Pa. 469; Petrikin v. Myton, 3 Penny. 216. When in 1884 the sale for taxes took place the estates were distinct, and the division was as complete as if it had been made by lines on the surface. They were separately the subjects of possession, enjoyment, incumbrance and taxation. There was no community of interest between the owners. The whole was subject to a claim for taxes which existed before they acquired title, and which neither was under any obligation to the state to pay. If either had paid it he could .not have recovered of the other his proportionate share: Neill v. Lacy, supra. And no right to contribution could be enforced as in the case of a mortgage, and there was no means by which the tax could be apportioned. Lantzy was in a position in which he was obliged to pay a claim which he did not personally owe, and which was in part a charge upon the land of another from whom he could not require repayment, or to buy or lose his title. A vendee under articles who buys at a sheriff’s sale to save his title is not a trustee for the vendor: Bispham’s Equity, sec. 93; Thompson v. Adams, 55 Pa. 484, although the vendor may be permitted to recover under the contract. Any moral obligation to agree and jointly pay the tax, each contributing his just share, rested equally upon the owners of the different parts, but there was no legal duty on either to do this. It was their separate, not their joint, interests which were in peril. They were not interested for or with each other, and no relation of confidence existed between them which gave rise to a duty which equity will enforce through the medium of a trust. The learned judge of the common pleas was right in entering judgment for the defendant. The assignments of error are overruled and the judgment is affirmed.

Per Curiam, We are not convinced that there was any error in refusing to take off the judgment of nonsuit entered in this case. Neither of the specifications of error is sustained. Judgment affirmed.

Chief Justice Mercur delivered the opinion of the Court, The main contention in this case arises under the sixth specification of error. It presents the question whether the Act of Assembly, incorporating the company, is in conflict with the Constitution. The amendment to the Constitution, adopted in 1864, declares that “ no bill shall be passed by the legislature containing more than one subject, which shall be clearly expressed in the title, except appropfiation bills.” This company was incorporated by the Act of the 30th March, 1872. Its title is, “An Act to incorporate the Manufacturers’ Improvement Company.” Is the subject clearly expressed in that title ? The constitutional requisite in a title to sufficiently express the subject of an Act of the legislature, has many times been considered by this court. It is held that the title need not be a complete index to the contents of the bill: Dorsey’s Appeal, 22 P. P. S., 195. It is sufficient, if it fairly gives notice of the subject of the Act, so as reasonably to lead to an inquiry into the bodjr of the bill: Allegheny County Home’s Appeal, 27 Id., 77. Thus it was held in Blood v. Mercelliott, 3 Id., 391, that a bill entitled, “ An Act to increase the boundaries of Forest county,” required the addition of new territory, and this naturally included a re-location of the county seat. The authority of this case has not been overruled, nor do we propose to question it now. Yet we know no other case which has gone quite so far in inferring a subject not mentioned in the title. The case of State Line & Juniata Railroad Co.’s Appeal, 27 Id., 429, was, on the argument, urged as ruling the present case. We think however it is clearly distinguishable. The title of the original Act as well as the title to each of the supplements, clearly shows the subject to be that of a railroad, and all the powers contained in the bill were germane to that subject. It may be conceded that an entire Act is not necessarily unconstitutional, because the title omits to give notice of some particular matter contained in the bill: Dewhurst v. Allegheny, 14 Norris, 437; but a title which tends to deceive or mislead as to the subject of the bill is not sufficient: Allegheny County Home’s Appeal, supra; Union Passenger Railway Co.’s Appeal, 32 P. F. S., 91. If the title omits all reference to the main subject of the bill it cannot give validity to the subject matter thus ignored. In such case the reasonable presumption is that the title was intended to conceal the purpose of the bill. The purpose of the title is to give notice of the legislation contemplated. When it imports the purpose of the bill to be one subject, while the bill itself shows a different subject to be the purpose, the title is undoubtedly misleading. In such case it would be a gross perversion of language to declare that the subject is clearly expressed in the title. A brief reference to the title of the bill in question makes its defects manifest. “Manufacturers’ Improvement Company ” reasonably imports a corporation about to engage in some branch of manufacture. The omission to designate any specific place of business strengthens this presumption. The bill however gives no authority to manufacture anything. It confers the power to clear out, improve, and use all and every part of the Loyalsock creek and its tributaries, in the counties of Lycoming and Sullivan, from the mouth to the sources thereof; and to erect dams therein in such manner and at such points as it may deem proper; and to use the same and the waters of the streams in the floating of saw logs, timber and other lumber down the same. It further gives to the corporation the right to demand and receive from any and every person using the said stream for the purpose of running or floating lumber upon its waters, the sum of twenty cents per thousand, board measure, for all lumber put in said stream, and permits the company at its option, to demand in advance the payment of said toll or security, for the same; and the person using the stream without paying, or securing the payment of-the toll so demanded, becomes a trespasser. Previous to the passage of this Act the Loyalsoclc creek had been declared to be a public highway, so that all persons had the right to float logs and lumber on the waters thereof free of charge. This bill sought to destroy that right. Thenceforth the use of the water to float lumber thereon was to be charged with the payment of tolls to the corporation. Citizens who had previously enjoyed the untrammelled use of the water for purposes of navigation, and others who may have expected to so use it, were deprived of that right without any notice. The title contained no reference to the Loyalsock creek, nor to the improvement of the navigation of any stream. So far as the title shows, the body of the bill could as well be applied to a stream in any one of the counties of Erie, Philadelphia, Greene or Wayne, as in the counties of Lycoming or Sullivan. It gave no notice to the inhabitants of the latter two counties that the purpose of the bill was to deprive them of any of the rights and privileges which they enjoyed. The language of the title is such as to indicate that it was not designed to clearly express the subject of the bill; but, on the contrary, it was chosen to conceal the subject and purpose of the bill. It is fair to presume the title was so framed to prevent the opposition which might, and undoubtedly would, have been made to the passage of the bill had the title reasonably expressed the subject or object thereof. To hold this title sufficiently expressed the subject of the bill which followed, would be a gross perversion of the mandate of the Constitution. The general power of the legislature to incorporate a company for the improvement of the navigation of a stream is unquestioned in this case. It does not arise. The objection is to the unconstitutional manner in which the attempt was made to exercise that power. As the view we take is fatal to a recovery it is not necessary to consider the assignments of error involving other questions. Judgment reversed.

Per Curiam, There appears to be no error in this record that would justify .a reversal of the decree complained of. Neither of the assignments of error is sustained. Decree affirmed and appeal dismissed with costs to be paid by appellant.

Mr. Justice Clark delivered the opinion of the court, The petition in this case was presented to the court of Quarter Sessions of Lackawanna county, by the inhabitants of the township of South Abington, for the appointment of viewers to view and lay out a public road. The county of Lackawanna was, in the year 1878, formed from the county of Luzerne, and the proceedings, therefore, are under the provisions of the special Act of 24th February, 1845, P. L. 52; Purd. Dig., 1290. The petition is in the form recognized in general practice, and represents, that the petitioner’s are residents of the township named, and that they labor under great inconvenience, for want of a road, to lead from a point at or near Isaac A. Ackerley’s, on a highway, leading from Newton Center to O'DonnePs hotel, and to terminate at a point on a public road, leading from Clark’s Green to Newton Center, near Heudershot’s spring. In view of these plain recitals, and of the court having taken cognizance, we must presume, as a fact, that the route of the road is within the limits of the jurisdiction. In an ordinary road proceeding, in the Quarter Sessions, we cannot require that degree of technical accuracy, which must be observed, in criminal pleadings in the same court. Viewers were appointed 19th May, 1879, and their report was confirmed nisi, on the 20th August, 1879. Pending the exceptions filed, such proceedings were had, that reviewers and re-reviewers were appointed. The report of the latter was quashed on motion of the original petitioners, and the report of the former, on motion of the remonstrants. On the 28th March, 1888, the original report of the viewers! upon due consideration of the exceptions, ivas confirmed absolutely. It is to this decree the errors are assigned. It is contended, upon part of the remonstrants, (1) that the termini fixed on the report differ from those fixed in the petition and order; (2) that the viewers were not sworn in the form and manner prescribed by law; (3) that notice of the meeting of the viewers was not given ; (4) that the viewers did not endeavor to obtain releases of damages from the land owners, or consider the advantages accruing to them in the assessment, and (5) that the signatures of the viewers are not identical with the names written in the order. The termini of the proposed road are certainly stated in the petition with sufficient precision, and we think the report, when taken with the annexed draft, which is properly a part of it, shows that the terminal points of the road reported are identical with the termini proposed in the petition. The draft shows th.at the road, as laid out, begins at a point in a public road at I. T. Aokerley’s, and terminates in another road, which in the report is stated to be the road leading from Newton Center to Clark’s Green, at a point about four rods east of Ilendershot’s spring. It is very plain, therefore, that this assignment of error is without merit. The viewers state in their report that they were “first severally sworn in the form and manner prescribed by the said order and according to law.” This the record discloses, and on the hearing of a certiorari, we are of course confined exclusively to the record. Extraneous testimony upon this question, if of a satisfactory character, might have been material in the consideration of the case by the court below, but, as the testimony is no part of the record, it cannot be considered here. Applying the maxim, omnia prcemmuntur rite esse aela, we must assume that the oath was in the form prescribed by the Act of Assembly: In re Paschall Street, 81 P. F. S., 118; Road in Donegal, 9 Norris, 190. In the Act of 1836 there is no provision made for notice; it may have been supposed that the presentation o£ a petition to the court, the appointment of viewers, their actual appearance upon the ground, the view and survey of the route, and the filing of their report, were circumstances of such notoriety as would put all parties on their guard (Baldwin & Snowden Road, 3 Grant, 62), and that the intervention of a whole term of court gave full opportunity for knowledge, and for preparation to resist the confirmation. But, as the appropriation of a man’s property and the assessment of his damages, without notice, is repugnant to every principle of justice, it was held in a number of cases, under the Act of 1836, notably in Neeld’s Road, 1 Barr, 355; Boyer’s Appeal, 1 Wr., 257, and Central Railroad Co.’s Appeal, 6 Out., 38, that notice to the property-owner is absolutely essential to the validity of the view or assessment. But whether such notice was given or not is certainly a pure question of fact, and it has in numerous cases been held by this court, that the decision upon it in the court below is final, therefore not the subject of review. We are aware that in some cases it has been said that the fact must appear in the viewer’s report, and that if it does not so appear the proceedings are void. We are of opinion, however, that neither the general statute of 1836 nor the special statute of 1845, in force in Lackawanna county, will reasonably admit of such a construction. It is certain that in a number of cases this court has most explicitly ruled otherwise, and we think these rulings are in conformity with the general practice, and in accord with the uniform understanding of the profession throughout the state. If it be true, in any proper sense, that all road proceedings and decrees, in which the fact of notice is not disclosed of record, are absolutely void, a large part of the highways throughout the Commonwealth, we fear, have been opened, and are now maintained without any authority of law. Whether what has heretofore been said in this court, as to the essentiality of record evidence of notice, has resulted from the adjudication of cases, arising under statutory provisions of a local and special character, we cannot say, but we are clear in our convictions now, that such a requirement cannot be fairly inferred from any provision of the general law, or of the Act of 1845, under which this case is to be considered. In re Road in Middle Creek Township, 9 Barr, 69, which was a case under the Act of 24th February, 1845, it was expressly ruled that it was not essential that the fact that the viewers gave notice by advertisement of the time and place of their assembling to view a road, should appear in their report. Mr. Justice Bell, delivering the opinion of the court, says: “ The Act of 21-th February, 1845, under which it was commenced, requires that the three viewers shall view, and that before doing so they shall give notice, by advertisement, when and where they will assemble for the purpose. But it is not necessary these facts should be affirmed on the face of the report. The Act of 1836 and the prior road laws require at least five of the six viewers to view the ground proposed for the road, but it was determined to be unnecessary specially to aver this in the report. It is enough if shown, per testes, to the Quarter Sessions, on exceptions filed: Road to McCall’s Ferry, 13 S. & R., 25. For, too, although notice to landholders and parties interested of the time fixed -for the view has, under the general laws, been deemed essential, it may sufficiently be shown by parol, and such is the constant practice. The presumption is that the requirements of the statutes have been complied with by the viewers, and therefore it is not necessary specially so to state on the report, unless specially required by the Acts regulating the subject: Schuylkill Falls Road, 2 Binn., 250; Spear’s Road, 4 Binn., 174; Road to McCall’s Ferry, 13 S. & R., 25.” In Kirk’s Appeal, 4 Casey, 185, a case under the General Act of 1836, Chief Justice Lewis says: — “This is an appeal from the decision of the Court of Quarter Sessions, confirming the report of viewers in a road case. The objection is that no notice was given of the meeting of the viewers. That objection was heard and disposed of in the court below. It is a question of fact which is not the subject of review here.” In Spring Garden Road, 7 Wr., 144, a case commenced under the general law, and continued by review and re-review under the Act of 1845, it was said: “ We do not review the facts here, and therefore we cannot say that there was any want of proper notice of the time of holding any of the views, or that this road is a mere cul de sac.” So also in Road in Springdale Township, 10 Norris, 264, where the viewers’ report set forth simply, “ that they met pursuant to legal notice,” without stating in what manner, or to whom, or where, that notice was given, our brother Paxson said, “the question of notice is one of fact, and we may well presume the court below decided it correctly.” It is required that the viewers’ report shall state particularly ; “ first, who of them were present at the view ; second, whether they were severally sworn or affirmed ; third, whether the road desired be necessary for a public or private road;” also that the viewers shall “ annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements, through which it may pass.” These are the requisites of a report, as defined b]r the Act o£ 1836, and they do not materially differ under the Act of 1845. We are of opinion, therefore, although the cases are certainly conflicting, that notice need not appear upon the face of the viewers’ report; that it may be established aliunde as other matters of fact involving the merits are established, and that it is finally adjudicated in the decree of confirmation. Nor is it necessary, to the validity of a report, that the viewers should state in it that they have endeavored to obtain releases, nor that in the assessment of damages they have taken into consideration the advantages accruing to the landowner from the opening of the road. It will be presumed that the viewers performed their duty and that all things were rightly done unless the contrary be shown. That this is the rule under the Act of 1845 was decided in McConnell’s Mill Road, 8 Case}', 285, and in Road in Chartiers, 10 Casey, 413, and the General Act of 14th May, 1874, contains precisely the same provision in this respect. The exception to the identity of the persons named in the order, with those signing the report, was not urged in the argument. The initial letter of the second Christian name of one of the viewers was omitted in the order, but appeared in the signature appended to the report. Personal identity is a question of fact, and the entry of the decree in the court below conclusivel]1- establishes that fact. The review and the re-review having both been quashed for irregularity are of no consequence in the case. The proceedings in the Quarter Sessions are therefore affirmed, and the record remitted.

DOYLE, Judge. Uniontown Area School District (District) appeals an order of the Court of Common Pleas of Fayette County, which denied the District’s motion for post-trial relief and held that Ohiopyle Prints (Taxpayer) was exempt from the District’s mercantile tax. Taxpayer is a partnership, located in the District, engaged in the business of printing designs and wording on ready-made clothing, such as T-shirts, sweat shirts, and underwear, and then selling that merchandise to retailers. Taxpayer develops the artwork which, through the use of computers, is refined into screens and plates; the artwork is then printed on an article of ready-to-wear clothing. Taxpayer owns the items of clothing on which it prints its artwork. Pursuant to The Local Tax Enabling Act (Act), the District enacted a mercantile tax, effective on July 1, 1970, which provides in pertinent part as follows: Section 2. Levy and Collection of Tax. Every person engaging in the following occupations or businesses in the School District shall, quarterly-annually, pay a mercantile tax for the School District’s tax year: (a) Wholesale vendors or dealers in goods, wares and merchandise, at the rate of one (1) mill on each dollar of the whole volume of business transacted. (b) Retail dealers in goods, wares and merchandise and proprietors of restaurants and other places where food, drink and refreshments are served, at the rate of one and one-half (1$) mills on each dollar of the whole volume of business transacted. Taxpayer paid a total of $6,840.44 in mercantile taxes to the District for the years 1990, 1991, and 1992. However, on March 31, 1993, the Taxpayer filed a complaint against the District alleging that it was exempt from the mercantile tax and demanding a refund of the taxes it had previously paid. Taxpayer alleged that it was a garment manufacturer, not a retailer or wholesaler, and was, therefore, exempt from the mercantile tax. In the Taxpayer’s view it is engaged in manufacturing, because it transforms unprinted garments into a new product by applying labor, skill and machinery to combine the garments with ink and other raw materials. This case was initially referred to compulsory judicial arbitration and, after a hearing, the arbitrators returned a decision in favor of the District. Taxpayer, thereafter, appealed that decision to the trial court. After a trial de novo, the trial court determined that the Taxpayer was a manufacturer and, therefore, exempt from the mercantile tax. The trial court reasoned that Taxpayer’s business was analogous to the printing of newspapers and advertisements, which has been held to constitute manufacturing. The District filed post-trial motions which were denied. This appeal followed. On appeal, the District contends that the trial court erred in holding that Taxpayer is exempt from its mercantile tax on the ground that the printing of words and graphics on ready-to-wear clothing constitutes manufacturing. Under Section 2 of the Act, a local agency does not have the authority to tax goods manufactured in its geographical area or to tax the transactions of businesses engaged in manufacturing. 53 P.S. § 6902(4). While there is no definition of manufacturing in the Act, manufacturing is generally defined as follows: “[T]he application of labor skill to material whereby the original article is changed into a new, different and useful article.... Whether or not an article is a manufactured product depends on whether or not it has gone through a substantial transformation in form, qualities and adaptability in use from the original material, so that a new article has emerged.... If there is merely a superficial change in the original materials, without any substantial and well signalized transformation in form, qualities and adaptability in use, it is not a new aHicle or neiv product ... [.]” (Emphasis added.) Bindex Corp. v. City of Pittsburgh, 504 Pa. 584, 587, 475 A.2d 1320, 1322 (1984) (quoting Philadelphia School District v. Parent Metal Products, Inc., 402 Pa. 361, 364, 167 A.2d 257, 258-59 (1961)). And, whether a specific activity constitutes manufacturing is a question of law to be resolved by the courts based on the specific facts of the case. City of Pittsburgh v. Tucker, 74 Pa.Commonwealth Ct. 290, 459 A.2d 1333 (1983), affirmed, 504 Pa. 580, 475 A.2d 1318 (1984). The District argues that the Taxpayer’s business is not manufacturing, because the Taxpayer’s process of printing on ready-to-wear clothing does not create a substantially different product. In other words, Taxpayer starts with a T-shirt or sweatshirt and, after it is printed, the product remains a T-shirt or sweatshirt. On the other hand, Taxpayer argues that its printing process is analogous to the production of a newspaper, an activity that has been held to constitute manufacturing. City of Pittsburgh v. Pittsburgh Press Co., 14 Pa.Commonwealth Ct. 551, 322 A.2d 390 (1974). Taxpayer asserts that it uses the same printing techniques and technology as a newspaper. We agree with the District’s argument and reject the Taxpayer’s argument that its business is analogous to printing a newspaper. The instant case is similar to Kimberton Co. v. Commonwealth, 520 Pa. 238, 553 A.2d 934 (1989), which involved the manufacturing exemption from the Capital Stock Tax, Section 602(A) of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7602(a). In Kimberton, the taxpayer was engaged in the business of producing and selling custom embroidery on sport shirts and other sportswear items. Kimber-ton’s business involved receiving orders from customers, like country clubs, for insignia designs and, using embroidery machines, stitching the insignia on the clothing. The company sought an exemption from the capital stock tax alleging that its embroidery constituted manufacturing. The Board of Finance and Revenue denied Kimberton an exemption from the tax and that decision was affirmed by this Court. Kimberton appealed to our Supreme Court, which affirmed this Court’s judgment. The Supreme Court recognized that manufacturing requires more than a superficial change in the original material and that a mere cosmetic change in the material is not manufacturing. The court reasoned as follows: Fundamentally, the change which Kimber-ton makes to its clothing is cosmetic and it is not, therefore, “substantial” within the requirements of the capital stock tax. Were ive to hold otherwise, any industry which effects an aesthetic change, such as adding a coat of paint to a ready made article, would qualify as a manufacturer. Kimberton, 520 Pa. at 242-43, 553 A.2d at 936 (emphasis added). In our view, Taxpayer, like the business in Kimberton, is simply making a superficial, cosmetic change to an item of clothing. Taxpayer starts with a T-shirt or other type of ready made clothing and, after printing a design on the item, ends up with the same article of clothing. The clothing has an altered appearance, but there is no change at all in the use; the T-shirts or sweatshirts are worn in the same manner and provide the same protection from the elements. Hence, after Taxpayer engages in its printing process, there is no substantial transformation in form, qualities, or use from the original, unprinted garment. Furthermore, in our view, Taxpayer’s business is distinguishable from the printing of a newspaper. While Taxpayer and a newspaper may use similar printing techniques and technology, the end products are dramatically different. When a newspaper is printed, paper and ink are radically transformed into a device for the communication and storage of information, opinions, and advertising. The consumer who purchases a newspaper is not merely buying paper and ink, but is purchasing a product that will provide him or her with access to information. Taxpayer’s printing process on the other hand, simply converts an undecorated garment into a decorated garment, without any change in use at all. Therefore, following Kimberton, we hold that Taxpayer’s business does not involve manufacturing and that it is not entitled to an exemption from the District’s mercantile tax. Accordingly, the order of the trial court is reversed. ORDER NOW, June 27, 1995, the order of the Court of Common Pleas of Fayette County in the above-captioned matter is hereby reversed. . Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §§ 6901-6924.

DELLA PORTA, Senior Judge. Norristown Fraternal Order of Police, Lodge 31, by Charles Santangelo, Trustee Ad Litem and John Murray (FOP), appeal from the order of the Court of Common Pleas of Montgomery Comity, which denied FOP’s petition for review and affirmed the appointment of Thomas W. Stone (Stone) as Chief of Police for the Borough of Norris-town (Borough). We affirm. On November 10, 1993, then-Mayor William DeAngelis notified the Borough Civil Service Commission (Commission) that he had appointed Stone as Chief of Police, effective November 29, 1993. Stone had been the Director of Public Safety for the Borough beginning on November 4, 1991, after the Borough had conducted a nationwide search to fill the position. He had previously served as Chief of Police in Manassas Park and Bristol, Virginia, and Director of Public Safety for Dade County, Miami, Florida. Mayor DeAngelis requested that the Commission administer an oral, noncompetitive examination to Stone, pursuant to Section 306 of the Rules and Regulations of the Norristown Civil Service Commission (Civil Service Rules and Regulations). The Commission did so by retaining Ronald Smeal, president of the Pennsylvania Chiefs of Police Association, to administer the examination. The examination was administered to Stone on December 8, 1993, and the results were received by the Commission on December 17, 1993. The Commission found Stone to be qualified for the position of Chief of Police, certified him, and reported this to the Borough Council. The Borough Council then approved the appointment, and Stone was sworn in on December 22, 1993. Stone had also executed an employment agreement with the Borough, which was approved by the Borough Council at a special meeting on December 10, 1993. On January 18, 1994, the new Borough Council reaffirmed Stone’s appointment and the Employment Agreement. On December 30, 1993, FOP filed a petition for review and declaratory judgment seeking to have Stone’s appointment set aside as unlawful and to have the office of Chief of Police declared vacant. FOP subsequently filed an application for preliminary injunction on January 5, 1994, seeking to prevent Stone from executing the functions of Chief of Police and seeking to have the office declared vacant until a full hearing could be held on the merits. On January 21, 1994, the trial court denied FOP’s request for a preliminary injunction. After a hearing on the merits, the court denied the petition for review on the grounds that the alleged procedural irregularities in the make-up of the Commission were not significant enough to void what was essentially a ministerial act in appointing Stone as Chief of Police. FOP has now appealed to this Court, continuing to seek Stone’s removal from the position of Chief of Police. FOP has raised two issues for our review: (1) whether Stone’s appointment was unlawful under the civil service provisions of The Borough Code, the Norristown Home Rule Charter, and the Civil Service Rules and Regulations; and (2) whether the contract for employment between Stone and the Borough was unlawful as outside the scope of the Council’s legislative authority and for failing to comply with all applicable civil seiviee statutes, ordinances, rules and regulations. FOP claims, initially, that Stone’s appointment was unlawful due to a December 29, 1993 order of the trial court (1993 Order) which declared null and void the 1992 Civil Service Rules and Regulations and Borough Ordinance 90-11, which would have increased the Commission from three to five members. It argues that if the 1993 Order invalidates the Rules ab initio, then despite requirements in The Borough Code and the Norris-town Home Rule Charter that the Commission be guided by rules and regulations, there were no rules and regulations in this case. We do not agree. Section 4-64B of the Norristown Administrative Code (Administrative Code) provides: (1) Except for the position of Chief of Police, all appointments to and promotions for the Police Department shall be made in accordance with borough ordinances and the rules and regulations of the Borough Civil Service Commission. (2) When there is a vacancy in the office of the Chief of Police, the Mayor shall have the authority to appoint a duly qualified person to the position of Chief of Police, subject to confirmation by the Civil Service Commission that such person is duly qualified for the position of Chief of Police. (Emphasis supplied.) Under this provision, only positions other than Chief of Police are dependent upon and subject to the Civil Service Rules and Regulations. Stone’s appointment as Chief of Police was authorized and governed by Section 4-64B(2) which makes no mention of the Rules and Regulations. Moreover, Section 1184 of The Borough Code, 53 P.S. § 46184, provides for the appointment of the Chief of Police without regard to Civil Service Rules and Regulations, as follows, in pertinent part: (c) In the case of a vacancy in the office of chief of police or chief of the fire department, or equivalent office, the appointive power may nominate a person to the commission. It shall thereupon become the duty of the commission to subject such person to a non-competitive examination, and if such person shall be certified by the commission as qualified, he may then be appointed to such position. Clearly, Mayor DeAngelis had the statutory authority, independent of the Civil Service Rules and Regulations, to appoint Stone to the position of the Chief of Police. Accordingly, the 1993 Order is irrelevant to our ruling on the validity of the appointment, which will be dealt with below. FOP also argues that regardless of the 1993 Order, Stone’s appointment was unlawful for failure to strictly comply with the Civil Service Rules and Regulations. Specifically, it argues that the Borough failed to comply with the following provisions: 305. Qualifications—Positions above entry-level. In addition to the qualifications described in 303, an applicant seeking promotion shall: (a) have been continuously employed as a Norristown Police Officer or Firefighter for at least four (4) years prior to last date for filing an application. 607. Examination for Chief of Police. The examination for Chief of Police shall be governed by 305. FOP contends that Stone does not qualify for the position of Chief of Police because he does not meet the four-year service requirement contained in Section 305(a). We agree with the trial court, however, that FOP’s contention is inappropriate because the four-year service requirement does not apply to the position of the Chief of Police. (See trial court opinion at 5.) Section 305 pertains to applicants seeking promotion, which is defined in Section 102 of the Civil Service Rules and Regulations as “the appointment of an officer to a higher rank.” In this case, Stone was not being promoted to the position of Chief of Police from within the ranks of the police department. He was already the Borough’s Director of Public Safety. His appointment was governed by Section 306 of the Civil Service Rules and Regulations, which provides: Qualifications — Chief of Police Applicants for the position of Chief of Police shall have served in a high level position of command responsibility in a police agency for at least ten (10) years and have extensive knowledge of the principles and practices of modern police administration and police methods. Whenever a vacancy occurs in the position of Chief of Police, the Mayor may nominate a duly qualified person to the Commission. The Commission shall then give the nominee an oral, non-competitive examination and if such person is certified by the Commission as qualified, the nominee may then be appointed. It is clear that Section 306 pertains specifically to the position of Chief of Police and its requirements are in fact much more stringent than the four-year service requirement in Section 305. The record demonstrates that Stone met the minimum qualifications required by Section 306 in terms of his professional experience, and that he passed a four hour non-competitive examination and was certified by the Commission as qualified. In seeking to have Stone’s appointment declared unlawful, FOP also claims that the Commission which passed upon his qualification was unlawfully constituted such that any action it took was invalid. Specifically, it contends that the Commission was appointed by resolution, rather than by ordinance, and that the appointment took place at a special meeting, which was not properly advertised under the Administrative Code. Without addressing the specific allegations, the trial court found that the alleged irregularities were “completely procedural in nature,” and not fatal to Stone’s appointment. (See trial court opinion at 7.) Although we agree with the trial court’s decision that the Commission’s role in Stone’s appointment was ministerial and peripheral, we will address the alleged defects in its make-up. Section 512A of the Norristown Home Rule Charter provides that Borough Council shall, inter alia, create commissions. FOP contends that this must be accomplished by an amendment to the Administrative Code, which requires passage of an ordinance. (See Section 401 and 410 of the Norristown Home Rule Charter.) In this case, the commissioners comprising the Commission who acted on Stone’s appointment were appointed by resolution. We conclude that this was proper and does not invalidate the appointment. The Commission had already been “created” at the time the new commissioners were appointed. Section 1172 of The Borough Code, 53 P.S. § 46172, creates a three-member Civil Sendee Commission in each borough. All that the Mayor and Council did during the time period in question was to appoint new members. The Administrative Code does not require an ordinance to appoint members. The Mayor and Council followed the procedure delineated in Section 512B of the Administrative Code, which provides only that the Mayor shall appoint Commission members by affirmative vote of at least four Borough Council members. Lastly, FOP contends that it was unlawful for the three new commissioners to have been appointed at a special meeting of Borough Council. The stated purpose of the December 10, 1993 meeting, contained in the notice, was to act on a resolution regarding the appointment of the Chief of Police, and “such other business as may come before the meeting.” (Notes of Testimony at 101-102.) FOP claims that this violates the notice requirements for special meetings in the Administrative Code, which provides that notice shall specify the business to be transacted and that “[n]o other business shall be considered at such meeting by the Council.” (Section 4-8C of the Administrative Code.) The Administrative Code also provides, however, that the published agenda may be amended at any meeting by a majority of Council members present. (Section 4-8H(4) of the Administrative Code.) In this case, the minutes of the December 10,1993 special meeting indicate that the agenda was amended to add the appointment of the new Commission members. (R.R. at 341a.) Accordingly, we conclude that the Commission that acted on Stone’s appointment was not unlawfully constituted so as to invalidate its actions. The final issue raised by FOP concerns the validity of the Employment Agreement entered into by Stone and the Borough. Generally, it argues that the Borough used the Agreement to give Stone civil service status, without satisfying the procedural dictates of the Civil Service Rules and Regulations. FOP claims that the use of the Agreement circumvents and undermines the civil service process. We do not agree with FOP’s arguments. First of all, although the Employment Agreement was signed on December 10, 1993, before Stone was certified for the position of Chief of Police by the Commission, the Borough Council cured any defect by reaffirming the Agreement twice, after the Commission acted on his appointment. (See Borough Council Resolution 93-163, dated December 17, 1993, and Resolution 94-105, dated January 18, 1994; R.R. at 347a-348a and 351a.) The Borough Council’s actions in reapproving the Agreement, after the change in administration, corrected any procedural deficiency in the timing of Stone’s contract, and prevents any claim that the Agreement was invalid as a “lame duck” contract. See, e.g., Falls Township v. McManamon, 113 Pa.Commonwealth Ct. 504, 537 A.2d 946 (1988). Secondly, we are satisfied that the Employment Agreement does not violate the Civil Service Rules and Regulations or The Borough Code. As previously discussed, the Mayor appointed Stone in compliance with the Administrative Code and the Civil Service Rules and Regulations. Contrary to FOP’s assertions, an Employment Agreement signed by Borough Council does not undermine the Mayor’s appointive power or the authority, granted by The Borough Code, “to have full charge and control of the chief of police.” (Section 1121 of The Borough Code, 53 P.S. § 46121.) The Borough Code gives Borough Council the discretion to approve contracts for personal services, such as Stone’s Employment Agreement. (Section 1402 of The Borough Code, 53 P.S. § 46402.) Finally, we reject FOP’s argument that the discharge procedures contained in the Employment Agreement circumvent the civil service process. The Borough Code permits Borough Council to dismiss a chief of police regardless of civil service protection (Section 1121 of The Borough Code, 53 P.S. § 46121) and would not preclude the discharge procedures afforded Stone, including the right to a Council hearing. Accordingly, we conclude that the Employment Agreement between Stone and the Borough Council is valid. ORDER AND NOW, this 23rd day of June, 1995, the order of the Court of Common Pleas of Montgomery County is affirmed. . Mayor DeAngelis lost a re-election bid in November 1993, and would be replaced as of January 1994. . FOP filed an amended petition on February 9, 1994 and the hearing was held on February 10, 1994. . Our scope of review of a trial court decision is limited to determining whether the trial court abused its discretion, committed an error of law, or whether its decision is supported by substantial evidence. Retenauer v. Flaherty, 164 Pa.Commonwealth Ct. 182, 642 A.2d 587 (1994). . Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§ 45101-48501. . The validity of the regulations and the ordinance was the subject of a prior appeal to this Court. See Norristown Fraternal Order of Police v. DeAngelis, 148 Pa.Commonwealth Ct. 285, 611 A.2d 322 (1992). This decision resulted in a remand to the Commission, another appeal to the trial court and the December 29, 1993 order. . In the appointment of Stone as Chief of Police, the only role of the Commission was to administer the examination and to certify him as qualified. The Commission is much more involved in the appointment of other positions within the police department. Under Section 1184(a) of The Borough Code, 53 P.S. § 46184(a), every position other than the chief must be filled by the Commission preparing a certification of a list of eligibles and then, after the council makes an appointment from the list, ruling on any objections to that candidate. . The trial court did not reach the merits of this issue, concluding that because there was no actual controversy concerning the contract between the parties, declaratory judgment was inappropriate.

Opinion by Mr. Justice Dean, The plaintiff is clerk of the courts of • Oyer and Terminer .and Quarter Sessions of Allegheny county, and, as á county officer, claimed he was entitled to be paid under the act of 1876 and its supplements, an annual salary of $5,000. The defend •ant demurred to the claim on the ground that plaintiff’s compensation was fixed by the act of April 6, 1871, at $3,000, and he could lawfully claim compensation only under that act. His claim covered salary for the seven months ending July 31, 1891, during which time the fees earned and received by the county amounted in gross to $20,036.84. After deducting amounts payable to his deputies, there was a balance in favor of the county of $5,171.24. His claim for the seven months, was $2,916.66|. In addition to the $3,000 salary allowed by the act of 1871, the act of April 4, 1872, allowed the clerk of quarter sessions •certain fees. The learned judge of the court below, being of opinion that this ease was .ruied by Bell v. The County of Allegheny, 149 Pa. 381, sustained the demurrer, and gave judgment for defendant. We think this case is not ruled- by that, as appears by our opinion in McCleary v. this same defendant herewith filed. [The second case above.] If the office of clerk of the courts had been compensated wholly by a salary, the judgment in this case would' have been right; but as a considerable part of the compensation is made up of fees, Bell v. Allegheny ■County is not authority. Therefore the judgment sustaining the demurrer is reversed at costs of appellee, and judgment is’entered for plaintiff.

SMITH, Judge. Carolyn V. Croft, Evelyn G. Fleming, Mary E. Gamble, Carl E. Helman, Jr., Christopher P. Maghee, Joseph B. Moyer, Vernel-da M. Timmons, Louise B. Steadman, and Joan B. Gipe (collectively Claimants) petition for review of the orders of the Unemployment Compensation Board of Review (Board) that affirmed the referee’s denial of benefits pursuant to Section 402.1(2) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802.1(2). The issues raised for review are whether the Board erred in concluding that Claimants are ineligible for benefits where the weeks at issue occurred between two successive academic years and Claimants had received reasonable assurance that they would perform their services in the second of the academic years; and whether the Board erred in refusing to consider documents attached to Claimants’ briefs to the Board submitted after the close of the records. In addition, this Court must consider a motion by the Board to quash Claimants’ petition for review. I. Eight of the nine Claimants have been employed as houseparents by the Scotland School for Veterans’ Children (Employer), and Maghee has been a dormitory counsellor there, for periods ranging from approximately nine to nineteen years. Employer is a residential elementary and secondary educational facility for children of Pennsylvania war veterans. Employer’s academic year begins in mid-to-late August and continues until early to mid-June, providing a minimum of 180 days of education to its students as required of all public schools in Pennsylvania. Employer provides a residence for its students during the academic year and, for some students, for a few days before and after the academic year. As houseparents, Claimants provide home life services to the students when they are on campus. Maghee, as dormitory counsellor, provides guidance and supervision to the students. All Claimants are directly involved in the care and guidance of the students. Beginning with the summer of 1991, none of the Claimants worked as a year-round employee because no work was available to houseparents during the period between academic years. In 1993, Employer determined that it did not have funds in its anticipated budget for a 1993 summer program, and, by letters dated May 24, 1993, Employer informed Claimants that June 11, 1993 would be the last day of available work for the 1992-93 academic year. The letters also advised Claimants that their respective positions would be available to them at the beginning of the 1993-94 academic year, projected to commence on August 24, 1993. Claimants filed for unemployment compensation benefits which were denied by the Cumberland Valley Job Center and by the referee pursuant to Section 402.1(2) of the Law. On appeal, the Board issued orders for remand hearings; following those hearings eight of the Claimants submitted briefs to the Board. Attached to the Claimants’ briefs were several documents regarding the availability of funding for summer programs, that Claimants asserted were entered into evidence at the remand hearing for Timmons held March 21, 1994. The Board subsequently affirmed the referee and denied benefits pursuant to Section 402.1(2) of the Law, which provides: With respect to services performed after October 31, 1983, in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms. In nine separate opinions, the Board concluded that because the weeks at issue occurred in a period between two successive academic years, and Claimants received reasonable assurance that they would perform such services in the second of the academic years, they were ineligible for benefits. The Board also stated that because Claimants submitted briefs with several documents attached that had not been admitted into the record at the hearings, the Board would not consider such evidence submitted after the close of the records, although the Board did not include this statement in its opinions for Timmons and Gipe. Claimants petitioned to this Court and the Board filed its motion to quash Claimants’ petition. II. A. At the outset, this Court must address the Board’s motion to quash Claimants’ petition for review where such petition constitutes a single appeal from nine separate orders of the Board. The taking of one appeal from several judgments is not acceptable practice and is discouraged. General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970). While Pennsylvania courts have disapproved of the taking of one appeal from multiple orders, the courts have nevertheless been reluctant to quash such appeals. Van Duser v. Unemployment Compensation Board of Review, 164 Pa.Commonwealth Ct. 96, 642 A.2d 544 (1994). See also M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review, 145 Pa.Commonwealth Ct. 329, 603 A.2d 271 (1992) (employer filed a single petition for review involving nine orders entered by the Board disposing of nine related claims by employees held eligible for benefits where evidence showed they did not participate in work stoppage). Courts have allowed one appeal from multiple orders to be considered on the merits where the circumstances lead the reviewing court to the conclusion that the merits should be reached. General Electric Credit Corp.; Luzzi v. State Horse Racing Commission, 120 Pa.Commonwealth Ct. 215, 548 A.2d 659 (1988); see also McGuill v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 222, 523 A.2d 1194 (1987). An appellate court maintains the discretion to refrain from quashing a single appeal from several final orders. Miller v. Keystone Ins. Co., 402 Pa.Superior Ct. 213, 586 A.2d 936 (1991), reversed on other grounds, 535 Pa. 531, 636 A.2d 1109, cert. denied, — U.S. —, 115 S.Ct. 202, 130 L.Ed.2d 132 (1994). Among the factors this Court may consider when refusing to quash a single appeal from multiple final orders is whether such course would serve the interests of judicial economy. Turtzer v. Unemployment Compensation Board of Review, 111 Pa.Commonwealth Ct. 549, 534 A.2d 848 (1987). The Board contends that this Court must quash Claimants’ petition for review because of what the Board refers to as “a three-part conjunctive test” provided in General Electric Credit Corp. and that allowing a joint appeal from multiple orders would amount to an amendment to Pa.R.A.P. 512 governing the filing of joint appeals. A full reading of General Electric Credit Corp. demonstrates that a variety of circumstances may be considered, and no one factor is necessarily dispositive. Moreover, the failure to consolidate proceedings below and to identify one person as representative Claimant does not preclude this Court’s acceptance of the single appeal under the circumstances of this case. In the present matter, the factual scenario presented is virtually identical for each Claimant. Moreover, the Board’s nine opinions are identical save for the minor differences noted above. The issues raised as to all orders are precisely the same. In addition, if the appeal were quashed, the statutory period allowed for appeal would have already expired, precluding the institution of proper appeals. Therefore, in the exercise of this Court’s discretion and in the interest of judicial economy, the Board’s motion to quash is denied. Nevertheless, the practice of filing one appeal from multiple orders is strongly disapproved and in the future, the Court will quash single appeals from multiple orders unless otherwise dictated by compelling circumstances. B. Claimants argue that the Board was required to consider the documents attached to their briefs on appeal to the Board after the close of the records. A review of the records reveals that these exhibits were introduced into evidence only at the March 21, 1994 hearing regarding Timmons’ claim. The Board may not consider post-hearing factual communications in its determination, as the Board is restricted to the facts and the law pertinent to the issues involved on the basis of evidence previously submitted. Perrelli v. Unemployment Compensation Board of Review, 57 Pa.Commonwealth Ct. 605, 426 A.2d 1272 (1981). Because the proffered documents were never entered into the record in eight of the nine cases, the Board was justified in refusing to consider them for those eight cases. This Court may not consider auxiliary information appended to a brief that is not part of the certified record on appeal, McKenna v. Pennsylvania State Horse Racing Commission, 83 Pa.Commonwealth Ct. 116, 476 A.2d 505 (1984), and the documents in question accordingly will not be considered except in the instance of Timmons. To that limited extent, Timmons’ Exhibits 1 and 2 nevertheless fail to support Claimants’ argument that the Board erred in denying benefits on the basis of Section 402.1(2) of the Law. Claimants argue, in essence, that because funding was available for some summer programs, work should have been available and they should therefore be considered year-round employees eligible for benefits. Claimants contend that Department of Education, Scotland School for Veterans’ Children v. Unemployment Compensation Board of Review, 134 Pa.Commonwealth Ct. 80, 578 A.2d 78 (1990), is dispositive. In Scotland School, a claimant employed as a houseparent at a residential school sought unemployment compensation benefits for the summer weeks in which she did not work. The Board granted benefits, determining that the claimant was not an employee of the academic year but was instead a year-round employee. This Court agreed because, in addition to her full-time houseparent services during the regular school year, claimant was scheduled as much as possible during the summer session and continued her duties for those students who resided at school year-round. The Court held that evidence of such regular summer scheduling supported the finding that she was a year-round employee. The instant matter is distinguishable from Scotland School in that Claimants were not scheduled for the 1993 summer session and, indeed, had not been scheduled for the summer session for the prior two years. As suggested by the Board, the present matter is similar to that presented in DeLuca v. Unemployment Compensation Board of Review, 74 Pa.Commonwealth Ct. 80, 459 A.2d 62 (1983), in which this Court affirmed the Board’s denial of benefits. In that case, a teacher had been traditionally proffered employment contracts that covered the regular school year and the summer session. In 1980, budget constraints forced cutbacks in the summer program, and the teacher was not offered a summer position but was offered a new contract beginning in the fall. The Court specifically rejected the claimant’s contention that the Board must look to the actual reason for a claimant’s unemployment and whether claimant desired to work and held that such matters are beyond the scope of the Board’s consideration. Similarly, because budget constraints sub judice forced Employer here to cut back its summer program, the Board appropriately recognized that such factors should not be considered. Moreover, the legislature saw fit to disqualify school employees from receiving benefits during summer and other term breaks. Scotland School. It is well settled that teachers and other school employees not working during term breaks who can reasonably expect to return are not entitled to unemployment compensation benefits. DeLuca. Accordingly, the nine orders issued by the Board regarding the respective Claimants are hereby affirmed. ORDER AND NOW, this 6th day of July, 1995, the orders of the Unemployment Compensation Board of Review are hereby affirmed, and the motion to quash filed by the Board is denied. . Each letter also contained an acceptance of assurance form and instructed each Claimant to return the form if he or she intended to return to work on August 24, 1993, Five of the Claimants signed and returned the form, but four did not. . This Court's scope of review in unemployment compensation cases is to determine whether the findings of fact arc supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. E.B.S. v. Unemployment Compensation Board of Review, 150 Pa.Commonwealth Ct. 10, 614 A.2d 332 (1992). . The Board further contends in its brief on the merits that Claimants' appeal should be quashed because of procedural deficiencies in Claimants’ brief on the merits, which include lack of an argument section (Claimants have apparently mislabeled their argument as "summary of the argument”); failure to make sufficient reference to the record; failure to state the precise relief sought; and failure to list page numbers in the table of contents and table of citations. Although Claimants’ brief is not in full compliance with the Pennsylvania Rules of Appellate Procedure, its defects are not so substantial so as to preclude meaningful appellate review. See Borough of Riegelsville v. Miller, 162 Pa.Commonwealth Ct. 654, 639 A.2d 1258, appeal denied, 538 Pa. 675, 649 A.2d 676 (1994); Hartman v. Workmen's Compensation Appeal Board (Moyer Packing Co.), 161 Pa.Commonwealth Ct. 255, 636 A.2d 1245 (1994).

Per Curiam, This petition for a rule on defendants to show cause why a writ of alternative mandamus should not issue against them as prayed for, etc., was presented, considered and denied at our last s.ession in the Eastern District. It appears that the transfer of the license in questio'n was refused bjr the defendants in their official capacity, for the following among other reasons, viz: that “ the various acts of assembly, relating to liquor licenses, do not authorize' the transfer of such licenses from one place to another, and that no dis: cretion is vested in the court to allow or make such transfers.” These reasons are both satisfactory and conclusive. The jurisdiction vested in the judges of the quarter sessions to grant liquor licenses and, in certain circumstances, to authorize the licensee to transfer his license to his successor in the business, etc., is purely statutory. There ’appears to be nothing in the law. however that authorizes them to sanction the transfer of licenses from one locality to another. It therefore follows that in refusing to authorize the transfer of plaintiffs’ license, as prayed for, the defendants acted strictly within the line of official duty, and there is nothing on which to sustain this proceeding. Rule denied and petition dismissed with costs to be paid by the- plaintiffs.

CIRILLO, Judge: Bernard Hiles, as personal representative and administrator of the estate of his wife, Connie Hiles, appeals from the judgment entered in the Court of Common Pleas of Chester County. We affirm. Hiles filed two separate wrongful death and survival actions, which were consolidated, seeking to recover damages for the death of his wife in an automobile crash involving William J. Diviney, an intoxicated driver who fell asleep at the wheel and struck the vehicle operated by Connie Hiles. Hiles instituted the actions against Diviney and Appellee, The Brandywine Club, an after hours drinking establishment at which Diviney consumed several bottles of beer prior to the accident. A jury trial ensued, and the following evidence was revealed. Diviney arrived at Pulsations, a night club, at approximately 11:00 p.m. on November 29, 1985, the evening before the accident. While there, Diviney drank a gin and tonic and one or two bottles of beer. Diviney left Pulsations at about 12:45 a.m. and went to The Brandywine Club (Brandywine). By virtue of its club/catering license, Brandywine was permitted to remain open and serve food for as many hours as it saw fit; however, it was only permitted to serve alcohol until 3:00 a.m. See 47 P.S. §§ 4^106 & 4-493(16). The club manager, James Montisano, testified that he often stayed open past 3:00 a.m. and, when a band had been hired to play at the club, frequently served alcohol after 3:00 a.m. Diviney arrived at Brandywine at approximately 1:00 a.m. and was served alcohol until approximately 4:00 a.m. While at Brandy-wine, Diviney consumed from five to seven bottles of beer. Diviney was unable to recall exhibiting signs of visible intoxication, nor did Hiles introduce any eyewitness testimony indicating that Diviney was visibly intoxicated. Diviney left Brandywine, stopped for breakfast, and drove toward his home in Toughkenamon, Pennsylvania. The accident occurred at approximately 6:30 a.m. on November 30, 1985, when Diviney’s vehicle crossed the center line and struck Connie Hiles’ vehicle head-on. Diviney subsequently pled guilty to driving under the influence of alcohol and homicide by vehicle. Following trial, the jury rendered a verdict finding Diviney 100% liable and awarded Hi-les $925,000.00 ($338,000.00 for the wrongful death claim and $587,000.00 for the survival claim). The jury determined that Brandy-wine was not liable because Hiles failed to prove that Diviney was visibly intoxicated when he was served there. Judgment was entered solely against Divi-ney. Hiles filed post-trial motions asserting that the jury should have been instructed that if Brandywine served liquor after the hours permitted by its license, such conduct was negligence per se in violation of the Liquor Code, 47 P.S. § 4-493(16). Hiles also averred that the trial court erred in instructing the jury that, pursuant to section 4-497 of the Liquor Code, Brandywine was liable to third persons injured by a Brandywine customer only when Brandywine serves liquor to a visibly intoxicated customer. Post-trial motions were denied, and this appeal followed. Hiles raises the following issues for our consideration: (1) Whether when Hiles established at trial that Brandywine, by its illegal “after-hours” service of alcohol violated 47 P.S. § 4-493(16), and was guilty of negligence per se, and when Hiles further established to the satisfaction of the jury that such violation was a proximate cause of Diviney’s intoxication, which was also a proximate cause of the accident, is Brandywine then precluded by its own legal conduct from asserting an immunity under 47 P.S. § 4-497? (2) Whether the trial court erred when it erroneously instructed the jury concerning Hiles’ burden of proof on the issue of “visibly intoxicated?” Initially, we set forth the following pertinent provisions of the Liquor Code: § 4-493 Unlawful Act relative to liquor, malt and brewed beverages It shall be unlawful— (1) For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated.... (16) For any licensee, his servants, agents or employes, to give, furnish, trade, barter, serve or deliver any liquor or malt or brewed beverages to any person during hours or on days when the licensee is prohibited by this act from selling liquor or malt or brewed beverages. § 4-497 Liability of licensee No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employee when the said customer was visibly intoxicated. 47 P.S. §§ 4-493(1), (16) & 4-497 (emphasis added). By way of history, our modern Liquor Code (47 P.S. §§ 1-101 — 9-902), enacted in 1951, replaced the Act of May 8, 1854, which made it a misdemeanor to furnish intoxicating drinks to an intoxicated person, and also provided a civil remedy for injuries to persons resulting from the furnishing of alcoholic beverages in violation of “any existing law.” See Act of May 8, 1854, P.L. 663, No. 648, §§ 1 & 3. The Liquor Code, while incorporating the misdemeanor provision of the former Act, did not adopt the civil liability provision. Nonetheless, in Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958), seven years after the enactment of the Liquor Code, this court imposed civil liability on a licensee for a violation of section 4-493(1) of the Liquor Code. See 47 P.S. 4-493(1), supra. There, a visibly intoxicated bar patron became an annoyance to the other customers in the bar. Eventually, he got into an argument with one of the customers, who eventually struck the visibly intoxicated patron from behind, injuring him. The plaintiff based his theory of liability on the fact that the bartender seived him alcoholic beverages while he was visibly intoxicated in violation of section 4-493(1) of the Liquor Code. Although the civil liability provision of the 1954 Act had been repealed, this court held that “[w]hen an act embodying in express terms a principle of law is repealed by the legislature, then the principle of law as it existed at common law is still in force.” Id. at 346, 146 A.2d at 651. The court applied the Restatement of the Law of Torts § 286 (Violations Creating Civil Liability), and allowed plaintiff recovery under a common law theory. Negligence was established by the violation of section 4-493(1) and, since the jury determined that the negligence was the proximate cause of the plaintiffs injury, liability was imposed on the licensee. The evolution of licensee liability continued with the addition of 47 P.S. § 4-497 in 1965 (reenacted in 1987), which specifically limits the liability of licensees to third parties injured by a licensee’s customer. See 47 P.S. § 4-497, supra. With the exception of cases involving minors, discussed infra, section 4-497 shields liquor licensees from liability to third persons, unless the customer invoking the injury exhibits signs of visible intoxication at the time he/she is served. Since enactment of the Liquor Code, both section 4-493(1) and section 4-497 have been used to impose (or limit) civil liability on licensees. See Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965) (a violation of section 4-493(1) is negligence per se and, where the violation is a proximate cause of plaintiffs injury, defendant licensee is liable for such injury); Conner v. Duffy, 438 Pa.Super. 277, 652 A.2d 372 (1994) (in order for an injured plaintiff to recover for a violation of section 4-493(1), he must prove that (1) the tortfeasor was seived alcoholic beverages while visibly intoxicated and (2) this violation proximately caused his injuries); Johnson v. Harris, 419 Pa.Super. 541, 615 A.2d 771 (1992) (same, citing both 4-493 and 4-497); McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296 (1989) (same); Peluso v. Walter, 334 Pa.Super. 609, 483 A.2d 905 (1984) (in order to sustain an action against a tavern owner, plaintiff must demonstrate that the owners served liquor to a customer when he was visibly intoxicated pursuant to section 4-497 of the Liquor Code); Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (a violation of section 4-493(1) is negligence per se and, where the violation is a proximate cause of plaintiffs injury, defendant licensee is liable for such injury). It stands to reason that the dispenser of alcoholic beverages shall not provide more alcohol when the signs of intoxication become visible; this law’s practical effect is to insist that the licensee be governed by appearances, as opposed to medical diagnoses. Johnson, 419 Pa.Super. at 551, 615 A.2d at 776; McDonald, 388 Pa.Super. at 127, 564 A.2d at 1298. The legislature, in imposing this restriction, undoubtedly sought to hold licensees liable only where a customer’s actions predictably contributed to the plaintiffs injuries. Since its enactment, section 4^493(1), one of twenty-eight unlawful acts enumerated in section 4-493 of the Liquor Code, is the only enumerated unlawful act which has been used as a basis for imposing liability on licensees for injury to a licensee’s customer or to a third person, and then only when the violation is a proximate cause of the injuries. The Liquor Code provides its own sanctions for violations of the enumerated unlawful acts included in section 4-493. See 47 P.S. §§ 4-471 & 4-494 (Penalties). Included in this itemization of unlawful acts is section 4-493(16) (furnishing liquor at unlawful hours). See 4-493(16), supra. While violators of section 4-493(16) have received penalties pursuant to sections 4-471 and 4-493 (i.e., fines), we know of no Pennsylvania authority which imposes liability on a licensee for a violation of section 4-493(16). Keeping in mind the development of the Liquor Code and ensuing case law, we turn to the facts of the instant case. A review of the record reveals nothing to indicate that Diviney was served while visibly intoxicated during his hours at Brandywine. Diviney’s own testimony was that he could not recall exhibiting signs of visible intoxication, nor did Hiles introduce any eyewitness testimony indicating that Diviney was visibly intoxicated. The jury, therefore, had every reason to conclude that Brandywine did not serve Diviney when he was visibly intoxicated. Without the evidence of visible intoxication, a licensee (Brandywine) cannot be found hable for damages to a third party (Connie Hiles) by a customer (Diviney). 45 P.S. § 4-497. Hiles maintains that Brandywine’s service of liquor beyond its 3:00 a.m. deadline on the morning of the accident constituted negligence per se pursuant to section 4-493(16) and that this violation, if a proximate cause of his intoxication and the accident, would preclude Brandywine from asserting the immunity granted by section 4-497. It follows, Hiles asserts, that the trial court erred by not instructing the jury on this point. The trial court agreed only in part, and stated in its opinion that while it may have been error to fail to instruct that section 4-493(16) is negligence per se, the error was harmless, as Brandywine could not have been held liable unless it served Diviney while he was visibly intoxicated pursuant to section 4-497. We agree that with no evidence to indicate visible intoxication, Brandy-wine cannot be held liable under the statute; therefore, the trial court did not err in instructing the jury. While it is unlawful for a licensee to serve liquor at times not provided for by its license, and penalties may be assessed against a licensee who does so, this type of violation, standing alone, cannot result in a licensee’s liability for damages by a customer to a third party. The Liquor Code simply does not provide for such a result. Hiles clings to the fact that section 4-493(1), an enumerated unlawful act found in the same section as 4-493(16), has been cited as the basis for licensee liability where the violation of such is found to be the proximate cause of a plaintiffs injury. The same should hold true, Hiles argues, for section 4-493(16). We disagree. Section 4^93(1) and the case law arising from this section was undoubtedly the impetus for the legislature’s subsequent addition of the specific, third-party liability statute, section 4-497. We decline Hiles’ invitation to utilize the unlawful act of “service after hours” as another avenue by which to impose liability on licensees. Section 4-497 is clear; imposing liability on licensees for third party injuries is governed by the specific provisions of 4-497. We need not look elsewhere in disposing of the third-party liability issue instantly before us. Thus, even if we were to assume, arguen-do, that Hiles’ contention and the trial court’s suggestion that a violation of section 4-493(16) is negligence per se, there is no support for Hiles’ proposed jury instruction, ie., that serving alcohol beyond the hours permitted by a license, where such violation was the proximate cause of an injury, would result in liability to a licensee, were a licensee’s customer to injure a third party. Visible intoxication must be proven under section 4-497 as a prerequisite to imposing any liability upon a licensee. See Majors, supra; Johnson, supra; McDonald, supra. Unless or until the legislature provides otherwise, we will not adopt Hiles’ interpretation of the law in question. Hiles argues that Brandywine cannot assert section 4-497 immunity pursuant to Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987). We find Matthews distinguishable from the case at hand. In Matthews, the Court held that statutory immunity from a third party lawsuit against licensees, where the party served was not visibly intoxicated, did not insulate the sellers, as licensees, from liability based on service to minors. The Court reasoned that minors do not have the legal capacity to purchase alcohol. It stated, “We simply cannot accept the contention that the General Assembly intended to provide immunity from suit to licensees who conduct their businesses in violation of the Crimes Code.” Id. at 117, 527 A.2d at 514. Specifically, the Court held that “the statutory immunity provided in section 4-497 of the Liquor Code may not be asserted by a licensee unless the customer in question was of legal age.” Id. The Matthews decision clearly aims to prevent the sale/service of alcohol to minors; we will not equate this to a situation involving the service of alcohol to legally competent customers beyond the licensee’s legal serving houz's. Finally, Hiles contends that the trial couzb ei'red during the course of the tzdal when it erroneously instructed the jury. Specifically, duz’ing the cz-oss-examination of one of Hiles’ witnesses, the tidal coui't stated, in part, “The Dram Shop Act in Pennsylvania imposes liability for the service of one who is visibly intoxicated. That is done to protect people when they stagger out the door and fall down.” Hiles argues that a showing of “staggering” and “falling down” is not a requirement to prove visible intoxication, and that such a statement greatly prejudiced his case and affected the outcome of the verdict. We disagree. In reviewing a challenged jury insti’uction, this coui’t’s scope of review is whether there was an abuse of discretion. Williams v. Philadelphia Transportation Co., 415 Pa. 370, 203 A.2d 665 (1964). Here, the trial court’s comment was clearly not one which would affect the outcome of the verdict, especially in light of the fact that no evidence was presented to prove that Diviney was visibly intoxicated. We find no abuse of discretion. Judgment affirmed. . Diviney is not participating in this appeal. . Following the verdict, the trial court, in a rather unusual request, asked the jury to render an alternative or “advisory” verdict based upon the points for charge originally submitted by Hiles. The court asked the jury to assume that Pennsylvania law allowed liability to be imposed against Brandywine if it had served Diviney after 3:00 a.m., the time at which its license required it to stop serving liquor, and whether such service was a substantial factor in causing the accident in question. The jury determined that, assuming the law was written in the manner posited, Brandywine served Diviney after 3:00 a.m., and such service was a substantial factor in causing the accident. The jury, in rendering an "alternative verdict,” found Brandywine 40% liable, and Divi-ney 60% liable. As we find no basis for the submission of the second set of jury instructions/interrogatories, we shall disregard this "advisory” verdict. . Interestingly, even after the enactment of 4-497, relating solely to the liability for injuries to third persons, this court has continued, in some cases, to use section 4-493(1) as the sole and/or partial basis for liability in cases involving injuries to third persons. See e.g. Conner, supra; Johnson, supra; Couts, supra. Given its history, it comes as no surprise that section 4-493(1) provides a basis for liability where the visibly intoxicated customer is herself/himself the injured party seeking recovery, see e.g. McDonald, supra; Majors, supra; Schelin, supra. It is perplexing, however, that with the existence of section 4-497, section 4-493(1) continues to be cited as a basis for liability in cases involving injuries to third persons. . Violation of a statute only constitutes negligence per se when the enactment's purpose is, exclusively or in part, to protect a class of persons which includes the one whose interest is invaded, to protect the particular interest invaded, to protect that interest against the resulting harm, and to protect that interest against the hazard from which the harm results. Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982); Restatement (Second) of Torts, section 286. Hiles concedes, in his appellate brief, that there is no Pennsylvania authority which dictates that section 4-493(16) was enacted to protect third persons (such as Connie Hiles) from intoxicated drivers.

Opinion by Mr. Justice Green, This was an action of assumpsit upon a foreign judgment. The copy of the record annexed to the plaintiffs’ claim discloses that the certificate of the clerk of the court in which the judgment was obtained, was made, not by the clerk but by his deputy, and it is contended this is not a proper certificate. In the case of Lothrop v. Blake, 3 Pa. 488, we held that such a certificate is invalid and will not entitle the record to admission in evidence. Rogers, J., in delivering the opinion said: “ The clerk also, who certifies the record, must be the clerk himself or his successor; the certificate of his under-clerk, in his absence, or of the clerk of any other tribunal, office or body is held incompetent for the purpose. See Sampson v. Overton, Bibb, 409, and Greenleaf’s Evidence, sec. 506, and the authorities there cited.” As this defect appears on the face of the plaintiffs’ statement and prima facie defeats the record of the foreign judgment as the basis of an action, it follows that the judgment of the court below must be sustained. Judgment affirmed. PAINE v. KINDRED. Opinion by Mr. Justice Green,. Oct. 1, 1894: In this case judgment was refused in the court below on a motion for judgment for want of a sufficient affidavit of defence. Upon the facts set forth in the affidavits a very close case is presented, which is altogether too doubtful in its character to justify us in interfering with the court-below in its action. . In Ætna Ins. Co. v. Confer, 158 Pa. 604, we said: “It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is' doubtful whether the act of assembly authorizing these appeals has not on the whole aggravated delay. The observations of this court in Griffith v. Sitgreaves, 81* Pa. 378, and Radcliffe v. Herbst, 135 Pa. 568, are pointedly applicable in the case before us.” These remarks are very pertinent in the consideration of the present case. Whether the case will ultimately present a question of accord and satisfaction, or a mere question of a verbal contract for the sale of lands without the payment of any purchase money or taking possession, or making improvements, or of a trust of the title in the defendant at the instance of the plaintiff, may depend upon nice shades of testimony, upon the credibility of witnesses, or upon facts and circumstances which cannot now be foreseen and which may be quite potential in determining the result. Such possibilities are entirely within the scope of the facts set out in the affidavits of defence. We do not mean to interfere, where rules for judgment have been discharged in the lower courts, in doubtful and uncertain' cases, but only in such as are very clear and free of doubt, as we have frequently said. Judgment affirmed.

Opinion by Mb. Justice Mitcheel, The referee found only a constructive fraud by the defendant, and the action was therefore barred by the statute of limitations which in such cases begins to run from the date of-the act committed. Hollinshead’s Appeal, 103 Pa. 158, 165. But the -learned judge below was entirely right in holding that there was no sufficient evidence of fraud at all. The plaintiff’s whole cause of action hinges, on the narrow question of fact whether defendant represented that he had a “ power of attorney ” or merely an “ authority ” to sell. If the latter then' there was no fraud, for it is clear that he had verbal authority and that his arrangement with plaintiff was ratified by Mackey. But even if the defendant represented that he had a power, or a warrant of attorney, the weight of the evidence is that plaintiff knew the whole situation and was not in any way deceived. Defendant had a written letter of attorney from Mackey, duly recorded, giving him authority to lease and managé the property, collect the rents, etc., but not 'extending to a power to sell, and plaintiff himself testified that defendant told him “ he had no power of attorney to sell ” but was going to Philadelphia to see Mackey, and subsequently said “he had got it fixed all right.” As well and tersely stated by the learned judge below, “ we have the undisputed fact that Davis knew it was Mackey’s land, and also knew that Hawkins’s power of attorney did not authorize him to sell and convey land, and when Hawkins told him Mackey authorized him to sell it, and produced no written authority, the inference is irresistible that Davis knew Hawkins’s authority was by parol.” The whole evidence shows that the transaction was conducted in a loose and informal waju By the contract as set forth in the receipt for the first payment, the rest of the purchase money was to be paid at stipulated times and amounts, the last being three hundred and fifty dollars due July 1,1878. There is no pretence that these terms were complied with by plaintiff. On the contrary his payments were irregular both as to time and as to amount, and the last one was never made in full at all, though nearly twelve years elapsed between the time it was due and the bringing of this suit. In the meantime Mackey had died, and his heirs for a time at least disclaimed any interest in the land. The whole matter was allowed to run on at the loosest possible ends. Whatever may be the rights of Mackey’s heirs or representatives to an account from defendant for tlieSnoney paid him by plaintiff, it is entirely clear that there was no such fraud on the latter as prevented the running of the statute of limitations against his claim, even as to money paid after' Mackey’s death, when defendant’s authority, whatever it was, had expired. The defendant was an entirely competent witness. The tiling in controversy was a transaction between the parties, both living. Mackey’s representatives were not parties or privies to the action, and would not be affected in any way by the result of it. ■ • Judgment affirmed.

Opinion by Me. Chief J ustioe Sterrett, This record presents the single question whether the learned trial judge erred “ in directing the jury to render a verdict for the defendant.” An examination of the testimony, in support of the plaintiff’s claim, cléarly shows that it was not only proper for the consideration of the jury, but, if believed, would have warranted them in finding that the defendant, without apparent justification, practically deserted his wife and child, and neglected to make such provision for their support and maintenance as their necessities required and his own financial condition would have enabled him to furnish. It also shows that the goods for which suit was brought,—consisting chiefly of toilet articles, drugs, medicines, infant’s food, etc., ordered by and delivered to defendant’s wife for the use of herself and their infant child,— were necessaries suitable to their condition and circumstances. Bills for similar articles, previously ordered by her, had been presented to and paid by defendant. There is no evidence that plaintiff was aware of any change in the domestic relations of the defendant and his wife until payment of the account in suit was demanded and refused by defendant. Special reference to or discussion of the testimony is unnecessary. It is sufficient to. say that it tended to prove facts which, if found by the jury, would have entitled the plaintiff to a verdict, and we are clearly-of opinion that it should have been submitted to them under proper instructions. Judgment reversed and a venire facias de novo awarded.

Opinion by Mr. Justice Mitchell, The land over which this controversy arises was taken by the city of Philadelphia for a public park, under the authority of the act of May 13,1857, P. L. 489, which enacts that the courts shall appoint a jury to assess damages in such cases, “and the proceedings thereupon shall be the same and with like effect as upon the assessment of damages for the opening of streets in said city.” The fundamental question on which this case must turn is the construction of that statute; does it mean that pro ceedings in park cases shall until specifically and expressly altered be the same as in street cases under the law as it was in 1857, or as the law may be in regard to streets from time to time when park proceedings are begun ? There can be little, doubt as to the answer'to this question. The taking of land for a public park is in substance the same as the taking of land for a street. It is an exercise of the same power of eminent domain; at the discretion of the same municipal body; for the same public reasons, the general benefit of the citizens; for a closely analogous public use; and the effect upon the property rights of the private owner is precisely the same. There is no good reason why the proceedings in regard to his compensation should not be the same, and it was the manifest intent of the legislature to establish a uniform system for both. The vesting of a general right of eminent domain for park purposes in the city of Philadelphia, to be exercised at its own discretion was however an unusual feature in legislation. The act of March 29, 1849, P. L. 259, had authorized the commissioners of any incorporated district in the county of Philadelphia to purchase one or more squares of ground to be kept unbuilt upon and open for the public use forever, and the consolidation act of February 2, 1854, sect. 39, P. L. 42, had provided that it should be the duty of councils “to obtain by dedication or purchase” an adequate, number of squares, and to lay out and maintain them as open public places for the health and enjoyment of the people forever. But the power to take by eminent domain was new, and park cases were likely to be rare in comparison with street or'road cases in which the jurisdiction and proceedings were familiar. The legislature took the easiest and most natural way to prescribe the same method for both, by enacting that the former should be “ the same and with like effect” as the latter. The proceedings in street cases were set up as the model or standard for two things desired and intended to be made alike, and necessarily when a change was thereafter made in the standard it involved a like change in everything that was directed to be conformed to it. If any further authority is needed for this construction of the statute, it will be found in the principles laid down in the analogous case of Kugler’s Appeal, 55 Pa. 123. When therefore the act of May 26, 1891, P. L. 116, gave to any party aggrieved an appeal in street cases, within thirty days after a decree of confirmation of the viewers’ report in the quarter sessions, it gave the same right in all other cases where the proceedings were directed to be the same, including park cases under the act of 1857. At the time of the passage of that act there was no appeal to 'a common law jury in road cases, and the constitution of 1873, in sect. 8 of article 16, having declared that there should be, the legislature by the act of June 13, 1874, P. L, 283, expressly provided an appeal for all eases of property taken, in which the assessment of damages should be by viewers or otherwise than upon a trial in court. The appeal under this act must be taken 'within thirty days of the filing of the report, and it is argued that this is the only act giving an appeal in park cases, and therefore the appeal here was too late. The act of 1891, supra, mentions only “damages for the opening, widening or change of grade of any street, road or highway,” and the argument is that it does not apply to park cases, or repeal the act of 1874 in relation thereto; that the act of 1874. covered the general right of appeal in seve'ral classes of cases, while the act of 1891 relates to the right in certain limited and prescribed cases only, and does not extend to park cases which are left under the act of 1874. This argument however runs directly contrary to thé whole'construction of the act of 1857. That act declared that the proceedings under it should be “ the same and with like effect ” as in street cases, and the necessary construction was, as'already shown, to make the latter the exemplar to which the others should conform from time to time as changes might be made. If there were no act of 1874, no question could be made; indeed it is conceded by appellees, that the appeal under the act of 1891 would extend to proceedings under the act of 1857. Why then does the act of 1874 prevent that result ? There is no conflict between the acts of 1874 and 1891, nor does the latter involve the repeal of the former. Both are affirmative acts, and in furtherance and extension of the remedy. Under the act of 1874 the appeal is given from “the ascertainment of the damages or-the filing a report thereof in court,” and must' be taken within thirty days “ and not afterwards.” Under the act of 1891 the appeal is not from the ascertainment of the damages or filing a report thereof at all, but from the decree of confirmation by the court of quarter sessions. The two systems are not irreconcilable but may run together with entire harmony. The act of 1874 gives an appeal from the award itself, of which the party appealing may avail himself at once without waiting for the action of the court, and must avail himself if at all within thirty days “ and not afterwards ” under that act. The act of 1891 gives no appeal at all from the award, but al- ■ lows “ any party aggrieved by the said decree of confirmation to appeal therefrom ”; a different appeal, at a different stage of the case, and not necessarily to the same party. The legislature would seem to have regarded the remedy at the earlier stage as insufficient and accordingly provided an additional one at a later period. Both are in furtherance of the same right to ' a jury trial which the constitution secures, and both are open to the parties that they may make their choice. Judgment reversed, appeal reinstated,' and procedendo awarded.

Opinion by Mr. Chief Justice Sterrett, Without assenting to all that has been said by the learned judge of the orphans’ court in support of the decree from which this appeal has been taken, we are satisfied that, in the circumstances, there was no error in refusing to permit the appellants —executors of Joseph Baker, deceased — to participate in the distribution. It was undoubtedly incumbent on them to show that as a creditor of the estate of Martin Houser, deceased, or in some other capacity, their testator had a valid claim on the fund in question, or on the property which it represents. They undertook to do this by giving in evidence “ The fourth partial account of (said) Joseph Baker, surviving trustee and executor of Martin Houser, .... deceased,” filed October 21,1882, and confirmed on December 5, following. In that account, covering a period of about three and a half years from April 5,1879, the accountant charges himself with cash received from farm produce, wheat, corn, oats, hay, etc. amounting to $1,290.58, and takes credit for $473.55, “balance due at settlement former account,” sundry payments to the widow of his testator, etc., showing balance due him of $460.61. That sum with interest from confirmation of his account constitutes the claim of these appellants. The auditor in this case found that by virtue of the order of court removing one of the executors of Martin Houser, in 1871, Joseph Baker became sole executor and acted in that capacity until his death in 1884, after which he was succeeded by John Dale, the present administrator, de bonis non, etc. In March, 1894, — after the death of Martin Houser’s widow, — the real estate of said deceased, as directed by his will, was sold for $4,000. Thereupon, the administrator de bonis non, etc., filed a final account showing $4,250.95 balance for distribution. About $585 of this sum represents income or rent of farm, and the residue $3,665.95 represents net proceeds sale of the farm. The above balance is the fund in which appellants claim the right to participate. It appears, as we have seen, that the account, showing balance claimed by appellants, does not purport to be a final account of their testator as sole executor of the estate of Martin Houser. On the contrary, it is specifically designated as his “ fourth partial account,” etc. It is also expressly found as a fact that for nearly two years after filing said account, and down to the date of his dea/th, he continued to act as such executor. To what extent he received and disbursed funds of the estate during that period, or what was the state of his account at the time of his death, does not appear. The only way in which these facts could have been regularly shown would have been by a final account stated and filed by his personal representatives, and adjudicated by the proper court. For aught that appears in this case, the balance referred to may have been and probably was adjusted and paid by funds of the estate which came into the hands of the executor in 1883 or 1884. If the estate was indebted to him in October, 1882, for money advanced, it may be fairly presumed that funds subsequently received would be applied to the payment of such indebtedness. It was the duty of appellants, as the personal representatives of the deceased executor, to have prepared and filed a final account of his executorship. If they had done so, the question, as to whether the estate was indebted to him at the time of his decease or not, would have been definitively settled in the regular and orderly way. In the absence of any such account, and of any evidence that can be regarded as equivalent thereto, the appellants have failed to show any right to participate in the fund for' distribution. This view of the case renders it unnecessary to consider other questions presented by the specifications of error. Decree affirmed and appeal dismissed at appellants’ costs.

Opinion by Mr. Justice Green, The defendant is an incorporated building and loan association, duly incorporated by the laws of New York, and located and transacting business at Syracuse in that state. The plaintiff, in October, 1891, made application to become a member of the association by purchasing two shares of its stock, and in November following received a certificate for the shares. In May, 1892, he made application for a loan of $200 which was granted in December of the same year. As security for the loan he gave a bond and mortgage on some land in Lycoming county, Pennsylvania, for the sum of $207.89, which included the premium paid for the loan. The actual money paid to the plaintiff was $180. At the same time he gave to the defendant sixty-seven promissory notes, for $3.17 each, except three for $1.67 each, the aggregate amount of which was secured by the mortgage, and represented the monthly payments to be made by the plaintiff as a member of the association. On August 31, 1893, the plaintiff paid the mortgage debt in full, the amount being $181.07, after deducting the withdrawal value of his stock and a rebate premium. He now claims that the premium retained by the defendant, and the fines charged against him in the settlement were usury, and seeks to recover in this action $50.95 alleging that this amount was the excess over legal interest on the amount of money actually loaned to him by the defendant. He contends that his contract with the defendant was a Pennsylvania contract and to be governed by the law of that state. The defendant had an agency at Williamsport in Pennsylvania and the transaction was conducted between the plaintiff and the defendant’s agent at that place. That circumstance however is of no account if the contract was to be performed in the state of New York. The appellant does not at all dispute the proposition that contracts are to be governed by the law of the place where they are to be performed, nor does he contend that he would have any right of recovery under the law of New York, which permits building and loan associations to charge usurious rates of interest on loans. The learned court below decided that the place of performance was the state of New York, and the contract was therefore to be governed by the law of that state. In this opinion we concur. A point was also made that if the contract was made for the purpose, and with the intent, of evading the usury laws of Pennsylvania, it must be governed by the law of Pennsylvania, and not of New York. As to this the court below held that there was not a .scintilla of evidence of any such intent, and, therefore, the doctrine could not apply to this case, and in that ruling also we fully concur. It is only necessary to examine briefly the contract of the par ties in order to determine at what place it was to be performed. The defendant’s place of business was at Syracuse in the state of New York. The plaintiff’s application for membership was in the following words, “I, Joseph Bennett, of Williamsport, county of Lycoming, state of Pennsylvania, hereby apply for membership in the Eastern Building and Loan Association of Syracuse, Onondaga county, New York and subscribe for two shares of instalment stock. I hereby agree to abide by all the terms, conditions and by laws contained or referred to in the certificate of shares, and will also comply with all the rules and regulations of said association.” The plaintiff’s application was accepted and he thereupon became a member, consciously and intentionally of an association of the state of New York, and contracted that he would abide by their by-laws and comply with all their rules and regulations. His subsequent application for a loan was entitled, “ Application for loan from the Eastern Building & Loan Association of Syracuse, N. Y.” He afterwards signed an application for an advance, addressed as follows, “ To the Board of Directors of the Eastern Building and Loan Association of Syracuse, N. Y.,” requesting the advance to be made, and again agreeing to comply with the charter and by-laws of the association and all requirements defined by the committee of the board of directors. Thereupon sixty-seven notes were prepared, sent to him for signature and signed by him in the following words: “ On or before the last Saturday of March 1893 I promise to pay three and 17/100 dollars to the order of the Eastern Building & Loan Association of Syracuse N. Y. at its office in Syracuse, N. Y., value received. “Williamsport Jan. 2nd, 1893. “ Joseph C. Bennett.” When he gave his bond for the money loaned he. obligated himself as follows : “I, Joseph C. Bennett am held and firmly bound unto the Eastern Building and Loan Association of Syracuse N. Y. in the sum of four hundred dollars, lawful money of the United States of America, to be paid to said Eastern Building & Loan Association of Syracuse, N. Y.” etc. In the condition of the bond it is provided that if he pays to the association, repeating its name and place, $207.89 in sixty seven equal payments of $3.17 each, except three of $1.67 each, “ payable monthly to said association at its office in Syracuse, N. Y. on or before the last Saturday of this and each and .every month” etc. The mortgage, also executed by the plaintiff, repeats the name and designation of the defendant, and its place, recites the bond with its condition for making all the payments at the office of the company at Syracuse, New York, and then grants to the defendant, repeating its name and place, certain described land of the plaintiff situate in Lycoming county, Pa., with the usual proviso that if the payments are all made to the defendant, the bond and mortgage should become void. Thus it will be seen that in every possible way in which the English language could express it, the plaintiff entered into a written contract with the defendant to pay it, in sixty-seven different payments, every one of which was to be made at the office of the defendant in Syracuse, New York, a designated aggregate sum of money. What is the use of discussing the question whether this was a contract to pay money in the state of New York ? What is there to discuss ? Nothing. No other place of payment is mentioned or can possibly be implied. This one place is positively expressed over and over again, and many times over, in solemn instrument signed and sealed by the plaintiff himself, and in sixty-seven different notes also signed by the plaintiff. It is a waste of time to discuss so plain a matter. The fact that the plaintiff lived in Pennsylvania and negotiated there with an agent of the defendant either for the membership or for the loan, is not of the slightest significance. The contract must be adjudged by its express terms no matter where the parties were when it was made. And when those terms are clear, explicit, involved in no doubt whatever, they must prevail, and it is the duty of the courts to enforce them according to their literal meaning. Nor is there the slightest ground for an allegation that the contract was made for the purpose of evading the usury laws of Pennsylvania. Who had such a purpose and what is the' evidence of it ? Did the plaintiff have it, and if so, did he communicate it to the defendant ? If so, where is the evidence of it ? There is none whatever. The defendant’s business was transacted at its proper place of business in the state of New York. This business was a part of its regular business done in its usual way, and as a matter of course, the mere fact that this loan was made to a citizen of Pennsylvania, cannot justify an inference that it was done with an intent to evade the laws of Pennsylvania. This business was done just as all its other business was done. The defendant had a lawful right to loan money wherever it pleased, and it would be most absurd to say that because it lent money to a Pennsylvanian it therefore intended to evade the laws of Pennsylvania. The Pennsylvanian had a right to borrow money in the state of New York if he chose to do so, and if he contracted to pay it in the state of New York he must be conclusively presumed to know that his contract would be governed by the law of that state. In all this there is not a shadow of an unlawful intent to evade the law of Pennsylvania. There was therefore nothing to submit to the jury on that question. Judgment affirmed.

ORDER PER CURIAM: AND NOW, this 26th day of July, 2000, allowance of appeal is GRANTED, limited to the first issue presented in the above-captioned Petition for Allowance of Appeal. Furthermore, Petitioners’ Motion for Leave to Submit Memorandum of Supplemental Authorities is DENIED.

McGINLEY, Judge. Highmark d/b/a Blue Cross Blue Shield (Highmark) and Keystone Health Plan West, Inc. (Keystone) (collectively, Appellants), seek review of the order of the Court of Common Pleas of Allegheny County (Chancellor) that denied High- mark’s motion for reconsideration, continued in effect the September 1, 1998, order that granted preliminary injunctive relief, and denied other relief as set forth in the order. Charles J. Carlini, M.D. (Dr. Carlini) is a board-certified physician and surgeon who specializes in obstetrics and gynecology. Since 1980, Dr. Carlini has been a member of the medical staff of St. Clair Hospital, practiced in the South Hills area of Pittsburgh, and participated in various Highmark managed care plans. The Pennsylvania State Medical Board has never disciplined Dr. Carlini from the time he started practicing in 1972. By letter dated August 4, 1997, Carey Vinson, M.D. (Dr. Vinson), Highmark’s medical director, informed Dr. Carlini that Highmark’s Credentials Committee (Credentials Committee) denied Dr. Carlini’s recredentialing application to the Keystone network based on malpractice claims filed against him. Dr. Carlini appealed the Credentials Committee’s decision and attended a hearing before two Highmark physicians on January 5, 1998, at which time he submitted a letter from St. Clair Hospital’s medical director, and discussed the malpractice cases in detail. The Hearing Panel (Medical Review Committee) recommended that the decision to terminate Dr. Carlini’s participation in the Keystone network be reversed. By letter dated February 11, 1998, Dr. Vinson advised Dr. Carlini that the Credentials Committee, upon reconsideration, upheld the earlier termination decision, and that the decision was to be communicated to the National Practitioners Data Bank (Data Bank). On May 22, 1998, Dr. Carlini commenced an equity action against Highmark and alleged a breach of eontract/denial of due process and sought declaratory judgment. Dr. Carlini also alleged unfair competition. Shortly thereafter, Dr. Carlini petitioned for a preliminary injunction and requested recertification. The Chancellor initially denied Dr. Carlini relief and transferred the case to the “law” side on June 11, 1998. Thereafter, Dr. Carlini’s motion for partial reconsideration was granted on September 1, 1998. The Chancellor also entered a preliminary injunction against Highmark. The Chancellor ordered Dr. Carlini reinstated with Highmark and directed Highmark to retract the notice submitted to the Data Bank. On July 6, 1999, the Chancellor overruled Highmark’s preliminary objections and denied reconsideration, together with the motion to dissolve the injunction. Dr. Carlini’s motion to strike was denied, and the transfer order was vacated. Lastly, the Chancellor directed that the September 1,1998, order remained in effect. The Chancellor concluded: In this case, the granting of the preliminary injunction was necessary to preserve the status quo as it existed prior to Defendants’ [Highmark’s and Keystone’s] decision to decertify Plaintiff [Dr. Carlini]. The reporting of this decision to the National Practitioner’s Data Bank will undoubtedly have a devastating impact upon Plaintiffs [Dr. Carlini’s] professional reputation. Additionally, as at least sixty (60) % of Plaintiffs [Dr. Carlini’s] practice consisted of Defendants’ [Highmark’s and Keystone’s] members, this Court believes that this injunction will prevent imminent and irreparable harm from occurring to Plaintiff [Dr. Carlini]. More importantly, this Court believes that Plaintiff [Dr. Carlini] has estab lished a clear right to relief under both state and federal law as well as on due process grounds as set forth by the Pennsylvania Supreme Court in Rudolph v. Pennsylvania Blue Shield, 553 Pa. 9, 717 A.2d 508 (1998) and Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). Even though Defendants [Highmark and Keystone] afforded Plaintiff [Dr. Carlini] notice and a hearing, by disregarding the recommendations of the impartial peer review panel, Defendants [Highmark and Keystone], who acted as prosecutor, adjudicator and sentencer, violated Plaintiffs [Dr. Carlini’s] statutory rights as well as his rights to due process of law. Defendants [Highmark and Keystone] are Professional Health Services Plan Corporations and are thus governed by the Pennsylvania Professional Health Services Plan Corporation Act.... Accordingly, Defendants’ [Highmark’s and Keystone’s] attempt to decertify Plaintiff [Dr. Carlini] is governed by the provisions of that Act. Chancellor’s Opinion, October 15, 1999, at 5-6. Highmark and Keystone appealed. On appeal, Highmark and Keystone contend: 1) that the Chancellor erred when he concluded that Dr. Carlini established a clear right to relief under state and federal statutes; 2) that the Chancellor erroneously treated Highmark and Keystone as “state actors” and thereby rewrote Keystone’s credentialing procedures; and 3) that the Chancellor should not have granted injunctive relief because an adequate remedy at law was available. A preliminary injunction is justified when the following criteria are satisfied: 1. A threat of immediate, irreparable injury that cannot be remedied through damages; 2. The injury resulting from the denial of the injunction is worse than the injury caused by granting the equitable relief; and 3. The injunction will restore the parties to their previous situations. Schaeffer v. Frey, 403 Pa.Super. 560, 589 A.2d 752, 755 (1991). This Court will disturb the chancellor’s decision only if “no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous.” Lewistown Police, 661 A.2d at 512 n. 15. At the outset, Highmark and Keystone point out a discrepancy between the Chancellor’s September 1,1998, order and October 15, 1999, opinion. Pursuant to the September 1998 order, the Chancellor issued the injunction only against High-mark, whereas the October 1999 opinion referred to the Appellants, Highmark and Keystone, collectively. Even though the Chancellor did not enjoin Keystone specifically, the merits of Keystone’s decertification decision were the heart of the controversy. Dr. Carlini’s Clear Right to Relief Highmark and Keystone contend that the Chancellor should not have applied the Professional Health Services Plan Corporation Act, (PHSPCA), 40 Pa.C.S. §§ 6301-6335, because it does not govern Keystone’s hearing procedures. However, the Pennsylvania Blue Shield Review Committee Guidelines, attached to Dr. Carlini’s complaint, directly refer to the PHSPCA as controlling herein. See Verified Complaint in Equity at Exhibit C; R.R. at 62a. Section 6324 of the PHSPCA addresses the rights of health service doctors: (a) Admission to plan- Every, health service doctor practicing within the area covered by any professional health service corporation shall have the right, on complying with such regulations as the corporation may make with the approval of the Department of Health, to register with such corporation for such general or special professional health services as he may be licensed to practice, within that area, but the corporation may, with the approval of the Department of Health, refuse to place the name of any health service doctor on its register. Any professional health service corporation may, with the approval of the Department of Health, remove from its register the name of any health service doctor after due notice and opportunity for hearing for cause satisfactory to the corporation. (c) Disputes. — All matters, disputes, or controversies relating to the professional health services rendered by the health service doctors, or any questions involving professional ethics, shall be considered and determined only by health service doctors as selected in a manner prescribed in the bylaws of the professional health service corporation, (emphasis added). 40 Pa.C.S. § 6324(a) and (c) Pursuant to the applicable bylaws, Article X, Disputes and Controversies Involving Doctors, provides: Section 1. Review Committees. All matters, disputes or controversies arising out of the relationship between the Corporation and professional providers who render health services to the Corporation’s subscribers, including any questions involving professional ethics, shall be considered, acted upon, disposed of and determined by the appropriate one of the two Review Committees hereinafter referred to. Section 2. Medical Review Committee. There shall be a Medical Review Committee consisting of at least five (5) members, each of whom shall be appointed by the Chairman of the Board of Directors of the Corporation and each of whom shall serve until his successor is appointed. A majority of the members of the Medical Review Committee shall be doctors who are either members of the Board of Directors of the Corporation or members of the Corporation. Section 8. Proceedings Involving Status of a Doctor as a Participating Doctor. If a Review Committee determines that a hearing should be held with respect to any matter which has been stated in a Complaint, the Chairman shall promptly fix a time, date and place for such hearing. The Participating Doctor involved shall be given at least fifteen (15) days written notice by the Secretary of the Committee of the date, time and place of such hearing, and the doctor shall be furnished with a copy of the Complaint. ... At the hearing such witnesses may be heard and such evidence may be received as is deemed to be relevant and of reasonable probative value, provided, however, that formal rules of evidence need not be adhered to. The doctor affected by the Complaint shall be afforded an opportunity to be heard before the Committee, either in person or by counsel, and to produce evidence and witnesses at such hearing. ... After the hearing, the Review Committee, by majority vote of those members who are doctors, shall take whatever action it deems appropriate, based on the evidence and testimony produced at the hearing and, if such action involves either suspension or termination of a doctor as a Participating Doctor, the matter shall be promptly referred to the Secretary of Health of the Commonwealth of Pennsylvania for approval or for such other action as he may deem appropriate, (emphasis added). Verified Complaint in Equity at Exhibit C; R.R. at 59a-61a. In the present controversy, the Medical Review Committee’s recommendation to reinstate Dr. Carlini was dispositive in and of itself. Additionally, we disagree with Highmark and Keystone’s contention that the Chancellor’s reliance upon the FHCQIA, 42 U.S.C. §§ 11101 to 11152, was palpably erroneous. The Chancellor correctly noted that federal law delineates standards for professional review proceedings whereby physicians are entitled to due process. 42 U.S.C. § 11112. In footnote 3, the Chancellor’s discussion regarding the FHCQIA serves as a supplement to its evaluation of the PHSPCA. Common Pleas Court Opinion at 5. It is undisputed that Keystone is a licensed health maintenance organization (HMO) that offers commercial and Medicare products. Highmark and Keystone assert that Keystone falls within the purview of the Health Maintenance Organization Act, (HMO Act), Act of December 29, 1972, P.L. 1701, as amended, 40 P.S. §§ 1551-1568, and that no provision of the HMO Act grants a physician a right to a hearing before a contract is terminated. Nevertheless, we believe that there were reasonable grounds for the Chancellor’s application of the PHSPCA in these circumstances. In addition, we do not view the PHSPCA and the HMO Act as being mutually exclusive. Highmark and Keystone as “State Actors” Highmark and Keystone contend that neither Highmark nor Keystone engaged in state action with respect to Dr. Carlini insofar as Keystone’s credentialing process would have been required to afford Dr. Carlini due process. Rudolph v. Pennsylvania Blue Shield, 553 Pa. 9, 717 A.2d 508 (1998) is instructive as to the due process analysis. In Rudolph, a participating Blue Shield physician rendered services to patients and was denied payment. Dr. Joseph P. Rudolph (Dr. Rudolph) had submitted a claim to a medical review committee which denied the claim. Subsequently, Dr. Rudolph filed a contract action in the Court of Common Pleas of Allegheny County (common pleas court), and the matter was referred to a panel of physician arbitrators. The panel found in Dr. Rudolph’s favor, and the common pleas court confirmed the award. On Blue Shield’s appeal, the Pennsylvania Superior Court vacated the common pleas court’s judgment. Joseph P. Rudolph, M.D. v. Pennsylvania Blue Shield, 451 Pa.Super. 300, 679 A.2d 805 (1996). Our Pennsylvania Supreme Court reversed the Superior Court’s order and reinstated the common pleas court’s judgment. Rudolph v. Pennsylvania Blue Shield, 553 Pa. 9, 717 A.2d 508 (1998). The Supreme Court determined that a medical review committee, formed pursuant to the PHSPCA, was a “creature of the state” and must adhere to due process standards. Id. at 14, 717 A.2d at 510. In the present controversy, the review process utilized to evaluate Dr. Carlini’s credentials is analogous to the medical review committee in Rudolph, certainly to the extent that both merit due process. The guarantees of notice and a hearing must be conducted within a fair, impartial forum. Rudolph, 553 Pa. at 14, 717 A.2d at 510. In light of the fact that the Credentials Committee in the present case upheld Dr. Carlini’s decertification, there was a real possibility that the Medical Review Committee’s recommendation was not given bona fide and genuine consideration. Certainly, based on our standard of review we cannot fault the Chancellor’s conclusion that “[t]he impartial review process to which Plaintiff [Dr. Carlini] was statutorily entitled was, in the instant case, indeed illusory.” Chancellor’s Opinion at 8. Irreparable Harm that Cannot be Remedied by Damages Finally, Highmark and Keystone contend that the Chancellor erred by granting injunctive relief despite Dr. Carlini’s inability to prove the absence of an adequate remedy at law. Highmark and Keystone assert that Dr. Carlini’s termination from the Keystone network did not harm his status as a Highmark provider because he continued to treat Highmark patients and SelectBlue patients as a non-network provider. With respect to equitable relief, ‘ “the impending loss of a business opportunity” ’ is considered to be irreparable harm. West Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 299 (Pa.Super.1999)(quoting Sovereign Bank v. Harper, 449 Pa.Super. 578, 674 A.2d 1085, 1093 (1996)). An irreparable injury causes ‘ “damage which can be estimated only by conjecture and not by . an accurate pecuniary standard.” ’ Id. at 299, 737 A.2d 295 (quoting Sovereign Bank, 674 A.2d at 1091). An affidavit by Dr. Carlini’s office manager reflects 15.63% of Dr. Carlini’s practice was provided under the Keystone network and 30.82% of Dr. Carlini’s practice was provided under SelectBlue, a Highmark point-of-service plan. See Second Affidavit of Jacqueline M. Boyle, September 23, 1998 at 1; R.R. at 435a. As these percentages reflect, a substantial portion of his practice is. intimately involved with his participation with the Keystone network and Highmark. Undoubtedly, he would lose some patients and there is no way of knowing exactly how many. Absent speculation and conjecture Dr. Carlini’s potential business loss cannot be reasonably measured. The Chancellor properly concluded that the legal remedy available to Dr. Carlini was inadequate. In summary, we conclude that the Chancellor did not commit legal error by entering the preliminary injunction and reinstating Dr. Carlini until such time as a decision on the merits is rendered. Accordingly, we affirm. ORDER AND NOW, this 26th day of June, 2000, the July 6, 1999, order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed. . The Credentials Committee performed the function of a review committee as described in the bylaws. Dr. Vinson notified Dr. Carlini of his appeal option and provided directions for arranging a hearing. Additionally, the Hearing Panel acted as a medical review committee. . Pursuant to the Federal Health Care Quality Improvement Act (FHCQIA), health care entities must report decertifications to the Data Bank. 42 U.S.C. § 11133. .Highmark and Keystone cite Section 762(a)(5) of the Judicial Code, 42 Pa.C.S. § 762(a)(5), which addresses not-for-profit corporations as a basis for this Court’s jurisdiction. To the extent that one may argue that Highmark and Keystone do not fit within this classification, we note that this Court has jurisdiction over private club membership, hospital staff privileges, and church affairs. See, e.g., Conference of A.U.F.C.M.P.C. v. Shell, 426 Pa.Super. 374, 627 A.2d 188 (1993), Sandoval v. Maliver, 145 Pa.Cmwlth. 439, 603 A.2d 695 (1992), and Pa. Dairy Herd Imp. Ass’n v. Wagner, 132 Pa.Cmwlth. 556, 573 A.2d 668 (1990). . Our review of orders granting or denying a preliminary injunction "does not inquire into the merits of the controversy, but examines the record only to determine if there were any apparently reasonable grounds to justify the chancellor’s action.” Lewistown Police v. Mifflin County, 661 A.2d 508, 512 n. 15 (Pa. Cmwlth.1995). . The allegations of Dr. Carlini’s complaint reflect that he sought injunctive relief against both Highmark and Keystone. Verified Complaint in Equity at 2; Reproduced Record (R.R.) at 29a. We note that the ambiguity between the order and opinion is not fatal because Keystone, as a subsidiary of High-mark, openly operates under the auspices of Highmark. In fact, Dr. Vinson's correspondence to Dr. Carlini listed both Highmark and Keystone on the letterhead. Because this inconsistency involved only form, not substance, we find no resulting prejudice. . We note that the Chancellor indicated that “as at least sixty (60) % of Plaintiffs [Dr. Carlini] practice consisted of Defendants' [Highmark and Keystone] members,” this Court believes that this injunction will prevent imminent and irreparable harm from occurring to Plaintiff [Dr. Carlini]. Common Pleas Court Opinion at 5 (emphasis added). . It is the position of Highmark and Keystone that if damages are eventually appropriate, they can be objectively calculated based simply upon the percentages of business of Dr. Carlini's practice that involve the Keystone program.. The Chancellor rejected this argument and we agree. .

CERCONE, President Judge Emeritus. f 1 Appellant, Lavar Hayward, appeals from the Judgment of Sentence imposed after his conviction for carrying a firearm without a license and carrying a firearm on the streets of Philadelphia. After review, we reverse. ¶ 2 On October 1,1998, at or around 9:00 p.m., Officer Johnathan Woodson, a Police Officer for the Temple University Police Department, was on foot patrolling in the 2100 block of Broad Street in Philadelphia. See N.T. Suppression Hearing, 1/22/99, at 4-5. Officer Woodson testified at Appellant’s Suppression Hearing that while he was patrolling, an “unidentified passerby” told him that there was a group of six (6) to eight (8) males in the park area in the 1300 Block of Dauphin Street and that one of them was “brandishing a weapon.” Id. at 5. Officer Woodson recounted that the unidentified individual also told him that the man in the park with the weapon was “tall,” however the unidentified individual did not give any specific estimate of height. Id. at 7. Officer Woodson also stated that the nameless pedestrian did not provide any further descriptive identification of the man in the park with the weapon, such as the man’s race or the clothing which he was wearing. Id. at 10, 11. Officer Woodson additionally testified that the pedestrian who provided this information did not at any time identify himself, nor had Officer Woodson ever seen this individual before this occasion or at any time thereafter. Id. at 11. ¶ 3 Officer Woodson then proceeded to the park area in the 1300 Block of Dauphin Street. He testified that it took him ten minutes to arrive at the park. Id. at 8. When Officer Woodson arrived at the park area he was joined by six other Temple University Police Officers, whom he had radioed to assist him. Id. at 9, 12. Upon arrival in the park area, Officer Woodson testified that he saw eight or nine people present in the park, including the Appellant. Officer Woodson observed no one holding any type of weapon. Id. at 6. Officer Woodson testified that he “examined” the group of individuals and estimated the Appellant to be about six foot one (6’ 1”) to six foot two inches (6’ 2”) tall, however he observed that there were also a couple of individuals in the group who were “very .close” in height to Appellant as well. Id. at 7-8. ¶ 4 Officer Woodson and the other officers then ordered the group of individuals in the park to “line-up” on the sidewalk. Id. at 9, 13. The individuals complied with the officers’ request. While the males were standing on the sidewalk, Officer Woodson walked around and stood behind them. He asked if anyone had a weapon. Id. at 9. Appellant replied that he did. Officer Woodson and the other officers then proceeded to frisk everyone in the group. The frisk yielded a black semiautomatic 9-millimeter handgun, which Appellant had tucked into his waistband. ¶ 5 Appellant was arrested and charged with the offenses set forth, supra. He subsequently filed a suppression motion that was denied after the above referenced suppression hearing, which was held before the Honorable Annette Rizzo of the Court of Common Pleas of Philadelphia. After the suppression hearing was concluded, Appellant proceeded to a non-jury trial before Judge Rizzo. Judge Rizzo found Appellant guilty of both charges and imposed the aforementioned sentence. This timely appeal followed. ¶ 6 In this appeal, Appellant presents one issue for our consideration: Did not the lower court err in denying appellant’s motion to suppress where the officer conducting the stop of appellant did not possess the requisite reasonable suspicion to justify the Terry[ ] stop in violation of the Fourth Amendment of the Federal Constitution and Article I, § 8 of the Pennsylvania Constitution? Appellant’s Brief at 3. ¶ 7 On appeal from the denial of a defendant’s motion to suppress, this Court applies the following standard of review: In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontra-dicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Jackson, 548 Pa. 484, 487, 698 A.2d 571, 572 (1997); Commonwealth v. J.B., 719 A.2d 1058, 1061 (Pa.Super.1998). As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court’s determination if the conclusions are in error or the law is misapplied. Commonwealth v. Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994). ¶ 8 Appellant argues that Officer Wood-son did not possess the requisite reasonable suspicion to allow him to order Appellant and all the other men present in the park to line up on the pavement for a Terry frisk, based only on the information received from the anonymous pedestrian. From our review of the relevant holdings of the United States Supreme Court and our Supreme Court concerning Terry stops by police, which are predicated solely on the word of anonymous informants, we must agree. ¶ 9 Our Supreme Court has recognized that there are three categories of interaction between citizens and the police: The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally an arrest or “custodial detention” must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992)(footnote omitted). Commonwealth v. Ellis, 541 Pa. 285, 293-294, 662 A.2d 1043, 1047-1048 (1995). Accord In Re Evans, 717 A.2d 542, 544 (Pa.Super.1998). ¶ 10 As our Court has recently stated: In determining whether a “mere encounter” has risen to the level of an “investigative detention,” the focus of our inquiry is on whether a “seizure” of the person has occurred. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1120 (Pa.1998). Within this context, our courts employ the following objective standard to discern whether a person has been seized: “Whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave.” Commonwealth v. Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa.Super.1999) (emphasis added). See also Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 774 (Pa.1996). Commonwealth v. McClease, 2000 PA Super 91, ¶ 13, 750 A.2d 320 (Pa.Super.2000). Clearly Appellant in the instant case was subjected to a non-custodial investigative detention when the officers on the scene herded him into a “line up” with the other individuals. Any person in Appellant’s position who was ordered by six uniformed armed police officers to assemble into a lineup on the sidewalk could not have reasonably believed that he was free to disregard the officers’ command and leave the scene. ¶ 11 With respect to a non-custodial investigative detention based upon information received via an informant’s tip, our Supreme Court has stated: In evaluating whether a stop is justified, courts consider whether or not an informant’s tip creates a reasonable suspicion of current criminal activity based on the totality of the circumstances. Alabama v. White, 496 U.S. 325, 328-29, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990); Commonwealth v. Martin, 705 A.2d 887, 892 (Pa.Super.1997); Commonwealth v. Wilson, 440 Pa.Super. 269, 275-76, 655 A.2d 557, 560-61 (1995)(citing Commonwealth v. Epps, 415 Pa.Super. 231, 233-34, 608 A.2d 1095, 1096 (1992)). The informant’s reliability, veracity, and basis of knowledge are all relevant factors. Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990)(citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)). Of course, the information supplied to the police by the informant must contain “specific and ar-ticulable facts” that lead the police to reasonably suspect that criminal activity may be afoot. See Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996)(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). Commonwealth v. Allen, 555 Pa. 522, 527-528, 725 A.2d 737, 740 (1999), cert. denied, - U.S. -, 120 S.Ct. 285, 145 L.Ed.2d 239, 68 U.S.L.W. 3232 (1999). ¶ 12 Thus “[i]n analyzing an anonymous tip, we must determine whether under the ‘totality of circumstances’ the informant’s tip established the necessary reasonable suspicion that criminal activity was afoot.” Commonwealth v. Martin, supra, 705 A.2d at 892 quoting Alabama v. White, supra, 496 U.S. at 328, 110 S.Ct. at 2415. “[Both] quantity and quality of information are considered when assessing the totality of the circumstances. If information has a low degree of reliability, then more information is required to establish reasonable suspicion.” Commonwealth v. Wimbush & Commonwealth v. White, 561 Pa. 368, 375, 750 A.2d 807, 811 (2000). ¶ 13 It is a fundamental truth that an informant’s cloak of anonymity may also be a shield behind which the informer may hurl unwarranted and unfounded accusations with impunity, secure in the belief that he or she will never reap the consequences of his or her mendacity. It is this elemental principle of human nature which has caused the Supreme Court of our Commonwealth to reject the notion that the word of an anonymous informant alone, without any knowledge of that informant’s reliability or any independent corroboration or observation of illegal activity by the police, can serve as the basis for subjecting an individual citizen to detention and a physical search of his or her person. This is because, in our free and democratic society, a stop of a citizen by a police officer and a search of that citizen is not to be regarded as a minor or trifling disruption of that citizen’s constitutionally guaranteed right to be free of unreasonable searches and seizures. ¶ 14 As our Supreme Court has reminded: It is simply fantastic to urge that a careful exploration of the outer surfaces of a person’s clothing all over his or her body performed in public while the citizen is helpless, perhaps facing a wall with his hands raised, is a petty indignity. It is a serious intrusion on the sanctity of the person which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. Jackson, at 488, 698 A.2d at 573 quoting Terry, 392 U.S. at 16-17, 88 S.Ct. at 1877, 20 L.Ed.2d at 903. ¶ 15 These considerations were of paramount importance in our Supreme Court’s decision in the case of Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978). In Anderson, the police received a telephone call from an anonymous caller who said there was a man who was an escapee from a drug rehabilitation program in a bar at a particular location. The caller described the man as an African-American male named “Perry” who was about 5' 10” with a large “bush” hair style and wearing a dark coat. Id. at 293, 392 A.2d at 1299. ¶ 16 In response, two police officers were dispatched to the bar. Once in the bar they saw Anderson who they believed matched the description of the person referred to in the telephone call. One of the police officers initiated conversation with Anderson and asked if he was carrying weapons. Before Anderson could respond, the other officer touched Anderson’s jacket pocket and felt what he believed to be a gun. The object was taken from the pocket by one of the officers and it was revealed to be a .22 caliber handgun. Anderson was arrested, charged and convicted of a variety of offenses relating to possession of the firearm. Prior to his trial Anderson filed a motion to suppress the firearm as evidence, which was denied. The Court of Common Pleas of Philadelphia denied his petition for a writ of certio-rari and our Court affirmed his conviction. Id. at 294, 392 A.2d at 1299. ¶ 17 On appeal, the Supreme Court reversed our Court, holding that the search of Anderson was improper under the circumstances and that consequently the evidence of the firearm should have been suppressed. In reversing, our Supreme Court had occasion to discuss the fundamental public policy considerations and constitutional interests which a court must consider and carefully weigh when determining if the actions of the police in detaining and frisking an individual were warranted: In striking the balance between the public interest and the individual’s right to personal security free from arbitrary interference of law enforcement officials, the initial inquiry must focus upon the propriety of the initial restraint of appellant’s freedom of movement. Adams v. Williams, [407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1977 [1972]).] As noted by Mr. Justice Harlan in a concurring opinion in Terry, the right to “frisk” depends upon the reasonableness of a forcible stop to investigate a suspected crime. Terry v. Ohio, 392 U.S. at 33, 88 S.Ct. 1868. The reasonableness “of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers”, United States v. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2579. The Terry Court made it clear that such a balance cannot be struck where the police are acting upon information that would not warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1868. “Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio, supra [379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142]; Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). And simple ‘“good faith on the part of the arresting officer is not enough.” ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ Beck v. Ohio, supra, at 97, 85 S.Ct. at 229 [13 L.Ed.2d at 148].” Id. at 22, 88 S.Ct. at 1880. Here the officers were acting upon an anonymous tip. Because of the general nature of the description it cannot be argued that the tip was corroborated by the appellant’s presence in the bar. Moreover, there was nothing observable in his conduct in the officers’ presence to suggest that he was in anyway involved in criminal activity or that he was the person they were seeking. In fact the only basis for the officers’ belief that a crime had occurred rested upon unverified information supplied by the unidentified informer. Even though the intrusion here may be termed modest, we do not believe that the officers here possessed a reasonable suspicion to justify the “stop.” Anderson, at 297-298, 392 A.2d 1298, 392 A.2d at 1300-1301 (emphasis supplied). ¶ 18 Thus, this case clearly set forth the principle that if police receive unverified information from an unknown person, which consists solely of a generalized description of a person allegedly en gaged in criminal activity at a particular location, that information, in and of itself, does not provide the police with the requisite reasonable suspicion to detain and search an individual who merely happens to be at the specified location and who matches the general description given by the informant. Some other independent corroboration of the individual’s involvement in criminal activity is required. Mere presence alone of an individual at a particular place, as described by the anonymous informant, does not establish that the individual is engaged in criminal activity- ¶ 19 Almost twenty years after Anderson was decided, the Pennsylvania Supreme Court reaffirmed this principle in a series of three cases: Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), Commonwealth v. Kue, 547 Pa. 668, 692 A.2d 1076 (1997) and Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997). Hawkins and Kue are plurality opinions authored by Chief Justice Flaherty and joined by Justices Zappala and Cappy, with Justice Nigro concurring in the result and Justices Newman and Cas-tille dissenting. Hawkins and Kue are therefore not binding precedent, however they are nonetheless instructive because their reasoning was fully adopted by a clear majority of our Supreme Court in Jackson, ¶ 20 In Hawkins, a Philadelphia Police officer received a radio call that there was a black male with a gun standing at a particular intersection wearing a “blue cap, black jeans and a gold or brownish coat.” Id. at 654, 692 A.2d 1068. The officer arrived at the intersection three minutes after receiving the call and observed the appellant, Hawkins, who fit the description broadcast on the radio. The police officer stopped and frisked Hawkins, discovering a gun in his waistband. ¶ 21 Later, at the suppression hearing, the police officer admitted that he did not know the source of the information contained in the radio call, and there was no other testimony provided at the hearing as to the basis of the information that the officer received. Nonetheless, the suppression motion was denied, as was appellant’s writ of certiorari to the Court of Common Pleas. Our Court affirmed the denial of the suppression motion, but the Supreme Court reversed. Justice Flaherty, writing for the plurality, said: If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. As the United States Supreme Court observed in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the fact that a suspect resembles the anonymous caller’s description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller’s allegations of criminal conduct. The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before. And since there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity, in the typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion. Hawkins, at 656-657, 692 A.2d at 1070-1071. Justice -Flaherty made clear that there is no automatic “man with a gun” exception to the requirement that the police have an independent basis, beyond that of the information received from an anonymous source, to justify a stop and frisk of an individual. ¶ 22 In the companion case of Commonwealth v. Kue, 547 Pa. 668, 692 A.2d 1076 (1997), decided the same day as Haivkins, Chief Justice Flaherty again authored a plurality opinion invalidating a stop and frisk of an individual, which was, once more, based solely on the police receipt of anonymous information from an unknown source. In Kue, the police received a radio report that an Asian male, who was wearing a striped shirt, was “armed with a gun” and standing at a particular street corner. Three minutes after receiving the report, the officer arrived at the street corner referred to in the tip. He saw four Asian males standing on the corner, and he proceeded to stop and frisk each of them. During the course of the frisk the police officer discovered that appellant Kue was carrying a gun tucked in his waist band. As in Hawkins, the source of the tip was never determined, but the evidence was not suppressed by the Municipal Court. A writ of certiorari to the Court of Common Pleas of Philadelphia was denied and our court affirmed, holding that the police had met the constitutional requirements for a lawful Terry stop. ¶ 28 Again the Supreme Court reversed. Justice Flaherty wrote: [I]n order for police to act on an anonymous tip, the Terry requirement of reasonable suspicion of criminal activity must still be satisfied and must be independent of the telephone tip itself. Here, there was no independent reason to believe that criminal conduct was afoot, and the police officer, therefore, had no reason to search anyone, whether it was the man with the striped shirt or his companions. Id. at 671, 692 A.2d at 1078. ¶ 24 Finally in Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997) the plurality holdings of Hawkins and Kue acquired the force of binding precedent. In Jackson, the police received a radio report that a man with a green jacket was carrying a gun and could be found in a particular location. Within two minutes of receiving the report, the officer arrived at the location where the individual was reported to be and observed an individual with a green jacket, the appellant Jackson, merely standing there and doing nothing else. The police officer exited his vehicle and frisked Jackson. During the course of the search, a small key box fell to the ground near where Jackson was standing. The key box contained cocaine. Id. at 487, 698 A.2d at 572. Jackson was arrested and sought to have the evidence of the cocaine suppressed. This suppression motion was denied by the Municipal Court of Philadelphia and upheld by both the Court of Common Pleas and our Court. ¶ 25 Our Supreme Court reversed. Relying in part on its prior rationale in Hawkins, the Court said: This case is factually indistinguishable from Hawkins. In Hawkins, we held that before the police may undertake a stop and frisk on the basis of an anonymous tip of a man with a gun, the police must establish that they have a reasonable suspicion that the individual is involved in, or about to commit a crime. If the tip contains sufficient information, the police can do this by corroborating sufficient details of the tip. Otherwise, the police must investigate further by means not constituting a search and seizure. If, as a result, they acquire sufficient information to give rise to a reasonable suspicion that the individual is armed and dangerous, they may then initiate a Terry stop. Neither condition was met in this case, and therefore the search was illegal. Id. at 493, 698 A.2d at 575 (emphasis supplied). Our Supreme Court also expressly rejected the Commonwealth’s argument that so long as the anonymous tip provides a physical description of an individual, an accurate location where the individual may be found, and an allegation that the indi- vidual is armed, then a Terry stop is justified. Id. at 492, 698 A.2d at 575. ¶ 26 Hence, Jackson established that a simple lone statement by an anonymous individual that a person in a particular location has a gun does not, in of itself, furnish the requisite reasonable suspicion to make an investigative detention of that person constitutionally permissible under both the Fourth Amendment to the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Some additional corroboration of that person’s involvement in criminal activity is required before a Terry stop may be undertaken. ¶ 27 The Supreme Court of the United States unanimously reached the same conclusion in the recent case of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254, 68 U.S.L.W. 4236 (2000). In that case, the police received an anonymous phone tip that there was a young black male standing at a particular bus stop, wearing a plaid shirt, and carrying a gun. Officers proceeded to the bus stop, and, when they arrived there, they saw three black males, one of whom was wearing a plaid shirt. However, the officers observed nothing which would lead them to conclude that the individuals at the bus stop were engaged in illegal activity. They did not see a firearm, nor did any of the individuals make any threatening or unusual movements. Nevertheless, the officer immediately approached J.L, the individual wearing the plaid shirt, and told him to put his hands up on the bus stop. The officer then proceeded to frisk him, and, as a result of the frisk, the officer discovered a handgun concealed in J.L’s pocket. J.L. was arrested and charged with carrying a concealed firearm without a license and possession of a firearm while under the age of 18. Id. at-, 120 S.Ct. at 1377, 146 L.Edüd at 259. ¶ 28 Prior to trial J.L. sought suppression of the firearm as the fruit of an unlawful search. Both the trial court and the Florida Supreme Court agreed that the evidence should have been suppressed, since the search was invalid under the Fourth Amendment to the United States Supreme Court. Florida sought review from the United States Supreme Court which granted certiorari. The unanimous Court agreed that the Terry stop and frisk conducted by the officer was improper since the anonymous tip itself did not provide the requisite reasonable suspicion for such action. ¶29 Writing for the unanimous Court Justice Ginsburg said: In the instant case, the officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,” Alabama v. White, 496 U.S., at 329, 110 S.Ct. 2412, 110 L.Ed.2d 301. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” Id., at 327, 110 S.Ct. 2412. The question we here confront is whether the tip pointing to J.L. had those indicia of reliability. In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Ibid. Standing alone, the tip would not have justified a Terry stop. Id., at 329, 110 S.Ct. 2412. Only after police observation showed that the informant had accurately predicted the woman’s movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. Id., at 332, 110 S.Ct. 2412. Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline. Knowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. We accordingly classified White as a “close case.” Ibid. The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line. Florida contends that the tip was reliable because its description of the suspect’s visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop. Brief for Petitioner 20-21. The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should be permitted “when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip.... ” Brief for United States 16. These contentions misapprehend the reliability needed for a tip to justify a Terry stop. An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Id. 529 U.S. at-, 120 S.Ct. at 1378-1379, 146 L.Ed.2d at 260-261 (emphasis supplied). ¶ 30 The Court also made clear that there is no automatic firearm exception to the Terry rule. The Court acknowledged that firearms are dangerous instrumentalities, however the Court reminded that they had already accounted for this factor in allowing Terry stops on the basis of reasonable suspicion and not requiring that police officers meet the higher stan dard of probable cause. The Court pointed out that were they to carve out such a per se firearms exception, then there was no limit to the number of exceptions which could be created to justify Terry frisks based on mere anonymous assertions of criminal conduct. The Court noted; “If police officers may properly conduct Teiry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied.” Id. 529 U.S. at-, 120 S.Ct. at 1380, 146 L.Ed.2d at 261-262. ¶ 31 Very recently in Wimbush/White, supra, our Supreme Court held that an anonymous phone tip that a black man named “Tony” would be driving a white van on a particular road and carrying drugs was insufficient, by itself, to provide reasonable suspicion for a traffic stop of a van being driven by an individual who appeared to be the subject of the tip. The Court specified that the police needed “something more” than the anonymous tip to justify conducting an investigatory stop of the subject’s vehicle, namely independent. corroboration of criminal activity on the part of the subject. Id. at 813. ¶ 32 The Court also held, in a companion case, that an anonymous telephone tip which conveyed that a black man with drugs, wearing a white shirt and shorts, would be exiting a particular apartment complex and getting on a black bicycle was an insufficient basis for an officer to perform a Terry stop and patdown of an individual who was leaving the named apartment complex and who happened to match the description given in the tip. Again the Court noted the need for “something more” than the tip itself to justify the detention. Id., at 812. ¶ 33 The Court said: There was, however, no corroboration of the tipster’s allegations of criminal conduct to justify Officer Matthew’s stop. While White’s appearance was consistent with the anonymous caller’s overly general description and White did exit the housing complex on the described bicycle, Officer Matthews observed no unusual conduct which would suggest that criminal activity was afoot. As such, Officer Matthew’s surveillance produced no reason independent of the unreliable, anonymous tip to suspect that White was involved in criminal conduct. Rather, the only basis for Officer Matthew’s belief that a crime had been committed remained the information obtained from the uncorroborated tip that bore no indicia of reliability. Under Jackson, this basis is simply not adequate to establish the reasonable suspicion required to conduct an investigatory stop. Wimbush/White, 750 A.2d at 812. ¶ 34 We deem the articulated legal principles in the cases discussed above controlling in the case sub judice. The mere fact that this particular tip of a man with a weapon was conveyed in person by an anonymous individual, rather than via telephone call, does not compel a different result. The informant who provided the initial information to the police officer was still an anonymous individual. It is the pedestrian informant’s complete anonymity and corresponding lack of any indicia of his reliability that is a critical factor. ¶ 35 As the United States Supreme Court has recognized, if an informer is known to the police, or identifies him or herself to the police, then there is an indicia of reliability attached to the tip, because the informant has placed himself or herself at risk for prosecution for giving false information to the police if the tip is untrue. See Adams v. Williams, supra (word of pedestrian informer that individual was armed and carrying drugs was valid basis for Terry stop since informer was deemed reliable because his identity was known to the police and because he had provided reliable information to the police in the past as part of criminal investigations). There is, however, no such inherent indicia of reliability in the word of an anonymous informer who has never cooperated with the police in the past or who does not disclose his or her identity to the police. Clearly if the police do not even know an informant’s name, or have never had any dealings with the informer on prior occasions, then it cannot reasonably be said that they have any adequate basis to ascertain anything about the informant’s reliability, veracity, or the accuracy of his or her tip. ¶ 36 Merely because the unknown tipster in the case at bar conveyed his information in person to the police as opposed to telephonically did not automatically endow the information contained within his tip with greater presumed accuracy and reliability. Nor did it establish that he was acting with veracity. The individual who approached the officer on the street was completely unknown to him. The officer had never seen this individual before or had any knowledge that this individual had provided accurate and reliable information to the police in the past. The individual did not identify himself to the officer, nor did he accompany the officer to the park to point out the individual who was “brandishing the weapon.” The nameless pedestrian did not appear at the Appellant’s hearing to testify as to his observation that he saw the Appellant “brandishing a weapon.” The pedestrian was and is, in all respects, a completely anonymous individual, and as such, his reliability is equivalent to that of an unknown individual who telephones an anonymous tip to the police that there is a man with a gun in a particular location. ¶ 37 Since the identity and veracity of the pedestrian informant remained unknown, there was therefore no objective basis under these particular circumstances for the officer to conclude that the information provided by this individual was accurate or rehable. Thus, the officer needed “something more” than the tip itself to effectuate a Terry stop of an individual who might possibly be the subject of the tip. He needed some independent corroboration of that individual’s involvement in criminal activity. ¶38 However the officer upon arriving in the park did not independently observe Appellant or any of the other individuals present engaging in anything remotely resembling criminal activity. Like the defendants in Anderson, Hawkins, Kue, Jackson and J.L., the Appellant and the other individuals in the park were merely present in a public area when the officer arrived on the scene. The tip itself provided no specific predictive basis as to the activities of any of the individuals present in the park that would not be known to anyone in the public at large. There was therefore no other basis, aside from the word of the anonymous pedestrian, to infer that Appellant had been actively involved in the commission of a crime or would be actively involved in the commission of a crime in the immediate future. ¶ 39 Additionally, the anonymous pedestrian’s description of the individual allegedly “brandishing a weapon” was considerably less detailed than the descriptions conveyed by the anonymous callers in Anderson, Hawkins, Kue, Jackson and J.L. In those cases, the anonymous callers specifically described the race and clothing of the individual who was the subject of the tip. Nevertheless, as discussed above, those descriptions, though detailed, were held to be insufficient bases to justify Terry stops of individuals who merely matched the descriptions. ¶ 40 In the case at bar, all the anonymous pedestrian told the officer was that there was a “tall man in the park brandishing a weapon.” The pedestrian did not provide any other identifying characteristics of the individual to the officer. Indeed, the officer testified that when he arrived at the park ten minutes after encountering the pedestrian he saw eight (8) or nine (9) individuals in the park, some of whom were close in height to the Appellant. See N.T. Suppression Hearing, supra at 8. ¶ 41 It therefore logically follows that if a detailed physical description given by an anonymous informant of an individual allegedly engaged in criminal activity is, in and of itself, an insufficient basis for an investigative detention of a subject who simply matches that detailed description, then a skeletally vague description of a “tall man brandishing a weapon” certainly cannot provide the requisite reasonable suspicion for a detention. Such a generic description as that provided by the pedestrian to the officer in this case constitutes the veritable essence of vagueness. Indeed, if we were to accept the rationale that the officer was permitted to stop and frisk on the basis of this skeletally vague description, then any male citizen who was present in the park at the time the officer arrived, and who the officer subjectively thought was “tall” would have been subjected to a Terry stop. This is constitutionally impermissible. ¶42 It is also for this reason that we deem the cases of In the Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172 (1993) and Commonwealth v. Collazo, 692 A.2d 1116 (Pa.Super.1997), which the Commonwealth has advocated as controlling authority, inapplicable to the instant case. Both of these cases involved significantly different factual circumstances than those present in the case at bar. ¶43 In the case of In the Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172 (1993) a police officer testified that he spoke with a pedestrian at 5:25 a.m. who claimed that there were “two armed black men” with drugs around the corner. Id. at 173. The officer immediately proceeded to the location where the pedestrian told the officer the men would be standing, which was a mere fifty (50) feet away. Id. at 174. Upon arrival, the officer observed only two black men in the exact location where the pedestrian said that they would be. Id. at 174. The officer executed an immediate patdown search and discovered drugs. ¶ 44 Cur Court upheld the legality of the stop and frisk. However, in doing so our Court focused on the existence of other corroborating factors, which gave the officer an independent basis to act on the informant’s tip. Specifically we noted that the area where the encounter with the pedestrian took place and the area where the individuals were arrested were areas with a high incidence of drug trafficking. We also noted the time of the morning, 5:25 a.m. Id. at 174. Thus we concluded: “The time and the place of the encounter in this case provided an independent basis for the officer to act on the informant’s tip.” Id. ¶ 45 As the Commonwealth acknowledges, there is no mention or discussion in S.D. as to whether the investigating officer obtained or previously knew the identity of the pedestrian, or whether the pedestrian had previously provided reliable information to the police. However, significantly, in our Court’s discussion of the concerned citizen we said: “Identified citizens who report their observations of criminal activity to the police are assumed to be trustworthy, in the absence of special circumstances.” Id., 633 A.2d at 174 fn.l. Our Court derived its authority for this proposition from the case of Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989), a case in which an identified and specifically named individual, who had been the victim of an assault, had filed a complaint with the police. In this complaint, the victim gave the police a detailed report in which he said that he personally observed marijuana and cocaine in a particular apartment. Our Court held that the specific information provided by this “named informant” was sufficient to support an affidavit of probable cause for a search warrant of the apartment. Id. 564 A.2d at 1282. Thus, this tends to suggest that our Court in S.D. was dealing with a named citizen informant. ¶46 Nevertheless, even if we assume arguendo that the informant in S.D. was unnamed and unknown, this case is still distinguishable on its facts alone. Unlike the pedestrian in S.D., the pedestrian in the case at bar provided no identifying characteristics of the person “brandishing a weapon,” just that he was “tall.” Nor was there any testimony in the instant case as to the nature of the area in which Officer Woodson spoke with the pedestrian or the nature of the park, which tended to establish that these areas were high crime areas in which greater than normal numbers of people had been arrested for incidents involving guns and drugs. In S.D. there was such specific testimony, which we noted gave the officer an independent corroborating basis for the tip. Moreover, the time of the evening in which Appellant, an adult male, was in the park was much earlier than the time in which the defendant in S.D., a juvenile, was observed in a public area. Furthermore, it also took Officer Woodson ten minutes for him to arrive at the park, whereas the investigating officer in S.D. proceeded immediately and directly to the scene designated by the pedestrian, which was a short distance away. All of these distinguishing factors establish that this case cannot be considered controlling authority. ¶47 In Commonwealth v. Collazo, 692 A.2d 1116 (Pa.Super.1997) a police officer was exiting the police station when he was approached by a man who told the Officer that there was a man selling drugs at a nearby intersection. The man specifically described the individual as “wearing a black hat and blue shirt and riding a gold bicycle.” Id. at 1117. The officer immediately proceeded to the intersection and observed an individual, the defendant, who was wearing a black hat, a blue shirt, and straddling a gold bicycle. The officer approached the defendant and engaged him in conversation. The officer told the defendant that he had information that he was selling drugs. The defendant denied the allegation. The officer then asked the defendant if he could search him and his bicycle. The officer explained to the defendant that he could stop the search at any time. At that point, the defendant gave his consent for the search to proceed. The search yielded a knife and some marijuana, and, as a result, the defendant was arrested. Id. ¶ 48 The defendant sought to have the evidence of the search suppressed; however, the trial court denied the suppression motion, and this denial was affirmed by our Court. Our Court rejected the defendant’s argument that the stop and questioning was not justified based solely on the pedestrian citizen’s tip. However, in arriving at this conclusion we expressly noted that the description of the person involved in criminal activity given by the citizen to the officer was very detailed and specific. Id. at 1118. This is again quite unlike the description given by the pedestrian in the instant case. ¶ 49 Moreover, as in S.D., supra, there was no mention by our Court in Collazo as to whether or not the citizen who provided the initial information had identified himself to the officer or was previously known to the officer as having provided reliable information. Notably, however, our Court, in its discussion, once more chose to rely on a citation from S.D. for the proposition that “Identified citizens who report their observations of criminal activity to police are assumed to be trustworthy in the absence of special circumstances.” Id. at 1118 citing S.D. 633 A.2d at 174, n. 1 (emphasis supplied). ¶ 60 Also, the police officer in Collazo did not immediately subject the defendant to a detention or pat down search on the basis of the tip alone. As a result of the tip, the officer in Collazo first merely approached the defendant and engaged him in conversation. The officer in the case at bar immediately detained Appellant and the others upon his arrival in the park. This case is therefore also factually inap-posite. ¶ 51 Our Court is obliged to follow the precedent as set forth by our Supreme Court. See Foflygen v. Zemel, 420 Pa.Super. 18, 615 A.2d 1345, 1353 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993) (“As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court.”); See also Commonwealth v. Randolph, 553 Pa. 224, 230, 718 A.2d 1242, 1245 (1998) (“It is a fundamental precept of our judicial system that a lower tribunal may not disregard the standards articulated by a higher court.”). As our Supreme Court has recognized, to allow police to detain any individual based simply on vague and uncorroborated allegations of criminal activity made by an anonymous individual, who then vanishes like an ephemeral specter after conveying this information, would eviscerate the guarantee afforded every citizen by the United States and Pennsylvania Constitutions to be free from unreasonable searches and seizures.’ The anonymous tipster may have, as the Supreme Court stated in Jackson supra, merely an unparticularized hunch, or perhaps even worse, harbor a sinister desire to harass another individual by making that individual the subject of an unwarranted police detention or search. As Justice Stevens has also cogently observed, were courts to sanction Terry stops solely on the basis of anonymous tips then “every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed.” Alabama v. White, supra, 496 U.S. at 333, 110 S.Ct. at 2418 (Stevens J. dissenting) ¶ 52 This is not to say that anonymous tips are without any worth or utility. Clearly anonymous tips have useful value to the police in that they serve as the basis and starting point of further investigation. Our Supreme Court has noted: As explained in Hawkins, where the police are acting on information supplied anonymously, the public will receive its full measure of protection by police who act within constitutional restraints. Hawkins, 547 Pa. at 657-658, 692 A.2d at 1071. When the police receive unverified information that a person is engaged in illegal activity, the police may observe the suspect and conduct an investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may be stopped and questioned. Wimbush/White, supra, at 811-812. Accord Martin, supra, 705 A.2d at 893, n. 5. ¶ 53 In sum, the officer in the instant case was certainly free to investigate further on the basis of the anonymous pedestrian’s tip, and he is to be commended for promptly proceeding to the park for the purposes of checking out the anonymous pedestrian’s report. However, as the Supreme Court has made clear, the anonymous tip itself was not a basis for the officer to make an immediate Terry stop absent some independent corroboration by him of criminal activity. The officer was therefore not free to immediately detain every individual whom he saw on the belief that they might be the “tall” individual the unidentified pedestrian was referring to. Detaining and forcing an individual to be subjected to the indignity of an impromptu public police lineup requires more reasonable suspicion of that citizen’s involvement in criminal activity than vague uncorroborated allegations of an anonymous pedestrian. ¶ 54 Because the physical evidence seized from Appellant’s person was obtained by contravening his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution, we re verse the order of the Court of Common Pleas denying Appellant’s suppression motion, and we remand for a new trial. We further order that the evidence obtained during the search of the Appellant be suppressed in any future proceeding. ¶ 55 Reversed and remanded for proceedings consistent with this decision. Jurisdiction relinquished. . 18 Pa.C.S.A. §§ 6106, and 6108 respectively- . Officer Woodson estimated that the park area was 200-250 yards away from the Temple University Campus. Id. at 7. . Terry v. Ohio. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There is no serious question that Anderson was not free to ignore the officers’ inquiry and walk away. "So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search ...” (emphasis added; footnote and citations omitted) Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1977 [1972]). . In Jackson, Mr. Justice Cappy wrote the majority opinion which was joined by Chief Justice Flaherty, and Justices Zappala and Nigro. Justices Newman and Castille renewed their dissents which they had previously raised in Hawkins and Kue. . Our Supreme Court specified in Jackson that it was resolving the issue of the legality of the stop and frisk based on both Article I Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Id. at 488, 698 A.2d at 572-573. The Court noted that the requirements for a constitutional "stop and frisk” of an individual by the police are the same pursuant to Article I, Section 8 of the Pennsylvania Constitution as they are under the Fourth Amendment to the United States Constitution. Id. See also Wimbush/White, supra, at 810, fn. 2. Commonwealth v. Melendez, 544 Pa. 323, 327-328, 676 A.2d 226, 230 (1996). . Philadelphia has a curfew ordinance specifically prohibiting juveniles under the age of eighteen (18) from being out on the city streets after 10:30 p.m. and before 6:00 a.m. See Philadelphia Code of Ordinances 10-303. In Interest of William M., 440 Pa.Super. 140, 655 A.2d 158 (1995), appeal denied, 542 Pa. 649, 666 A.2d 1058 (1995). . We note also that the fact that Appellant’s admission to possession of a gun in response to Officer Woodson’s question does not establish consent for the pat down search. Appellant had already been illegally detained when he made this statement. It is axiomatic that consent obtained from a defendant who has been detained in the absence of any reasonable suspicion will not support a search, since the consent is the product of the illegal detention and not an independent act of free will. Commonwealth v. Wright, 448 Pa.Super. 621, 672 A.2d 826, 830 (1996); Commonwealth v. Vasquez, 703 A.2d 25, 32 (Pa.Super.1997)

FRIEDMAN, Judge. The Borough of Morrisville (Borough) appeals from the August 3, 1999 order of the Court of Common Pleas of Bucks County (trial court) denying and dismissing the Borough’s petition to vacate, modify or otherwise correct an Act 111 arbitration award dated December 8, 1998. We reverse. The Borough maintains a police force that bargains collectively with the Borough through the Morrisville Police Benevolent Association (Association). The last complete collective bargaining agreement (CBA) entered into by the Borough and the Association was in effect from 1991 through 1994. This CBA was followed by an arbitration award that was in effect from 1995 through 1997. In 1997, the Borough and the Association began negotiating a successor contract to the arbitration award. However, after several attempts at reaching an amicable resolution of the issues in dispute, an impasse was declared and arbitration was scheduled pursuant to Act 111. An arbitration hearing was held on July 6, 1998, and, on December 8, 1998, the panel of arbitrators issued an order and award. The award included the following provision: 6. Pension— (b) The Borough shall apply all funds received as excess interest from the Pennsylvania Municipal Retirement System to the accounts of active and retired police officers. The Borough took exception to paragraph 6(b) and, on January 7, 1999, filed a petition with the trial court seeking to have the award vacated, modified or otherwise corrected. The Association filed an answer to the petition, and, after the submission of briefs and oral argument, the trial court denied and dismissed the Borough’s petition. On appeal to this court, the Borough argues that the arbitrators lacked jurisdiction to allocate excess pension interest to the benefit of active and retired police officers because such allocation is a managerial prerogative. We agree. Arbitrators are prohibited from making awards that are outside the definition of bargainable issues set forth in section 1 of Act 111. F.O.P. Rose of Sharon Lodge No. 3 v. Pennsylvania Labor Relations Board, 729 A.2d 1278 (Pa.Cmwlth.), appeal denied, 560 Pa. 712, 748 A.2d 923 (1999). Section 1 of Act 111 specifically states that the subject of “pensions” is a bargainable issue; however, this court has held that the administration of pension funds is not a bargainable issue. Frackville Borough Police Department v. Pennsylvania Labor Relations Board, 701 A.2d 632 (Pa.Cmwlth.1997), appeal denied, 551 Pa. 706, 712 A.2d 287 (1998). Our inquiry here, then, is whether the allocation of excess pension interest is an administrative matter or an aspect of pensions that is subject to bargaining. The Pennsylvania Municipal Retirement System (PMRS) is administered by the Pennsylvania Municipal Retirement Board (Board) pursuant to the Pennsylvania Municipal Retirement Law (Law). Section 104(12.1) of the Law states that the Board shall allocate excess investment earnings, “at the direction of [the] municipalities” and “with the advice of the [Board’s] actuary,” to provide cost-of-living adjustments to the pension benefits of re tirees. Section 104(12.2) of the Law states that the Board shall allocate excess investment earnings, “at the direction of [the] municipalities” and with the involvement of the Board’s actuary, to the accounts of active members for their benefit. Moreover, section 110 of the Law, which pertains specifically to the “management” of the Pennsylvania Municipal Retirement Fund (Fund), states that the Board shall allocate “such excess interest as each municipality deems appropriate to the credit of the [various accounts].” These provisions of the Law make clear that the allocation of excess pension interest to the various accounts within the Fund is an aspect of the Board’s administration, or “management,” of the Fund. Moreover, it is clear that the Board performs this administrative, or “management,” function in conjunction with the municipalities. In fact, because the Board allocates excess pension interest only “at the direction of [the] municipalities” or “as each municipality deems appropriate,” we conclude that the Law has made the allocation of excess pension interest an inherent managerial prerogative of the municipalities. As such, the allocation of excess pension interest is not a bargainable issue, and the arbitrator lacked jurisdiction over the matter. Accordingly, we reverse. ORDER AND NOW, this 17th day of July, 2000, the order of the Court of Common Pleas of Bucks County, dated August 3, 1999, is reversed. . Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10. . Section 4 of Act 111, 43 P.S. § 217.4, states that either party to a dispute may request the appointment of a board of arbitration if the collective bargaining process reaches an impasse. . Our scope of review of Act 111 interest arbitration cases is in the nature of narrow certiorari, which limits our review to questions regarding: (1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrators' powers; and (4) a deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers’ Association, 540 Pa. 66, 656 A.2d 83 (1995). . The Association argues that the Borough failed to raise this issue in the brief that it filed before the trial court, and, therefore, the Borough has waived the matter. However, the question of subject matter jurisdiction can never be waived. See G. Ronald Darlington, Pennsylvania Appellate Practice § 302:47 (2”<> ed.1999). . Act of February 1, 1974, P.L. 34, as amended, 53 P.S. §§ 881.101-881.501. . 53 P.S. § 881.104(12.1). . 53 P.S. § 881.104(12.2). . 53 P.S. § 881.110. . Cf. City of Pittsburgh v. Pennsylvania Labor Relations Board, 539 Pa. 535, 653 A.2d 1210 (1995) (stating that the legislature, by allowing the city to establish a revised pension plan without mandating labor negotiations, made the establishment of a revised pension plan an inherent managerial activity). .Because of our disposition of this issue, we need not address the additional questions raised by the Borough on appeal.

OPINION SAYLOR, Justice. This case concerns the propriety of an assessment of counsel fees against Appellant, the Unemployment Compensation Board of Review (the “Board”), under Pennsylvania Rule of Appellate Procedure 2744. Appellee, Virginia McCann (“McCann”), was employed by CR’s Friendly Market (“Employer”) until April 30, 1996, when she was discharged for allegedly looking through a co-employee’s purse. McCann subsequently applied for unemployment compensation benefits, which were initially denied by the Job Center upon a finding of willful misconduct. At the ensuing hearing before the unemployment compensation referee, Employer’s manager, Gregory Golden, testified that McCann had searched the purse of another employee, Katina Fisher, looking for a two-dollar bill that had previously been in the drawer of the cash register. Mr. Golden explained that, although he did not personally observe the incident, the circumstances of its occurrence were conveyed to him by Ms. Fisher and another employee, John Watts. Mr. Golden specifically stated that McCann was discharged for “looking through another employee’s personal property without their permission.” Employer also offered an unsworn statement signed by Mr. Watts explaining the incident. McCann, acting pro se, testified that she had tried to purchase the two-dollar bill from the cash register only to learn that it was missing. McCann denied having-searched Ms. Fisher’s purse, explaining that she had accidently observed the two-dollar bill in the side pocket of the purse while picking it up and showed the subject bill to her co-worker, Mr. Watts. Following the hearing, the referee awarded benefits upon concluding that Employer offered no evidence of willful misconduct by McCann. On Employer’s appeal, rejecting McCann’s testimony as not credible, the Board found that McCann intentionally and purposefully looked into Ms. Fisher’s purse, thus invading the privacy of a co-worker, without good cause. Concluding that McCann’s conduct violated the standards of behavior that Employer could rightfully expect from its employees, the Board held that McCann engaged in willful misconduct disqualifying her from receiving unemployment compensation benefits. McCann, by counsel, sought reconsideration of the Board’s decision on the basis that all of Employer’s evidence of willful misconduct consisted of uncorroborated hearsay statements and, thus, was insufficient to support the Board’s adjudication. The Board denied McCann’s request, and an appeal to the Commonwealth Court followed. During the pendency of that appeal, counsel for McCann unsuccessfully sought agreement from the Board for a remand, again raising the hearsay nature of Employer’s evidence, and arguing that such evidence could not be corroborated solely by the Board’s disbelief of McCann’s testimony. The Board maintained that its adjudication was sustainable on the ground that McCann engaged in willful misconduct, not only by looking into Ms. Fisher’s purse, but also by showing the two-dollar bill to her co-worker. Following submission of briefs, a three-judge panel of the Commonwealth Court held that Employer’s proofs, comprised, as they were, of hearsay statements, did not provide the requisite substantial evidence necessary to support the finding that McCann had intentionally searched a co-employee’s purse. Nor, the Commonwealth Court held, was Employer’s evidence sufficiently corroborated by the Board’s credibility determination concerning McCann’s testimony. The Commonwealth Court then rejected the Board's alternative theory of affirmance, explaining that: The Board essentially agrees that there is no substantial evidence in the record to support a finding that Claimant intentionally searched a fellow employee’s purse. Instead of agreeing with Claimant’s arguments and withdrawing its opposition thereto, the Board contends that Claimant had nevertheless engaged in willful misconduct by showing the two dollar bill to her co-worker. However, Employer did not raise Claimant’s showing the two dollar bill to a co-worker as a basis for her discharge, there was no work rule prohibiting such conduct on the part of Claimant, and the Board, in its decision, did not state that such conduct was the basis for its determination that Claimant had engaged in willful misconduct. As such, the Board is precluded from raising that issue as a grounds for discharge for the first time on appeal, and we refuse to consider the Board’s argument on that issue. Expressing displeasure with the Board’s argument in this regard, the Commonwealth Court also stated: In the past, when its decision was unsupported by the record, the Board indicated as such and withdrew its opposition to the claimant’s appeal rather than proceed on the merits. Here, however, the Board raises a different reason for Claimant’s discharge than it did in its decision, i.e., that Claimant had shown the two dollar bill to her co-worker, in a last ditch effort to justify its otherwise insupportable action. Relying upon the Commonwealth Court’s expressed dissatisfaction, as well as the Board’s denial of the request for reconsideration and its refusal to agree to a remand, McCann’s counsel filed a motion for attorney’s fees under Pennsylvania Rule of Appellate Procedure 2744, claiming that the Board’s position was frivolous. Counsel sought $126.72 for costs in reproducing briefs and $1,685.00 in attorney’s fees. The majority of the Commonwealth Court, sitting en banc, held that counsel fees can be assessed under Rule 2744 against an administrative tribunal that subsequently defends its decision on appeal, explaining that such an award is predicated upon a showing that the Board’s conduct as a party before the court was dilatory, obdurate or vexatious and does not impinge upon an administrative tribunal’s adjudicatory functions. See McCann v. Unemployment Compensation Bd. of Review, 723 A.2d 246, 250 (Pa. Cmwlth.1999). The majority proceeded to examine the Board’s conduct during the appellate process, concluding that the advancement of a different but unsupported theory for affirmance, made in the Board’s capacity as an advocate, constituted vexatious and obdurate conduct warranting the imposition of counsel fees under Rule 2744. See id. at 251. In a dissenting opinion, Judge Smith, joined by Judge Doyle, explained that attorney’s fees may only be awarded against a state agency if expressly authorized by statute. See McCann, 723 A.2d at 252 (Smith, J., dissenting). Judge Smith found no express statutory authority pertaining to adjudicative agencies, such as the Board, and reasoned that the majority’s distinction between the Board’s actions as a quasi-judicial entity ■and its conduct as a respondent on appeal was too subtle and would lead to applications for fees under Rule 2744 whenever a party disagreed with an agency decision or argument. See id. at 253. In a separate dissenting opinion, Judge Leadbetter agreed that an adjudicative tribunal can be subject to fees under Rule 2744 for conduct undertaken in defense of its decision during appellate review, but would have concluded that the Board’s conduct in the present case was not obdurate, dilatory or vexatious. See McCann, 723 A.2d at 253 (Leadbetter, J., dissenting). Judge Lead-better viewed the Board’s advocacy, like that of any other party on appeal, as permissibly seeking affirmance on an alternative ground. Presently, the Board argues that the imposition of attorney’s fees under Rule 2744 encroaches upon its quasi-judicial immunity; penalizes its adjudicative functions; renders those functions subject to the threat of external pressures; and compels the Board to admit error in its decision-making process. The Board further contends that the award of attorney’s fees violates the doctrine of sovereign immunity, as there exists no express statutory authorization for the assessment of fees against an administrative agency defending its adjudication on appeal. McCann, on the other hand, following the reasoning of the majority opinion of the Commonwealth Court, explains that attorney’s fees were not awarded against the Board’for actions occurring in the adjudicatory process, but rather, for its conduct as an appellate litigant, thus negating any claim of quasi-judicial immunity. Regarding the Board’s assertion of sovereign immunity, McCann posits that the Legislature’s authorization of the underlying action against the Board for unemployment compensation benefits constituted a waiver of sovereign immunity, rendered the Board a party subject to an award of benefits, and sanctioned the imposition of counsel fees under Rule 2744 as an exercise of judicial authority. Resolution of these competing arguments would necessarily implicate questions touching upon the respective roles and interests of coordinate but constitutionally separate branches of government. Quasi-judicial agencies should be afforded the ability to perform their administrative and adjudicative functions as part of the executive branch of government free from excessive interference by the judiciary. At the same time, however, courts possess an inherent authority to guard the integrity of judicial proceedings by sanctioning egregious conduct of litigants. In determining whether and under what circumstances this latter power can be invoked to impose sanctions against the Commonwealth and its agencies, courts must be particularly circumspect, as, in our systems of checks and balances, this is one area in which the judiciary by necessity must render the final pronouncement. Here, however, we need not reach this issue, since we conclude that the Board's conduct during the appellate process was not dilatory, obdurate and vexatious within the meaning of Appellate Rule 2744. The Commonwealth Court’s contrary statement notwithstanding, the Board never conceded that its decision was unsupported by substantial evidence, nor were the Board’s findings based entirely upon uncorroborated hearsay testimony. The undisputed facts, arising primarily from McCann’s own statements, establish that McCann did look in her co-worker’s purse; the only controverted issue centered upon whether she did so accidentally or intentionally. Although Employer offered no direct evidence of McCann’s intent, such direct proof of an actor’s state of mind, often being impossible to obtain, is frequently inferred from the circumstances surrounding the actor’s conduct. The circumstantial evidence associated with the incident at issue, including McCann’s frustrated desire to purchase the missing two-dollar bill, suggests a course of conduct that provides arguable support for the Board’s inference that McCann deliberately looked into the purse. Furthermore, although the Board’s alternative argument for affirmance, namely, that McCann knowingly conveyed private information in pursuit of a personal economic interest, was contrary to the Commonwealth Court’s precedent because it was not a reason for discharge specifically raised by Employer, the Board could, quite properly, have argued that McCann’s admitted showing of the contents of her co-worker’s purse to another employee constituted some corroborating circumstantial evidence that McCann’s actions were not inadvertent. Viewed in this light, the Board’s formulation of its arguments, although ultimately unavailing, was not so egregious as to warrant the imposition of monetary sanctions. Accordingly, the order of the Commonwealth Court assessing attorney’s fees against the Board under Rule 2744 is reversed. . Section 402(e) of the Unemployment Compensation Law provides that: An employe shall be ineligible for compensation for any week— (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.... Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). . In the absence of an objection upon its admission, hearsay evidence may support an administrative tribunal's findings if it is corroborated by other competent evidence of record. See Vann v. Unemployment Compensa tion Bd. of Review, 508 Pa. 139, 150, 494 A.2d 1081, 1086 (1985). . Pennsylvania Rule of Appellate Procedure 2744 permits an appellate court to award counsel fees and delay damages, in addition to other allowable costs: if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. Pa.R.A.P. 2744. . See generally State of Mississippi v. Blenden, 748 So.2d 77, 88-89 (Miss. 1999) (discussing sovereign immunity in relation to courts' inherent authority to sanction under the separa tion of powers doctrine); United States v. Horn, 29 F.3d 754, 767 (1 st cir.1994) ("the doctrines of sovereign immunity and supervisory power, each formidable in its own right, are in unavoidable tension”). . See, e.g., Commonwealth v. Pittman, 515 Pa. 272, 276, 528 A.2d 138, 141 (1987) (declining to resolve constitutional issue where alternative disposition exists); see also Spallone v. United States, 493 U.S. 265, 274, 110 S.Ct. 625, 631, 107 L.Ed.2d 644 (1990) (declining to consider constitutional and legislative immunity challenge to a court’s contempt order where the order arose from "an abuse of discretion under traditional equitable principles”); Armstrong v. Executive Office, 1 F.3d 1274, 1290 n. 13 (D.C.Cir.1993) (same).

MONTEMURO, J.: ¶ 1 Appellant, Cecil Mention, appeals from an order entered by the Court of Common Pleas of Philadelphia County, entering default judgment against him, setting aside a tax sale at which he had purchased property, ordering him to convey that property to its previous owner, and refunding him the purchase price. We reverse the order and vacate the default judgment. ¶ 2 In 1998, Appellee, Abraham Kalantary, filed a complaint against Appellant and the City of Philadelphia, alleging that Appellee’s property, located at 613 N. 18th Street in Philadelphia, had been seized and sold by the City for nonpayment of property taxes. The complaint alleged that the City had violated Appellee’s right to due process by selling the property without first informing him of its intent to do so, and sought damages, ejectment of Appellant, who had purchased the property at the sale, and a declaration that Appellee was the rightful owner. ¶ 3 A settlement conference was scheduled, at which all parties were required to be present. Appellee and the City reached a settlement. However, despite having been required to be present, neither Appellant nor his attorney attended. After waiting over an hour for Appellant to appear, the judge entered a default judgment against him setting aside the tax sale, ordering him to convey title to Appel-lee, and refunding him the purchase price of $4,100. Ten days after the default judgment was entered, Appellant filed a petition to open, which was denied. He then filed the instant appeal. [T]he decision concerning whether to open a default judgment lies within the sound discretion of the trial court and its decision will not be reversed absent a manifest abuse of discretion or error of law.... The party seeking relief from a default judgment must establish three elements: (1) the petition was timely filed; (2) a reasonable explanation or excuse for the default; and (3) the petitioner had a meritorious defense to the underlying claim. Flynn v. Casa Di Bertacchi Corp., 449 Pa.Super. 606, 674 A.2d 1099, 1102 (1996). Further, the Pennsylvania Rules of Civil Procedure provide that if a petition to open a default judgment “is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense.” Pa.R.C.P. 237.3(b). “[This] rule supplies two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of the judgment.” Id., Note. ¶ 4 Appellant argues simply that the entry of the default judgment was inequitable, and an abuse of discretion. For a number of reasons, we agree. ¶ 5 First, Appellant’s petition to open was filed ten days after the entry of the default judgment, invoking the rule that the first two necessary elements are presumed. Consequently, a determination must be made as to whether he advanced a meritorious defense. In his petition to open, Appellant states that he has such a defense, as he “obtained the property via a Sheriffs sale in December 1995. Since th[at] date ..., [he] has expended substantial sums of money to repair, improve and rehabilitate the property.” (Petition to Open Default Judgment at ¶ 6). Attached to the petition are photographs of improvements allegedly made to the property, and copies of checks payable to a contractor totaling $28,000. ¶ 6 After summarily taking away his property, the trial court awarded Appellant only his $4,100 purchase price. The benefits of the time and money Appellant spent in refurbishing the property were arbitrarily conferred upon Appellee. Appellant’s defense, therefore, is that unjust enrichment of Appellee resulted from the setting aside of the sale. See Duquesne Litho, Inc. v. Roberts & Jaworski, Inc., 443 Pa.Super. 170, 661 A.2d 9, 12 (1995) (“A recovery for unjust enrichment is proper if one party is enriched by another, and an injustice would result if recovery for the enrichment is denied.”). This is indeed a meritorious defense to the underlying claim. ¶ 7 Further, in his preliminary objections to Appellee’s complaint, and in his answer, Appellant asserts the statute of limitations as a defense. Appellee’s complaint was filed on October 23,1998, nearly three years after the alleged tax sale. 42 Pa.C.S.A. § 5522(b)(5) provides that the period of limitations for “action[s] or proceeding[s] to set aside a judicial sale of property” is six months. Although Appel-lee claimed in his answer to the preliminary objections that the statute was tolled because he did not learn of the sale for some time, at this point in the proceedings the expiration of the statute is a meritorious defense, as it would be successful if proven at trial. ¶ 8 Therefore, as all three of the necessary elements are present, the trial court erred in refusing to open the default judgment. ¶ 9 We also find that the default judgment should not have been entered in the first place. In support of its actions, the only authority cited by the trial court was Pennsylvania Rule of Civil Procedure 218, which has been held to govern attendance at pre trial conferences, and provides, (a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion. (b) If without satisfactory excuse a defendant is not ready, the plaintiff may (1) proceed to trial, or, (2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award. (c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse. Pa.R.C.P. 218. ¶ 10 Rule 212, which governs pre-trial conferences in general, does not include sanctions for non-attendance. However, we have held that Rule 218 governs attendance at pre-trial conferences as well as at trials, because “[e]ounsel is under.the same duty to appear at conciliatory or pretrial conferences as he or she is to appear for trial.” Anderson v. Financial Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659, 660 (1994) (quoting Lee v. Cel-Pek Industries, Inc., 251 Pa.Super. 568, 380 A.2d 1243, 1244 (1977)). Here, Appellant, who was the defendant, failed to appear at the settlement conference. Based on the proposition cited above, therefore, Rule 218(b), seems to govern. This rule provides simply that in the event the defendant fails to appear for trial, the plaintiff may proceed ex parte. ¶ 11 It could be argued that the judgment against Appellant was the result of an ex parte settlement conference, analogous to a Rule 218(b) ex parte trial, and that therefore the trial court complied with the rule. However, that argument would fail because the judgment entered against Appellant was not the result of the settlement conference and, even if it was, for purposes of Rule 218(b) an ex parte settlement proceeding is not analogous to an ex parte trial. ¶ 12 First, the trial court’s entry of a default judgment against Appellant implies the occurrence not of a settlement conference at which Appellant’s interests were considered in his absence, but a summary dismissal of his position, that is, a severance of Appellant’s rights before the conference even took place. The judgment entered against Appellant, therefore, was not the result of an ex parte proceeding. Rather, as the trial court Opinion indicates, it appears to be an arbitrary sanction inflicted against Appellant before the commencement of the proceeding simply because he failed to appear. ¶ 13 Second, a settlement conference may not properly be considered the equivalent of an ex parte trial for purposes of Rule 218, because no record is produced of the proceedings' at the conference; an appellate court would be prevented from conducting an effective review of such a proceeding on appeal. Therefore, conducting a settlement conference in the absence of a defendant is not a proceeding anticipated by Rule 218(b). Even though it remains true that Rule 218(a) applies to plaintiffs who fail to attend settlement conferences, the specific language of Rule 218(b) does not empower a trial court to conduct an ex parte settlement conference when a defendant fails to appear, only to proceed to trial. ¶ 14 The issue then becomes whether, in light of Rule 218, a judge may enter default judgment as a sanction against a defendant who fails to appear at a settlement conference. On this subject, Goodrich-Amram’s Standard Pennsylvania Practice states, The Pretrial Conference Rule [212] does not provide any means of enforcing an attorney’s duty to attend and does not sanction the entry of a default judgment against a party because of the failure of the party’s attorney to appear. It has been postulated, however, that under the rule, a plaintiff who fails to appear either in person or through an attorney at a pretrial conference in contravention of a court order can be subject to a judgment of non pros. A trial court may not deny a party’s right to a jury trial because his or her attorney failed to attend a pretrial conference; there are many alternative sanctions which would not pre-empt the innocent litigant’s constitutional right to a jury trial, including the imposition of fines against the attorney, as well as the assessment of the opposing party’s legal fees against the attorney who misses a conference due to his or her own negligence .... A court faced with a plaintiff who does not appear at a pretrial conference either in person or through an attorney might enter an order striking a case from a trial list, if it is already listed, and staying further proceedings on the part of the plaintiff until he or she conforms to the order to hold a pretrial conference.... There is no penalty similar to a non pros or a stay of proceedings which may be imposed upon a defendant’s attorney for failing to attend a pretrial conference. It would seem, however, that any party, whether plaintiff or defendant, who without reasonable cause fails to attend a pretrial conference in person or by an attorney subjects himself or herself to summary punishment for contempt of court. 1 Goodrich-Amram 2d §§ 212.3:9-10. ¶ 15 There is simply is no authority in the Rules of Civil Procedure or elsewhere for the proposition that a trial court may summarily enter judgment against a defendant who fails to appear for a settlement conference. Therefore, given the prescriptions of Rule 218, the court’s options when presented with a situation where a defendant does not appear at a settlement conference are limited to imposition of one of the sanctions suggested in the above-quoted passage. Summarily entering judgment against the defendant is not among them. ¶ 16 The trial court cites Rule 218(c) in its Opinion, stating, Pursuant to Pennsylvania Rule of Civil Procedure 218(c), “a party who fails to appear for trial shall be deemed to be not ready without satisfactory cause.” This rule allows the trial court to grant relief under the rule without a separate determination that the failure to appear was without satisfactory excuse. Pursuant to the Pennsylvania Rules of Civil Procedure, it is within this Court’s discretion whether to enter judgment against a party who fails to appear for a mandatory settlement conference. (Trial Ct. Op., 10/8/99, at 2). It is true that 218(c) permits the court to grant relief without a separate determination that the party’s excuse was unsatisfactory. However, 218(c) merely invokes automatically the operation of 218(a) and (b) without a separate determination of the validity of the absentee’s excuse. In the context of a settlement conference, as discussed above, the court may not conduct an ex parte proceeding; nor may it summarily enter judgment against the defendant. The court must satisfy itself with the sanctions discussed supra in 1 Goodrich-Am-ram 2d §§ 212.3:9-10. ¶ 17 In First Union Mortg. Corp. v. Frempong, 744 A.2d 327 (Pa.Super.1999), we recently addressed the issue of whether a court may enter judgment against a defendant who had been absent from a settlement conference. There, judgment was entered against a defendant who had failed to appear both at a scheduled pre trial settlement conference and at the subsequent trial. Although we upheld the entry of judgment against the defendant, there are two important distinctions between Frempong and the instant case. ¶ 18 First, here, the default judgment was entered against Appellant on the day that that the settlement conference was scheduled as a sanction for failure to appear. In Frempong, although the defendant had failed to appear for the scheduled settlement conference, the judgment was not rendered until the trial date, where he again made no appearance. This fact -implies that it was not for his failure to appear at the conference that he was punished, but for his failure to appear at trial, and is consistent with the provisions of Rule 218(b). Second, the factual history of Frempong is drastically different than that of the instant case. There, the trial court found that the defendant had engaged in highly egregious dilatory tactics, and that justice favored a speedy dismissal of his claims. In the instant case, however, there was no evidence that Appellant had acted in anything but good faith. ¶ 19 Because the application of Rule 218 to settlement conferences is not a literal application of the letter of the rule, but is instead a question of interpretation, we find that the rules of construction stated in Pa.R.C.P. 126 and 127(c) apply. Rule 126 states, “The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Rule 127 states, When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; ... (3) the mischief to be remedied; (4) the object to be attained; ... [and] (6) the consequences of a particular interpretation; .... Pa.R.C.P. 127(c). ¶ 20 After considering the object of the rule, the circumstances of the two cases, and the consequences of the possible interpretations, we find that Frempong is distinguishable from the instant case, and, therefore, does not compel us to uphold the default judgment here. ¶21 Order reversed and default judgment vacated. Case remanded for proceedings consistent with this Opinion. ¶ 22 CIRILLO, President Judge Emeritus files a Concurring Statement. . Prior to the filing of this appeal, the City and Appellee entered into a settlement. The only issue on appeal is the propriety of the court's entry of default judgment against Appellant, Mention. Further, even though the City is a named party, we may exercise jurisdiction because neither party has objected to our jurisdiction. Wilson v. School Dist. of Phila., 410 Pa.Super. 416, 600 A.2d 210, 211 (1991) (citing 42 Pa.C.S.A. § 704(a); Pa. R.A.P. 741(a)).

COLINS, Judge. Thomas J. Tarka (Tarka) appeals from the October 15, 1999 order of the Court of Common Pleas of Philadelphia County (Trial Court) denying his appeal and sustaining a suspension of his operating privilege by the Department of Transportation, Bureau of Driver Licensing (Department) for refusing to submit to chemical testing pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b). We affirm. This matter was originally before former Philadelphia Common Pleas Court Judge Bernard J. Avellino, who after a very brief hearing on September 13, 1994, granted Tarka’s appeal. The Department appealed, and this Court, by order dated April 25, 1995, vacated the Trial Court’s order and remanded the matter for the Trial Court to re-examine its evidentiary rulings, reverse said rulings if deemed legally correct to do so, and to conduct additional hearings if appropriate. The case was next listed for trial on March 25, 1998. Subsequently, on June 24, 1998, Tarka’s appeal was dismissed for lack of prosecution, but was reinstated on August 19, 1998. In spite of the aforementioned listed March 25, 1998 hearing date, it was not until October 15, 1999 that the Trial Court, after conducting a full hearing, denied Tarka’s appeal and affirmed the Department’s suspension order. This appeal to our Court followed. The factual history of the case indicates that early on March 12, 1994, Montgomery Township Officer Scott Bendig was on patrol in a marked police car when he observed a black Lincoln moving in the wrong direction on Route 202. After crossing over the medial strip, the vehicle, which was operated by Tarka, stopped in the middle of the highway. Upon approaching the vehicle, Officer Bendig observed that Tarka was glassy eyed, exhibited slurred speech, and emanated an odor of alcohol. Tarka took two field sobriety tests and failed. The record further indicates that Officer Bendig gave Tarka an alpha sensor breath test, which registered a 0.13 reading. Tarka was arrested and taken to North Penn Hospital for a blood test where he was given the implied consent warnings. Although Tarka initially consented to give blood, he ultimately refused when the laboratory technician appeared. Tarka alleges that he offered to take a urinalysis instead of a blood test, after advising Officer Ben-dig that he had medical concerns about taking the blood test because two weeks earlier, he had been treated in Thomas Jefferson University Hospital for blood poisoning for which he was still on medication, and that any blood test would likely yield tainted results. Nevertheless, Tarka was taken back to the police station where he was given the warnings from the Department DL-26 Form, which reports a refusal to submit to chemical testing, and which form he signed. As» a result of the aforementioned refusal, Tarka’s operating privilege was suspended. On appeal, Tarka first argues that the Trial Court erred in limiting the parties to a totally new hearing, without considering any of the matters placed on the record in the proceedings before Judge Avellino that resulted in the latter sustaining Tarka’s appeal. Second, Tarka maintains that the Trial Court erred in dismissing his appeal almost six years after the initial suspension notice was issued, and he argues that the Department was responsible for a three and one-half year delay, which prejudiced his due process rights to a prompt hearing on his license suspension appeal. In this regard, Tarka contends that he has been driving and pursuing his customary activities with no idea that his license would be suspended. He further argues that any punitive measures that may have been imposed upon him as a result of his initial arrest have long been satisfied, thereby making any reinstatement of his license suspension tantamount to an unreasonable second punishment for the same incident. Finally, Tarka maintains that the Trial Court erred in reinstating his license suspension based upon his alleged refusal, considering that he advised Officer Bendig of his medical concerns about the blood test and asked to take a urine test instead. Upon review, we note that the record is marked by inordinately lengthy and inexplicable time gaps in the docketed proceedings. Specifically, no explanation is proffered for the three-year gap between our April 25, 1995 order remanding the matter to the Trial Court, and March 25, 1998, the first date the case was docketed for a hearing. In this regard, Tarka contends that his due process rights to a prompt hearing were prejudiced by the aforementioned excessive delay for which he avers the Department was responsible. We find the foregoing argument to be without merit. We must note that this Court’s order of April 25, 1995, which vacated and remanded.the matter to the Trial Court, returned the parties to the status quo ante. Therefore, Tarka, having initially appealed the Department’s suspension of his license in the Trial Court, was again the Appellant and moving party, with the burden of moving his case forward. In the recent Supreme Court opin- ion, Terraciano v. Department of Transportation, Bureau of Driver Licensing, - Pa.-, 753 A.2d 233, 237 n. 8 (2000), the Supreme Court reaffirmed Roller v. Department of Transportation, Bureau of Driver Licensing, 682 A.2d 82 (Pa.Cmwlth.1996), which held that where the licensee is the appellant, it is the licensee’s burden to move the case through the system. Clearly, in the matter before us, Tarka failed to do so, and the docket does not indicate that he made any attempt to expedite the scheduling of his case. Additionally, Tarka presented no evidence of record that would indicate the delay was attributable to the Department. In Roller, 682 A.2d at 84 (emphasis added, footnote omitted), this Court addressed the issue of an appellant/licensee’s responsibility to pursue his appeal and in upholding the suspension of licensee’s operating privilege, stated: As the trial court properly concluded, neither Pa. R.J.A.1901 as implemented by Local Rule No. 6035 nor Penn Piping require that Licensee’s Motion to Dismiss be granted and the matter resolved in his favor. The purpose behind the promulgation of both of these rules and Penn Piping was to place the onus on the party initiating the action, the party with the burden to move the matter forward. Licensee is the party taking the appeal and, assuming the rules apply to license suspension appeals, would be the moving party rather than the Department. Because Licensee is the moving party, contrary to the matter being resolved in his favor, the rules and Penn Piping auger in favor of his appeal being dismissed and his license being suspended. Similarly, we find no merit in Tarka’s contention that the Trial Court erred in failing to find credible his averments that he presented Officer Bendig with valid medical reasons for refusing to submit to the blood test and offered to take a urine test instead. This Court has consistently held that “a driver who refuses to take a blood test, even though consenting to a breath or urine test, has failed to comply with the requirements of Section 1547 of the Code. Section 1547 does not afford a driver a choice among the three tests listed; rather, it is the police officer who has the option to choose the type of chemical test to be administered.” Department of Transportation, Bureau of Driver Licensing v. Mease, 148 Pa.Cmwlth. 14, 610 A.2d 76, 78 (1991). The fact that the Trial Court did not find Tarka’s medical excuse convincing, considering that his alleged blood poisoning problem occurred two weeks prior to the driving incident and did not prevent his participation in a celebration that included drinking alcoholic beverages and thereafter operating a motor vehicle, is within the scope of the Trial Court’s fact finding authority. Clearly, “[questions of credibility and conflicts in the evidence presented are for the trial court to resolve and are improper questions for appellate review. ‘As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfin-der, [an appellate court is] precluded from overturning that finding and must affirm Mooney v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 47, 50 (Pa.Cmwlth.1994) (citation omitted quoting Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989)). Accordingly, based upon the foregoing discussion, the Trial Court’s decision is affirmed. ORDER AND NOW, this 14th day of July 2000, the October 15, 1999 order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed. . Section 1547 of the Code provides: (b) Suspension for refusal. - (1) If any person placed under arrest for a violation of Section 3731 (relating to driving under the influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. . In a license suspension appeal, this Court’s scope of review is limited to determining whether necessary factual findings of the trial court are supported by substantial, competent evidence, or whether the trial court committed an error of law or abused its discretion in reaching the decision. Pollock v. Department of Transportation, Bureau of Driver Licensing, 160 Pa.Cmwlth. 383, 634 A.2d 852 (1993). . Our Supreme Court held in Penn Piping[ v. Insurance Co. of N. America], 529 Pa. [350] at 350, 603 A.2d [1006] at 1006 [1992], that a court has the discretion to employ its inherent power to dismiss a matter where the moving party has generated no docket activity for two years, and that when there is no docket activity for two years, prejudice to the non-moving party is presumed.

FLAHERTY, Judge. Cambria County Mental Health/Mental Retardation (Appointing Authority) petitions this Court for review of a decision and order of the State Civil Service Commission ■ (Commission) that ordered the Appointing Authority to offer its next available full-time psychological service associate (PSA) position to Jonell Cotton (Cotton) and to reimburse Cotton wages and emoluments from April 30, 1998 until she was appointed to a position by the Appointing Authority. We affirm. On April 20, 1995, the Appointing Authority submitted a request to the Commission to remove Cotton’s name from all PSA eligible lists, both full and part-time, certified to the Appointing Authority. The request for removal of Cotton’s name indicated that she had been employed as a part-time PSA by the Appointing Authority from May 9, 1994 to April 25, 1995, but that she had been terminated at the end of her probationary period for failure to meet acceptable performance standards. Cotton was notified by the Commission of the Appointing Authority’s request to have her name removed from the eligible list. She filed an appeal to challenge her removal and a hearing was scheduled for November 1995, but it was continued by the Commission until January 30,1996. On July 12, 1995, after requesting the removal of Cotton’s name from the PSA eligible list, the Appointing Authority requested that the Commission certify a list of eligibles for the position of PSA, giving preference to residents of the Appointing Authority. Certification 06375 was issued as requested. The certification contained two separate groups of eligibles. The first group was composed of five eligibles who were residents of the Appointing Authority. Cotton was the third name listed in this group and she had a final earned rating of 60. The second group was composed of six eligibles who were not residents of the Appointing Authority. J.W. Sutton (Sutton) was the sixth name listed in this group and he had a final earned rating of 60. On August 22, 1995, the Appointing Authority submitted a copy of Certification 06375 to the Commission indicating which of the eligibles had been appointed to the full-time PSA position. Three of the five eligibles who were residents of the Appointing Authority were appointed. The two residents who were not appointed were Cotton and another candidate. Cotton’s name had been marked with the code “PR” and the other candidate’s name had been marked with the code “NR”. The code “PR” means that an agency has requested that this eligible’s name be removed from the list of eligibles. The code “NR” means that the candidate did not reply to an availability survey or did not report for the interview. The Appointing Authority’s list also indicated that one nonresident was appointed to the position of PSA and that was Sutton. In early December of 1995, Cotton’s name expired from the PSA eligible list. However, this had no impact on Certification 06375. By letter dated January 22, 1996, the Appointing Authority indicated that it wished to withdraw its list removal request action against Cotton. By letter dated January 31, 1996, the Commission granted the Appointing Authority’s request to withdraw its action and indicated that the January 30, 1996 hearing had been cancelled. The letter to the Appointing Authority also advised that Cotton’s name would remain on the list of eligibles. In June or July of 1996, the Commission’s division of Technical Assistance and Audit contacted the Appointing Authority regarding its appointment of Sutton. It advised the Appointing Authority that corrective action must be taken because an audit of the appointment revealed that improper procedures may have been used in making the appointment from Certification 06375. The impropriety was that the Appointing Authority made an appointment of Sutton who was a non-resident, over Cotton who was a resident. The appointment should have been offered to Cotton. To correct the error the Appointing Authority was advised that it should offer Cotton its next available PSA position. The Appointing Authority responded that the appointments were legal and requested a hearing. A hearing was convened before the Commission under Section 951(d) of the Civil Service Act (Act). After the hearing, an order was entered directing the Appointing Authority to appoint Cotton to the next available PSA position and to reimburse her lost wages and emoluments. It is that order which is now before this Court. Three issues have been raised for our review: whether a “Statement” filed with this Court by Cotton on January 5, 2000, in lieu of a brief, should be stricken because it violates Pa. R.A.P. 2102 and Pa. R.A.P. 2112; whether the Appointing Authority’s amended brief is in violation of the rules and this Court’s order of November 8, 1999, ordering the Appointing Authority to strike portions of its Reproduced Record and file an amended brief removing any portion that relied upon the items stricken from the record; and whether the Appointing Authority’s appointment in August 1995 of a non-resident, over Cotton a resident of the Appointing Authority, was a violation of the Commission’s rule and policies of appointment meriting the Commission to order corrective action. We will address the issues concerning the briefs first. On January 5, 1999, Respondent/Intervenor Cotton filed with this Court a “Statement of Jonell X. Cotton” in lieu of a brief. The Appointing Authority responded with a motion to strike the statement because it violated Pa. R.A.P. 2102 and Pa. R.A.P. 2112 and did not in any way reference the Respondent Commission’s brief. After the filing of the motion, Respondent/Intervenor Cotton filed a brief with this Court on January 18, 2000. This brief comports with the rules. Since the “Statement” is in violation of the rules, because it does not contain a summary of argument or an argument section as required by Pa. R.A.P. 2112, and because an appropriate brief has been filed stating Cotton’s position, the Appointing Authority’s motion to strike Cotton’s “Statement” is granted. Next, the Commission argues that the Appointing Authority’s amended brief is in violation of the rules and an order of this Court dated November 8, 1999. The Commission contends that portions of the Appointing Authority’s amended brief continue to rely on documents that this Court has ordered stricken from the record and that these offending portions should also be disregarded by this Court. After review of the Appointing Authority’s amended brief, we must agree with the Commission. On November 8, 1999, this Court ordered that items 5, 8, 9, 10 and 11 of the Appointing Authority’s Reproduced Record be stricken because those items were not contained in the Certified Record. In addition, those portions of the Appointing Authority’s brief which relied on those items were ordered stricken. The Court then permitted the Appointing Authority to file an amended brief. The amended brief filed by the Appointing Authority is exactly the same as the original brief with the portions relying on the items stricken from the Reproduced Record being crossed out with a pink colored highlighter pen. The offending portions were not actually removed from the amended brief. This Court views the Appointing Authority’s actions as a ploy not only to avoid removing the designated portions as this Court ordered, but also to draw our attention to the material in the brief which was ordered to be stricken from the Reproduced Record. The Appointing Authority, nevertheless, insists it has complied with the Court’s order by using the pink colored highlighter pen. In addition, the Appointing Authority continued to insist at argument and by post argument correspondence that a highlighter pen is a redaction or deletion. We strongly disagree with this position and advise attorneys against such tactics which do not obey a clear court order and obviously attempt to circumvent it. In addition to the use of the highlighter pen, a close review of the Appointing Authority’s amended brief reveals that it did not even strike with its pink colored highlighter all of those portions which relied on items that were ordered stricken from the Reproduced Record. In the Statement of the Case on page 11 at paragraph 3 of the amended brief, the Appointing Authority used its highlighter on the citation to the record, but failed to use it on the information located in the stricken document. In addition, on page 12 at footnote 1 and on pages 13 and 14 there is information included that does not appear in the Reproduced Record. Additionally, in the Argument section of the amended brief at pages 21, 22 and 23 there are quotations purported to be quotations of the hearing officer, Mr. Zurn. An examination of the Reproduced Record does not reveal that these quotations are anywhere within the Reproduced Record. Again, this Court takes a dim view of the Appointing Authority’s attempt to misrepresent the record. Therefore, all offending portions cited above, as well as those highlighted in pink, will not be considered by this Court when examining the merits of the case. Finally, we address the merits of the case. The Appointing Authority argues that by ordering it to hire Cotton to a PSA position, after the Appointing Authority had fired her for unsatisfactory completion of her probationary period, the Commission is directing the Appointing Authority to act in an absurd manner and that the law abhors an absurd result. The Appointing Authority also alleges that it would not have withdrawn its request to have Cotton’s name removed from the eligible list, but for the fact that it had been misled by the Commission. The Commission argues that there is no evidence that the Appointing Authority was misled into withdrawing it’s removal request. In addition, because the request was withdrawn leaving Cotton’s name on Certification 06375, but Cotton had not been considered in the August 1995 appointments, the Appointing Authority violated the Commission’s policies and rules regarding appointments. The Commission argues that its decision was within the boundaries of its policies and rules. There appears to be no case law interpreting these policies and rules, and neither the Appointing Authority nor the Commission cite any case law in support of their respective arguments. When an appointing authority objects to an individual’s name being included on a list of eligibles, it can seek the removal by promptly raising it’s objection to the Commission. If the objection is sustained by the Commission, the appointing authority need not consider the eligible for appointment. See 4 Pa.Code § 97.13. Management Directive 580.34 provides the three-step procedure that must be followed. An appointing authority must: (1) promptly submit a list removal request to the Commission, (2) support its objection at a hearing if the eligible timely appeals the request, and (3) receive notification that the Commission has granted its request to the remove the individual. While the appeal process is proceeding, the eligible’s name will remain on the list and will continue to be certified until the Commission issues a decision. Only the Commission can remove an individual from the list of eligibles and until a name has been removed from a list, an appointing authority must consider that individual. See Management Directive 580.34. This Court has held that numbered management directives announcing detailed policies, responsibilities and procedures that are relatively permanent in nature and which have been signed by the head of any commission under the Governor’s jurisdiction have the force of law when they are based upon authority or duty conferred by constitution, statute or regulation. Reneski v. Department of Public Welfare, 84 Pa.Cmwlth. 226, 479 A.2d 652 (1984). See also Zerbe v. Unemployment Compensation Board of Review, 545 Pa. 406, 681 A.2d 740 (1996). The Appointing Authority does not contend that the Management Directive at issue does not have the force of law. Our review of the Act indicates that Section 203 empowers the Commission to adopt rules for making effective the provisions of the Act. 71 P.S. § 741.203. Therefore, according to Reneski, Management Directive 580.34 has the force of law. Accordingly, we must examine what affect this Management Directive had on the Appointing Authority’s appointment of Sutton over Cotton. The Appointing Authority argues that it is absurd that an employee recently fired should be rehired. However, the Appointing Authority chose to request and make appointments from a certification giving preference to residents of the County. Having done so, the Appointing Authority was required to follow the rules that govern the use of such certifications. The State Civil Service Commission Manual 580.1, “Certification of Eligibles for the Classified Service” explicitly requires that an appointing authority, in appointing eli-gibles from a certification giving preference to county residents, must appoint available residents before appointing nonresidents. (R.R. at 32a-33a). Specifically, the Manual provides: “4. Residency. For agencies with Commission approval to give preference to residents of their jurisdiction (e.g. county, city, district, or region), all available eligible residents on the certification must be appointed prior to appointing nonresidents.” 580.1 Part G(4). Because 580.1 requires that all residents be hired over nonresidents when the appointing authority requests a county preference list, the Appointing Authority here was required to hire Cotton before hiring a candidate off the nonresident list as long as her name remained on the list of eligibles. It is clear that the Management Directive sets out three steps an appointing authority must follow in order to remove a name from a list of eligibles. It is also clear from the record that the Appointing Authority did not follow this three step procedure, but instead withdrew its request before steps two and three could be completed, leaving Cotton’s name on Certification 06375. According to the Act, regulations and Management Directives, this three step procedure is the only procedure available to remove a name from the list of eligibles. Because Cotton’s name was not removed through this process and remained on Certification 06375, the Appointing Authority had an obligation to consider her for employment when it hired PSAs in June and August. This same result would have occurred if the Appointing Authority had followed through with its removal request and the Commission had denied the removal request. The Appointing Authority would have been obligated to consider Cotton at that time. (R.R. at 23a-25a). The Appointing Authority argues that it would not have withdrawn its removal request, but for the advice of someone in the office of the Commission. This allegation is not supported by any facts of record. The Appointing Authority attempted to introduce testimony at the hearing that some representative in the Civil Service office had informed an employee of the Appointing Authority that the Appointing Authority should withdraw the removal request. However, this testimony was objected to by the Commission’s counsel because it was hearsay and the objection was sustained by the hearing examiner. (R.R. at 75a-76a). We agree with the hearing examiner’s ruling because clearly the testimony was hearsay. Therefore, it cannot be the basis for any finding or conclusion that the Appointing Authority was misled into withdrawing its removal request. Without any competent evidence to support its claim that it was misled, it appears that the Appointing Authority unilaterally withdrew its request to remove Cotton’s name from the list of eligibles. The Appointing Authority chose to withdraw its removal request, leaving Cotton’s name on the list of eligibles. According to the Commission’s rules and regulations, because Cotton was an eligible candidate for the position of PSA and on the list of county residents, she should have been hired over a nonresident. While the Appointing Authority may believe it to be an absurd result, we conclude that the Appointing Authority, not the Commission, caused it. The Commission did not err as a matter of law in ordering the Appointing Authority to hire Cotton to a PSA position. Rules and procedures are in place for appointing and removing eligible candidates and the Appointing Authority chose not to follow the rules and procedures. It must now correct its improper appointment in accordance with the Commission’s rules and regulations. Accordingly, the order of the Commission is affirmed. ORDER AND NOW, this 1st day of June, 2000, Cambria County Mental Health/Mental Retardation’s motion to strike Jonell Cotton’s “Statement” is granted, the Commission’s request that this Court disregard portions of Cambria County Mental Health/Mental Retardation’s brief that rely on documents that have been stricken from the reproduced record is granted and the order of the Commission is affirmed. . An eligible coded "PR” on a certification list will either be removed or retained on the certification as directed by the Commission. If retained, the appointing agency must consider the eligible. If removed, the appointing agency need not consider the eligible. See the amended State Civil Service Management Directive 580.34, effective January 21, 1995. . Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.951(d). . Our review of decisions of the Commission are limited to determining whether constitutional rights have been violated, an error of law has been committed or whether the Commission’s findings of fact are supported by substantial evidence. Keim v. Department of Health, 117 Pa.Cmwlth. 452, 543 A.2d 1261 (1988). . Pa. R.A.P. 2102 provides that for purposes of briefing, intervenors shall be subject to the same provisions of the rules applicable to the party on whose side the intervenor is principally aligned. . Pa. R.A.P. 2112 requires that the brief of an appellee must contain a summary of argument and an argument section. . This Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal. Tener v. Unemployment Compensation Board of Review, 130 Pa.Cmwlth. 433, 568 A.2d 733, 738 (1990).

BROSKY, J. ¶ 1 This is an appeal from the order entered on August 26, 1999 by the Court of Common Pleas of Jefferson County, granting summary judgment in favor of Appellees Pauline and Paul Chada, based on the defenses of res judicata and collateral estoppel. We affirm the order of the trial court. ¶ 2 The trial court ably summarized the background of this case as follows: The case before us arises out of a conveyance of real estate in August of 1985, wherein the [Appellant] Adam Chada and the [Appellee] Pauline Cha-da, who were then husband and wife, conveyed a farm in Warsaw Township, Jefferson County, Pennsylvania, (held by Adam and Pauline as tenants by the entireties) to their son, Paul Chada, [an Appellee] herein. The [Appellant] avers that said transfer was the result of an oral property settlement agreement between the [Appellant] and the [Appel-lee], Pauline Chada, who were at that time separated and were contemplating divorce. The [Appellant] asserts that the transfer to Paul was in fact a transfer to Pauline, however, Paul was merely acting as her agent/nominee. The oral agreement, according to the [Appel lant], is that, in return for this transfer of the Warsaw Township property and payment of a sum of $100,000.00, Pauline agreed to accept the same in full payment and satisfaction of all of her legal rights under the law for the distribution of marital property. After the transfer, the [Appellant] asserts that the [Appellee] Pauline rescinded the contract by filing a complaint in divorce in 1987, in the Court of Common Pleas of Allegheny County, which included a claim for equitable distribution. A divorce decree, with provisions for equitable distribution, was issued on April 3, 1991. Subsequent thereto, the [Appellant] and the [Appellee] Pauline Chada were involved in the litigation of numerous petitions concerning the distribution of assets and the interpretation of the final decree. On August 5, 1996, a conference was held in Allegheny County before the Honorable Lawrence W. Kap-lan, wherein the [Appellant] and the [Appellee] Pauline Chada entered into a full and complete settlement agreement as to all issues related to the distribution of assets. The opening remarks of Judge Kaplan were as follows: We, I believe, have arrived at a significant point in history because it would appear, based upon what has been represented to me by counsel, that we now have a final settlement in the case of Pauline Chada vs. Adam Chada, this being an effort to make a final distribution of the escrow account that was maintained in this case for the purpose of meeting certain obligations in accordance with the direction of the master who had entered his order, approved by court in, I believe, 1991. I have met with counsel in chambers and there’s been a representation made that the clients are willing to accept a settlement based upon a certain formula which takefsj into account claims of both parties, as well as a waiver of claims of both parties in regard to certain items. Based upon what has been represented to me, as the Judge who has been supervising this case for eight years, the settlement that is proposed is a fair and reasonable one, and so we are happy that the parties have seen fit to accept the settlement. (Settlement conference before Judge Kaplan; Chada vs. Chada, No. FD87-3182, Court of Common Pleas of Allegheny County, August 5, 1996 [at 1-2]). In the course of the same conference, then counsel for the [Appellant], a Mr. Chester, indicated as follows: “There will not be anymore court proceedings involving Adam Chada and the Mrs. There is no legitimate reason for the parties to come into any contact with each other in the future, and that’s that. They will not see each other in court any longer or ever again with regard to the economic issues of this case. They are closed forever.” (Settlement conference before Judge Kaplan; Chada vs. Chada. No. FD 87-3182, Court of Common Pleas of Allegheny County, August 5,1996 [at 7]). On March 30, 1998, the [Appellant] filed the present action in equity, requesting that this court declare a constructive trust as to the Warsaw Township property, require an accounting of all rents and profits from the real estate, and to issue an injunction against the [Appellee] Paul Chada directing him to convey the property to the [Appellant] free and clear of any encumbrances, and to award punitive damages. The [Appellees] have responded with the assertion that the oral agreement never existed; that no separation took place until July of 1986; and, that the conveyance was the result of the desire to avoid inheritance taxes and to make the transfer to their only child and sole heir. By way of new matter, the [Appel-lees] have raised the issues of laches, estoppel, release, statute of limitations, and res judicata. Trial Court Opinion and Order, 8/26/99, at 2-4 (emphasis supplied). ¶ 3 On August 26, 1999, the trial court granted the Appellees’ Motion for Summary Judgment based upon the doctrines of collateral estoppel and res judicata. This appeal followed. ¶ 4 Appellant has framed a single issue for our review, i.e., “Did the Lower Court commit an error of law by granting the [Appellees’] Motion for Summary Judgment on August 26, 1999 based on the doctrines of collateral estoppel and res ju-dicata?” Appellant’s Brief at viii. For the reasons that follow, we find that the court did not so error, and affirm the order of the trial court. ¶ 5 Our standard of review in an appeal from an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all of the documentary evidence of record to determine whether there exists a genuine issue of material fact that would preclude the entry of summary judgment, and, if not, whether the moving party is entitled to judgment as a matter of law. This court will not overturn a trial court’s grant of summary judgment in the absence of either error of law or clear abuse of discretion. Kirby v. Kirby, 455 Pa.Super. 96, 687 A.2d 385, 387 (1997) appeal denied, 548 Pa. 681, 699 A.2d 735 (1997) (citations omitted). ¶ 6 Summary judgment may be entered only if the pleadings, depositions, affidavits and all other materials together, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. The trial court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. The burden is on the moving party to prove that no genuine issue of fact exists. However, when the moving party carries its initial burden, the adverse party may not rest upon the allegations or denials contained in the pleadings, but must respond by showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment will be entered in favor of the moving party. Finally, in considering the trial court’s ruling, we are not bound by the court’s conclusions of law, but may draw our own inferences and reach our own conclusions. Adamski v. Allstate Insurance Co., 738 A.2d 1033, 1035-36 (Pa.Super.1999) (citations omitted). ¶ 7 Since Appellant challenges the lower court’s application of the doctrines of res judicata and collateral estoppel a review of the elements of each doctrine is necessary to our disposition. These doctrines serve to preclude the litigation, respectively, of claims and issues that have previously been litigated. Where there has previously been rendered a final judgment on the merits by a court of competent jurisdiction, the doctrine of res judicata will bar any future suit on the same cause of action between the same parties. See 10 Standard Pennsylvania Practice 2d § 65:32. Invocation of the doctrine of res judicata (claim preclusion) requires that both the former and latter suits possess the following common elements: 1. identity in the thing sued upon; 2. identity in the cause of action; 3. identity of persons and parties to the action; and 4. identity of the capacity of the parties suing or being sued. Matternas v. Stehman, 434 Pa.Super. 255, 642 A.2d 1120, 1123, (1994). Collateral estoppel (issue preclusion) is closely related to res judicata, but bears certain distinctions: We note that the doctrine of res judi-cata, subsumes the more modern doctrine of issue preclusion which forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment. Col lateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment. Collateral estoppel does not require identity of causes of action or parties. However, while res judicata will bar subsequent claims that could have been litigated in the prior action, but which actually were not, collateral estoppel will bar only those issues that actually were litigated in the prior proceeding. Id. at 1125 (internal citations omitted). ¶ 8 Appellant does not challenge the existence of any of the elements of the two doctrines with the exception of the element of the identity of the cause of action/issue. Appellant argues that the causes of action differ and that the ultimate issue in the instant case is whether Pauline and Paul Chada engaged in a fraudulent conspiracy to deprive Appellant of his real property, whereas the ultimate issue in the previous divorce case was the distribution of marital assets. We, like the trial court, find this assertion disingenuous. ¶ 9 Appellant’s cause of action is couched in terms of a claim of fraud, however, it is patently obvious that Appellant’s objective is to re-litigate ownership of a parcel of real estate, formerly held as tenants by the entireties, and allegedly transferred to son pursuant to an oral marital settlement agreement between husband and wife. Unfortunately for Appellant, his claim could and should have been more fully developed within the context of the-equitable distribution litigation pending before the court entertaining the divorce action. ¶ 10 Although the two lawsuits embody differently entitled “causes of action” (equitable distribution vs. fraud), we cannot and will not elevate form over substance. “The form in which two actions are commenced does not determine whether the causes of action are identical.” Dempsey v. Cessna Aircraft Co., 439 Pa.Super. 172, 653 A.2d 679, 682 (1995) appeal denied, 541 Pa. 631, 663 A.2d 684 (1995). The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court. The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. When the cause of action in the first and second actions are distinct, or, even though related, are not so closely related that matters essential to recovery in the second action have been determined in the first action, the doctrine of res judicata does not apply. Hammel v. Hammel, 431 Pa.Super. 230, 636 A.2d 214, 218 (1994) (citations omitted, emphasis supplied). ¶ 11 It is clear, upon our review of the record before us, that Appellant had a full and fair opportunity to litigate the “ultimate and controlling issues” i.e. ownership of the real property and any alleged agreement pertaining thereto, although he may not have availed himself of the opportunity to do so. Appellant did allude to a dispute with respect to the marital property status of the subject real estate during the course of the divorce litigation. However, despite the fact that the alleged oral settlement agreement and transfer to son occurred prior to the filing of the divorce action by Pauline Chada in 1987, (the alleged act of breach of the alleged agreement), Appellant did not pursue or develop his claim in the divorce matter that such an agreement existed; that he was the victim of an alleged fraudulent conspiracy; or that the real estate should be included as marital property for purposes of equitable distribution. We must ask rhetorically, if Appellant had reached an acceptable settlement as to all property issues prior to the divorce action, and was truly a victim of a fraudulent conspiracy, why would he not more fully assert a claim that the economic issues had been resolved previously by the parties, or that the real estate should nonetheless be included in the marital estate. Given the facts allegedly known to him at the time of the equitable distribution proceedings in 1991, and known to him at the settlement conference in 1996, we can ascertain no legitimate reason why Appellant would not raise his claims then and there. Appellant’s present argument belies logic and the record before us. ¶ 12 As the trial court cogently observed: The case before [us] presents a text book example of both the theory of res judicata and collateral estoppel. Initially, any claim by the [Appellant] that the 1985 transfer involved some sort of fraud on the part of the [Appellee] Pauline Chada to obtain an unfair portion of the marital assets could certainly have been and certainly should have been raised by the [Appellant] during the extensive and lengthy litigation in Allegheny County. Furthermore, the case before [us] is, in every respect, a claim by the [Appellant] for equitable distribution, and it is abundantly clear that the issue of equitable distribution of the marital estate between Adam and Pauline Chada has been previously addressed and decided on the merits. Accordingly, we must grant the [Appel-lees’] Motion for Summary Judgment. ... Trial Court Opinion and Order, 8/26/99, at 5 (emphasis in original). ¶ 13 We agree with the learned trial court’s conclusion that Appellant previously had a full and fair opportunity to pursue the claims he now raises, and although he may have failed to do so, the doctrine of res judicata bars re-litigation of those claims. ¶ 14 Appellant’s claims fail for another reason. During the settlement conference in the divorce proceeding, it was explicitly stated for the record and agreed to by Appellant’s then counsel, and then Appellant himself, that ALL issues that could be or had been raised (including claims as to real property) were being disposed of at that time. Indeed, Attorney McCarthy, counsel for Mrs. Chada, stated to the court: Your Honor, it’s an accurate representation of what has been agreed upon by the parties, which is the following understanding as to what it means, that this is settled forever, it means that all issues that arise as a result of this marriage which have previously existed, currently exist, or could exist in the future, have been resolved, whether they be in the form of issues litigated before, issues that could have been litigated before, whether it refers to bonds, to the stocks, or to the real estate, and there will be no further actions for enforcement, and once these funds have been transferred in accordance with the terms of this Order, that is the level of ñnality that we seek, in that there will be no further litigation brought by Adam Chada against Pauline Cha-da or against Adam Chada by Pauline Chada. ¶ 15 Appellant’s then counsel, Mr. Chester replied: “So agreed, Judge.” Later, Appellant states: “I agreed to everything.” Settlement conference before Judge Kaplan; Chada vs. Chada, No. FD87-3182, Court of Common Pleas of Allegheny County, August 5, 1996, at 7-9 (emphasis supplied). ¶ 16 Despite Appellant’s failure to more fully develop his claims, the appropriate time and place to do so was before the Court of Common Pleas of Allegheny County during the divorce action. Moreover, Appellant, represented by able counsel, agreed on the record, that all claims relative to all economic issues arising out of the marriage, including claims as to real estate, were being disposed of. Thus, the claims Appellant now asserts have been litigated for purposes of the doctrine of collateral estoppel, and therefore re-litigation of the ultimate issue of property ownership by means of the instant lawsuit, is likewise barred. ¶ 17 Certainly, the parties are entitled to rely on the finality of the litigation they both expressed their desire to achieve. Appellant’s instant lawsuit is an effort to upset that finality and re-litigate ownership of the real estate; the ultimate issue which had been put to rest in the divorce action. We cannot and will not condone such efforts. ¶ 18 Accordingly, we affirm the order of the trial court. . Appellant's Brief at 5. . Trial Court Opinion and Order, 8/26/99, at 5. . It cannot be disputed that the Court of Common Pleas of Allegheny County had authority to rule on the claims now asserted by Appellant. 23 Pa.C.S.A. § 3104 provides: (a) Jurisdiction. — The courts shall have original jurisdiction in cases of divorce and for annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof; (1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them.... ., A review of Appellant's testimony from the Master's Hearing also reveals a much different reason for transferring the property to the parties' son than is being asserted by Appellant in this action. Adam Chada testified: “I was 72 years old and we was figuring on — I was figuring,on going up to see St. Pete. I didn’t think I'd be around as long as I am. And I wanted some of the property to go where I wanted it to go. I wanted that to go to Paul.”. Master's Hearing, 12/27/90, at 345.

OPINION ZAPPALA, Justice. This is an appeal by allowance from an order of the Commonwealth Court which affirmed an order of the Pennsylvania Public Utility Commission (PUC). At issue is whether Section 703(g) of the Pennsylvania Public Utility Code (Code), 66 Pa.C.S. § 703(g), requires notice and opportunity for a hearing when Commonwealth Court remands a case for clarification of a PUC order, and the PUC opts to amend its original order. Our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or the PUC’s findings and conclusions are supported by substantial evidence. Popowsky v. Pennsylvania Public Utility Commission, 542 Pa. 99, 665 A.2d 808 (1995); Peoples Natural Gas Co. v. Pennsylvania Public Utility Commission, 523 Pa. 370, 567 A.2d 642 (1989). Montour Trail Council (MTC) is the owner of a railroad right-of-way which creates a semi-circle south of the City of Pittsburgh, traversing Allegheny and Washington Counties. Along the right-of-way there are six rail-over-highway crossings located in Allegheny County and sixteen rail-over-highway crossings located in Washington County. By order adopted September 17,1987, and entered September 27,1987, the PUC commenced an investigative proceeding regarding abolishment of the rail-over-highway crossings. In two sets of hearings conducted before an administrative law judge, the PUC gathered evidence regarding safety and the public interest to determine whether the crossing structures should remain in place, as well as who should be responsible for future repair and maintenance of any remaining structures. The evidence presented to the ALJ included evidence of the condition of the crossing structures, the vertical and horizontal clearances, the involved sight lines, the proposed measures to make the rail structures safe for recreational use and the various alternatives to removal of the structures. On February 21, 1991, the ALJ issued a recommended decision. By opinion and order dated October 7, 1991, the PUC remanded the proceeding to the ALJ for further hearings to consider the Rails-to-Trails Act (Act). Pursuant to Section 10 of the Act, 32 P.S. § 5620, the PUC ordered that the Pennsylvania Department of Environmental Resources (DER) be notified and made a party to the action. Despite being notified of the proceeding, DER declined to present any evidence. On October 20,1992, the ALJ issued a second recommended decision: five of the six rail-over-highway crossings in Allegheny County and twelve of the sixteen rail-over-highway crossings in Washington County were to be abolished with the structures to remain in place. On October 1, 1993, the PUC entered an opinion and order adopting the ALJ’s recommended decision. The PUC ordered that DER be secondarily liable for the maintenance of the structures remaining after abolishment of the corresponding crossings. On October 18, 1993, the Pennsylvania Department of Transportation (DOT) filed a petition for clarification with the PUC, complaining of the PUC’s failure to set forth the disposi tion and cost allocation of each structure in separate paragraphs. MTC joined in this petition for clarification. On October 28,1993, prior to the PUC’s consideration of the petition for clarification, DER filed a petition for review with Commonwealth Court from the PUC’s October 1, 1993 order. DER asserted in its petition for review that the PUC did not have authority under the Act to hold it liable for secondary maintenance responsibility. MTC filed a notice of intervention in this petition for review. By reason of the foregoing appeal filed by DER, the PUC was precluded by Pa.R.A.P. 1701 from acting on DOT’S petition for clarification. On December 10, 1993, the PUC filed an application for remand requesting that Commonwealth Court remand the matter to the PUC for it to consider DOT’s petition for clarification. By order dated December 13, 1993, Commonwealth Court granted the PUC’s application for remand and relinquished its jurisdiction. On July 7, 1994, the PUC entered a supplemental opinion and order. In addition to setting forth its decision in separate paragraphs, the PUC ordered that twelve of the sixteen rail-over-highway crossings in Washington County, which were previously to be abolished with the structures to remain in place, were to be removed entirely. The PUC further ordered that DER was to be secondarily hable for the maintenance of two structures in Washington County. MTC and DER appealed the PUC’s order to Commonwealth Court.. MTC argued that the PUC abused its discretion and/or erred as a matter of law when, following Commonwealth Court’s grant of the PUC’s application for remand, the PUC changed its disposition regarding the twelve structures in Washington County without providing all interested parties with notice and an opportunity to be heard. In an opinion and order dated August 2, 1995, Commonwealth Court affirmed the supplemental opinion and order of the PUC. Montour Trail Council v. Pennsylvania Public Utility Commission, 663 A.2d 285 (Pa.Cmwlth.1995). Section 703(g) of the Code states: “The commission may, at any time, after notice and after opportunity to be heard as provided in this chapter, rescind or amend any order made by it.” Commonwealth Court has previously held that although an administrative agency may clarify a prior order without affording prior notice and an opportunity to be heard to interested parties, it may not effect substantive change of a prior order unless it has complied with the requirements of Section 703(g). Scott Payer Co. v. Pennsylvania Public Utility Commission, 126 Pa.Cmwlth. 111, 558 A.2d 914 (1989); Westinghouse Electric Corp. v. Pennsylvania Public Utility Commission, 44 Pa.Cmwlth. 407, 404 A.2d 712 (1979). We agree with MTC that the PUC was required to provide all interested parties with notice and an opportunity to be heard before changing its disposition regarding the rail-over-highway crossings. On remand by Commonwealth Court, the PUC did not simply clarify its original order, but instead changed its disposition regarding the twelve structures that were to remain in place in Washington County. This action clearly effected a substantial change in, and was not a mere clarification of, the PUC’s prior order. Because the PUC failed to afford interested parties notice and an opportunity to be heard pursuant to Section 703(g), the order of July 7,1994, is vacated and the case is remanded for further proceedings consistent with this opinion. NEWMAN, J., did not participate in the consideration or decision of this case. . Act of December 18, 1990, P.L. 748, as amended, 32 P.S. §§ 5611— 5622 (effective March 20, 1991). . Pa.R.A.P. 1701(a) provides in pertinent part, that "after an appeal is taken or review of a quasi-judicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”

FLAHERTY, Chief Justice. This is a direct appeal of three orders of the Commonwealth Court. The first order dated February 27, 1996, 673 A.2d 986, is a preliminary injunction which orders the appellants (hereinafter the “1994 Underwriters”) to pay certain amounts of money pursuant to insurance coverage which they allegedly agreed to provide to Molin, et al. (Emil J. Molin, Theodore D. Nering, and Frederic S. Richardson, hereinafter “the Richardson defendants”). The second order, dated April 18, 1996, holds the 1994 Underwriters in contempt for failure to pay as they were ordered by the preliminary injunction, and orders payment. The third order, dated May 10, 1996, denies 1994 Underwriters’ motion for a stay or supersedeas and directs the 1994 Underwriters to immediately pay two-thirds of the Richardson Defendants’ legal expenses, not to exceed $250,-000. The factual background of the case is that in 1993 Lawrence Underwriters and Anglo-American Insurance Company (“the 1993 Underwriters”) issued a directors and officers liability insurance policy which covered the Richardson defendants, who were directors and officers of Corporate Life Insurance Company against loss from claims first made during the policy period (1993) for “wrongful” acts. The insurance coverage did not include a duty to defend, but only payment for damages, settlements and costs, which could include legal expenses. On May 25, 1993, Corporate Life provided 1993 Underwriters notice that there was a possible claim against its officers and directors: Please accept this letter as official notice by all named insureds under the policy of a possible claim under the above-referenced policy. On May 7, 1993, the management of Corporate Life Insurance Company (“CLIC”) received [a pleading from] the Pennsylvania Department of Insurance____ This document, filed under seal with the Commonwealth court of Pennsylvania, alleges certain actions which if proven to be true, could give rise to a claim under the above-referenced policy. The acts alleged to be “Wrongful Acts” as that term is defined in the Policy include: self-dealing, falsifying assets; and improper investing. If proven, the individual directors and officers involved could be subject to liability in excess of the policy limits. If you should have any questions regarding this matter please feel free to contact me. The background of the insurance departments’s allegations is that on March 30,1992, the Pennsylvania Insurance Department issued an ex parte suspension order suspending the business of Corporate Life based on a finding that it was insolvent. Thereafter Corporate Life and the insurance department entered into negotiations and on March 31, 1993 Corporate Life requested a rule to show cause why a purported settlement agreement should not be enforced against the insurance department. On May 7,1993 the insurance commissioner filed an “Opposition to Enforce Settlement and Response to Corporate Life Insurance Company’s Objection and Petition to Strike Plaintiffs Praecipe to Withdraw Petition for Liquidation.” The pleading referred to in Corporate Life’s letter was the “Opposition Petition” filed by the insurance commissioner. Among the allegations contained in the Opposition Petition are that Corporate Life failed to produce thousands of key documents; disregarded document requests; failed to grant the department free access to books and records; hid documents; instructed others not to cooperate with the department; and gave false information in an attempt to mislead the department. RR. 140a. The department stated: “Inasmuch as the Department anticipates filing a Petition to Liquidate Corporate Life Insurance Company within the next month, it would be a waste of judicial resources, the resources of the Commonwealth, and, indeed, of Corporate Life itself to litigate these factual issues in this forum.” RR. 141al42a. Nonetheless, the department did offer illustrations in its Opposition Petition of Corporate Life’s alleged violations: 22. Corporate Life has falsified its books and records to create a surplus which does not exist and to hide an alarming operating loss. Such acts include the listing on its 1992 Annual Statement as 1992 assets over 489 mortgages created in 1993 and having a stated aggregate value in excess of $21,664,000____ 23. Corporate Life has engaged in the above-cited and other extensive fraud involving fraudulent acts in concert with and participated in by Frederick Richardson, Emil Molin, Ted Nering, and the firm of Shiftman Hughes Brown, DP Realty and various others. 24. The Department has uncovered a systematic scheme to strip Corporate Life of any valuable and liquid assets---- 25. Additional evidence of self-dealing in violation of Pennsylvania insurance statutes and regulations relate to Richardson’s use of Corporate Life funds to purchase, finance and/or refinance personal residential real estate holdings. On July 7, 1992, Corporate Life Insurance Company issued a certified check in the amount of $400,000 for the purchase of Frederic Richardson’s personal residence. The $400,000 is the full amount of the purchase price of Frederic Richardson’s personal residence. To date, Corporate Life has been unable to produce any documentation relating to any “mortgage” or other loan documents relating to this advance of $400,000. (The Department has been informed that Richardson repaid this loan under pressure in late 1992)---- 26. On that same day, July 7, 1992, Frederic Richardson caused Corporate Life to issue a $115,000 check for the payment of the mortgage on another residence in which he has a pecuniary interest. The residence is purportedly occupied by his mother-in-law. Corporate Life and Richardson have failed to disclose this transaction as required pursuant to the Pennsylvania Insurance Holding Company Registration Act. 27. In July, 1992, Richardson, Molin and Nering caused Corporate Life to fund their purchase of a mortgage bank ing operation in St. Petersburg, Florida. While Richardson, Molin and Nering contributed little or no capital to the transaction, they obtained 100% of the capital stock of the mortgage banking operation. This was accomplished by the transfer of assets of Newspan, a wholly-owned subsidiary of Corporate Life, to the corporation owned by Richardson, Molin and Nering. Corporate Life has valued the assets transferred at more than $13 million.... 28. These are but a few of the facts which have come to light concerning Corporate Life Insurance Company, American Homestead, Inc., Frederic Richardson, Emil Molin, Ted Nering, and others. The Department shall prove each and every one of these facts as well as other information presently known to the Department that demonstrates further impairment of Corporate Life in excess of $20 million. 29. Corporate Life’s fraudulent schemes were known to it, and, inter alia, Messrs. Richardson, Molin, Nering, and Shiffman at the time it was negotiating the purported settlement agreement which it now seeks to enforce. Throughout that time period, they and others in concert with them repeatedly represented to the Department that it was in compliance with all applicable Pennsylvania regulations and statutes. Moreover, it repeatedly represented to the Department that it was solvent. These affirmative misrepresentations were the basis for the Department’s willingness to discuss the purported agreement identified above. Through these affirmative misrepresentations and failure to disclose the fraudulent schemes being perpetrated by Corporate Life, its counsel and its accountants, Corporate Life fraudulently induced the Insurance Commissioner to issue an ... Amended Order of Supervision. RR. 148a-151a (emphasis added). On June 4, 1993, the commissioner filed a 158 page petition to liquidate Corporate Life. The commissioner sought to be appointed as Corporate Life’s statutory liquidator. Among the alleged grounds for liquidation were wrongful diversion of corporate assets, control by dishonest persons, and willful violations of Pennsylvania insurance law. On July 2, 1993, the Commonwealth Court required the commissioner and Corporate Life to select an overseer for Corporate Life. The court stated that the commissioner’s petition to liquidate would be determined based upon the overseer’s findings and that the commissioner would not pursue any claims against Corporate Life or its officers and directors until after the overseer’s decision. In 1994, Lloyd’s (for Spreckley Underwriters) and LIRMA (for Anglo and Zurich) (the 1994 Underwriters) provided Corporate Life with a 1994 insurance policy once again covering liability of the officers and directors of Corporate Life for claims made during 1994 for wrongful acts. An exclusion in the 1994 policy stated: III. EXCLUSIONS Underwriters shall not be liable to make any payment for loss in connection with any claim made against the Directors and Officers: * * * B. based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving: (1) any Wrongful Act or any fact, circumstance or situation, event or transaction which has been the subject of any notice given prior to the effective date of this Policy under any prior policy, or (2) any other Wrongful Act whenever occurring which, together with a Wrongful Act which has been the subject of such notice, would constitute Interrelated Wrongful Acts____ Lloyd’s Policy, III Exclusions, RR. 333a. “Interrelated wrongful acts” are defined as “wrongful acts which have as a common nexus any fact, circumstance, situation, event, trans action or series of facts, circumstances, situations, events or transactions.” Lloyd’s Policy, II, Definitions, RR. 332a. On December 29, 1994, the insurance commissioner, acting as Corporate Life’s statutory liquidator, filed a writ of summons in Maleski et al v. Molin et al in the Commonwealth Court against fifteen defendants, all of whom are former officers or directors of Corporate Life. On June 19, 1995, a complaint was filed entitled Insurance Commissioner of the Commonwealth of Pennsylvania v. Molin et al, naming Emil Molin, Theodore Nering and Frederick Richardson, former directors and officers of Corporate Life (the Richardson defendants). The complaint alleged: Count I. Breach of fiduciary duty to Corporate Life, its policyholders and creditors; Count II. Fraud by concealing the true financial condition of Corporate Life from the public, policyholders and the Insurance Department; Count III. Negligence in managing Corporate Life and controlling its assets; Count IV. Waste and diversion of Corporate Life opportunities and assets by engaging in transfers of Corporate Life assets for the benefit of themselves and their other companies to detriment of Corporate Life; Count V. Breach of contract against defendants Molin and Nering by their failure to perform their obligations and duties under a consulting agreement; Count VI. Recovery of fraudulent transfers that were made while Corporate Life was insolvent; and Count VII. Recovery of unlawful investments that violated provisions of Pennsylvania insurance law and regulations. On July 27, 1995, 1993 Underwriters filed an interpleader action against the Richardson defendants and others, in which 1993 Underwriters attempted to interplead the limit remaining under the 1993 policy to resolve the Richardson defendants’ claims relating to Maleski (the lawsuit filed by the insurance commissioner against the Richardson defendants). On November 6, 1995, the Commonwealth Court denied the Richardson defendants’ motion for a preliminary injunction which would compel 1993 Underwriters to pay their Maleski defense costs under the 1993 policy. Other lawsuits had been filed against various former officers and directors of Corporate Life and there were competing claims under the 1993 policy. On August 25,1995, the 1994 Underwriters filed a complaint for declaratory judgment. The Richardson defendants filed a counterclaim that the 1994 Underwriters must pay their Male-ski legal fees and defense costs. Thereafter, the Richardson defendants moved for a t mandatory preliminary injunction compelling the 1994 Underwriters to pay their Maleski legal fees. ' On February 27, 1996, the Commonwealth Court entered a mandatory preliminary injunction directing 1994 Underwriters to pay for the Richardson Defendants’ defense costs in the Maleski matter. 1994 Underwriters then moved for reconsideration and a stay, and the Richardson defendants petitioned for contempt. On March 22,1996, the Commonwealth Court denied the stay of its injunction. On March 25, 1996, 1994 Underwriters filed a notice of appeal and posted an appeal bond in accord with Pa.R.A.P. 1731(a). On April 18, 1996, the Commonwealth Court held 1994 Underwriters in contempt, and on May 10, 1996 it required 1994 Underwriters to pay two thirds of the Richardson defendants’ costs immediately. This court then consolidated 1994 Underwriters’ appeals, stayed the February 27, 1996 and April 18, 1996 orders, and granted the application for expedited appeal. The issues on this appeal are whether it was error for Commonwealth Court to issue an injunction requiring 1994 Underwriters to pay legal fees and defense costs in Maleski and whether it was error for Commonwealth Court to have held 1994 Underwriters in contempt, notwithstanding that they filed a timely notice of appeal and posted an appeal bond. In general, the 1994 Underwriters are seeking a declaratory judgment that they are not liable under the 1994 insurance policy for the Richardson defendants’ costs to defend the Maleski action, since the acts which underlay the Maleski action were reported in 1993 to 1993 Underwriters, and only 1993 Underwriters are liable under the terms of the 1994 policy. The Richardson defendants, on the other hand, are seeking a declaration that 1994 Underwriters are liable. The Commonwealth Court noted that a preliminary injunction may be granted only where: (1) the relief is necessary to prevent immediate and irreparable harm that cannot be compensated by damages; (2) greater injury will occur from denying the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed prior to the alleged wrongful conduct; (4) the alleged wrongful conduct is manifest; and (5) the moving party’s right to relief is clear. Lewis v. City of Harrisburg, [158 Pa.Cmwlth. 318], 631 A.2d 807 (1993). Being an extraordinary remedy, a preliminary injunction should not issue if the moving party’s right thereto is not clear. Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965).... 673 A.2d at 987. Thus, before a preliminary injunction may issue, we must examine whether the five factors stated by the Commonwealth Court are present. We begin with a consideration of whether the moving party’s right to relief is clear. If it is not, an injunction may not issue. The essence of the dispute, as stated above, is whether the 1994 claim is excluded by the terms of the 1994 policy. In general, the 1994 policy covers wrongful acts which are reported during 1994, except that (a) it does not include coverage for wrongful acts, or circumstances, situations, events or transactions which have been the subject of notice before 1994 under any prior policy; or (b) it does not include coverage for wrongful acts which are interrelated to other wrongful acts which have been noticed to an insurance carrier prior to 1994. The Commonwealth Court in its February 27, 1996 opinion took the view that even though the insurance commissioner made allegations of wrongful conduct in its 1993 Opposition Petition, she did not make any claims against the officers and directors of Corporate Life. Moreover, the lower court’s view was that there are numerous allegations in the Maleski action that were not raised in the Opposition Petition. The Commonwealth Court concluded from this that it was appropriate to issue a preliminary injunction in the Richardson defendants’ favor. We disagree. In order for the injunction to issue, the Richardson defendants’ right to relief must be clear. A viable argument can be made that in both 1993 and 1994 the insurance commissioner was alleging that the Richardson defendants were raping the insurance company and that their conduct involved fraud and numerous violations of law. The commissioner did not set out the allegations in detail in 1993, as she stated in the Opposition Petition, in order to avoid pointless duplication of work, but she made clear that the Richardson defendants, those in control of Corporate Life, were engaged in a systematic fraudulent scheme to divert more than $20 million of Corporate Life’s assets. It may be true, as the Commonwealth Court states, that matters are alleged in the Maleski lawsuit which were not mentioned in the Opposition Petition. That, however, is not dispositive. In order for the injunction to issue, it must be clear that the Richardson defendants will prevail, i.e., it must be clear that the Maleski matter was not “based upon” “a wrongful act whenever occurring ... together with a wrongful act which has been the subject of [prior] notice” or “any other wrongful act whenever occurring, which together with a wrongful act which has been the subject of [prior] notice, would constitute interrelated wrongful acts.” (Lloyd’s Policy, III. Exclusions, RR. 333a, supra). “Interrelated wrongful acts,” it will be recalled, are “wrongful acts which have as a common nexus, any fact, circumstance, situation event trans actions or series of facts, circumstances, situations, events or transactions.” RR. 332a. (Emphasis added.) Although the Richardson defendants may, in fact, prevail in their claim that they are entitled to 1994 insurance coverage as well as 1993 coverage after the case has been fully litigated, we cannot say that their right to relief, on this record, is clear. It is plausible that the matters complained of in Maleski were wrongful acts which have a common nexus of facts, circumstances, situations, events and transactions and that they are, therefore, excluded from 1994 coverage. In the absence of a clear right to recover, it was error to issue the preliminary injunction. The orders of February 27,1996, April 18,1996 and May 10, 1996 of the Commonwealth Court are reversed and the case is remanded for trial on the underlying issues in the declaratory judgment action. ZAPPALA, J., concurs in the result. . The 1994 Underwriters are Anglo-American Insurance Company, Colin Spreckley, an underwriter at Lloyd's London, on behalf of himself and all those other underwriters subscribing to policy number 595/DOO 114001 and Zurich Re (UK) Ltd. . Maleski, the interpleader action and the instant case were heard or are pending before the same Commonwealth Court judge. . The 1994 Underwriters also argue that it was error for Commonwealth Court to have found them in contempt of the preliminary injunction notwithstanding that they had filed a timely notice of appeal and posted an appeal bond. In view of our disposition of the case, we do not address this claim, which now is moot.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT FLAHERTY, Chief Justice. On July 31,1994, Philadelphia police officer Richard Waters received a radio report that an Asian male was “armed with a gun” at the intersection of Second and Olney Streets in Philadelphia. This person was described as wearing a striped shirt. Officer Waters arrived at that location within three minutes of receiving the call and saw four Asian men standing on the highway, one of whom wore a striped shirt. He saw no indication of criminal activity; however, the officer observed that when he arrived, the men spoke quickly to each other and looked around in different directions. The officer then stopped and frisked the four men. Kue, who was not wearing a striped shirt, had a .25 caliber handgun in his waistband. Kue was arrested and charged with violating the Uniform Firearms Act, 18 Pa.C.S. §§ 6106, 6108. He moved to suppress the gun which was seized, and the suppression court denied his motion. Thereafter he was convicted by the Municipal Court of two violations of the Uniform Firearms Act and received concurrent sentences of twelve months probation for each offense. Kue filed a petition for a writ of certiorari with the Philadelphia County Court of Common Pleas, alleging that the stop and frisk was unsupported by reasonable suspicion or probable cause. The trial court denied the petition and Kue appealed to Superior Court. The Superior Court affirmed, holding that police had met the requirement of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that in order to conduct an investigative stop, a police officer must observe or receive over the police radio information which leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Moreover, the court held that the police officer properly conducted a protective frisk of all four men, even though Kue was not the man described in the radio broadcast, for he was justified in believing that any of the men might pose a danger to him. In short, the officer possessed a reasonable suspicion “that one of the men was carrying a gun,” and based on this suspicion, he was justified in conducting a protective frisk of all of the men. We granted allocatur primarily for the purpose of considering whether the so-called companion rule, which allows police to conduct a pat-down search for weapons on a companion of a person suspected of criminal activity, is com patible with the Pennsylvania Constitution. Because of our analysis of the case, however, we do not reach this question. The rules which govern when police may stop a person in order to investigate the possibility of criminal activity are set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In general, an investigative stop is justified only upon reasonable suspicion of criminal activity, id., and a limited pat-down search for weapons may be conducted only if supported by the reasonable belief that the suspect is armed and dangerous. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996). As we held in Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), also decided today, in order for police to act on an anonymous tip, the Terry requirement of reasonable suspicion of criminal activity must still be satisfied and must be independent of the telephone tip itself. Here, there was no independent reason to believe that criminal conduct was afoot, and the police officer, therefore, had no reason to search anyone, whether it was the man with the striped shirt or his companions. The order of Superior Court is reversed. NIGRO, J., concurs in the result. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins. . The “automatic companion rule” originated in United States v. Berryhill, 445 F.2d 1189 (9th Cir.1971), holding that “[a]ll companions of [an] arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” Id. at 1193. This court has not yet addressed the constitutionality of this rule, although the existence of the rule was noted in our decision in Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128 (1995). . As we noted in Hawkins, however, if police know the person making the tip and the basis of his knowledge, that may supply the requisite reasonable suspicion that criminal activity is afoot. Also, if the tip is anonymous, but predictive, it may provide sufficient basis for police intervention. See Hawkins, 547 Pa. at 656, n.3, 692 A.2d at 1070, n.3.

OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal of an in rem forfeiture proceeding brought under to the Controlled Substances Forfeitures Act, 42 Pa. C.S. § 6801, et seq. Pursuant to the statute, the Commonwealth in a civil proceeding sought forfeiture of real property which was used in a criminal enterprise involving the sale and distribution of illegal drugs. George Reitz purchased Wingait Farms for $300,000 in 1983. On May 7,1992 Reitz was arrested on charges concerning the illegal possession and sale of controlled substances. A temporary restraining order was entered on May 8, 1992 which enjoined Reitz from alienating the farm pursuant to 42 Pa.C.S. 6802(f), concerning Controlled Substances Forfeitures. A forfeiture petition was filed on May 15, 1992 to forfeit Wingait Farms and twenty-seven horses. On December 9, 1992 Reitz pled guilty to several drug-related crimes, including possession with intent to distribute, conspiracy and corrupt organizations. He was sentenced on March 22,1993. In the instant forfeiture matter, the Commonwealth produced evidence that Reitz used Wingait Farms to facilitate his illegal drug enterprise. After a jury trial, the farm and horses were forfeited to the Commonwealth. Reitz appealed to Commonwealth Court, which affirmed the forfeiture. Reitz’s first claim on this appeal is that the forfeiture proceedings were violative of state and federal prohibitions against double jeopardy. Reitz asserts that once he was convicted and sentenced for selling drugs, the Commonwealth could not initiate a new punitive proceeding to take his house and chattel for the same conduct which underlay his criminal conviction. The Double Jeopardy Clause provides that “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” Constitution of the United States, Amend. V. Pennsylvania’s double jeopardy clause provides: “No person shall, for the same offense, be twice put in jeopardy of life or limb.” Pa. Const., Art. I, § 10. Four months before argument in this case, the United States Supreme Court decided United States v. Guy Jerome Ursery, — U.S. —, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), in which civil forfeiture proceedings were brought against Ursery’s house, alleging that the house was subject to forfeiture because it had been used to facilitate the processing and distribution of illegal drugs. Ursery settled the forfeiture claim by paying $13,250, but before the settlement was completed, Ursery was indicted for manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). He was found guilty and sentenced to 63 months in prison. The United States Court of Appeals for the Sixth Circuit reversed the conviction on the grounds that Ursery had been already punished for the crime, and the conviction, therefore, violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. The Supreme Court reversed, holding that an in rem civil forfeiture action brought under 21 U.S.C. § 881(a)(7) against Ursery’s house was neither punishment nor criminal for purposes of the Double Jeopardy Clause. In reaching this holding, the Court emphasized that it was merely reiterating well-established precedent exemplified by Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931) and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). In Various Items, The Waterloo Distilling Corporation was ordered to forfeit a distillery, a warehouse and a denaturing plant because the corporation had conducted its business in violation of federal law. The corporation had been convicted of criminal violations prior to the forfeiture proceedings and the criminal conviction was based on the same transactions as the civil forfeiture. The corporation argued that the forfeiture violated the Double Jeopardy Clause. The Supreme Court, however, unanimously held that the Double Jeopardy Clause was inapplicable to civil forfeiture proceedings. Both the Various Items Court and the Ursery Court emphasized that at common law, a civil forfeiture could not be instituted until a criminal conviction had been obtained. The Ursery Court noted that if its predecessor court in Various Items had held that a statutory in rem proceeding was prohibited by a prior criminal proceeding, such a holding “would have been directly contrary to the common law-rule, and would have called into question the constitutionality of forfeiture statutes thought constitutional for over a century.” Ursery, — U.S. at —, 116 S.Ct. at 2141, 135 L.Ed.2d at 560. In 89 Firearms the Court also unanimously held that an in rem forfeiture action brought pursuant to 18 U.S.C. § 924(d) was not barred by a prior criminal proceeding. In that case, the owner of the weapons was acquitted of charges of dealing firearms without a license, but the government brought the forfeiture action against the firearms, alleging that they were used or were intended to be used in violation of federal law. The Court unanimously held that the forfeiture was not barred by the criminal proceeding: Unless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. The question, then, is whether a § 924(d) forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial. Ursery, — U.S. at —, 116 S.Ct. at 2141-42, 135 L.Ed.2d at 561, citing 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104-05, 79 L.Ed.2d 361 (1984). The Court utilized a two part analysis to determine whether the forfeiture was punitive. First, the Court considered whether the forfeiture was civil or criminal. Considerations were (1) the forfeiture action was in rem, and in rem actions have traditionally be viewed as civil proceedings; (2) the forfeiture action, in reaching the weapons, encompassed a broader range of conduct than an analogous criminal action; (3) the forfeiture had broad remedial aims, which included discouraging unregulated commerce in guns and removing firearms which were intended for unregulated sale. Second, the Court considered whether the forfeiture statute was so punitive in purpose or effect that it negated the congressional intent to establish a civil remedy. The Court considered several factors which it had used in other cases to determine whether a civil proceeding was punitive and found only the factor that the behavior was already a crime, but that this factor was insufficient to make the proceeding punitive. The Court held that the civil forfeiture was not punitive, but was “a separate civil sanction, remedial in nature.” Ursery, — U.S. at —, 116 S.Ct. at 2142, 135 L.Ed.2d at 562, citing 89 Firearms, 465 U.S at 366, 104 S.Ct. at 1107. In reviewing the cases which have treated the matter of civil forfeitures, the Ursery Court remarked on the consistency of the holdings and noted that in each case, the holding was that “in rem civil forfeiture is a remedial civil sanction distinct from potentially punitive in personam civil penalties, such as fines, and does not constitute a punishment under the Double Jeopardy Clause.” Ursery, — U.S. at —, 116 S.Ct. at 2142, 135 L.Ed.2d at 562. The Court then proceeded to review three of its recent cases, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 125 L.Ed.2d 488 (1993), and Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) to examine whether these cases modified the holdings of Various Items and 89 Firearms. After reviewing each of these cases, the Court concluded: In sum, nothing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress has authorized the Government to bring parallel criminal proceedings and civil forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause____ Halper dealt with in personam civil penalties under the double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause. Ursery, — U.S. at —, 116 S.Ct. at 2147, 135 L.Ed.2d at 567-68. The Court then considered the Ursery forfeiture under the two-part test used in 89 Firearms. First, the Court considered whether congress intended the proceedings to be civil or criminal. Second, the Court asked whether the proceedings were so punitive as to make them criminal, the congressional intent notwithstanding. Ultimately, the Court determined that “these in rem forfeitures are neither ‘punishment’ nor criminal for purposes of the Double Jeopardy Clause.” Ursery, — U.S. at —, 116 S.Ct. at 2149, 135 L.Ed.2d at 571. Applying this analysis to the case at bar, we must first determine whether the forfeiture was civil or criminal, and then whether the forfeiture was so punitive that it may not be viewed as civil in nature. As to the first consideration, we note that the forfeiture statute at issue, in this case requires that: The proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant. 42 Pa.C.S. § 6802(a). The statute provides that the proceedings are in rem, and in rem forfeitures have traditionally been viewed as civil. Ursery, — U.S. at —, 116 S.Ct. at 2142, 135 L.Ed.2d at 561-62, citing 89 Firearms, 465 U.S. at 363, 104 S.Ct. at 1105. Thus, we conclude that the General Assembly intended forfeitures brought pursuant to § 6801 to be civil in nature. Next, we consider whether the forfeiture was so punitive as to become criminal in effect or purpose. The United States Supreme Court has considered such factors as (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional . aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. See 89 Firearms, 465 U.S. at 365 n. 7, 104 S.Ct. at 1106 n. 7, 79 L.Ed.2d at 370 n. 7, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963). Considering each of these factors, we conclude that Reitz failed to show by the “clearest proof’ required by 89 Firearms that the forfeiture proceedings were either so punitive in effect or purpose as to negate the legislature’s intent that the proceedings be civil. We conclude, therefore, that the in rem civil forfeiture in this case was neither punitive nor criminal for purposes of the Double Jeopardy Clause and Art. I, § 10 of the Constitution of Pennsylvania. There was no error, therefore, in bringing a civil proceeding in forfeiture after Reitz had been convicted of crimes which implicated the same conduct as that which was the subject of the forfeiture action. Next Reitz contends that he was entitled to a determination by either a judge or a jury that the forfeiture was an excessive fine. In In re: King Properties, supra, this court addressed the question of whether a forfeiture under the Controlled Substances Forfeitures Act is an excessive fine under either the Eighth Amendment to the United States Constitution or under Article I, § 13 of the Pennsylvania Constitution. We held that for purposes of the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Constitution of Pennsylvania (the Excessive Fines Clauses), the Controlled Substances Forfeitures Act was punitive and that whether a forfeiture is an excessive fine does not depend upon the value of the thing forfeited, but on the relationship of the offense to the property which is forfeit. If the forfeited property was significantly used in the commission of the crime, “the item may be forfeited regardless of its value.” 535 Pa. at 331, 635 A.2d at 133. In this case, the trial court instructed the jury that the Commonwealth bore the burden of proving the connection between Reitz’s illegal drug activities and the manner in which the property was used to facilitate these activities. No more was required. King decided that for purposes of the excessive fines clause, “[i]f the forfeited property was significantly used in the commission of the offense, the item may be forfeited regardless of its value.” Id. A constitutionally “excessive” forfeiture, therefore, would be one in which the property was not significantly utilized in the commission of the drug-related offense. Since the trial court properly instructed the jury on the Commonwealth’s burden and the jury subsequently determined that the property was used to facilitate Reitz’s illegal drug enterprise, the jury’s determination was tantamount to a determination that the forfeiture was not excessive. The claim of error is without merit. Finally, Reitz asserts that introduction of taped recorded telephone conversations at the forfeiture trial violated limitations on the use of such evidence imposed by the Wiretapping and Electronic Surveillance Control Act. In particular, Reitz claims that the wiretapping act permits electronic surveillance evidence to be admitted only in criminal proceedings. 18 Pa.C.S. § 5717(b). We agree with Commonwealth Court that the purpose of the act is to protect privacy. In this case, over seven and one-half hours of conversation were legally intercepted during the investigation into Reitz’s criminal enterprise, and all of this material was played in open court at Reitz’s preliminary hearings in the criminal matter. Since the contents of the tapes, following the criminal trial, were a matter of public record, the issue of privacy was no longer an impediment to disclosure of the tapes, and there was no error in their use in the civil proceeding. Order of Commonwealth Court is affirmed. NEWMAN, J., did not participate in the consideration or decision of this case. CAPPY, J., files a concurring opinion. . 42 Pa.C.S. § 6802(f) provides: (f) Preservation of the property subject for forfeiture. — Upon application of the Commonwealth, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond or take any other action to preserve the availability of property described in Section 6801(a) for forfeiture under this section.... Section 6801 (a)(6)(i)(C) provides: (a) Forfeitures generally. — The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them: (6)(i) All of the following: (C) Real property used or intended to be used to facilitate any violation of the Controlled Substance, Drug, Device and Cosmetic Act . The Commonwealth introduced the criminal informations to which George Reitz entered guilty pleas. The information charging Corrupt Organizations provided, inter alia, that Reitz used illegal drug income either directly or indirectly in the operation of Wingait Farms. The Commonwealth also produced witnesses at trial who saw marijuana at the farm or who worked with Reitz in selling and distributing marijuana. Additionally, the Commonwealth produced evidence that large amounts of marijuana were stored and packaged at the farm; that accounting sheets kept at the farm indicated that almost a half million dollars worth of marijuana had been distributed through Reitz’s operation; that drug proceeds were commingled into Wingait Farms’ payroll; that barrels from Wingait Farms were provided to a co-conspirator to store marijuana; that drug proceeds were used to promote race horses; and that horses at the farm were used as collateral in securing supplies of marijuana. . The jury determined that Reitz's wife was co-owner of the twenty-seven horses at issue in this case, and the trial court declared her to be a co-owner, along with the Commonwealth, of the funds generated by the sale of the horses. The Commonwealth did not appeal this determination. . In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), a provider of medical services billed Blue Cross $12 for services worth only $3 on 65 occasions. He was convicted of 65 separate violations of the criminal false claims statute, 18 U.S.C. § 287 and sentenced to two years in prison and fined $5,000. Thereafter the government filed a separate action to recover a $2,000 civil penalty for each of the 65 violations. The district court found that the $130,000 recovery bore no rational relation to the government’s loss of $585 plus the cost of investigation and prosecution. The United States Supreme Court affirmed, holding that: a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. 490 U.S. at 448-49, 104 L.Ed.2d at [501-02] 109 S.Ct at [1901-02], In Austin v. United States the defendant pleaded guilty to one count of possessing cocaine with intent to deliver. Thereafter, the government initiated a civil forfeiture proceeding against Austin’s mobile home and auto body shop, which allegedly had been used in the illegal drug trade. Austin challenged the forfeiture on the theory that it violated the Excessive Fines Clause. The lower courts held the forfeiture constitutional. The United States Supreme Court held that the forfeiture was punishment for some offense and was, therefore, subject to the Eighth Amendment’s Excessive Fines Clause. In Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the taxpayer pleaded guilty to drug-related offenses and subsequently, in a separate proceeding, the Montana department of revenue initiated an action to collect almost $900,000 in taxes on marijuana related items, interest and penalties. The tax statute required that before the tax could be imposed, it was necessary to show that there was criminal activity and an arrest for that activity. The taxpayer challenged the tax action on Double Jeopardy grounds. The Court ultimately held that the tax implicated the Double Jeopardy provision of the Fifth Amendment. . The determination that a forfeiture is punitive requires the "clearest proof” that an “in rem civil forfeiture is ‘so punitive either in purpose or effect’ as to be equivalent to a criminal proceeding----” 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 1106-07, 79 L.Ed.2d 361. . The trial court’s instruction to the jury, in part, stated: [ Y]ou will be called upon to consider the following question: Are you satisfied by a fair preponderance of the evidence that George Reitz, Jr. used the farm including the structures to facilitate any violation of the drug act. N.T. 10-19-93, p. 190. . Section 5717(b) provides: Any person, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents or evidence ... while giving testimony under oath or affirmation in any criminal proceeding....

OPINION OF THE COURT CASTILLE, Justice. The issue on appeal is whether evidence seized from appellee’s bedroom after a warrantless search by his parole officer should be suppressed where appellee signed a form giving an agent of the Pennsylvania Board of Probation and Parole (“Parole Board”) consent to search his premises as a condition of his parole. Because we find that the evidence should not be suppressed under the facts of this case, we reverse the order of the Superior Court and reinstate the judgment of sentence entered by the trial court. BACKGROUND The relevant facts are that appellee was convicted in 1989 of possessing 1,012 grams of cocaine with intent to deliver. On March 7, 1990, appellee was sentenced to a term of imprisonment of two (2) to six (6) years. On April 8, 1992, appellee was paroled from prison and his case was assigned to Parole Agent Schuler of the Pennsylvania Board of Probation and Parole for supervision. Before being released from prison, appellee signed a form entitled “Conditions Governing Parole/Reparole.” As a condition of his parole, appellee listed his residence as being on West Sixth Street in Chester, Delaware County, Pennsylvania and he agreed to abstain from the unlawful possession or sale of narcotics. The form also included the following condition: I expressly consent to the search of my person, property and residence without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process. On June 30,1993, appellee’s case was transferred to Parole Agent Bray for supervision. Agent Bray was instructed by his supervisor to visit appellee at his residence. However, prior to visiting appellee, Agent Bray received information from a person he regarded as a reliable confidential informant that appellee was once again involved in dealing drugs. Agent Bray’s inquiry to the local police also confirmed his confidential informant’s information since the local police informed Agent Bray that one of their confidential informants also reported that appellee was involved in dealing drugs. On July 1, 1993 at approximately 9:00 p.m., Agent Bray went to appellee’s residence at West Sixth Street in Chester. Agent Bray was met at the door by appellee’s mother and was informed that appellee was not present. Agent Bray asked appellee’s mother if he could look around and appellee’s mother initially consented. However, when Agent Bray reached appellee’s bedroom, appellee’s mother changed her mind and revoked her consent to the search. Agent Bray informed appellee’s mother that he was entitled to conduct the search because he believed that appellee may be engaging in actions which would violate the terms of his parole. Appellee’s mother did not respond to Agent Bray’s comments and Agent Bray proceeded to search appellee’s bedroom. During the search, Agent Bray found 182.2 grams of cocaine, some of which was packaged in individual plastic bags, along with an Accu-lab pocket scale and five (5) .380 caliber rounds of live ammunition. Agent Bray telephoned the Chester police and notified them of his discovery of these items. The Chester police responded to Agent Bray’s telephone call by going to the residence, seizing the items in question found in appellee’s bedroom and obtaining a warrant for appellee’s arrest. On July 14, 1993, a criminal complaint was filed charging appellee with possession of cocaine with intent to deliver and illegal possession of drug paraphernalia. Prior to trial on these charges, appellee filed an omnibus motion to suppress the evidence seized from his bedroom based on the assertion that the search violated his constitutional rights since it was performed without a warrant, lacked probable cause and violated the knock and announce rule. On May 12, 1994, the trial court conducted a hearing on appellee’s motion. At the hearing, the Commonwealth introduced the parole form signed by appellee granting consent to the Parole Board to search his residence. At the conclusion of the hearing, the trial court denied appellee’s motion to suppress. On July 19, 1994, after a one day jury trial, appellee was convicted. On August 2, 1994, appellee was sentenced to a term of imprisonment of seven (7) to fourteen (14) years on the possession with intent to deliver charge and a concurrent term of imprisonment of one (1) to two (2) years on the drug paraphernalia charge. Appellee timely appealed to the Superior Court where he asserted that the trial court erred in not suppressing the evidence seized from his bedroom. On July 13, 1995, the Superior Court, in an unpublished opinion, reversed the trial court and remanded for a new trial basing its decision on the court’s belief that appellee’s rights under the Fourth Amendment to the United States Constitution were violated, thereby mandating suppression of the evidence seized from appellee’s bedroom. The Commonwealth filed a timely petition for appeal. We granted allocatur in order to determine whether the evidence seized from appellee’s bedroom by his parole officer should be suppressed. LEGAL DISCUSSION 1. Rule 323(d) Claim Initially, the Commonwealth contends that we need not reach the issue concerning the adequacy of appellee’s consent because appellee did not comply with Rule 323(d) of the Rules of Criminal Procedure by failing to specifically address the consent issue with particularity in his omnibus pre-trial motion to suppress. This contention is meritless. Appellee’s pre-trial suppression motion first described the facts surrounding the search and then sought to suppress the cocaine seized after the search by the parole agent on the grounds that the search was performed without a warrant, that no probable cause existed for the search and the failure to comply with the “knock and announce” rule. Such a motion complies with the requirements of Rule 323(d). Accordingly, this claim must fail. 2. Suppression Turning to the validity of the search of appellee’s bedroom, we begin our analysis with matters not in controversy between the parties. When reviewing a trial court’s decision to suppress evidence, we are bound by the facts found by the suppression court, and we may reverse that court only if the legal conclusions drawn from the facts are erroneous. Commonwealth v. Lagana, 517 Pa. 371, 375, 537 A.2d 1351, 1353-54 (1988). Under both the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution, warrantless searches and seizures are unreasonable and therefore prohibited except for a few established exceptions. E.g. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). We shall examine each constitutional provision separately. (a) Fourth Amendment A parolee and a probationer have limited Fourth Amendment rights because of a diminished expectation of privacy. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 3168-69, 97 L.Ed.2d 709 (1987). As the United States Supreme Court stated in Griffin, “a probationer’s home like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ” Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. However, the requirement that a parole officer obtain a warrant based upon probable cause before conducting a search does not apply to a parolee because parole is a form of criminal punishment imposed after a guilty verdict and the states must have the necessary power over parolees in order to successfully administer a parole system as a controlled passageway between prison and freedom. Griffin, 483 U.S. at 873-875, 107 S.Ct. at 3168-69. In Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993), this Court recognized that a parolee has limited Fourth Amendment rights. In that case, Pickron, a parolee, was arrested after controlled substances and other evidence were seized from his apartment following a warrantless search by parole officers. Pickron moved to suppress the evidence alleging that his Fourth Amendment rights were violated by the warrantless search. The trial court granted Pickron’s motion and this Court affirmed because it found that the Fourth Amendment prohibited the warrantless search of a probationer or a parolee’s residence based upon reasonable suspicion without either the consent of the parolee or a statutory or regulatory framework governing this kind of search. This Court, however, limited its holding to the facts of the case and specifically reserved the question of whether an agreement signed by a parolee giving consent to a warrant-less search by a parole officer or a statute authorizing such searches could survive constitutional scrutiny. In a question of first impression for this Court, we now address the effect appellee’s signing of the parole form giving a parole agent consent to search his residence has on such a situation. In deciding this issue, we must balance the governmental interests involved in granting parole and supervising parolees with that interest of the private individual, i.e. the parolee, which has been affected by the governmental action. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In assessing the governmental interest in allowing a warrantless search of a parolee’s residence, we must look to the purpose of parole in this Commonwealth. The public policy as to parole in this Commonwealth is set forth in Section 1 of the Act of 1941 which provides: [ T]he value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of the Commonwealth that persons subject or sentenced to imprisonment for crime, shall on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of justice. 61 P.S. § 331.1. Moreover, this Court has stated that: [Pjarole is first and foremost a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. The prisoner on parole is still in the legal custody of the state ... and is under the control of the warden and other agents of the Commonwealth until expiration of the term of his sentence. Hendrickson v. Pennsylvania State Board of Parole, 409 Pa. 204, 185 A.2d 581 (1962), cert. denied, 374 U.S. 817, 83 S.Ct. 1713, 10 L.Ed.2d 1041 (1963). In order to effectuate this purpose and to facilitate the parolee’s transition into society, the General Assembly has given the Parole Board broad powers to supervise a parolee and to impose regulations on a parolee’s conduct upon release that the Commonwealth could not impose on ordinary citizens. See 61 P.S. § 331.23. The parolee’s interests coincide to some extent with that of the government in that he desires to make a transition from incarceration to freedom. In addition, a parolee has a privacy interest protected by the Fourth Amendment. When balancing the interests of both the Commonwealth and the parolee, we do not believe it contravenes the Fourth Amendment for a conditionally released convict to be accorded a more narrowly protected privacy interest than that afforded a free individual in order to facilitate the parolee moving more quickly from the confinement of a prison to a point where most of his full panoply of civil liberties are restored. Other state courts faced with the issue of whether a parolee’s Fourth Amendment rights have been violated by a warrantless search by his parole officer where the parolee has signed a consent form upon release have attempted to balance the governmental and individual interests by adopting a “middle ground” approach. Under this approach, the parolee’s signing of a parole agreement giving his parole officer permission to conduct a warrantless search does not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth Amendment right to be free from unreasonable searches. Rather, the parolee’s signature acts as acknowledgement that the parole officer has a right to conduct reasonable searches of -his residence listed on the parole agreement without a warrant. A search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767, cert. denied, — U.S. —, 116 S.Ct. 676, 133 L.Ed.2d 525 (1995) (gun seized in warrantless search of parolee by parole officer not suppressed in murder trial because parole agreement to submit to warrantless search was valid where facts demonstrated that parole officer had reasonable grounds to investigate possible parole violation); Pena v. State, 792 P.2d 1352 (Wyo.1990) (adopted middle ground approach and did not suppress drugs found in search by parole officer because reasonable grounds existed for the search); People v. Boyd, 224 Cal.App.3d 736, 274 Cal.Rptr. 100 (Cal.Ct.App.1990) (parole search can be authorized by parole agreement where parole officer had reasonable suspicion that parol ee had violated terms of his parole and that handbag found during search may have belonged to parolee; thus, handbag and items inside were not suppressed); State v. Johnson, 748 P.2d 1069 (Utah 1987) (using middle ground approach, Utah Supreme Court refused to suppress stolen check found by parole officer during a warrantless search of parolee’s room because parole officer had reasonable suspicion that parolee had committed a parole violation and search was reasonably related to parole officer’s duties). We believe this “middle ground” approach to warrantless searches pursuant to a signed parole agreement comports with the Fourth Amendment protection afforded to parolees by the United States Supreme Court in Griffin, supra, and in our sister states. Thus, we adopt this approach for examining whether evidence seized from a parolee after a warrantless search by his parole officer should be suppressed as violative of the parolee’s Fourth Amendment rights where the parolee signed a form giving an agent of the Parole Board his consent to conduct a warrantless search of his premises. We adopt this approach because it accommodates the interests of both the Commonwealth and the parolee in having a parole system that can operate efficiently and fulfill its objectives. This approach accommodates important Commonwealth interests since it provides the flexibility that the Commonwealth needs to operate its parole system while at the same time protecting society from convicted criminals who choose to forego their lawful reintegration into society. This approach also accommodates the parolee because it protects the parolee by providing a check against state encroachment upon the parolee’s limited Fourth Amendment right to be free from unreasonable searches. Here, appellee signed a parole agreement acknowledging that agents of the Parole Board could conduct a warrantless search of his premises. See 37 Pa.Code §§ 65.6 and 67.3 (parolee acknowledges that he had read parole agreement, that he fully understands conditions of his parole and he agrees to follow such conditions); See also Benefiel v. Com., Board of Probation and Parole, 57 Pa. Cmwlth. 401, 403, 426 A.2d 242, 244 (1981) (obligation lies with parolee to acquaint himself with the conditions of his parole). In the performance of his official duties, the parole officer was instructed by his supervisor to contact appellee. Before making this contact, the parole officer received information from a confidential informant, who the parole officer believed to be reliable, that appellee was involved in dealing drugs. This information was independently corroborated by the parole agent after a conversation with the local police. This evidence established that the parole officer had a reasonable suspicion that appellee had violated the terms of his parole because such conduct was expressly prohibited by the terms of appellee’s parole. See Latta v. Fitzharris, 521 F.2d 246, 252 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975) (possession of narcotics by parolee threatens both the parole system and the public since such an activity is both a violation of parole and a separate crime). When conducting the search, the evidence shows that the parole officer was acting reasonably within the scope of his official duties to insure that appellee was not violating his parole. Accordingly, we hold that appellee’s Fourth Amendment rights were not violated when the parole officer searched appellee’s bedroom. Thus, the trial court correctly concluded that the items seized from appellee’s bedroom should not have been suppressed. (b) Article I, Section 8 Since we have concluded that the search was proper under the Fourth Amendment, appellee argues in the alternative that the evidence seized from his bedroom should be suppressed as being violative of his rights pursuant to Article I, Section 8 of the Pennsylvania Constitution. This Court has previously concluded that Article I, Section 8 provides greater protection than that provided by the Fourth Amendment. When determining whether the Pennsylvania Constitution provides greater protection than its counterpart in the federal constitution, this Court considers the following four factors set forth in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991): (1) the text of the Pennsylvania constitutional provision: (2) the history of the provision, including Pennsylvania case law; (3) related case-law from other states; and, (4) policy considerations including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Edmunds, 526 Pa. 374, 586 A.2d 887. Although Article I, Section 8 of the Pennsylvania Constitution is similar in phraseology to that of the Fourth Amendment of the United States Constitution, this Court has held that Article I, Section 8 often provides greater protection since the core of its exclusionary rule is grounded in the protection of privacy while the federal exclusionary rule is grounded in deterring police misconduct. Edmunds, 526 Pa. at 398, 586 A.2d at 897; Commonwealth v. Sell, 504 Pa. 46, 65, 470 A.2d 457, 467 (1983). However, as appellee notes, this Court has never spoken to whether Article I, Section 8 provides greater protection to parolees than that afforded by the Fourth Amendment. A number of courts in other states have confronted the issue of whether a parolee or probationer has greater rights under their own constitution with regards to warrantless searches by parole agents. Four state courts have concluded that a parolee has no greater rights under their state constitutions than that afforded by the Fourth Amendment. See Reno v. State, 882 S.W.2d 106 (Tex.Crim.App.1994); People v. Slusher, 844 P.2d 1222 (Colo.Ct.App.1992), cert. denied, 509 U.S. 928, 113 S.Ct. 3050, 125 L.Ed.2d 735 (1993); State v. Vailes, 564 So.2d 778 (La.Ct.App.1990); State v. Vega, 110 Idaho 685, 718 P.2d 598 (Idaho.Ct.App.), review denied, 116 Idaho 466, 776 P.2d 828 (Idaho 1986). These courts have cited their own constitutions as authority in analyzing issues such as the one presented here, however, their analysis provides little insight in distinguishing their own constitutional protection from that accorded by the federal counterpart. One case in which a distinguishing analysis was performed similar to that required by Edmunds was State v. Lucas, 56 Wash.App. 236, 783 P.2d 121 (1989), review denied, 114 Wash.2d 1009, 790 P.2d 167 (1990). In Lucas, a probationer signed a form giving consent to a warrantless search by a corrections officer. Wben two correction officers were conducting a transfer interview with the probationer at his residence, they noticed that he appeared nervous and stared at various items in the house while he was talking. The corrections officers then conducted a warrantless search of the residence and discovered drugs. The drugs were seized and after a trial, the probationer was found guilty of possession. At trial and on appeal, the probationer argued that the evidence seized by the warrantless search should be suppressed on the grounds that the seizure violated his federal and state constitutional rights. The Lucas court rejected his federal claim. In examining the probationer’s state constitutional claim, the Lucas court recognized that the Washington State Constitution provides broader protection to governmental searches than the Fourth Amendment because it is designed to protect a person’s privacy interest. However, that court concluded that because a probationer who signs the consent form has a diminished right to privacy, the Lucas court did not believe that the state constitution provided greater protection than the federal constitution and held that the warrantless search of a probationer’s residence “is reasonable if a police officer or a probation officer has a well founded suspicion that a probation violation has occurred.” Lucas, 56 Wash.App. at 243-44, 783 P.2d at 126. The California Supreme Court, another court which has often found that the California State Constitution affords a defendant broader protection against search and seizure than the Fourth Amendment, was faced with a parole search issue in People v. Burgener, 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 (Cal.1986). In that case, a parolee, who was ultimately convicted of murder, moved to suppress a 7-Eleven bag with two $5 bills found by two investigating officers who conducted a warrantless search of his residence on the evening of the killing. The California Supreme Court refused to suppress the items found because the parole search at issue gave it no reason to articulate a different standard of legality under state and federal law. Based on this analysis of relevant case law from other states, it appears that other state constitutions do not bestow greater rights on parolee’s than that provided by the Fourth Amendment of the United States Constitution in regards to a warrantless search of a parolee by parole officers even when the analysis is based upon a right to privacy as opposed to deterrence of police misconduct. Under the final prong of the Edmunds analysis, the Court examines the policy considerations in invoking a greater protection based on state constitutional considerations. The policy concerns expressed above in the analysis of the legality of the search at issue under the Fourth Amendment also apply equally to consideration of the legality of the search under Article I, Section 8 of the Pennsylvania Constitution. Thus, policy reasons dictate that a parolee must expect to have a diminished right to privacy as a condition of being released from prison early and regaining his freedom from incarceration in order to insure an orderly transition from incarceration to freedom. When all the Edmunds factors are weighed, we can find no justification from the parole search at issue in this case to discern a reason to articulate a different standard for the legality of the search under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment of the United States Constitution. Therefore, we find that the trial court correctly declined to suppress the evidence seized from appellee’s bedroom. CONCLUSION Accordingly, for the reasons stated above, we reverse the order of the Superior Court and reinstate the judgment of sentence entered by the trial court. . The criminal complaint also charged appellee with knowing or intentional possession of a controlled substance, in violation of 35 Pa.S.A. § 780-113(a)(16). The Commonwealth later withdrew this charge. . 35 Pa.S.A. § 780-113(a)(30). . 35 Pa.S.A. § 780-113(a)(32). . Rule 323(d) provides that a criminal defendant's motion to suppress "shall state specifically and with particularity the evidence sought to be suppressed, the grounds for the suppression and the facts and events in support thereof.” . The Fourth Amendment to the United States Constitution, applicable to the States via the Fourteenth Amendment, mandates that: [T]he right of the people to be secure in their persons, houses, papers, and effect, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. . Article I, Section 8 of the Pennsylvania Constitution provides that: [T]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, an no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. . While Griffin concerned a probationer’s fourth amendment rights, its reasoning equally applies to a parolee's rights since the constitutional rights of a parolee are indistinguishable from that of a probationer. Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 1760 n. 3, 36 L.Ed.2d 656 (1973); see also United States v. Hill, 967 F.2d 902 (3d Cir.1992) (Griffin applies to warrantless search of parolee’s residence based on probable cause even though no statutory or regulatory framework exists). . This Court in Pickron never addressed whether the Pennsylvania Constitution provided parolees such as Pickron with greater constitutional protection than the Federal Constitution. Pickron, supra, at 246 n. 2, 634 A.2d at 1096 n. 2. . The General Assembly passed two statutory provisions in 1995 authorizing searches of a parolee by state and county parole officers. See 61 P.S. §§ 331.27a and 331.27b. Pursuant to these provisions, evidence discovered shall not be suppressed if the parole agent has a reasonable suspicion that a parolee has violated the conditions of his parole. . Section 331.23 of Title 61 provides that: [T]he board shall have the power and it shall be its duty, to make general rules for the conduct and supervision of persons heretofore or hereafter placed upon parole. In addition to the power to make general rules and regulations hereby granted, the board may, in particular cases, as it deems necessary to effectuate the purpose of parole, prescribe special regulations for particular parolees. Restrictions placed on a parolee in accordance with the powers of this statutory provision include reporting regularly to his parole officer, living in a residence approved by the Parole Board, abstaining from the use of drugs, refraining from owning a weapon and refraining from assaultive behavior. See 37 Pa.Code § 63.4. . In Pickrort, supra, this Court noted that evidence should be suppressed if the parole agent switches hats and acts as a “stalking horse” for the police by circumventing the requirement for a warrant. Pickron, 535 Pa. at 248, 634 A.2d at 1097. Here, the suppression court explicitly found that the parole agent who conducted the search was not acting in such a capacity. Moreover, appellee does not make a claim that the parole officer was acting as a stalking horse for the police when he was conducting the search and no evidence in the record even remotely suggests that the trial court erred in reaching this conclusion. See United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988) (parole officer’s search not unlawful just because it also benefits the police or that incriminating evidence found is turned over to police for use in criminal prosecution).

ORDER PER CURIAM: AND NOW, this 25th day of March, 1997, the opinion of the Commonwealth Court is affirmed. NEWMAN, J., did not participate in the consideration or decision of this case.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT ZAPPALA, Justice. This case is before us on remand from the United States Supreme Court for further proceedings not inconsistent with its per curiam opinion, Pennsylvania v. Labron, — U.S. —, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). We issued an opinion in this matter on December 29, 1995, which details the factual and procedural history of the case. Commonwealth v. Labron, 543 Pa. 86, 669 A.2d 917 (1995). We held that evidence obtained from a warrantless search of an automobile was properly suppressed. The United States Supreme Court summarily reversed our decision, along with Commonwealth v. Kilgore, 544 Pa. 439, 677 A.2d 311 (1995), holding that the warrantless searches of the automobiles did not violate the Fourth Amendment to the United States Constitution because probable cause was established. The Court further stated that “[t]he law of the Commonwealth thus appears to us ‘interwoven with the federal law, and ... the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’ ” — U.S. at —, 116 S.Ct. at 2487, citing Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983). Appellant, Edwin Labron, has filed a Petition for Clarification and/or Affirmance of this Court’s Judgment as Resting Upon State Constitutional Grounds. We now reaffirm our holding in Labron, and explicitly note that it was, in fact, decided upon independent state grounds, i.e., Article I, Section 8 of the Pennsylvania Constitution. Although we cited United States Supreme Court cases in our discussion of the automobile exception, we continually referred to our Court’s prior interpretation of the exception to the warrant requirement. Specifically, we relied upon our decision in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), which was decided the same day. In White, we discussed the automobile exception and noted that, “this [C]ourt, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance than has the United States Supreme Court, and under the Pennsylvania balance, an individual’s privacy interests are given greater deference than under federal law.” Id. at 56, 669 A.2d at 902. Following this citation to White, we concluded in Labron that “this Commonwealth’s jurisprudence of the automobile exception has long required both the existence of probable cause and the presence of exigent circumstances to justify a warrantless search.” Labron, 543 Pa. at 100, 669 A.2d at 924. Having determined that Labron preserved his state constitutional claim before the suppression court and that our previous decision rests on independent state grounds, we reinstate our previous order reversing the order of the Superi- or Court. CASTILLE, J., files a dissenting opinion in which NEWMAN, J., joins. NIGRO, J., concurs in the result. . Justice Stevens, joined by Justice Ginsburg, dissented. . The Commonwealth did not seek review of White in the United States Supreme Court.

ORDER PER CURIAM. AND NOW, the direct appeal is quashed.

OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal by allowance from an order of the Commonwealth Court which reversed an order of the Pennsylvania Housing Finance Agency (PHFA) which had affirmed a hearing examiner’s denial of an application for emergency mortgage assistance under the Homeowner’s Emergency Mortgage Assistance Act (Assistance Act), 35 P.S. § 1680.401c et seq. The application for assistance was filed by Antoinette Anela, appellee herein, in an effort to cure delinquencies in her mortgage payments. In 1989, Anela purchased a home in Philadelphia with her then-fiance, James R. Prem. Anela and Prem obtained a thirty-year mortgage on the property in the amount of $46,-700. Shortly after making the purchase, Anela and Prem ended their relationship. Prem never moved into the house. Anela moved in, however, and has since resided there with her son. In 1993, a judgment was obtained against Prem by John Harahan. Harahan subsequently initiated a sheriffs sale of Prem’s one-half interest in the property. Harahan purchased Prem’s interest at the sale. Harahan did not move into the house. He, in fact, never even met Anela. Early in 1993, Anela was laid off from her job as a legal secretary. She maintained the $509.81 monthly mortgage payments until January of 1994, at which time she defaulted. The total amount in arrears now exceeds $4,590.00. In 1994, Anela applied for emergency mortgage assistance pursuant to the Assistance Act, supra. Under the act, the PHFA is authorized to provide mortgage assistance loans to homeowners who face foreclosure for reasons beyond their control. 35 P.S. §§ 1680.401c, 1680.404c. The PHFA denied Anela’s application. On appeal, a hearing examiner affirmed on the basis of a PHFA policy statement which requires that applications for mortgage assistance be joined by all of the owners of the property. Anela’s application for assistance had not been joined by Harahan, and Harahan is presumed to be unwilling to join in such an application. On appeal, the Commonwealth Court reversed and remanded for further consideration of Anela’s application. The court held that requiring all of the owners of the property to join in the application for assistance was contrary to provisions of the Assistance Act. Hence, it held the requirement invalid. The PHFA policy statement in question was promulgated to implement the Assistance Act. See 16 Pa.Code § 40.201 et seq. The relevant portion of the policy statement is as follows: (5) All owners of the residence shall be applicants for the mortgage assistance loan and execute — either personally or through a valid power of attorney — the mortgage and other related loan documents required by the agency, except as follows: (i) When the residence is jointly owned by a husband and wife who are separated and the applicant is occupying the mortgaged premises. (ii) When the residence is jointly owned by a former husband and wife, who are divorced and the applicant, who is occupying the mortgaged premises, is unable to locate his former spouse or the applicant is unable to obtain his former spouse’s consent to join in the application or sign the agency’s loan documents. 16 Pa.Code § 40.202(g)(5) (emphasis added). The Commonwealth Court reasoned that no provision of the act prohibits one co-owner from alone applying for and receiving mortgage assistance. It held, therefore, that the policy statement requiring all co-owners, except separated spouses or ex-spouses, to apply for assistance is contradictory to the act. We are persuaded that the act provides ample basis for the PHFA’s requirement that all co-owners jointly apply for mortgage assistance. The decision of the Commonwealth Court declaring the requirement invalid must, therefore, be reversed. It is well established that the legislature cannot delegate its power to make law, but that it can authorize an administrative body to establish rules, regulations, and standards that implement the legislative intent expressed in a statute. See Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 95-96, 422 A.2d 487, 489 (1980); Belovsky v. Redevelopment Authority, 357 Pa. 329, 342, 54 A.2d 277, 284 (1947). In addition, an agency’s interpretation of its enabling statute is entitled to great weight and will not be overturned unless it is clearly erroneous. Alpha Auto Sales v. Department of State, 537 Pa. 353, 357, 644 A.2d 153, 155 (1994); Federal Deposit Insurance Corp. v. Board of Finance and Revenue, 368 Pa. 463, 471, 84 A.2d 495, 499 (1951). Nevertheless, an agency cannot invest itself with authority or powers not fairly or properly within the legislative grant. Id. at 472, 84 A.2d at 499. Here, the PHFA was expressly authorized by the legislature to impose rules and standards governing the issuance of mortgage assistance loans. The Assistance Act provides: (a) The Pennsylvania Housing Finance Agency, hereinafter referred to as the “agency,” may make loans secured by liens on residential real property located in Pennsylvania to residents of Pennsylvania eligible for such loans as described in this article---- (b) The agency shall carry out the program established by this article. Within sixty days of the effective date of this article, the agency shall adopt initial program guidelines for the implementation of this article and may revise the guidelines whenever appropriate.... (c) The agency shall develop uniform notices and rules and regulations in order to implement the provisions of this article. 35 P.S. § 1680.401c (emphasis added). The PHFA’s authority is also set forth by a provision of the act that prohibits assistance from being granted unless an applicant “meets any other procedural requirements established by the agency.” 35 P.S. § 1680.404c(a)(ll) (emphasis added). The Assistance Act requires that loans made thereunder be repaid in a timely fashion. 35 P.S. § 1680.406c (“Upon approval of mortgage assistance, the agency shall enter into an agreement with the mortgagor for repayment of all mortgage assistance made by the agency____”) The act requires the PHFA to establish an application process that allows assistance to be granted only in cases where applicants are likely to resume mortgage payments and correct delinquencies within specified time limits. 35 P.S. § 1680.404c(a) (“No assistance may be made with respect to a mortgage under this article unless ... (5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within thirty-six (36) months____”) The PHFA has a duty to conduct a thorough review of each applicant’s financial position. 35 P.S. § 1680.404c(a)(6) (assistance not to be granted unless the “mortgagor has applied to the agency for assistance on an application form prescribed by the agency for this use which includes a financial statement disclosing all assets and liabilities of the mortgagor, whether singly or jointly held, and all household income regardless of source.”) See also 35 P.S. § 1680.404c(a)(9) (assistance to be granted only where “[e]x cept for the current delinquency, the mortgagor shall have had a favorable residential mortgage credit history for the previous five (5) years.”); 35 P.S. § 1680.404c(a)(l) (property securing the mortgage must be the principal residence of the mortgagor). Further, the agency is to ensure that each assistance loan is backed by an adequate security interest. 35 P.S. § 1680.405c(g) (“Repayment of amounts owed to the agency from a mortgagor shall be secured by a mortgage lien on the property and by such other obligation as the agency may require.”) In short, the legislature has placed responsibility on the PHFA to issue loans in a manner that assures repayment. To that end, it has authorized the agency to adopt rules, regulations, and procedural requirements. It is perfectly consistent with that authorization for the PHFA to consider information regarding all of a property’s owners to determine the likelihood that the original mortgage delinquency as well as the assistance loan will be repaid. If all owners of the property were not included in the application process it would be impossible for the agency to ascertain whether co-owners have the desire, intention, or financial ability to cure the mortgage delinquency. In addition, because all co-owners are benefitted by a mortgage assistance loan in that the proceeds are used to cure arrearages on the underlying mortgage, it is fair and reasonable for the agency to require information about such co-beneficiaries of the publicly funded loan. We conclude that requiring all co-owners to apply jointly for mortgage assistance is plainly within the scope of authority delegated to the agency. Having determined that the Commonwealth Court erred in holding the PHFA requirement invalid, we reverse and vacate the order. Order reversed and vacated. NEWMAN, J., did not participate in the consideration or decision of this case. NIGRO, J., files a dissenting opinion. . The policy exception for separated spouses and ex-spouses emanates from 35 P.S. § 1680.405c(g), wherein a requirement is imposed that mortgage assistance loans be secured by mortgage liens, and an exception is provided for "joint mortgagors who are husband and wife, where only one spouse who is an occupant of the mortgaged premises makes application for and receives assistance under this article....” In such cases, the lien to secure repayment becomes a "lien on the property of like force and effect as a mechanic's lien." Id. . Anela’s brief alleges that the court below did not address issues relating to retroactivity of the PHFA policy statement and equal protection. We would remand for consideration of any such issues that have been preserved were it not for the fact that Anela recently filed a motion requesting that this appeal be dismissed as moot. Anela claims that she has acquired complete ownership of her home and that there is no longer any co-owner to be involved in the application process. The PHFA replied that it would not oppose dismissal on grounds of mootness if the Commonwealth Court’s decision was simultaneously vacated. Because the issue presented is one that is capable of repetition and apt to elude review, we have proceeded to address it. See Jersey Shore Area School District v. Jersey Shore Education Association, 519 Pa. 398, 401, 548 A.2d 1202, 1204 (1988) (appellate consideration of moot issues that are capable of repetition and apt to elude review).

ORDER PER CURIAM: AND NOW, this 3rd day of January, 1997, Steven F. Herron having been suspended from the practice of law in the State of New Jersey for a period of one year by Order of the Supreme Court of New Jersey dated May 20, 1996; the said Steven F. Herron having been directed on October 28,1996, to inform this Court of any claim he has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor; and no response having been filed, it is ORDERED that Steven F. Herron is suspended from the practice of law in this Commonwealth for a period of one year, to run concurrently with the one-year suspension imposed by Order of this Court on December 18, 1995, at No. 150 Disciplinary Docket No. 3, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

ORDER PER CURIAM. AND NOW, this 12th day of March, 1997, we GRANT the Petition for Allowance of Appeal, and we limit the issue to determining whether to remand to the Court of Common Pleas of Snyder County for an evidentiary hearing to decidé whether trial counsel were ineffective for failing to request a corrupt source jury instruction.

ORDER PER CURIAM. Appeal dismissed as having been improvidently granted. NEWMAN, J., did not participate in the consideration or decision of this case. NIGRO, J., dissents.

ORDER PER CURIAM: AND NOW, this 30th day of December, 1996, upon consideration of the Report and Recommendations of the Disciplinary Board dated October 31,1996, it is hereby ORDERED that ROBERT JAY VEDATSKY, be and he is SUSPENDED from the Bar of this Commonwealth for a period of two (2) years, and he shall comply with all the provisions of Rule 217 Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

OPINION OF THE COURT CAPPY, Justice. This is an appeal by allowance from the order of the Superior Court, affirming the entry of summary judgment by the Court of Common Pleas of Philadelphia County. For the reasons that follow, we now affirm. Dominique Skipworth (“Skipworth”) was born on September 18, 1988. Between September 10, 1990 and May 8, 1991, she was hospitalized for lead poisoning on three separate occasions. She also received outpatient therapy for lead poisoning in August 1991, and again in June 1992. During this time, she resided at only one home, located at 2840 West Stiles Street in Philadelphia. This residence, which had been rented by Skip-worth’s guardian, Pandora Williams (“Williams”), was estimated to have been built circa 1870. Testing of Skipworth’s residence revealed the presence of lead-based paint at various locations throughout the home. On March 17, 1992, Skipworth filed an action through her legal guardian, Williams, and her co-legal guardian and mother, Ernestine Richardson (collectively referred to as “Appellants”) against several manufacturers of lead pigment (“the pigment manufacturers”) and their alleged successors as well as a trade association, Lead Industries Association, Inc. (“LIA”). Appellants alleged that Skipworth suffered physical and neuropsychological injuries as a result of lead poisoning from the lead paint in her home. Appellants stipulated that they could not identify the manufacturer of the lead pigment which Skipworth ingested, and admitted that they could not identify when such pigment was made, sold, or applied to her home. Appellants, however, alleged that they had identified and joined in this action substantially all of the manufacturers of lead pigment used in residential house paint from 1870 until production of lead pigment ceased in 1977. Appellants thus proceeded against the pigment manufacturers and LIA (collectively referred to as “Appellees”) by invoking theories of collective liability, namely market share liability, alternate liability, conspiracy, and concert of action. Appellees filed a motion for summary judgment. The trial court granted Appellees’ motion for summary judgment as to all counts of Appellants’ complaint. The Superior Court affirmed. In discussing Appellants’ contention that market share liability is a viable theory of recovery in Pennsylvania, the Superior Court noted that neither this court nor the legislature had adopted market share liability as a theory of recovery in products liability actions. 445 Pa.Super. 610, 617, 665 A.2d 1288, 1292. Indicating that such an extensive policy shift as adopting market share liability was not for an intermediate appellate court to make, the Superior Court declined to award Appellants relief on this issue. The Superior Court then determined that Appellees were also entitled to judgment as a matter of law as to Appellants’ remaining claims of alternate liability, conspiracy and concert of action. Appellants subsequently filed a petition for allowance of appeal from this determination, and we granted allocatur. We now affirm. In reviewing whether a trial court’s award of summary judgment was appropriate in a case, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Pa.R.C.P. No. 1035. As all of the issues in this case present questions of law, our scope of review is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 130, 665 A.2d 1167, 1170 (1995). The first question presented in this appeal is whether this court should adopt the market share liability theory in the context of lead poisoning cases. The market share liability theory provides an exception to the general rale that a plaintiff must establish that the defendant proximately caused his or her injury. A sharply divided California Supreme Court was the first court to adopt this theory of liability. See Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132 (1980). The Sindell case involved a plaintiff who developed cancer as a result of her mother’s ingestion during pregnancy of diethylstilbestrol (“DES”), a drug with an identical formula manufactured by several different companies. Because of the inability to trace the source of the DES due to its fungible nature and the long time lapse between its sale and the development of health problems, the plaintiff was unable to identify, through no fault of her own, the manufacturer of the DES ingested by her mother. The Sindell court concluded that the plaintiff need not identify which particular manufacturer made the DES ingested by her mother, and held that the manufacturers of the product identical to the one which harmed plaintiff were liable in shares proportional to their share of the market at the time plaintiffs mother ingested the drug, regardless of actual causation. Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. The Sindell court stated that market share liability is appropriate where the following factors are present: all the named defendants are potential tortfeasors; the allegedly harmful products are identical and share the same defective qualities (or were “fungible”); the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and, substantially all of the manufacturers which created the defective products during the relevant time are named as defendants. Id. at 611-612, 607 P.2d at 936-937, 163 Cal.Rptr. at 144-145. The rationale for adopting this theory was that “each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products.” Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. Pennsylvania, on the other hand, follows the general rule that a plaintiff, in order to recover, must establish that a particular defendant’s negligence was the proximate cause of her injuries. See Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965) (proximate causation is the “vitally important link” necessary to impose tort liability). Adoption of the market share liability theory would result in a significant departure from this rule. Although we realize that there may arise a situation which would compel us to depart from our time-tested general rule, such a situation is not presented by the matter sub judice. Application of market share liability to lead paint cases such as this one would lead to a distortion of liability which would be so gross as to make determinations of culpability arbitrary and unfair. The extent to which liability would be contorted in a lead pigment case were market share liability to be applied is brought into sharp focus when the facts presented by this case are compared with the situation presented by a typical DES case, which is the type of case for which this theory was created. Such a comparison has revealed to us two major factors which compel us to conclude that adoption of market share liability in the context of a lead pigment case would unacceptably distort liability. First, the relevant time period in question is far more extensive than the relevant time period in a DES case. In this case, Appellants cannot identify any particular application, or applications, of lead paint which have caused Skipworth’s health problems. Thus, they “pinpoint” a more than one hundred year period from the date the house was built until the lead paint ceased being sold for residential purposes as the relevant time period. In contrast, the relevant time period in a DES case is necessarily limited to the nine months that the patient ingesting the product was pregnant. The difficulty in applying market share liability where such an expansive relevant time period as one hundred years is at issue is that entities who could not have been the producers of the lead paint which injured Skipworth would almost assuredly be held liable. Over the one hundred year period at issue, several of the pigment manufacturers entered and left the lead paint market. R.R. at 336a-349a; 578a-579a. Thus, applica tion of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held hable where they could not possibly have been a potential tortfeasor; therefore, the first prong of the Sindell test would not be met. The second factor which persuades us that adoption of market share liability here would be inappropriate is that lead paint, as opposed to DES, is not a fungible product. All DES used for treatment of pregnant women was manufactured according to an identical formula and presented an identical risk of harm. Sindell, 26 Cal.3d at 611, 607 P.2d at 936, 163 Cal.Rptr. at 144. In contrast, it is undisputed that lead pigments had different chemical formulations, contained different amounts of lead, and differed in potential toxicity. R.R. at 313a--314a; 332a-333a. Appellants contend that “whether all of the lead pigment [the pigment manufacturers] manufactured was exactly the same, in every respect, [is] irrelevant....” We do not see this problem being so easily dismissed. Uncontested evidence shows that differing formulae of lead paint result in differing levels of bioavailability of the lead. R.R. at 313a-314a. Because of differences in bioavailability, a child who ingests dust or chips of lead paint containing equal amounts of lead “derived from two lead paints will not generally develop equal elevation in internal lead level from the two paints. Rather, more highly bioavailable lead has a greater impact than lead in less bioavailable form.” R.R. at 314a-315a (emphasis in the original). Thus, differing formulae of lead paint has a direct bearing on how much damage a lead paint manufacturer’s product would cause. Contrary to Appellants’ bald assertion that this is an irrelevant consideration, it is actually fatal to their claim that application of market share liability to these defendants would be appropriate. Market share liability is grounded on the premise that it ensures that “each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products.” Sindell, 26 Cal.3d at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. Yet, in this case, apportioning liability based upon a manufacturer defendant’s share of the market (even if it were possible to obtain an accurate statistic considering the lengthy relevant time period at question) would not serve to approximate that defendant’s responsibility for injuries caused by its lead paint. For example, a manufacturer whose lead product had a lower bioavailability than average would have caused less damage than its market share would indicate. Thus, application of market share liability to such a manufacturer would impose on it disproportionately high share of the damages awarded. As we find that application of market share liability to lead paint cases would grotesquely distort liability, we decline to apply it in this case. The next question concerns whether the trial court correctly entered summary judgment in favor of Appellees on Appellants’ alternative liability count. Section 433B(3) of the Restatement (Second) of Torts, which sets forth the alternative liability theory, states that: [w]here the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff only by one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. The theory of alternative liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the plaintiffs injury unless the tortfeasors are able to prove that they have not caused the harm. The leading case on this doctrine was Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers, the plaintiff was struck by pellets shot from one of the two defendants’ guns. Plaintiff could not establish which of the defendants had actually injured him, but could prove that both had acted negligently. The California Supreme Court held that where the evidence showed that the two defendants negligently shot at about the same time and that the pellets from one of their guns struck the plaintiff, the burden of proving which defendants’ shot struck the plaintiff shifted to the defendants; the court further held that in the absence of further evidence, judgment could be properly entered against both defendants. Id. at 86-88, 199 P.2d at 4-5. We adopted this theory of liability in Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970). In Snoparsky, several stones were thrown at plaintiff by the defendants. Only one stone, however, struck and injured the plaintiff. The plaintiff in Snoparsky was allowed to proceed under alternative liability because the tortious conduct of defendant was simultaneous and identical, and the plaintiff joined all potential tortfeasors as defendants. See id.; see also Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974). The trial court correctly concluded that alternate liability theory is inapplicable to the matter sub judice. First, Appellees did not act simultaneously in producing the lead paint. Over the one hundred year period at issue, several of the named Appellees entered and left the lead paint market. R.R. at 336a-349a; 578a579a. Second, it is uncontroverted that Appellants have failed to join all entities which manufactured lead paint over the one hundred year period, R.R. 336a-349a, and therefore have failed to join all potential tortfeasors. The next issue is whether the trial court correctly entered summary judgment in favor of Appellees on Appellants’ civil conspiracy claim. In order to state a cause of action for civil conspiracy, a plaintiff must show “that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy.” Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1979) (citations omitted). Thus, in order to withstand summary judgment on this claim, Appellants must have produced evidence which would establish that Appellees acted in concert to commit an unlawful act or do a lawful act by unlawful means, and that they acted with malice. Appellants have failed to introduce evidence which would support their cause of action for civil conspiracy. First, Appellants have failed to introduce evidence that Appellees were acting in concert. Second, Appellants have also failed to demonstrate malice on the part of Appellees. The final question for this court to review is whether the trial court properly entered summary judgment in favor of Appellees on Appellants’ concert of action claim. This theory provides in pertinent part that “[f]or harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him____” Restatement (Second) of Torts, § 876. The concert of action theory has not yet been discussed by this court, but has been addressed by our Superior Court. See Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973, (1985); Kline v. Ball, 306 Pa.Super. 284, 452 A.2d 727 (1982). In Burnside and Kline, the Superior Court held that a claim of concerted action cannot be established if the plaintiff is unable to identify the wrongdoer or the person who acted in concert with the wrongdoer. Burnside, 351 Pa.Super. at 284, 505 A.2d at 984; Kline, 306 Pa.Super. at 287, 452 A.2d at 729. We find that these interpretations of the concert of action theory are eminently reasonable and hereby expressly adopt them. We find that Appellants failed to establish that they had a cause of action for concert of action as they are unable to identify the manufacturer of any of the lead pigment found at Skipworth’s residence that was ingested by her and allegedly caused her injuries. As they are unable to identify any one of the lead pigment manufacturers as the wrongdoer, we therefore hold that the trial court correctly entered summary judgment on the concert of action claim. For the reasons set forth herein, the order of the Superior Court is affirmed. . Appellants also sued the owner and manager of the property within which Skipworth resides as well as the City of Philadelphia’s Department of Health. These other defendants are not parties in this appeal. . We note that one of the Appellees, the Sherwin-Williams Company ("Sherwin-Williams"), has asserted that we need not address the market share liability issue because the materials upon which Appellants rely for their market share liability argument are inadmissible and therefore their claim cannot survive summary judgment on this basis alone. Sherwin-Williams asserts that several reports filed by Appellants as affidavits are inadmissible because these reports were unsworn. See Pa.RX.P. No. 76, "affidavit”. The exhibits to which SherwinWilliams points are the reports and letters of Barach & Company, Dr. Henretig, Dr. Golinkoff, Dr. Smith, and Environmental Protection Inspection, Inc. After exhaustive review of the record, however, we have found no indication that Sherwin-Williams raised this issue prior to raising it on appeal to this court. Therefore, we conclude that this issue has been waived. See Pa.R.A.P. 302(a). . It would appear that this theory emanated from an article written by a law student. See Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963 (1978). . Even courts from other jurisdictions which have adopted this theory have recognized that it is a significant modification of or deviation from the traditional theories of causation. Sindell, 26 Cal.3d at 610, 607 P.2d at 936, 163 Cal.Rptr. at 144; Martin v. Abbott Laboratories, 102 Wash.2d 581, 602, 689 P.2d 368, 381 (1984). . The term ‘'bioavailability” refers to “the extent to which the lead is in a form which is easily internalized by the body, i.e., the extent to which it is in a form which can be physiologically transported through the lungs, gastrointestinal tract, skin, etc. and absorbed into the bloodstream. ...” R.R. at 313a-314a.

ORDER PER CURIAM: AND NOW, this 31st day of March, 1997, the Petition for Allowance of Appeal is GRANTED limited to whether invalidating a zoning ordinance constitutes an automatic de facto taking. This case is to be orally argued. Additionally, Wrightstown Township’s Application for Permission to File an Amicus Curiae Brief in Support of the Petition for Allowance of Appeal, 180 E.D. Misc. Dkt.1996, is DENIED.

OPINION NIGRO, Justice. .This case presents the Court’s first opportunity to address whether product liability defendants and a non-product liability defendant are entitled to summary judgment when the plaintiff has allegedly failed to preserve a defectively-designed product. For the reasons discussed below, we reverse the Commonwealth Court’s decision affirming the grant of summary judgment for Appellees. Navistar International Transportation Corporation designed and manufactured the cab and chassis of a truck and sold them to Sheets Truck Center in August of 1986. Gary and Kelly Schroeder bought a truck containing these parts from Sheets in 1988. On May 5,1991, Gary Schroeder was driving the truck southbound on a state road when he lost control. The truck crossed into the northbound lane of the roadway, struck an embankment, and turned over. At the time, the Department of Transportation (Penn-DOT) was doing construction work and had cut away the berm of the road. There were no eyewitnesses to the accident. A police officer travelling to work came upon the truck and saw that the front wheels were still spinning. The roof on the driver’s side was partially crushed. Schroeder was trapped inside. While the officer tried to help him, a fire ignited in the engine area and consumed the cab. According to the officer, Schroeder was alive until the fire broke out. Schroeder died at the scene. The truck’s remains were taken to a towing facility. Margala & Sons Salvage arranged to buy the wrecked truck through an insurance adjuster. Margala & Sons picked up the truck at the towing facility on June 14, 1991. On June 18, Kelly Sehroeder’s attorney asked Margala not to destroy the truck’s cab until arrangements could be made to examine it. Margala agreed to store the truck for a fee. On July 26, Schroeder signed the truck’s title over to her insurer, Great American Insurance Company. On August 6, Great American transferred ownership to Margala. By February of 1992, Margala had sold some of the truck’s parts. Kelly Schroeder filed wrongful death and survival actions against Appellees PennDOT, Navistar and Sheets Truck Center in the Washington County Court of Common Pleas in October of 1992. Schroeder asserts in her complaint that Gary Schroeder lost control when a right wheel of his truck dropped off the edge of the roadway where PennDOT had cut away the berm. She alleges that when Gary Schroeder tried to bring the truck back onto the roadway, it slid sideways across the road, struck the embankment, and flipped. Schroeder alleges that PennDOT’s negligence included, among other things, the creation of a dangerous road condition and the failure to warn of its existence. Schroeder further asserts claims of negligence, strict liability, and breach of warranty against Navistar and Sheets for manufacturing and selling a truck that was not crash-worthy. Schroeder’s expert examined the parts of the truck that Margala had not sold in December of 1992 and Navistar’s expert examined them in March of 1993. PennDOT sought to examine the remains in June of 1993 and Margala ultimately told it that they had been sold. Alleging that Schroeder failed to preserve the truck for purposes of litigation, including the cab primarily at issue with respect to product liability, Appellees separately filed summary judgment motions in August of 1994. Appellees maintain that they are effectively precluded from defending Schroeder’s claims. Summary judgment may be granted when the pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports, if any, show that there is no genuine issue as to any material fact and that the record entitles the moving party to judgment as a matter of law. Pa. R. Civ. P. 1035.2. In addition, “[o]ral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact.” Id., Note (citing Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) and Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989)). The trial court granted Appellees’ motions for summary judgment. It relied in part upon the Superior Court’s decisions in Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685 (1991), and DeWeese v. Anchor Hocking Consumer and Industrial Products Group, 427 Pa.Super. 47, 628 A.2d 421 (1993), where summary judgment was granted for defendants in product liability suits after the products at issue were destroyed. The trial court found that these cases were decided on the public policy grounds that destruction or loss of a product may prevent the defendant from preparing a defense. While acknowledging the rejection of Roselli in federal cases, the trial court stated that it was bound by the Superior Court’s decision. The trial court rejected Schroeder’s argument that she tried to preserve the truck. Rather, the court found that she transferred its title and that her actions ultimately prevented Appellees from examining the vehicle as it existed after the accident. The trial court further rejected the argument that summary judgment was not warranted because Schroeder alleged a design defect common to other trucks. It stated that other wise Sehroeder would control Appellees’ method of proof and preclude their experts from uncovering other causes for the accident. The Commonwealth Court affirmed the grant of summary judgment for Appellees. It quoted DeWeese as holding that “where a plaintiff brings an action claiming that he suffered injury as a result of a defective product, his failure to produce the product for inspection by the defense will render summary judgment against him appropriate.” The Commonwealth Court found that the policy rationale of Roselli and DeWeese applies to Schroeder’s design defect claims and that since she did not preserve the truck, summary judgment was appropriate. The court also concluded that Appellees were prejudiced by the loss of evidence since they would be unable to present causation defenses. The Superior Court’s decisions in Ro-selli and DeWeese are not dispositive of the issues in the present case. In Roselli, the plaintiff was injured when a coffee carafe shattered in her hand. She sued the manufacturer and alleged that the product malfunctioned. The plaintiff lost the carafe’s broken pieces before the defense could inspect them. The Superior Court affirmed a grant of summary judgment for the manufacturer based upon the spoliation of, evidence. It reasoned that as a matter of public policy, requiring the plaintiff to produce an allegedly defective product discourages fraudulent claims and facilitates defending valid claims. 410 Pa.Super. at 227-28, 599 A.2d at 687-88. The court also found that the plaintiff failed to eliminate other possible causes of the malfunction given evidence related to.the carafe’s prior use. Id. at 230, 599 A.2d at 688-89. In a dissenting opinion in Roselli Judge Del Sole stated that it was the jury’s function to weigh the testimony since the malfunction theory allows a plaintiff to prove a defect with circumstantial evidence. Id. at 231, 599 A.2d at 689. He believed that the plaintiff’s burden of proof at trial served to protect the defendants and further found that a factual dispute existed related to the prior use of the carafe. Id. Roselli does not apply here. As discussed further below, Sehroeder alleges a design defect common to all trucks like her husband’s truck—not the malfunction of one product. The burden of proof for these product liability claims is not the same. Moreover, Sehroeder’s claims against Penn-DOT concern the dangerous condition of the roadway and have nothing to do with a defective product. Thus, Roselli does not control whether the defendants in this case are entitled to judgment as a matter of law. DeWeese is also a product malfunction case. More importantly, it did not produce a majority opinion. Judge Olszewski authored an opinion discussing Roselli and finding summary judgment warranted because the plaintiff could not identify the product manufacturer. In a concurring opinion, Judge Ford Elliot agreed that summary judgment was warranted because of the plaintiff’s inability to identify the manufacturer but disagreed with Judge Olszewski’s reliance upon Roselli She believed that Roselli was wrongly decided. Judge McEwen concurred in the result. At most, DeWeese stands for the principle that summary judgment is warranted when a plaintiff cannot identify a product manufacturer. That is not the case here. Thus, the Commonwealth Court’s reliance upon DeWeese for the proposition that summary judgment is appropriate when a plaintiff cannot produce an allegedly defective product for inspection was erroneous. The Third Circuit Court of Appeals addressed the appropriate sanction for the spoliation of evidence in a design defect case in Schmid v. Milwaukee Electric Tool Corp, 13 F.3d 76 (3d Cir.1994). In Schmid, the plaintiff’s expert altered an alleged defectively-designed product and the district court sanctioned the plaintiff by striking the expert’s testimony. On appeal, the Third Circuit rec ognized that a common penalty for spoliation is a jury instruction allowing an inference that the missing evidence would have been unfavorable to the party that destroyed it. Id. at 78. The court viewed prohibiting the expert’s testimony as an extreme sanction. Id. at 79. In deciding the proper penalty for the spoliation of evidence, the Third Circuit found relevant (1) the degree of fault of the party who altered or destroyed the evidence; (2)the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. Id. Applying these factors, it held that barring all expert testimony because the expert disassembled the product to examine it was excessive. Id. at 81. It found that the expert’s fault was slight and that the prejudice to the opposing party was not great because the plaintiff alleged a design defect common to all products of the same model. Id. Having considered this authority, we adopt the Third Circuit’s approach to the spoliation of evidence in Schmid. Fashioning a sanction for the spoliation of evidence based upon fault, prejudice, and other available sanctions will discourage intentional destruction. The plaintiff’s burden of proof at trial to establish that a defective product caused his injury will protect defendants in cases where it is determined that summary judgment is not warranted based upon spoliation. Applying the Schmid factors to this case, the product liability defendants are not entitled to summary judgment. With respect to fault, there is a factual dispute as to Schroeder’s counsel’s efforts to preserve the truck. While Edward Margala of Margala & Sons maintains that his agreement to preserve the truck ended in August of 1991, there is also evidence reflecting Sehroeder’s counsel’s understanding that Margala & Sons was to preserve the truck after that date and bill her the cost of storage. Although recognizing this dispute of fact, the trial court nonetheless found Schroeder at fault for signing over the truck’s title to her insurance company before filing suit. Schroeder’s counsel, however, asked Margala & Sons to preserve the truck before title was transferred. There is no evidence of the circumstances surrounding the transfer of title. Although Schroeder’s action ultimately led to the loss of the truck, the summary judgment motions do not support that the transfer was negligent or in bad faith. Given the request for preservation before the transfer and the conflicting evidence as to how long the preservation was to last, we cannot conclude, as our lower courts did, that Schroeder’s fault entitles Appellees to summary judgment. The second and third elements of the Schmid test also dictate that summary judgment is inappropriate. Since Schroeder’s product liability claim is based upon a design defect common to all trucks of its kind, the prejudice to the Appellees is not great. They can comparably test and examine other trucks for the alleged design defect. See Schmid, 13 F.3d 76 (discussing minimal prejudice in design defect cases). Since Appellees may test and inspect other trucks for the alleged design defect, a lesser sanction such as a jury instruction on the spoliation inference is warranted. Appellees may present evidence of spoliation at trial and the court may instruct the jury that it may infer that the truck’s parts would have been unfavorable to Schroeder. In addition, Appellees may present evidence about the track’s alleged modification after its sale. While Appellees may be unable to present some evidence related to causation without examining the track in the accident, the burden of proof remains with Sehroeder to prove that a product defect caused her harm. Thus, summary judgment is not warranted for the product liability defendants on the basis of spoliation of evidence. Appellee PennDOT is also not entitled to summary judgment on this basis. As discussed above, summary judgment is not warranted due to Schroeder’s fault. In addition, applying the second Schmid factor, PennDOT suffers less prejudice from the loss of the product than the product liability defendants. While PennDOT also may be unable to establish other theories of causation of the accident, PennDOT can defend the claims brought against it since they have to do with the condition of the roadway and not the track itself. Thus, under the third Schmid factor, a lessor sanction such as instructing the jury on the spoliation inference is proper. Since Sehroeder’s claims against PennDOT have to do with the condition of the roadway, summary judgment for Penn-DOT based upon the spoliation of the track is particularly inappropriate. In sum, we adopt the test in Schmid to determine the appropriate sanction against a party who fails to preserve a product that is the subject of litigation. Applying the Schmid test here, summary judgment is not warranted in favor' of the product liability defendants or PennDOT. We thus reverse the Commonwealth Court’s affirmance of the trial court’s grant of summary judgment in favor of Appellees and remand for further proceedings. FLAHERTY, C.J., files a dissenting opinion in which CASTILLE, J., joins. . Schroeder initially sued Appellees in July of 1992 in the United States District Court of the Western District of Pennsylvania. The case was dismissed on jurisdiction^ grounds and because the Eleventh Amendment bars suits against PennDOT in federal court. . In support of the summary judgment motions, Navistar’s counsel prepared several chronologies of events related to the truck itself and counsel’s conduct in this litigation. While presumably submitted to aid the trial court, they may not be used to decide the motions under Rule 1035.2. In addition, as the trial court recognized, the parties attached certain letters to their briefs that similarly may not be relied upon. . Sehroeder, 676 A.2d at 730 (Pa.Commw.1996). . Under a malfunction theory of strict liability, a plaintiff may prove a product defect with circumstantial evidence of the malfunction's occurrence and evidence eliminating other possible causes. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989). . The Pennsylvania Supreme Court adopted the spoliation inference in another context at the turn of the century in McHugh v. McHugh, 186 Pa. 197, 40 A. 410 (1898). See also Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996)(citing cases and adopting the rule of the majority of jurisdictions that allows the trier of fact to draw a spoliation inference). . Since Schmid, several district courts have applied the Third Circuit's test and found summary judgment inappropriate even in cases where only a particular product was allegedly defective. See, e.g., Howell v. Maytag, 168 F.R.D. 502 (M.D.Pa.1996)(denying summary judgment); Gordner v. Dynetics Corp., 862 F.Supp. 1303, 1307 (M.D.Pa.1994) (same). . See Navistar's Motion for Summary Judgment at Exhibit J (containing E. Margala's sworn statement and exhibits thereto) and Schroeder’s Brief in Opposition to Summary Judgment at Exhibit F (containing affidavit of Schroeder’s counsel). . Specifically, Schroeder alleges that the truck was not crashworthy. Under this theory, she must prove (1) that the design of the vehicle was defective and that when the design was made, an alternative, safer, practicable design existed; (2) what injuries, if any, the plaintiff would have received had the alternative safer design been used; and (3) what injuries were attributable to the defective design. Kupetz v. Deere & Co., Inc., 435 Pa.Super. 16, 27, 644 A.2d 1213, 1218 (1994). . In support of its summary judgment motion, Navistar submitted an employee’s affidavit stating that the truck was altered after its sale. Schroeder states that Navistar withdrew this affidavit at oral argument. Navistar argues that the transcript reflecting the withdrawal of evidence is not part of the original record. Whether the affidavit was withdrawn or not, a court cannot rely upon the oral statement of a witness of a moving party to grant summary judgment. Pa. R. Civ. P. 1035.2, Note (citing Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932)). While evidence of a product’s alteration would provide a stronger showing of prejudice, here there is simply insufficient evidence—if any at all—of such an alteration.

JOYCE, Judge: This is an appeal from the final judgment entered in favor of Appellee-Meridian Bank in connection with Appellants’ action for breach of contract, conversion and fraud. For the reasons set forth below, we affirm. Before addressing the merits of Appellants’ claims, it is necessary to recount the pertinent facts giving rise to this appeal. On July 1, 1992, Jacob Peled, Harry Car-dillo and John Lovett executed a share holder’s agreement pursuant to which Appel-lee, Paragon, USA, Inc. (Paragon) was formed. The agreement designated Lovett as the president of Paragon and Cardillo as chairman of the corporation’s board of directors. Although Peled and Johannes Wulf were among the other named directors, neither held any offices in Paragon. Nor were they authorized to handle matters pertaining to Paragon’s finances. Rather, the shareholder agreement specified that Lo-vett was to establish Paragon’s bank accounts and that all checks in excess of $1,000.00 were to be signed by both Lovett and Michael Johnston. To assist Paragon in its efforts to supply products to Schieffer, Peled persuaded Schieffer to issue a letter of credit to Paragon. Consequently, an irrevocable letter of credit was opened in Paragon’s favor. Deutsche Bank (DB) issued the letter of credit. Paragon maintained its bank account at Appellee, Meridian Bank (Meridian). Paragon shipped its first load of conveyor belts to Schieffer during the latter part of September or early October, 1992. Because of defects in the shipment, Wulf and Peled purportedly entered into a verbal agreement pursuant to which future payments on the letter of credit were to be deposited into Peled’s checking account at Meridian. According to Peled, these funds were to be held in trust for Paragon and would be disbursed to Paragon upon correction of the deficiencies in shipment. Schieffer apparently advised DB of this change. On November 3, 1992, DB sent an encoded message to Meridian which purported to amend the letter of credit by directing that proceeds drawn thereon be deposited into account number 5041-9681, i.e., Peled’s account. All other terms of the letter of credit were to remain in effect, however. None of the officers, directors or other persons authorized by the shareholder’s agreement consented, expressly or otherwise, to the amendment. Meridian subsequently received the documentation fi-orn Paragon’s shipment agent which referred to Paragon’s account number. As a result, Meridian treated Paragon’s actions as a rejection of the amendment and deposited the proceeds into Paragon’s account. Between November 30,1992 and December 2, 1992, Peled contacted Meridian and advised that the funds drawn on the letter of credit were credited to the wrong account. Accordingly, he demanded that Meridian transfer the funds to the Peled account number pursuant to the terms of the amendment. Believing that the account belonged to Paragon and that Peled was authorized to act on Paragon’s behalf, Meridian acceded to his request. Meridian likewise credited a second payment drawn on the letter of credit to Peled’s account. On December 4, 1992, Meridian was contacted by Mark Hoffman, the treasurer of Paragon, who inquired regarding the disposition of binds issued under the letter of credit. Cardillo and Hoffman, acting on behalf of Paragon, advised Meridian in writing that Paragon rejected the amendment to the letter of credit. As a result of Paragon’s letter and its own examination of the pertinent documentation, Meridian transferred the letter of credit proceeds from the Peled account to Paragon’s account. Shortly thereafter, Peled discovered that the funds were no longer in his account and contacted Meridian. After Meridian refiised to honor Peled’s demand to recredit the funds to his account, Appellants, Peled, Wulf and Raphael Peled, instituted suit against Meridian. Paragon was later joined as an additional defendant by Meridian. A nonjury trial was held in May, 1995 following which the trial court found in favor of Meridian with respect to Appellants’ claims. Appellants subsequently sought leave to file post-trial motions nunc pro tunc; the trial court granted their request. The trial court denied Appellants’ post-trial motions in June, 1997. This appeal followed. Appellants present two issues for review: (1) whether the trial court erred in denying their motion for judgment notwithstanding the verdict; and (2) whether the trial court erred in refusing to admit certain documents into evidence. Appellants initially challenge the trial court’s denial of their motion for judgment notwithstanding the verdict. In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a judgment n.o.v. should only be entered in a clear ease and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of evidence is not to be based on how he would have voted had he been ... the [trier of fact], but on the facts as they come through the sieve of the [fact-finder’s] deliberations. There are two bases upon which a judgment n.o.v. can be entered: one, the mov-ant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992) (citations and quotation marks omitted). We are also mindful of the fact that: The decision of a trial judge sitting without a jury must be accorded the same weight as a jury verdict.... [A] reviewing court will not disturb the trial judge’s findings of fact unless they are unsupported by competent evidence. Since the trial judge is in the best position to judge the credibility of the witnesses, an appellate court may not re-examine the weight to be given to their testimony. Similarly, an appellate court may not substitute its judgment for that of the trial judge. Alberici v. Safeguard Mutual Insurance Co., 444 Pa.Super. 351, 664 A.2d 110, 113 (1995) (citations omitted). Appellants’ arguments and the decision of the trial court will be evaluated in accordance with these principles. Appellants contend they are entitled to judgment n.o.v. with regard to their breach of contract action. Appellant’s Brief at 12. The essence of Appellants’ argument is that they were the proper recipients of the funds and that Appellee breached its depositor/creditor agreement with Appellants by transferring the funds to Paragon’s account. To properly address Appellants’ argument, it is necessary to examine the circumstances surrounding the transaction and the law pertinent thereto. As previously noted, Paragon was the beneficiary of an irrevocable letter of credit issued by DB, with Appellee acting in the capacity of an advising bank. See Defen dant’s Exhibit 2 (Letter from Meridian Bank to Paragon of September 25,1992 advising of terms of letter of credit). DB attempted to amend the letter of credit by changing the beneficiary’s account number to Peled’s account number. See Plaintiffs Exhibit 6 (Letter from Meridian Bank to Paragon of 11/4/92 indicating that DB proposed to amend the letter of credit); Plaintiffs Exhibit 20, at 130-131 (S.W.I.F.T. message from DB to Meridian of 11/3/92). Assuming, for the purpose of this discussion only, that the amendment was valid, we must determine whether it was effective. The UCC provides that “[u]nless otherwise agreed once an irrevocable letter of credit is established.. .as regards a beneficiary it can be modified or revoked only with his consent.” 13 Pa.C.S.A. § 5106(b). There is absolutely no evidence of a contrary agreement by the parties here. Nor does the record even remotely suggest that Paragon consented to the amendment. Paragon explicitly rejected the amendment in its letter to Appellee. See Defendant’s Exhibit 13 (Letter from Harry Cardillo and Mark Hoffman to Denise O’Connor, an employee of Meridian Bank, of 12/4/92). Paragon also never advised its shipping agent of the purported changes. Consequently, the documents forwarded by the shipping agent to Appellee and ultimately DB, continued to reflect that Paragon was the beneficiary and that the funds drawn upon the letter of credit were to be deposited to Paragon’s bank account. See Defendant’s Exhibits 4 and 5 (sight drafts and other documents of title indicating that funds drawn under letter were to be remitted to Paragon’s account). Paragon’s directions to its shipping agent, coupled with its express rejection, unequivocally demonstrate that it did not accept the proposed amendment. It is therefore clear that the proceeds from the letters of credit properly belonged to Paragon. Having made this determination, we must next consider Appellee’s obligations in regard to the transaction. With regard to this issue, the UCC provides, in relevant part: (a) Obligation of a bank advising a credit.—Unless otherwise specified an advising bank by advising a credit issued by another bank does not assume any obligation to honor drafts drawn or demands for payment made under the credit but it does assume obligation for the accuracy of its own statement (c) Effect when bank incorrectly advises terms of credit.—Even though an advising bank incorrectly advises the terms of a credit it has been authorized to advise the credit is established as against the issuer to the extent of its original terms. 13 Pa.C.S.A. § 5107(a) and (c) (emphasis in original). As explained by the commentary, an advising bank only has an obligation to accurately transmit the terms of the letters of credit. Id., Comment 1. It has no promissory liability. Id.; Banco Nacional de Desarrollo v. Mellon Bank, N.A., 726 F.2d 87, 89 n. 2 (3d Cir.1984). When sections 5106 and 5107 are read in conjunction with each other, it is apparent that Appellee, as the advising bank, was only required to accurately transmit the terms of the letters of the credit, any other documents and payments drawn upon the letter of credit to the beneficiary and issuer. Appellee was likewise obligated to follow the terms of the letter of credit as originally issued, since Paragon rejected the proposed amendment. Consequently, Appellee was not obligated to adhere to the amendment and credit the funds to Peled’s account. While the above letter of credit provisions are instructive, they do not materially advance our inquiry as to whether Appellee, as an advising bank, was permitted to recoup funds which were mistakenly credited to Appellants’ account at Peled’s unauthorized insistence. We must therefore look elsewhere for guidance. The UCC permits a depository-payor bank to charge back the amount of an item to its customer. 13 Pa.C.S.A. § 4214(c). Appellee accordingly was permitted to debit Appellants’ account upon discovering its mistake. Under these circumstances, Appellee did not breach its contractual agreement with Appellants. Because Appellants were not entitled to judgment n.o.v., the trial court’s denial of their motion was proper. In their second allegation of error, Appellants assert that they are entitled to a new trial on the ground that the trial court abused its discretion by refusing to admit certain documents into evidence. “Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant.” Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 (1992). “Evidence is relevant if it tends to make a fact at issue more or less probable.” Hatfield v. Continental Imports, Inc., 530 Pa. 551, 558, 610 A.2d 446, 449 (1992). We will review the trial court’s ruling with these considerations in mind. Appellants sought to introduce copies of DB’s documents which were sent to Schief-fer. Appellants’ believe that these materials were admissible as business records pursuant to the Uniform Business Records as Evidence Act, 42 Pa.C.S.A § 6108. In determining whether evidence is admissible thereunder, this court has recognized: It is not essential under the Uniform Business Records as Evidence Act to produce either the person who made the entries or the custodian of the record at the time the entries were made. Moreover, the law does not require that a witness qualifying business records even have a personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. Boyle v. Steiman, 429 Pa.Super. 1, 631 A.2d 1025, 1032-1033 (1993), allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994) (citations omitted). As applied here, Appellants sought to introduce DB’s records via Johannes Wulf. However, Wulf was employed by Schieffer and had no knowledge of the method of preparation and maintenance of DB’s records. (N.T. 5/22/95 at 48-50). Rather, he was only able to testify that he received the documents from DB and kept them in his own file. Id. at 41-42. Because Wulf was unable to proffer sufficient evidence concerning DB’s method of preparation and maintenance of its records, the trial court did not err in excluding these documents. Compare Boyle v. Steiman, 631 A.2d at 1033 (sufficient foundation for admitting ledgers under business records exception existed where business owner’s son was familiar with method of preparation and maintenance of records in his father’s business); American States Insurance Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 628 A.2d 880, 890-891 (1993) (copies of insurance policies were properly admitted under business records exception where insurance agency executive provided sufficient information regarding the method of preparation and maintenance of his agency’s records). Even were we to assume, purely for the sake of argument, that the business records exception was satisfied here, the exclusion of the evidence was harmless. “To constitute reversible error, a ruling on evidence must be shown not only to have been erroneous but harmful to the party complaining. An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the [fact-finder]’s judgment.” Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989). Exhibit 1 is a copy of the letter of credit issued by DB. Other similar documents were admitted which convey essentially the same information. Moreover, the existence of the letter and its terms, as originally issued, were not in dispute. Accordingly, the exclusion of this document did not prejudice Appellants. We reach a similar conclusion regarding Exhibit 3, which contains the terms of the proposed amendment. For the reasons previously discussed, however, the existence and validity of the amendment is irrelevant because it was never accepted by the beneficiary. This document therefore would not have affected the trial court’s decision even if it had been admitted. The remaining exhibits are wholly irrelevant to the issues presented by this case. Exhibits 5 and 10 merely authorized Appellee to draw upon a particular branch of DB and advise that the documentary evidence complied with the terms of the letter of credit. Appellee’s conduct in this regard was never at issue; rather, it is Appellee’s disposition of the proceeds after they were drawn upon DB’s account which is the subject of the parties’ dispute. Finally, exhibits 13 and 15 represented correspondence between DB and Ap-pellee after Appellee recredited the letter of credit proceeds to Paragon’s account. Although these documents refer to the purported amendment of the letter of credit, they do not bear on whether Paragon accepted the amendment or whether Appellee’s transfer of the funds was improper. In light of the above analysis, the trial court’s error in excluding the exhibits, if any, was harmless. Finding that Appellants are not entitled to the grant of any relief, we affirm the judgment. Judgment affirmed. . Peled is the managing director of Pelmar Engineering, Ltd. Pelmar is an investor in Paragon, U.K., a corporation at which Peled serves as its chairman. . Cardillo is the president and chief executive officer of Globe International (Globe) and Victor Balata Manufacturing Company (VBMC). VBMC is a wholly separate company which manufactured products for Globe. . John Lovett is the president and sole shareholder of Cleveland Oak Belting Company (COB). . Paragon, U.K., VBMC and COB were Paragon’s shareholders. Paragon was created to produce rubber industrial conveyor belts. Although Paragon participated in the trial proceedings and is identified in the caption, its counsel has advised us that he does not intend to file a brief on its behalf. Paragon therefore is not a participant in this appeal. . Johannes Wulf is the managing director of a German corporation known as Schieffer, GmbH (Schieffer). Schieffer was one of Paragon's primary customers. . Johnston, an employee of Paragon, U.K., was also a director of Paragon. . Deutsche Bank is the issuer,, as defined in 13 Pa.C.S.A. § 5103. . Paragon’s account number was 5041-6178. . Meridian acted as an advising bank, as defined in 13 Pa.C.S.A. § 5103. . Peled, Wulf and Peled’s son, Raphael Peled, were signatories to this account. The Peled account number was 5041-9681. . Final judgment was duly entered. Although Appellants’ notice of appeal was prematurely filed prior to the entry of final judgment, this irregularity does not affect our ability to review this appeal. See Pa.R.A.P., Rule 905(a), 42 Pa. C.S.A. (a notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof). . As Appellants’ do not question the denial of their motion in connection with their fraud and conversion claims, these matters will not be discussed. . Although Peled testified that when he received notice of the amendment from Appellee, he contacted the bank and verbally accepted the amendment, (N.T. 5/22/95 at 84-88), Appellee’s employee, Holly Krop, denied receiving such confirmation from Peled, (N.T. 5/24/95 at 396). The trial court did not deem Peled’s testimony to be credible. Trial Court Opinion, filed 6/11/97, at 14. We are bound by the trial court’s credibility determination. Alberici v. Safeguard Mutual Insurance Co., supra. In any event, Peled had no authority to act on Paragon's behalf. See Defendant's Exhibit 10 (Letter from John Lovett to Harry Cardillo of 10/8/92) (indicating that Peled was not a valid signatory to Paragon’s checking account and did not possess the authority to obligate the company in any manner; Lovett further stated that substantive decisions regarding the operation of Paragon were to be made only with his knowledge and consent). . We note that Pennsylvania enacted Article 4A of the Uniform Commercial Code, 13 Pa.C.S.A. § 4A101- § 4A507, which deals with funds transfers. These provisions are inapplicable, however, because they were not in effect at the time the transfers in this case occurred. See Act of July 9, 1992, P.L. 507, No. 97, § 32 (providing that the act was effective in one year). . A depositary bank is “[t]he first bank to which an items is transferred for collection even though it is also the payor bank.” 13 Pa.C.S.A. § 4105. A payor bank is "[a] bank by which an item is payable as drawn or accepted.” Id. . We recognize that the instant case concerns an international wire transfer of funds drawn upon a letter of credit rather than a situation in which an item, i.e., an instrument for the payment of money, see 13 Pa.C.S.A. § 4104(a), is deposited into a bank account. Thus, the Bank Deposit and Collection Provisions of the UCC may not be directly applicable. To the extent the UCC is silent as to the parties’ rights, the UCC may be supplemented by general principles of law and equity, including the law relative to mistake. 13 Pa.C.S.A. § 1103. As applied here, it is a well settled principle that money paid under a mistake of fact may be recovered from the recipient. Gilberton Fuels, Inc. v. Philadelphia and Reading Coal and Iron Co., 342 Pa. 192, 196, 20 A.2d 217, 219 (1941). As previously determined, the money rightfully belonged to Paragon, not Appellants. Although Appellee initially credited the money to Paragon's account, the funds were later transferred at Peled’s request. Review of the evidence demonstrates that Appellee mistakenly acceded to Peled’s demand because it believed that Paragon had more than one account and that Peled was authorized to act on Paragon’s behalf. (N.T. 5/24/95 at 391-394, 396 and 401). Because Peled induced the mistake and was not entitled to retain the proceeds, Appellee was justified in returning the funds to Paragon’s account.

BROSKY, Judge. This is an appeal from the July 22, 1997 judgment of sentence of the Court of Common Pleas of Cumberland County finding appellant guilty of the unlawful possession of drug paraphernalia. 35 P.S. § 780-113(a)(32). Appellant raises two issues for our consideration: (i) whether the physical evidence seized from his person should have been suppressed becáuse the arresting officer lacked probable cause to conduct a search; and (ii) whether the evidence should have been suppressed because the scope of the search exceeded that permitted under the state constitution. We affirm. On October 22,1996, at approximately 3.00 p.m., Officer Michael McLaughlin of the Upper Allen police department, was contacted by a local resident, Robert Poisez. Mr. Poi-sez told Officer McLaughlin that on the stairs of a local house, he had observed an individual holding a .45 pistol to the back of another person. Mr. Poisez did not know the exact address where he saw this incident, but offered to return with Officer McLaughlin to the scene and to point out the house. Mr. Poisez described the suspect as a white male in his late teens wearing a dark colored jacket with a hood. Officer McLaughlin and Mr. Poisez went to the house where Mr. Poisez had seen the armed man. The address was 336 Gettysburg Pike, a house with which Officer McLaughlin was familiar. Upon arrival, Officer McLaughlin observed an unfamiliar dark blue Ford Probe in the driveway. While examining the vehicle, Officer McLaughlin observed the smell of burnt marijuana emanating from an open front window. A computer search of the license plate number disclosed that the vehicle was registered to Michael Stoner, appellant in this ease. Officer McLaughlin knocked on the door of the house. Appellant, a white male in his late teens, answered the door. Appellant was wearing a dark jacket with a hood. When asked his name, the individual replied that it was “Michael Stone”. Officer McLaughlin explained why he was there, then turned appellant around and conducted a pat down search. During the search, Officer McLaughlin felt a small pipe in the right front pocket of the jacket. Officer McLaughlin, who subsequently testified to his extensive experience in drug arrests, removed the pipe and continued to search appellant for weapons. He located a handgun, which was also removed from appellant, but nothing more. Officer McLaughlin then arrested appellant for possession of drug paraphernalia based on the pipe that Officer McLaughlin had found in appellant’s pocket. No charges were filed based on the gun incident. After appellant’s arrest, Carly Weaver, the daughter of the homeowners, informed Officer McLaughlin that she had been the person who Mr. Poisez had seen with appellant, and that the incident had been a joke. The gun itself was a Crossman .177 BB gun, a less powerful weapon than a .45. At the police station, appellant gave an essentially identical explanation of the gun incident to that of Ms. Weaver. Appellant admitted that the pipe was his. In his first allegation of error, appellant argues that the trial court erred by not suppressing the physical evidence seized from appellant because appellant was directed from a residence and searched without a warrant and without probable cause. Our scope of review is as follows: When reviewing the ruling of a suppression court, we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985). We find no merit in appellant’s first argument. Officer McLaughlin did not immediately place appellant under arrest, but instead removed appellant from the doorway and conducted a pat-down search. A police officer is constitutionally permitted to conduct a pat-down search for weapons if the officer has a reasonable suspicion that a crime has been committed or is imminent, and that the individual searched may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997). The facts at the officer’s disposal need not be enough to constitute probable cause. Rather, if the officer’s suspicion is based on specific, articulable facts and reasonable inferences drawn from those facts in light of the officer’s experience, the officer may conduct a weapons search. Id. The articulable facts in this case are that an apparently trustworthy witness had observed an individual at the Weaver residence holding a gun to the back of someone else’s head. While those observations could be, and eventually were, accounted for by an innocent explanation, they seemed more likely to indicate both that criminal activity had taken place and that the occupants of the home were in danger. Consequently, we find no constitutional violation in the stop and frisk. Appellant’s argument that his presence in the doorway of a private home entitles him to a heightened degree of protection of his privacy interest is unavailing here. First, it is questionable whether a doorway is within or outside the scope of the area subject to heightened protection. See Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993) (questioning whether, under the Pennsylvania constitution,' a person exposes himself to warrantless arrest by stepping into a doorway); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (under the Fourth Amendment, the doorway of the home is in a “public place” and therefore the police may perform a warrantless arrest upon a person standing there). To the extent that Santana controls, we have no difficulty in finding that appellant was not entitled to the heightened expectation of privacy that exists for the inside of a private home. Although appellant attempts to distinguish Santana on the grounds that Officer McLaughlin did not possess probable cause to make an arrest in this case, the logic of Santana compels the conclusion that a similar rule should exist for pat-down searches. Just as the police may effect an arrest of an individual standing in a doorway provided they have the requisite probable cause to believe that the individual has committed a crime, so they may perform a stop and frisk if they possess the requisite reasonable suspicion that a crime has been committed or is imminent and that the individual is armed and dangerous. Appellant offers no authority in support of his suggestion that an officer should have probable cause to believe a crime has been committed before he may perform a stop and frisk of an individual standing in a doorway. Further, even if we were to reject the applicability of the Santana rule under the Pennsylvania constitution, appellant would still not be entitled to relief. The exigent circumstance of the apparent danger to innocent occupants of the dwelling clearly justified Officer McLaughlin in seizing appellant for the limited purposes of performing a search for weapons. See e.g., Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985) (exigent circumstances justified war-rantless entry of dwelling when officer reasonably believed that occupant was in need of immediate aid). Accordingly appellant’s first assignment of error is denied. It is uncontested, however, that appellant was not under arrest when Officer McLaughlin searched him and discovered the pipe. Officer McLaughlin apparently believed, and we are inclined to agree, that the information at.his disposal at that time was easily sufficient to justify further investigation but not yet sufficient to warrant an arrest. Consequently, the legitimate scope of the search was restricted to that constitutionally allowed under Terry. Under Terry, the purpose of a pat-down search is to assure the safety of the officer and of bystanders. Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Under both the state and federal constitutions, an officer performing a stop and frisk may pat down the suspect to identify weapons and may remove any weapons that he can identify by feel. Id. at 26, 88 S.Ct. at 1882. However, if the search proceeds beyond this scope and extends to a general search for incriminating evidence, it is no longer valid and the fruits of the search will be suppressed. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993). A limited exception to this rule was recognized in Dickerson for nonthreatening contraband detected by the officer’s “plain feel” during a search for weapons. We recognized the validity of the “plain feel” doctrine under the law of Pennsylvania in In the Interest of B.C., 453 Pa.Super. 294, 683 A.2d 919 (1996). In Interest of B.C., we held that the plain feel doctrine applies when (i) the officer is lawfully in a position to detect the contraband; (ii) the incriminating nature of the contraband is immediately apparent; and (iii) the officer has a lawful right of access to the object. Id. at 305, 683 A2d at 925. Had Officer McLaughlin’s detection of the contours of the pipe been the sole source of his information, we would agree with appellant that the second element of this test had not been met, and therefore that the evidence should have been suppressed. In Commonwealth v. Fink, 700 A.2d 447 (Pa.Super.1997), a suspect was detained following a report that a woman was heard screaming for police assistance and that a man answering the suspect’s description had been seen exiting the woman’s building. A police officer stopped the suspect and administered a pat-down search, which the court found was justified. During the course of the search, the officer felt a small pipe inside a coat pocket. The officer testified that, in his experience, pipes of that size and shape were used to smoke marijuana, not tobacco. The Court of Common Pleas found that the seizure fell within the scope of the “plain feel doctrine”. This court reversed. The court observed that nonthreatening contraband may be seized only if its incriminating nature is immediately apparent. Because the pipe could have been used to smoke any substance, the court held that the pipe fell outside the scope of the “plain feel” doctrine. This was despite the fact that the arresting officer in Fink gave similar testimony to that of Officer McLaughlin regarding both his own extensive experience with drug arrests and also the differences between the type of pipe seized and the type of pipe normally used to smoke tobacco. See Fink, 700 A.2d at 450-51 and at 451-52 (Olszewski, J., dissenting). In Fink, the officer admitted that he had no evidence, which indicated that the defendant had smoked, or intended to smoke, marijuana that day. Here, however, Officer McLaughlin had detected the odor of marijuana emanating from appellant’s car. We regard this as a critical difference. In a case involving a namesake of appellant, we recognized that an odor may be sufficient to establish probable cause for a search of an automobile, which had been legitimately stopped for an unrelated vehicle code violation. Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975). Pertinently, in that case we held that “it would have been a dereliction of duty for [the arresting officer] to ignore the obvious aroma of an illegal drug which he was trained to identify”. Id. at 166, 344 A.2d at 635. Subsequently, in Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982), we held that a police officer experienced in drug arrests legitimately seized a marijuana pipe similar in appearance to the one at issue here. In that case, there was a strong odor of marijuana in the defendant’s immediate vicinity and the stem of the pipe was in plain view protruding from the defendant’s jacket pocket. Trenge is determinative here. As in that case, the arresting officer was able to testify from experience that he knew the odor of burnt marijuana when he smelled it. That odor was emanating from appellant’s car, a location under appellant’s control. The implication that appellant was the likely smoker follows inexorably. Therefore, under Trenge, we find that the lower court could legitimately find that it was immediately apparent to Officer McLaughlin that the pipe he felt in appellant’s pocket was contraband. It is of no significance that this case concerns the plain feel doctrine whereas Trenge involved an object in plain view. The requirement that the contraband nature of the evidence be “immediately obvious” is an element of both tests. Compare Commonwealth v. Dorsey, 439 Pa.Super. 494, 654 A.2d 1086 (1995) (plain view) with In the Interest of B.C., 453 Pa.Super. 294, 683 A.2d 919 (1996) (plain feel). Accordingly, Officer McLaughlin’s seizure of the marijuana pipe from appellant’s, jacket pocket was constitutional, and the court below committed no error by not suppressing it as evidence against appellant. Appellant’s contention that the search violated his rights under the Pennsylvania constitution therefore fails. Judgment of sentence affirmed. BECK, J., files a concurring and dissenting opinion. . This has been termed the "plain smell doctrine”. See United States v. Curran, 498 F.2d 30, 33 (9th Cir.1974).

Opinion by Mr. Justice Green, There is nothing in the original contract between Kountz Bros, and the defendant that would prevent the plaintiff from filing his lien and recovering upon it. The ninth article of the agreement provides that, “ Before final settlement the parties of the second part shall furnish the party of the first part a release of liens properly signed and attested to by all parties that would have a legal right to file liens against said building.” Instead of this being a covenant against liens it is a full recognition of the right to file liens by anybody having furnished labor or materials. But the plaintiff entered into another and entirely different contract directly with the defendant, and the question at issue arises upon that contract. He joined as surety in a bond with Kountz Bros, to the defendant the condition of which was, “ that if the said principal obligors shall well and faithfully perform said contract and complete and deliver said building to said obligee, its successors or assigns on or before the first day of March, 1890, free from all charges, claims, liens, mechanics’ liens, or any incumbrance or debt in tbe nature of' a lien or charge, of any kind whatsoever, without any fraud or further-delay, then this obligation to be void else to be and remain in full force and virtue.” If the plaintiff can recover upon a mechanic’s lien against this building, the condition of the bond would be violated, and he would thereupon become bound upon a breach of condition to reimburse to the defendant whatever the defendant was obliged to pay him as a mechanic’s lien creditor. He voluntarily made himself a surety for the original contractors that he would indemnify the defendant against “all charges, claims, liens, mechanic’s liens, or any incumbrance or debt in the nature of a. lien or charge, of any kind whatsoever.” This is not a mere undertaking not to file a lien, but a contract by this particular-plaintiff that the building shall be delivered to the defendant free of all charges, claims, liens, mechanics’ liens or any incumbrance or debt in the nature of a lien or charge of any kind. To perform this contract there must be no debt, charge or lien of any kind at the time of delivery. How then can the plaintiff have a lien himself without being bound to remove it, just, as much as if it were held by a stranger ? But if he is bound to remove it he certainly cannot be permitted to enforce it. This very question was decided in Benedict v. Hood, 134 Pa. 289, where the plaintiff with others joined in a guaranty that, the original contractor would faithfully perform all the covenants of his contract with the owner. One of those covenants, was that the contractor would not permit any person to file a. lien, and that the last installment of the contract price should not be payable until after a full release of all liens had been delivered. Wé held in that case that the words were sufficient, to prevent the filing of a lien by any one. That part of the decision has been since overruled, but we also held that the plaintiff was disabled from filing a lien because of his liability on the guaranty, and that he thereby waived his right to any lien. In the case of Cresswell Iron Works v. O’Brien, 156 Pa. 172, in which Benedict v. Hood was overruled as to the sufficiency of the words to create a positive covenant against all liens, we nevertheless held that the case was rightly decided on the ground that the plaintiff, being a surety for the faithful performance of the contractor’s agreement could not file a lien himself. Our* brother Mitchell delivering the opinion said, “ The contracts in that case (Benedict v. Hood) and in this, so far as relates to the filing of liens, are substantially the same, but there was in that case an additional feature in the fact that the plaintiff, a subcontractor, was surety for the faithful performance by the contractor of his covenants, one of which was that he would not suffer any liens to be filed. The case therefore was rightly decided on the ground of waiver by the plaintiff of his right to any lien, and it is on this ground only that it can be sustained in the face of more recent and fuller adjudications.” It will be observed that the present case is much stronger on this point than Benedict v. Hood. For here the contract is not a mere guaranty that the contract of the principal should be faithfully performed, in general terms, but is a direct specific contract made by the plaintiff himself with the defendant that the building should be delivered to the defendant free of all liens, claims, debts or charges in the nature of liens of any kind whatsoever. It is not a question whether this particular claimant would be debarred from filing a lien as a subcontractor by force of the terms of the contract between the contractor and the defendant, but whether he may himself become a lien creditor in the face of his contract of suretyship that the building should be delivered free of all liens or charges. The distinction is broad and perfectly clear. When the necessary legal effect of his contract as a surety is that he would be bound to discharge a lien in his own favor the moment it was obtained, he must be held to have waived all right to file such a hen. For these reasons we must reverse the judgment on the first and third assignments of error. The other assignments become of no importance. Judgment reversed.

Opinion by Mr. Justice Dean, On the 17th of August, 1892, the defendant, his son Myer, then fifteen years of age, his daughter Sophie, and her friend, Miriam Sailer, went horseback riding in Fairmount Park; in the course of their ride, they followed the park drive on east side of the Schuylkill; on the same drive, coming towards the city and meeting them, were plaintiff and his friend, William L. Collins, in a light one-horse buggy; the horse and buggy belonged to Collins, who had invited plaintiff to ride with him into the city; on their way, in front of them, going in the same direction, was a two-horse vehicle called a Germantown wagon, on the right hand or same side of the road, which at this point was thirty-eight feet wide ; this wagon was being driven at a slow pace, about three feet from the gutter at the right side of the roadway; Collins was driving, according to Ms statement, at a moderate jog trot, and turned to the left to pass the wagon in front; as he turned out m the roadway to get around it, the horseback party, four abreast, came up ; there was space enough for all, but as they met, the width between the Germantown wagon and the nearest horse, on which Myer, the son, was riding, seemed narrow for plaintiff’s buggy to pass, and Myer attempted to fall back behind the other three, just at the instant Collins pulled his horse again to the right to get in front of the Germantown wagon; this movement, of course, threw the Mnd wheel of the buggy towards the left of the roadway; Myer’s horse, as such animals frequently do when checked suddenly, backed, tMowing Ms hind quarters somewhat to his left, but to plaintiff’s right of the roadway, bringing his horse in collision with the left hind wheel of the buggy; the wheel broke ; CollMs’ horse took fright and ran away, throwing plaintiff out, fracturing Ms ankle so seriously that amputation was necessary. Myer’s horse was knocked down, and his rider thrown. The plaintiff, averrmg negligence m the son, in backing the horse, and averrmg tMs movement was at the time directed by the father, brought suit against the father for damages. The learned judge of the court below submitted the evidence to the jury to find whether the Mjury was caused by the negligence of Myer Cohen. There was a verdict for plaintiff in sum of $4,500, and judgment bemg entered thereon, defendant appeals, alleging: 1. There was no evidence of negligence to submit to the jury. If there were, 2. The father is not, under this evidence, answerable for the negligence of the son. A careful scrutiny of the charge on the subject of negligence, discloses no error in the statement of the law as to the relative rights and duties of the parties on the roadway; all had a right there for either purpose of travel or pleasure; each, however, was bound in the enjoyment of his right to exercise care according to the circumstances. The question is, whether there was any evidence showing want of care by defendant’s son, undei the circumstances here proven. When an accident happens whereby serious injury results to some one, human sympathy is quickened, and usually jumps at once to two conclusions, first, that the accident might have been avoided, and second, that some one was negligent or it would not have happened. The first is generally correct; the second very often is not. Take the case before us: If public parks are to serve their purpose, are to be resorted to by the public of a great city, in search of health and pleasure, there is some degree of risk incident to the use, which risk can only be absolutely avoided by not going near them. Horses do not always obey the voice of, nor axe they always controllable by the reins of the most careful and expert riders and drivers. Every one using the driveways of the park is in some danger, not only from his own animal, but from those of' others, which at times become uncontrollable. To be wholly free from such danger, one must neither ride nor drive. And still further, by very exceptional care in the use of driveways, some accidents might be avoided; here, if the plaintiff had stopped on the right hand side of the road until the horseback riders had passed; or, if the latter had stopped until plaintiff had passed; or, if instead of trotting their horses, they had both slowly walked them, the accident would not have happened. But with a clear roadway thirty-eight feet wide, there was ample room, without apparent danger, for greater speed than a walk. And while it may be said the accident could have been avoided, up to this point, there is no evidence of want of care according to the circumstances, on part of either, in getting into the situation which resulted in the injury. All that can be said is, the accident was avoidable by the exercise of extraordinary caution by either, a degree of care to which neither was bound; there was a remotely possible danger in a buggy passing four horses on a roadway almost wide enough for the passage of two troops of cavalry, but so remotely possible, there was no want of care in either attempting it at the moderate gait plaintiff alleges each was going. It is not negligence not to foresee and avoid the barely possible; the natural and probable consequences of one’s acts must be foreseen and provided against. We speak now, solely of the relative rights and obligations of the public in the use of the drives in a public park. What might constitute care, or manifest the want of it, under other circumstances, is not before us for decision. But Collins, plaintiff’s driver, turns out to drive around the Germantown wagon going the same way; just at this moment, the four horses are coming on his left hand, meeting him; he turns in towards the right to get in front of the wagon; Myer Cohen, the rider next him, attempts to fall back behind his companions to give Collins more space, — his horse throws his haunches in front of the hind wheel of the buggy, and the disaster follows. Where is the negligence in this ? Where the want of care according to the circumstances ? Cohen is endeavoring to make room for Collins’ buggy, that a collision may not occur. Assume the fact to be as plaintiff alleges, that Cohen’s horse backed across the road when checked by the reins in the hands of “his rider; it is not pretended he tried to imperil himself and horse by placing the haunches of the latter in the way of a fast moving buggy wheel. To fix the liability of the father, plaintiff strenuously contends, the son was obeying the father’s command to fall back. This is doubtless true; the son attempted to obey and checked.his horse; the animal backed partly across the road. Is defendant to be held answerable, because, in a sudden emergency, thrust upon him by the rapid movement of the horse and buggy, the dumb animal did not fall back in a straight line, as his rider attempted to direct him ? Are these as we have stated them, the established facts ? Both plaintiff’s and Collins’ testimony is, that they had turned out to the left to pass the Germantown wagon, and when in the act of turning to the right, in front of it, their buggy was partly across the roadway; when they first turned to the left, neither of them saw the horseback riders; then, almost at the instant they saw them occurred the collision, the buggy striking the haunches of Myer Cohen’s horse. And the declarations of plaintiff immediately after the accident are wholly corroborative of his testimony at the trial; the only variance is, he now draws another inference from the same facts. C. S. Albany, Park Guard No. 8, rode with plaintiff in the ambulance the evening of the same day as the accident, the 17th of August, and made report of it to his superior the next day; he says he did not know Mr. Miller and he testifies his written report is true. This is the report:- “ Ridge Aye. & Wissa., August 18th, 1892. “ Capt. L. M. Chasteatt. “ Dear Sir: The following is the statement of Mr. Harvey Miller, the gentleman who had his leg broken in accident last evening. “ ‘ I was at Riverside Mansion and met with a friend who desired me to ride home with him. We were driving behind a cab and desired to pass it, and in turning out from behind it we ran into a horse coming in the opposite direction. The horse shied and broke our wheel, throwing us out. Our horse started off. We did not see the horse coming, or the accident could have been avoided.’ “ Respectfully, “C. S. Albany, Guard 8.” It will be noticed this report is made the next day, when there could have been no tampering with the witness, and when there could have been no conceivable motive on his part for falsifying or suppressing the truth; it narrates Miller’s statement when every incident of the unfortunate accident was fresh in his mind, and is reduced to writing when the statement is fresh in the mind of the officer. No one with opportunity for observation of judicial proceedings, has failed to notice the lamentable infirmities of human recollection, and the tendency after the lapse of time to believe that which it is the interest of the witness to have appear as the truth. Hence, the judicial value given to testimony reduced to writing at the time the facts stated in it occurred. Dr. Rath, a witness called by and who attended plaintiff at the hospital, and rode with him in the ambulance when the statement was made to officer Albany, testifies thus : “ Q. Did he ever tell you anything about it? A. Nothing particular, only that he stated it was merely an accident and nobody to blame for it. Q. Where did he say that to you ? A. The first time on the way to the hospital in the ambulance; I went with him.” The plaintiff, in regard to these declarations, testifies thus : “ Q. Do you know this gentleman, Mr. Albany ? (Indicating a person in the courtroom.) A. Yes, sir. Q. Do you remember seeing this gentleman there ? A. Yes, sir. Q. Did he go up to the hospital with you ? A. Yes, sir. Q. Do you remember mating the statement to that gentleman ? A. No, sir. Q. Do you remember saying to that gentleman that you drove around the cab, as you desired to pass it? A. Yes. Q. And as you turned out from behind you ran into the horse coming from the opposite direction ? A. No, sir. Q. You did not say that? A. I don’t remember saying that. Q. Didn’t you say you did not see tiie horse coming or the accident could have been avoided? A. That part I might have said. I don’t remember that statement at all. The first I knew of that statement was one year ago — seventeen months after the accident occurred. I called on Dr. Rath to subpoena him for this case, when it was coming up for trial a year ago. Dr. Rath told me about this statement — (Objected to by plaintiff’s counsel.) Q. Did you ever tell Dr. Rath or the Cohen party or any one, in any way, that it was your own fault? A. No, sir.” The substance of this testimony is, that he does not recollect the statement to Albany, and he positively denies that he said the accident was his own or Collins’ fault. While he denies stating the inference testified to by Dr. Rath, that “nobody was to blame,” he testifies now to the facts which warrant precisely that inference and no other. Myer was not reckless or careless, but attempted to do that, which under the circumstances, care suggested. In attempting to do this, the peculiar position of the vehicle and the uncontrollable movement of the horse resulted in an accident for which blame attaches to neither; if to any one, it is to Collins, who says, while driving, he never looked to the left side of the road. A careful examination of every word of plaintiff’s evidence fails to disclose any negligence on part of defendant. The jury, evidently, undertook to compensate plaintiff for a most grievous injury out of defendant’s pocket, because the latter and his party happened to be out riding at that particular place, when plaintiff and Collins desired to drive around a wagon in front of them. The cause of action against the owner of the Germantown wagon would have been just as well founded; if he had not been in front of plaintiff, the accident would not have happened; if defendant and his family had not been coming towards them it would not have happened; and this is the sum of the evidence to sustain the verdict. As there was no evidence of negligence, the first assignment of error is sustained, and the judgment is reversed. To pass on the other assignment, would add nothing in vindication of our judgment, therefore as to it, we express no opinion.

POPOVICH, Judge: This is an appeal from the judgment, of sentence entered in the Court of Common Pleas of Allegheny County following appellant’s convictions on the charges of removal or falsification of identification number, 75 Pa.C.SA. § 7102(b), dealing in vehicles with removed or falsified numbers, 75 Pa.C.S.A § 7103(b), and receiving stolen property, 18 Pa.C.S.A § 3925(a). On appeal, appellant alleges that the suppression court erred in denying his motion to suppress evidence obtained as a result of a warrantless search of his auto body shop which was conducted pursuant to 75 Pa.C.SA § 6308(c) in the absence of probable cause. Upon review, we agree with appellant, and, accordingly, reverse. In reviewing a denial of a motion to suppress evidence, this court must determine whether the record supports the factual findings of the suppression court. Commonwealth v. Marinelli, 547 Pa. 294, 315-316, 690 A.2d 203, 214 (1997), cert. denied, — U.S. -, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998). “When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. (Citations omitted.)” ... Thus, if sufficient evidence is of record to support the suppression court’s ruling and that court has not misapplied the law, we will not substitute our credibility determination for that of the suppression court judge. Marinelli, supra (quoting Commonwealth v. Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994)). Applying this standard of review, the relevant facts are as follows: On December 1, 1995, Sgt. Dale Provins and Officer Jeffrey Judd of the Borough of Jefferson Police Department went to Bob’s Auto Body in West Elizabeth to inspect records, documents and vehicles at that location to determine whether the vehicles were legally on the premises and properly owned by appellant. Upon arriving at the location, Sgt. Provins approached appellant, the owner of Bob’s Auto Body, and informed him that he was there for the purpose of checking vehicle information. Sgt. Provins expressly informed appellant that they had received a tip that appellant was dealing in “hot” auto parts. At that time, Sgt. Provins was carrying a copy of the Vehicle Code and advised appellant that under 75 Pa.C.S.A. § 6308(c), appellant was required to allow the officers to inspect the premises. Appellant permitted the police to inspect Bob’s Auto Body without a warrant. Sgt. Provins and Officer Judd proceeded to inspect the vehicles that were inside, adjacent to and outside of the garage. The officers were not looking for a specific vehicle but rather were checking all the vehicles on the premises and the auto parts of the vehicles that were being serviced. During their inspection, the officers observed a red and white Blazer, listed as a 1983 Chevrolet, in which the Vehicle Identification Number (VIN) was bent, damaged and did not appear to be properly attached. The officers noticed that other identification plates and numbers had been removed from the vehicle and that it was equipped with auto parts that were not part of the original model year of that vehicle. Suspecting that the vehicle may have been stolen, Sgt. Provins contacted the state police and seized the Blazer, title, registration card and the license plate pursuant to his authority under 75 Pa.C.S.A. § 7105(a). Subsequently, the police determined that the VIN number on the Blazer had been removed from another vehicle and had been glued on top of the original VIN number. The top VIN number was for a 1983 Chevrolet station wagon that was registered to appellant’s brother, William Hudak. However, the underlying VIN number was for the 1992 Chevrolet Blazer, which had been reported stolen. On December 4, 1995, after a telephone conversation with Sgt. Provins, appellant went to the police station for an interview. Both Officer Judd and Sgt. Provins advised appellant of his Miranda rights, which appellant waived orally and in writing. Appellant provided the officers with a written statement in which he confessed that he bought the Blazer knowing it was stolen, removed a VIN number from another vehicle which he bought from salvage, placed that VIN number on the stolen vehicle and altered the documents. Appellant informed the police that he gave the Blazer to his brother to settle a debt, without his brother’s knowledge that the vehicle was stolen. Appellant was charged with one count each of removal or falsification of identification number, dealing in vehicles with removed or falsified numbers and receiving stolen property. Appellant filed an omnibus pre-trial motion to suppress, which was denied after a hearing on January 13,1997. Appellant proceeded to a bench trial immediately after the suppression hearing. At trial, the testimony from the suppression hearing was incorporated without objection. The trial judge found appellant guilty on all three counts and imposed consecutive sentences of one year pro bation for count one, one year probation for count two, and three years probation for count three and ordered restitution paid in the amount of $13,929. This appeal followed. Presently, appellant challenges the suppression court’s denial of his motion to suppress evidence obtained as a result of a warrantless search and seizure conducted at his auto body shop' on December 1, 1995. Appellant’s argument centers upon 75 Pa. C.S.A. § 6308(e), which reads: (c) Inspection of garages and dealer premises.—Any police officer or authorized department employee may inspect any vehicle in any garage or repair shop or on the premises of any dealer, miscellaneous motor vehicle business, salvage motor vehicle auction or pool operator, salvor, scrap metal processor, or other public place of business for the purpose of locating stolen vehicles or parts or vehicles or vehicle parts with identification numbers removed or falsified. The owner of the garage or repair shop or dealer or other person shall permit any police officer or authorized department employee to make investigations under this subsection. 75 Pa.C.S.A. § 6308(c). First, appellant claims that the instant search does not fall within the confines of an administrative inspection pursuant to § 6308(c) and, therefore, a search warrant was required. Second, if the police correctly complied with the statute, appellant contends that § 6308(c) is unconstitutional under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution because it permits searches without a warrant, probable cause or voluntary consent. The Fourth Amendment’s prohibition against unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. The owner or operator of a business, therefore, has an expectation of privacy in commercial property that society is prepared to consider to be reasonable. That expectation exists not only with respect to traditional police searches conducted to investigate violations of criminal laws but also with respect to administrative inspections designed to enforce regulatory statutes. As such, a warrant is required to conduct an administrative inspection unless one of the exceptions to the warrant requirement applies. Commonwealth v. Petroll, 696 A.2d 817, 825 (Pa.Super.1997) , (citations and footnote omitted), allocatur granted, in part, — Pa. -, 703 A.2d 1034 (1997). Herein, appellant maintains that the statute permits a routine administrative inspection to deter potential criminal activity but does not authorize investigations of suspected criminal activity absent a warrant or an exception to the warrant requirement. Appellant contends that the December 1, 1995 search was not a routine inspection, but instead was conducted for the purpose of investigating a report of suspected criminal activity occurring at Bob’s Auto Body. Appellant relies on Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992) to support his argument that the instant search does not fall within the authority provided to the police under § 6308(c) because the search was conducted specifically to gather evidence of criminal activity. In Slaton, supra, on November 21, 1983, a narcotics agent went to Lou’s Pharmacy to investigate Merriweather, whom the agent believed was forging prescriptions. The agent identified himself to the owner, Slaton, stated his purpose and requested to inspect Slaton’s Schedule II records pursuant to his authority to perform an administrative inspection under 35 P.S. § 780-124(b)(2). Slaton permitted the agent to conduct the review of his records. While the agent conducted the investigation, he found forged prescriptions, none of which related to Merriweather. Prior to conducting a second inspection at Lou’s Pharmacy on December 6,1983, agents were aware that the prescriptions previously removed from the pharmacy files were forgeries, and they believed Slaton himself was responsible. The agents did not inform Sla-ton of their suspicions or that the focus of the investigation had changed to him. Eventually, on January 16, 1985, agents obtained a warrant to search the pharmacy, seized the records in question and arrested Slaton. Our supreme court rejected the Commonwealth’s characterization of the search of Lou’s Pharmacy as administrative. The court relied on the reasoning of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2686, 96 L.Ed.2d 601 (1987), which set forth the characteristics of an administrative search which would validly circumvent the warrant requirement. Our supreme court noted that: [T]he Burger Court was concerned with routine investigation conducted for the purpose of ascertaining compliance with the regulations, which also uncovers evidence suggesting criminal behavior. In the ease at bar, the narcotics agents’ only purpose in searching Slaton’s pharmacy was to investigate alleged activity. This was true even when the first search was conducted. The agents never claimed to have any administrative purpose but instead, declared at the outset that their desire was to gather additional information for an ongoing criminal investigation whose subject at that time was someone other than Slaton. The search, therefore, was not an administrative inspection conducted as the Burger case requires, on a regular basis, but a discretionary act by officials who were involved in an ongoing criminal investigation. Since it was never claimed that the searches were administrative, the question of the parameters of an administrative search is no relevant here. The traditional Fourth Amendment warrant requirements for a valid search, therefore, apply in this case. Slaton, 608 A.2d at 8 (emphasis added). Similarly, in the present case, the record indicates that the officers used their authority under § 6308(c) as a pretext to gather evidence of criminal activity. From the beginning, the officers stated that their purpose for inspecting Bob’s Auto Body was to follow up on reports of suspected criminal activity occurring there. In fact, Sgt. Pro-vins testified that “I was there for the purpose of cheeking information that we received that [appellant’s] business had been involved in dealing hot auto parts.” N.T. 1/13/97 p. 4. Moreover, the record does not reveal that the inspection of Bob’s Auto Body was part of the routine enforcement of the regulatory scheme. Accordingly, we find that 75 Pa.C.S.A. § 6308(c) is inapplicable because the December 1,1995 search was not a routine inspection, and, therefore, the general Fourth Amendment warrant requirements apply. See Slaton, supra (where officers intend to conduct a search for evidence, they must either obtain a warrant or assert an exception to the warrant requirement). We note that the discovery of evidence of crimes in the course of enforcing “an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect.” Petroll, 696 A.2d at 833 (quoting Burger, 482 U.S. at 716, 107 S.Ct. at 2651). However, in the present case, the officers did not discover evidence of a crime during the course of conducting a routine administrative inspection. In fact, from the outset, the officers’ intent was to conduct an investigation of alleged criminal activity at Bob’s Auto Body, rather than to enforce an administrative scheme. Thus, we find that the officers were required to obtain a warrant before searching Bob’s Auto Body unless some other exception to the warrant requirement applied. Since the officers were not exempt from the warrant requirement and no warrant was obtained, we find that the search was illegal, and that all evidence seized as a result of the search should have been suppressed. See Commonwealth v. Smith, 454 Pa.Super. 489, 685 A.2d 1030 (1996), allocatur denied, 548 Pa. 647, 695 A.2d 785 (1997) (citing Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)) (“Where evidence is obtained subsequent to an illegal search, such evidence will be held inadmissible unless it is sufficiently distinguishable from the original illegality.”). Accordingly, we reverse the decision of the court below, vacate the judgment of sentence and remand for a new trial. Judgment of sentence is reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished. . Appellant also alleges that the trial court erred in failing to merge his convictions under 75 Pa.C.S.A. § 7102(b) and § 7103(b) for sentencing purposes. However, we do not need to address this issue in light of our disposition of this case. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . In its brief, the Commonwealth cites Commonwealth v. Runkle, 287 Pa.Super. 422, 430 A.2d 676 (1981), for the proposition that an administrative inspection is not rendered invalid because it was initiated by an anonymous tip. In Runkle, supra, an agent from the Pennsylvania Liquor Control Board conducted an inspection of a private club liquor licensee’s premises after receiving an anonymous tip that gambling was occurring there. The agent was authorized to conduct the warrantless search trader the Pennsylvania Liquor Code, which makes it unlawful for any licensee to refuse to allow an agent the right to inspect the premises. To the extent that the holdings in Runkle and Slaton conflict, we note the decision in Runkle predates the decisions of our supreme court in Slaton and the U.S. Supreme Court in Burger, and, therefore, we have followed the analysis set forth in the more recent pronouncements of our supreme court and the U.S. Supreme Court. . Because we find that the officers’ search of Bob’s Auto Body was illegal, there is no need to determine the constitutionality of 75 Pa.C.S.A. § 6308(c). See Cheek v. U.S., 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (where possible, the court interprets legislation so as to avoid raising constitutional questions); Commonwealth v. Torres, 429 Pa.Super. 228, 632 A.2d 319 (1993), allocatur denied sub nom. Commonwealth v. Cruz, 537 Pa. 658, 644 A.2d 1196 (1994) (where determination of the constitutionality of a statute is not dispositive of a case, this court will not address the issue).

Opinion by Mr. Justice McCollum, The fund for distribution was created by a receiver’s sale of the property of the Parisian Cloak and Suit Company. It is not sufficient to pay the debts of the company in full, and we are therefore required to consider and determine on this appeal whether Yetta Greenboum is entitled to participate in it on the footing of the other creditors. To substantiate her claim that she is, she presents three notes, made by the Parisian Cloak and Suit Company on the 15th of April, 1893, to the order of I. Jonas and Company from whom she received them, duly indorsed as collateral security for their pre-existing indebtedness to her. It is conceded that the notes represent a bona fide indebtedness of the makers to the payees and that she has by virtue of them the same rights in the distribution of the fund in question that they gave to the parties to whose order they were drawn. In order to make her position in the distribution clear it is necessary to state the material facts affecting it and these are as fol lows: The place of business of I. Jonas and Company was in Chicago, Ill., and that of the Parisian Cloak and Suit Company was in Pittsburg, Pa. All the members of the firm of I. Jonas and Company were members of the Parisian Cloak and Suit Company and liable for the debts of the latter as well as for the debts of the former. In the latter there was hut one person who was not a member of the former, and he was not intrusted with the management of the finances of his firm nor authorized to sign bills and notes for it. These powers were vested in the other members of his firm who, as we have seen, constituted the partnership of I. Jonas and Company. William Greenboum, the husband of Yetta Greenboum, was a member of both firms, and after his death in October, 1891, their daughter Mrs. Estelle Sommers purchased the interest of his estate in each of them, and thenceforth possessed and exercised the rights and powers in the management- of them that he had and exercised in his lifetime. Isador Jonas was a son-in-law of Mrs. Yetta Greenboum, and as she had a daughter and son-in-law in each firm it is not surprising that she had the knowledge respecting the management and status of both firms that she evinced in her deposition. As she was a creditor of I. Jonas and Company and held the notes of the Parisian Cloak and Suit Company as collateral security for their debt she was interested in acquiring this knowledge, and her possession of it may have had some connection with the fact that she did not accept the notes in payment or satisfaction of the debt which the payees therein owed her. Two of the notes were expressly payable at the store of the makers in Pittsburg and the other was impliedly so. True, the place of payment was not named in it but the omission to name it was under the circumstances surrounding the transaction presumably an inadvertence. The notes were made and dated at the same time and place, with the same purpose in view, and they were promptly passed by the payees to their creditor who knew that the place of business of the makers was in Pittsburg. It is said in vol. 2, p. 328 of Am. & Eng. Ency. of Law that “ if no place of payment is named in the note it is understood to be the place of residence of the maker,” and that “ it cannot be presumed that the place of payment is the place of date, though some cases hold that in the absence of any express provision on this point the intent was prima facie to pay where the note was made. In Oxnard v. Varnum, 111 Pa. 193, it is said that “ the making and dating of a note at a particular place is not equivalent to making it payable there,” but it is proper to state that the action was by the second indorsee against the first indorser, and involved the duty of the holder in regard to presentment and demand at the residence or place of business of the maker. If however, there is a presumption that, in the absence of an express provision on the subject, the place of date is the place of payment we agree with the learned auditor and the learned court below that it cannot prevail against the facts and circumstances connected with and surrounding the execution and delivery of the note in question. We conclude therefore that Mrs. Greenboum occupies no higher ground in the distribution than I. Jonas and Company would have occupied had they retained the notes, and that her claim upon the fund must be passed upon in accordance with the laws of Pennsylvania, governing the distribution of the assets of an insolvent partnership. The learned court below in awarding to Mrs. Greenboum the balance of the fund remaining after paying thereout the claims of the other creditors in full gave her all that she was entitled to, and all that the parties to whose rights she succeeded could possibly have received from it. As they were liable for all the claims of the other creditors they could not have participated in the distribution until those claims were satisfied. This is a proposition in accordance with equity and well sustained by the decisions of this court: Erb’s Appeal, 2 P. & W. 296; Himes v. Barnitz, 8 Watts. 39; Worral’s Appeal, 41 Pa. 524, and Datesman’s Appeal, 77 Pa. 243. There is nothing in the act of April 14, 1838, which sustains the contention that an insolvent partnership composed of three of the four members of another insolvent partnership can as a creditor of the latter share equally with its other creditors in the distribution of its assets. This act has been severely and justly criticised in most if not all of the cases in which it has been considered but it has never yet produced such results as are contended for in this case: Tassey v. Church, 6 W. & S. 465; Pennock v. Shayne, 6 W. & S. 239, and Allen v. Erie City Bank, 57 Pa. 129. Decree affirmed and appeal dismissed at the costs of the appellant.

Per Curiam, Appellant’s contention here, as it was in the court below, is that under the words “ and personal effects,” in the seventh item of his will, the testator intended she should take the personal effects in his house, such as pictures and furniture. This eon struction was very forcibly presented by ber learned counsel in his argument; but our consideration of the subject has led us to the conclusion that the words employed by the testator were rightly construed by the learned auditing judge whose decree was approved by the court in banc. On his opinion we affirm the decree and dismiss the appeal with costs to be paid by appellant.

Opinion by Mr. Chief Justice Sterrett, We are not convinced that the learned court erred in refusing to enter judgment against the defendant for want of a sufficient affidavit of defense. Inasmuch as the case goes back for a jury trial, it is neither necessary nor desirable to discuss the questions presented by the affidavit of defense. If the plaintiff had been disposed to waive his right of appeal to this court and proceed to trial, he might have had his-case finally disposed of long ago. Appeal dismissed, at plaintiff’s costs, without prejudice, etc.

Opinion by Mr. Justice McCollum, We are required to determine on this appeal whether the learned court below erred in limiting the plaintiffs’ recovery to the value of the life estate the defendants acquired by the deed from Mary E. T. Ott and Mary T. Ott on the 18th of January, 1879, and in declining to grant the request of the plaintiffs’ counsel “ to direct the jury to allow attorney’s commission as stipulated in the mortgage.” In considering the first question we notice that while the defendants obtained by the deed the title their grantors had, they did not acquire by it the fee simple title represented in it as vested in Mary E. T. Ott. The representation to which we refer is the assertion by the grantors in their deed of a title in her which she did not have. It is said, and it may be true, that the assertion was based on a misapprehension of the legal effect of the previously recited facts, but it is nevertheless a circumstance entitled to some consideration in the decision of the case. The $5,000 for which the mortgage in suit was given was the price the defendants agreed to pay Mary E. T. Ott for a fee simple title to the property, subject only to the life estate which Mary T. Ott had in it. It appears now that Mary E. T. Ott had only a life estate in it subject to the life estate of Mary T. Ott, and that the value thereof as ascertained by the jury was less than one fourth of the sum for which the mortgage was given. It is clear therefore that if the defendants are held hable for the whole sum they must pay upwards of $4,000 for what they bargained for and did not get, although the mortgagee professed to have it and to convey it to them. The effort of the plaintiffs to recover the whole snm is, under the circumstances, so obviously unjust, that we naturally inquire whether the law will sustain them in it. They claim that the parties to the deed, at the time of the execution of it, knew or ought to have known that each grantor had a life estate in the property described in it, and that the fee of the same was in their grantees. They say that the recitals in it which preceded the representation or assertion to which attention has been called, were notice to tbe grantors and grantees of the true state of the title, and their mutual understanding and belief that the fee was vested in Mary E. T. Ott was based on a mistake of law which furnishes to the party injured by it no ground for relief in equity. They contend also that if the facts in the case would have warranted the intervention of equity in a suit by the mortgagee, the laches of the defendants in appealing to it, and the assignment of the mortgage by her executors, as collateral security for a debt, constitute a bar to the defense now interposed. In support of their contention that a mistake of law affords no basis for equitable relief the plaintiffs cite Good v. Herr, 7 W. & S. 253, as the leading case on the subject in Pennsylvania. In the case cited there was a distribution of a fund secured by recognizance, and the parties receiving it, believing that the distribution was in accordance with the law, executed acquittances for their respective shares in it. Afterwards, one of them brought suit on the recognizance, claiming that the distribution was made under a mistake of law, in consequence of which he received less than he was entitled to. It was held that although his claim was well founded in fact he could not recover. The question in Good v. Herr was quite like the question in Rogers v. Ingham, L. R. 3 Ch. Div. 351, which the plaintiffs also cite as authority for their contention. In the case last mentioned, an executor acting on the advice of counsel on the construction of a will, proposed to divide, in certain proportions, a fund between two legatees. One of the legatees being dissatisfied took the opinion of counsel which agreed with the opinion on which the executor’s proposal was based, and the fund was divided in accordance with it, Two years afterwards the dissatisfied legatee filed a bill against the executor and the other legatee, alleging that the will had been wrongly construed, and claiming repayment. It was held that the suit could not be maintained, bnt the power of the court to relieve against mistakes of law as well as against mistakes of fact was conceded. The opinion in Rogers v. Ingham contains a reference to Bingham v. Bingham, 1 Vesey, Sen. 126, but does not antagonize or qualify the principle on which it was decided. In that case the plaintiff, under a mistake of law, bought and paid for his own land, but he was allowed to recover the money so paid, on the ground that he had not the consideration for which he bargained. It will be noticed, that in Good v. Herr and in Rogers v. Ingham the dissatisfied distributee was seeking to recover money paid with Iris consent, and that there were circumstances which rendered his demand inequitable. The equity that affords a complete defense to an unjust claim will not always authorize or support an action for money voluntarily paid in satisfaction of it, nor will a distribution be disregarded or set aside to the prejudice of a party who has, in good faith, acted upon it. The other cases cited by the plaintiffs as pertinent to this branch of their contention do not appear to us as affording any material support to it, or as requiring special consideration. In Hunt v. Rousmanier’s Administrators, 8 Wheaton, 174, there was a misconception by the parties of the legal effect of a power of attorney intended by them as security for a loan. It was held by the circuit court of Rhode Island that their misconception afforded no ground for relief, as it was a mistake of law, but on appeal from that court to the Supreme Court of the United States the judgment was reversed in an opinion by Chief Justice Marshall who said: “ Although we do not find the naked principle that relief may be granted on account of ignorance of law, asserted in the books, we find no case in which it has been decided that a plain and acknowledged mistake in law is beyond the reach of equity. . . . We find no case which we think precisely in point; and are unwilling where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say, that a court of equity is incapable of affording relief.” In Sykes v. Chadwick, 18 Wallace, 141, it was held that the plaintiffs’ release was, under the circumstances of the case, a good consideration for the promise she was seeking to enforce. We have now referred to all the cases cited by the plaint iffs to sustain their principal contention, and none of them can be justly regarded as decisive of any question involved in the case we are considering. Two of them, as we have seen, were for the recovery of money voluntarily paid under a mistake of law, one of them was a suit for the reformation of an instrument executed precisely as the parties intended it should he, and the other was an action upon a promise supported by a valid consideration. In 15 Am. & Eng. Ency. of Law, 744, it is said: “ It will be seen by reviewing the authorities cited in the notes that the general rule that equity will not correct a mistake of law has been so greatly modified that considerable doubt seems to exist as to whether it can now be called a general rule.” In an able article in 23 Am. Jur. 146, on the subject of mistakes of law, the author says: “ On the whole, in view of all the cases on the subject, of the language used in them, and the circumstances under which it was used, we cannot but regard the actual preponderance of authority as unequivocally in favor of the doctrine that mistakes of law may afford good cause for relief.” The excerpt from the Encyclopedia presents a conclusion which we think is fairly deducible from a review of the cases to which it refers, and the excerpt from the article in the Jurist appears to be in substantial accord with it. As they are based on a review of the cases involving a consideration of the effect of a mistake of law they are worthy of notice as showing the trend of judicial thought on the subject, and the reluctance of the courts to sanction gross injustice under the claim that equity will not relieve against such a mistake. In Peters v. Florence, 38 Pa. 194, it appears to have been regarded as an open question in this state whether “ equity will or will not relieve against an act done in mistake of title growing out of ignorance of the law,” but in Whelen’s Appeal, 70 Pa. 410, the principle, that “ when a party has acted under a misconception or ignorance of his title, and has executed an agreement or conveyance to his prejudice he will be relieved in equity,” was expressly sanctioned. In Goettel v. Sage, 117 Pa. 298, the grantors and grantee believed that the former had a valid title to the land sold and so did the latter’s counsel who, on the request of his client, examined the records for the purpose of ascertaining in whom the title was vested. It was dis covered, afterwards, that the grantors had no title to the land, and in their suit on the grantee’s bond for the purchase money he was allowed to set up their mutual mistake as to the title as a defense. In Heacock v. Fly, 14 Pa. 540, a vendor accepted from a married woman her bond and mortgage for part of the purchase money of land conveyed to a trustee for her separate use. It was held that equity would rescind the contract and allow the vendor to recover the land on his paying to the feme covert the part of the purchase money paid by her. The parties to the transaction were alike familiar with all the facts affecting it, and they mutually supposed that the bond and mortgage were a valid security for the unpaid purchase money, but in this they were mistaken. It was said by the court that they “ were led into error by the conveyancer,” and that justice required “that the contract should be rescinded,” but there was no better warrant for saying so in that case than there is in this. In Gross et al. v. Leber, 47 Pa. 520, the defendants executed a bond as trustees in the belief that it was their legal duty to do so, but they were relieved from liability upon it on the ground that it was based on a mistake of law. There was no fraud or undue influence in either of the three cases last cited. There is a long line of cases in Pennsylvania to the effect that in an action for the purchase money of land the vendee may set up as a defense to it a defect in or failure of title in whole or in part. This is such an action. The consideration of so much of the mortgage as is now in dispute was the fee simple in remainder which the vendor in her deed represented she had, and professed to convey. It now appears as already stated, that at the time of the transaction the vendor had only a life estate in the land subject to the life estate of Mary T. Ott in it, and that the fee, subject to these estates, was vested in the vendees. There was no dispute between the parties to the transaction and no element of compromise in it. The plaintiffs have, by the verdict, the full value of the estate the defendants acquired by the mortgagee’s deed, and their claim for more is unconscionable. As the defendants received nothing for the unpaid portion of the purchase money it ought not to be exacted from them. In view of the decisions of this court to which we have referred, of the well settled rule in regard to defenses in actions for the purchase money of land, and of the unwarranted assertion by the grantors in respect to the title we cannot say that the learned court below erred in limiting the plaintiff’s recovery to the value of the life estate in Mary E. T. Ott. Nearly three years after the death of Mary E. T. Ott the mortgage was assigned by her executors to Martha J. Wilson as collateral security for a loan of $2,500, made by her, but when, to whom, or for whose benefit it was made, and whether all or any portion of it has been repaid, does not appear. The assignment was made more than a year before it was recorded, and no notice of it was given to the defendants. It is now claimed, but it is not established by agreement of the parties or by evidence, that the assignee of the mortgage is a purchaser of it for value without notice of any defense to it, and that while the mortgagors may have an equity available as a defense in a suit by the mortgagee or her executors, it cannot prevail in this action to her use. The burden of showing that she is such a purchaser lies on her, and when she has shown that she is, she must also show, in order to sustain this branch of her contention, acts or declarations of the mortgagors by which they are estopped from interposing, as against her, their equitable defense. The principle that the assignee of a mortgage holds it subject to all the equities with which it was affected in the hands of the mortgagee is so well settled and understood that a citation of the decisions which sustain it is unnecessary. It is not claimed that the defendants in this case have said or done anything which estops them from interposing the defense we have considered, but it is said they ought not to have equitable relief because of their delay in demanding it. But we think that, as there is no evidence that they knew of the actual state of the title before this suit was brought, they are not chargeable with laches which bars their defense. This suit was brought and prosecuted for the whole amount of the mortgage. The plaintiffs, on the first trial of it, made no attempt to show the value of the life estate of Mary E. T. Ott, and, as a matter of fact, the defendants realized nothing from it because she died before the termination of the prior life estate in the land. On the second trial the right of the plaintiffs to have the value of the life estate was conceded and some evidence was given to assist the jury in ascertaining what it was worth, but the real contention, as before, related to the claim of the plaintiffs to that part of the mortgage for which there was no consideration. In view of the nature of the contest and the special circumstances of the case, we think there was no error in the refusal of the court “ to direct the jury to allow attorney’s commission as stipulated in the mortgage.” It is now settled that such commission is in the nature of a penalty, and its enforcement is a matter within the control of the court in the exercise of its equity powers: Daly v. Maitland, 88 Pa. 384, and Lindley v. Ross, 137 Pa. 629. The specifications of error are overruled and the judgment is affirmed.

OLSZEWSKI, Judge: Timothy Kraus (appellant) challenges the denial of the post-trial motions he filed after an unfavorable verdict in his negligence action against James E. Taylor and Harris Fuels, Inc. (appellees). This litigation requires us to consider when intoxication evidence may be admitted against a pedestrian plaintiff in a suit arising from a collision with an automobile. We are also required to consider when a history of drug and alcohol abuse is admissible against a plaintiff who alleges permanent injury. We affirm. Appellee Taylor struck appellant on October 20, 1990, while driving a vehicle owned by appellee Harris Fuels. At the time of the accident, approximately midnight, appellant was walking across Street Road in Lower South Hampton Township, Pennsylvania, on his way to work at a nearby gas station. Appellant filed a negligence suit against ap-pellees seeking damages for medical expenses and for permanent injury. The case was tried before a jury in October of 1996. At trial, the court admitted evidence that appellant had a blood alcohol content in excess of 0.25 percent at the time of the accident. The court also admitted medical records establishing that appellant suffers from chronic drug and alcohol abuse. At the close of evidence, the court granted appellee Harris Fuels’ motion for a non-suit. Following deliberations, the jury found that appellee Taylor was negligent but that his negligence was not a substantial cause of the accident. Accordingly, the court recorded a verdict against appellant and discharged the jury. Appellant filed posh-trial motions, which were denied on June 9, 1997. Appellant timely appealed the judgment to this Court. Appellant first contends that the trial court erred in admitting evidence of appellant’s chronic drug and alcohol abuse because the evidence was irrelevant, prejudicial, and privileged. We disagree. Our standard for reviewing the relevancy of evidence admitted at trial is well established. At the outset, the admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Evidence is considered relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. LaCava, 542 Pa. 160, 174, 666 A.2d 221, 227-28 (1995) (citations omitted). Here, appellant sought damages for permanent injury. Such a claim requires the jury to evaluate the claimant’s life expectancy. Evidence of appellant’s chronic drug and alcohol abuse strongly suggests that his life expectancy deviates from the average. Cf. Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 138-39, 410 A.2d 1282,. 1288 (1980) (affirming exclusion of hypothetical question concerning life expectancy which did not mention decedent’s chronic alcoholism). Accordingly, the evidence of appellant’s drug abuse tended to establish a material fact and was therefore relevant. Moreover, actuarial tables were submitted to the jury, at appellant’s request, to help them evaluate his life expectancy. When such tables are submitted in a personal injury case, the jury must be permitted to consider individual characteristics that impact on the injured party’s life expectancy. See Helm v. Eagle Downs-Keystone Racetrack, 385 Pa.Super. 550, 551-53, 561 A.2d 812, 813 (1989) (discussing the appropriate charge when actuarial tables are submitted to a jury). Appellant relies on Labrador v. City of Philadelphia, 134 Pa.Cmwlth. 427, 578 A.2d 634 (1990) for the proposition that evidence of alcoholism is not relevant to life expectancy. Appellant’s reliance is misplaced. Although we frequently turn to the wisdom of our colleagues on the Commonwealth Court for guidance, the decisions of that court are not binding on this Court. See Dansak v. Cameron Coca-Cola Bottling Company, 703 A.2d 489, 493 n. 4 (Pa.Super.1997). Moreover, Labrador is inapposite. Labrador involved a wrongful death and survival action. The trial court excluded evidence of decedent’s alcohol use and cirrhosis of the liver. Id. at 429-31, 578 A.2d at 636. On appeal, plaintiff asked the Commonwealth Court to review the exclusion of the cirrhosis evidence, but not the exclusion of evidence concerning alcohol use. Id. The Commonwealth Court reviewed the trial court’s ruling for abuse of discretion. It found that the trial court excluded the evidence for two reasons: (1) the effect of cirrhosis on life expectancy is not within the ken of the average layman and' therefore requires expert testimony to be admissible; and, (2) cirrhosis carries a prejudicial implication of alcohol abuse that was not otherwise supported by the evidence. The Commonwealth Court concluded that exclusion was within the trial court’s discretion. This result, however, does not imply that the Commonwealth Court agreed with the trial court’s reasoning. When an appellate court reviews a lower court decision for abuse of discretion, it does not decide whether it would have reached the same conclusion if exercising its own discretion. See Kaneski v. Kaneski, 413 Pa.Super. 173, 176-78, 604 A.2d 1075, 1077 (1992) (explaining that, even under the broadest abuse of discretion review, the reviewing court may not substitute its own judgment for that of the lower court); see also Ruggero J. Aldisert, The Judicial Process 759-76 (1976). Furthermore, nothing in Labrador suggests the Commonwealth Court would have affirmed the trial court if it had excluded competent evidence of the decedent’s chronic alcohol abuse. Appellant next claims that, despite its relevance, the evidence of his chronic drug abuse should have been excluded as overly prejudicial. Even relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice or confusion. See Sprague v. Walter, 441 Pa.Super. 1, 39-41, 656 A.2d 890, 909 (1995). The balancing of potential prejudice against probative value is within the sound discretion of the trial court. Id. We agree that the evidence of appellant’s chronic drug and alcohol abuse was highly prejudicial. See generally Commonwealth v. Gaddy, 468 Pa. 303, 310-12, 362 A.2d 217, 220-21 (1976) (discussing the prejudicial effect of drug use testimony). As discussed above, however, the evidence is also highly probative of appellant’s life expectancy. Accordingly, admission of the evidence was well within the court’s sound discretion. Appellant also asserts that the records of his drug and alcohol treatment are protected under statutory privileges created by 50 P.S. § 7111 (confidentiality of records of treatment in publicly funded mental facilities), 71 P.S. § 1690.108 (confidentiality of records of drug and alcohol abuse treatment), and 42 Pa.C.S. § 5944 (confidentiality of communications to licensed psychologists). The trial court found that appellant impliedly waived any statutorily created privilege by filing a personal injury suit that placed his life expectancy at issue. The statute creating the physician-patient privilege expressly provides that the privilege is waived in civil matters for the patient’s personal injury. 42 Pa.C.S. § 5929. The statutes appellant relies upon, however, lack similar provisions. We are unaware of any prior decisions of this Court or our Supreme Court deciding whether the privileges appellant references are waived by filing a personal injury lawsuit for permanent injury. The Commonwealth Court, however, has commented that the psychologist-client privilege is waived when the client places the confidential information at issue in a lawsuit. See Rost v. State Bd. of Psychology, 659 A.2d 626 (Pa.Cmwlth.1995). Also, various federal courts interpreting Pennsylvania law have held that placing the confidential information at issue in a civil trial is implicit waiver of the statutory privileges appellant asserts. See Mulholland v. Dietz, 896 F.Supp. 179 (E.D.Pa.1994); O’Boyle v. Jensen, 150 F.R.D. 519 (M.D.Pa.1998); Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa.1993); Thorne v. Universal Properties, 1987 WL 7683, 1987 U.S. Dist. LEXIS 1906 (E.D.Pa.1987). The rationale of these decisions is that our legislature could not have intended the miscarriage of justice that would otherwise result to civil defendants. We agree. Allowing appellant to pursue a claim for permanent injury, while simultaneously barring appellees from access to appellant’s long history of drug and alcohol abuse, “would be manifestly unfair and grossly prejudicial.” See O’Boyle, 150 F.R.D. at 522. We cannot believe that the Pennsylvania General Assembly intended to allow a plaintiff to file a lawsuit and then deny a defendant relevant evidence, at plaintiffs ready disposal, which mitigates defendant’s liability. See generally 1 Pa.C.S. § 1922(1) (in ascertaining legislative intent, courts are to presume that the General Assembly did not intend an unreasonable result). Rather the General Assembly must have intended the privileges to yield before the state’s compelling interest “in seeing that truth is ascertained in legal proceedings and fairness in the adversary process.” See Thorne, supra, at *5 (citations omitted). Accordingly, we conclude that appellant impliedly waived the various statutory privileges he asserts by filing this lawsuit. Because the records were not privileged and it was within the court’s discretion to admit the evidence, the trial court committed no reversible error in admitting the records of appellant’s chronic alcohol and drug abuse. Appellant next contends that the trial court committed reversible error by admitting evidence of appellant’s blood alcohol level at the time the incident occurred. Appellant asserts that because he was a pedestrian, rather than a driver, the evidence was not relevant. Appellant relies on Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973), and Whyte v. Robinson, 421 Pa.Super. 33, 617 A.2d 380 (1992). Again, appellant’s reliance is misplaced. In Kriner, we stated: [Ejvidence tending to establish intoxication on the part of a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania courts have gone to great lengths to enforce [the analogous rule relating to the intoxication of drivers]. Consequently, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of intoxication or copious drinking on the part of the pedestrian; for example evidence that the injured party was staggering or had liquor on his breath gives support to such an inference. Kriner, 223 Pa.Super. at 533-34, 302 A.2d at 394 (emphasis added) (citations omitted). In Whyte, we simply applied the rule established by Kriner. See Whyte, 421 Pa.Super. at 38-40, 617 A.2d at 383. Both cases turned on our conclusion that evidence of the pedestrian’s intoxication was so insubstantial, and the potential prejudice so significant, that it was an abuse of discretion to admit the evi dence. See Kriner, 223 Pa.Super. at 533-35, 302 A.2d at 394; Whyte, 421 Pa.Super. at 43-44 617 A.2d at 385. In contrast, appellees in this case produced substantial evidence of appellant’s intoxication at the time of the accident. First, the responding officer testified that he scented alcohol on appellant’s breath shortly after the accident. (N.T. 10/7/96, at 97). Second, the hospital measured appellant’s blood alcohol level in excess of 0.25 percent within 40 minutes of the accident. (N.T. 10/8/96, at 13-32). Finally, appellees produced expert testimony that, given the blood test results, appellant’s judgment and motor coordination would have been severely impaired at the time of the accident. (N.T. 10/8/96, at 23-37). The trial court did not abuse its discretion in admitting this substantial evidence of appellant’s intoxication at the time of the accident. None of appellant’s remaining issues are properly before this Court. Appellant’s third and fourth issues, concerning the weight and the sufficiency of the evidence, were not properly preserved in the lower court. In order to preserve an issue for appellate review following a civil verdict, the issue must first be raised in a post-trial motion. See, e.g., Snyder Bros., Inc. v. Peoples Natural Gas, 450 Pa.Super. 371, 378-80, 676 A.2d 1226, 1230 (1996). Moreover, an issue raised in a post-trial motion is waived unless it is briefed or argued in post-trial proceedings. See Bell v. City of Philadelphia, 341 Pa.Super. 534, 540-42, 491 A.2d 1386, 1389 (1985). Full development of issues in the lower court serves an important function in the orderly and efficient use of our judicial resources. See generally Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) (discussing the policy reasons for strictly limiting appellate review to issues preserved in the lower court). Here, appellant filed a post-trial motion asserting that the court committed 62 separate errors. See plaintiffs motion for post-trial relief 10/17/96. Appellant, however, reduced the number of errors to 13 in the brief he filed in support of his motion. See plaintiff’s brief in support of his motions for post-trial relief 4/15/97. No oral argument on appellant’s motion was heard. The trial court correctly concluded that the remaining 50 errors were abandoned and declined to consider them. See slip opinion 6/9/97, at 3. None of the 13 errors appellant argued before the trial court concern either the weight or the sufficiency of the evidence. Accordingly, appellant’s failure to preserve these issues precludes our review. Finally, appellant contends that the trial court erred in entering a non-suit in favor of appellee Harris Fuels. Appellant’s only theory supporting Harris Fuels’ liability is that it is vicariously liable for appellee Taylor’s negligence. Because the jury found Taylor not liable, and this verdict withstood our review, appellant cannot recover against Harris Fuels. Accordingly, this issue is moot. See generally Quigg v. Brown, 30 Phila. 468 (1996) (commenting that the issue of a principal’s vicarious liability is rendered moot by a finding that the agent was not liable). An appellate court will not consider a moot question unless one of several narrow exceptions applies. See Rosenfield v. Pennsylvania Aut. Ins., 431 Pa.Super. 383, 387-89, 636 A.2d 1138, 1141 (1994). No exception is relevant here. Thus, we dismiss this issue as moot. Judgment affirmed. BECK, J., filed a concurring statement. . In Kalenevitch v. Finger, 407 Pa.Super. 431, 595 A.2d 1224 (1991), we refused to address this issue because it was not properly preserved for our review. See id. at 438-40, 595 A.2d at 1228-29. . Appellant’s blood alcohol level would have been inadmissible absent the additional corroborating evidence. See Whyte, 421 Pa.Super. at 40-44, 617 A.2d at 384-85. . Even if appellant had preserved his challenge to the sufficiency of the evidence, that claim would be waived by his failure to provide proper argument in the brief that he filed with this Court. A party moving for judgment notwithstanding the verdict (i.e., challenging the sufficiency of the evidence) contends that the evidence and all inferences deducible therefrom, viewed in the light most favorable to the verdict winner, is insufficient to sustain the verdict. See Greer v. Bryant, 423 Pa.Super. 608, 612-14, 621 A.2d 999, 1002 (1992). We will only reverse the denial of such a motion where the lower court committed an abuse of discretion or an error of law. Id. The argument section of appellant's brief relating to this issue does not analyze the evidence in the light most favorable to appellee Taylor, the verdict winner. Instead, appellant presents the evidence in the light most favorable to himself then concludes that he is entitled to a different verdict. For example, appellant asserts that he "crossed the street under an overhead light within one car length of the beginning of the intersection.” Appellant's brief at 40-41. Appellees, however, produced evidence that appellant crossed the street 62 feet east of the intersection (N.T. 10/7/96, at 101-04) and that the street lamp in the vicinity was out (N.T. 10/7/96, at 115). Appellant also asserts that appellee Taylor was travelling east in a westbound lane, appellant’s brief at 41, whereas appellees produced evidence that skid marks from the vehicle began in the eastbound lane (N.T. 10/7/96, at 104-05). Most importantly, appellant ignores the evidence that he was severely intoxicated at the time of the incident. Because appellant fails to discuss the evidence viewed in the light most favorable to the verdict winner, his brief wholly lacks appropriate argument that the lower court abused its discretion when denying his motion for judgment notwithstanding the verdict. Thus, even if preserved below, this issue would be waived by the deficiencies of appellant's brief. See Kituskie v. Corbman, 452 Pa.Super. 467, 476-78, 682 A.2d 378, 383 (1996) (failure to develop proper argument in appellate brief constitutes waiver), alloc. granted, 548 Pa. 628, 693 A.2d 967 (1997). Appellant’s argument suggests a claim that the verdict was inconsistent. If appellant intended to challenge the verdict on these grounds we note that the issue was waived by his failure to object prior to the jury's discharge. See City of Philadelphia v. Gray and Williams v. SEPTA, 534 Pa. 467, 633 A.2d 1090 (1993). .Appellant later filed a supplemental post-trial motion alleging a 63rd error. See plaintiff's supplemental motion for post-trial relief, 4/10/97.

Opinion by Mr. Justice Williams, The business of the defendant company is the manufacture of tobacco and the sale of its manufactured products. It has no factory, store, office or other place of business in the state of Pennsylvania. Its sales are made through agents or traveling salesmen who solicit orders, and when obtained transmit them to the office of the compahy or one of its factories to be filled. It made sales of cigars and cigarettes in this manner within the city of Philadelphia, and the mercantile appraiser of Philadelphia county assessed it with a mercantile tax as doing business as á dealer here. The tax was not paid, and this suit was brought to compel its payment. An affidavit of defense was filed alleging that the corporation was not organized under the laws of this state, had no place of business within the state, and was not hable to assessment with a mercantile tax as a dealer doing business in Philadelphia. The learned judge of the court below held the affidavit insufficient and entered judgment against the defendant for the amount of the tax.- The only question raised is over the sufficiency of the affidavit of defense. This must depend on the meaning of the several statutes imposing and providing for the collection of mercantile taxes. The act of April 7,1830, sec. 1,. imposes the tax upon “ every person who shah deal in the selling of any goods, wares and merchandise ” in this state, with certain exceptions, and requires such persons to “ take out from the treasurer of the proper county and city a license ” authorizing them to sell as dealers at wholesale or retail the goods, wares and merchandise, in which they propose to trade. By a supplementary act it is provided that if any person shall have more than one store in which merchandise is vended such person. “ shall be required to take out a license for each and every store.” The legislative intention to impose the mercantile tax or license on permanent dealers having a place of business within the proper county is made still clearer by the act of April 11, 1862, which made it the duty of the mercantile appraiser to visit personally the store or other place of business returned by him, as charged with the license tax, “ of every person ” whom he is required by law to assess and classify as a dealer; and allowed him to charge mileage for all the distance necessarily traveled in making such visitation and appraisement. He was also required to serve the person or firm so returned by him with a notice of his appraisement at the time of such visit. The act of 1866 authorized the collection of the license by distraint upon the goods and chattels of the delinquent. This system of legislation has been steadily regarded by the lawmakers as applicable to persons, and places of business, located within the county for which the mercantile appraiser is appointed, as is quite evident from later and supplementary acts upon the same general subject. Thus in 1892 an act was passed which provided for the taxation of “ transient retail dealers ” by the city, borough or township in which such transient dealers may come and attempt to open a place of business. It did not provide for their appraisement by the mercantile appraiser but authorized the city or borough to fix the amount of the tax or license to be imposed by ordinance, and the township treasurer to fix the amount in townships. Foreign dealers had already been provided for by the act of 1887, which empowered cities and boroughs to impose a tax upon foreign dealers, or their agents having no permanent place of business in any such city or borough, subject to the restriction that the tax so imposed should not exceed the local taxes imposed upon resident merchants engaged in a like business in the same city or borough. Sales by sample were however expressly excluded from the operation of this act. We think it very clear from this glance at the statutes relating to the duties of the mercantile appraiser, and the taxation of transient and foreign dealers, that the defendant in this case was not subject to assessment as a dealer by the mercantile appraiser. The affidavit of defense was therefore sufficient to prevent judgment, and the averments therein if sustained at the trial present a complete defense to the plaintiff’s claim. The learned judge did not put the reasons which influenced his action upon the record, and we are left to conjecture as to what they were. It may be that he regarded the assessment of the license tax as wholly unauthorized, but regarded the failure of the defendant to appeal from it as precluding the company from setting up any defense whatever to this action. If the defendant had been a local dealer within the county of Philadelphia, regularly assessed, and served with notice, the remedy for any error in the assessment would have been by appeal. If this had been neglected the defendant would have been precluded by such neglect from defending in this action for any error or irregularity that could have been reached on an appeal. But the defendant was not subject to assessment by the mercantile appraiser. That officer was without any authority in the premises, and his unauthorized act imposed no liability and no duty on the defendant. It had a right to treat his appraisement as a nullity, as it really was, and to disregard it. It has a right now, when sued for the license so illegally assessed against it, to allege the want of authority in the appraiser to impose it, as a defense to the plaintiff’s claim. The judgment is reversed, record remitted, and a procedendo awarded.

The opinion of the court was delivered Per Curiam. The fact that the opinion of the court was not filed until some time after the decree dismissing the bill was entered, does not detract from the clear presentation of the evidence and the correct conclusions of law therein contained. No opinion having been filed when the decree was made it was entirely proper to supply the omission thereafter. It is true it should have been attached to the record and duly certified; yet its authenticity is unquestioned. It is a salutary rule that a trustee dealing with the property of his eestui que trust cannot divert it to purposes foreign to the trust without the utmost openness and frankness with the party beneficially interested therein. The evidence must show that the trustee made full disclosures to his cestui qm trust to sustain a purchase of the trust property from the latter: Spencer’s Appeal, 80 P. F. S., 317. In this case however we think the necessary disclosures were made. The appellant had as full knowledge of every fact connected with the property as the trustee had. There was no fraud, no concealment. The transaction was open and fair, and received the undoubted and intelligent approval of the appellant. Decree affirmed and appeal dismissed at the costs of the appellant.

Mr. Justice Paxson delivered the opinion of the court, This case is free from difficulty. Of the numerous assignments of error we select the seventh as the only one which requires discussion. It raises the pivotal question in the cause. The defendant’s seventh point called upon the court to instruct the jury: “That even if John B. Gillespie had personally deposited the money, and received the deposit ticket in evidence, yet he would have had a right to revoke his direction to pay the Higbee draft at any time before the same was paid by the bank.” The learned court declined to affirm this point. To understand the question which this ruling presents, it is necessary to give a brief summary of the facts. Higbee & Co., the plaintiffs below, had drawn their draft on John B. Gillespie for $797.76, at thirty days. The draft was accepted by Gillespie, but was not paid at maturity, and was returned to the bank in Philadelphia, from which it had been received. Subsequently John B. Gillespie sent his brother, Thomas Gillespie, to the First National Bank of Scranton with six hundred dollars to apply on this draft. Being informed by the cashier that the draft had been returned to the bank from which it had been received, Thomas Gillespie left the money with the cashier, and received from that officer a certificate of deposit in favor of John B. Gillespie for $600 “to pay Higbee draft.” This certificate was given by the brother to John B. Gillespie, who kept it for seven days, when he drew his cheek upon the bank for six hundred dollars; sent it with the certificate of deposit to the bank and drew out the money. The draft in the meantime had not been returned to the bank. Subsequently Higbee & Co. brought suit against the bank for the $600 and recovered a verdict. It heeds neither argument nor authority to show that the money deposited was the money of J. B. Gillespie, and as such under his control. It is true his brother had deposited it to meet the Higbee draft, but assuming, as the point does, that the money had been so deposited by J. B. Gillespie himself, or by his authority, he had the power to revoke such direction. The money had not been applied to the draft by the bank when Gillespie’s check was presented, and could not have been as the draft was not there. Had' the bank failed between the date when the money was deposited and when it was drawn out upon Gillespie’s check, the loss would have fallen on him, not on Higbee & Co. The latter had no interest in the money until its application to their draft. An order or direction on the part of Gillespie to so apply it was in its nature revocable up to the moment of its application. Had it been so applied the power of revocation would have ceased to exist. The deposit of the money to pay the draft was not an equit able assignment of the fund. Had it been deposited to the credit of Higbee & Co. to meet the draft the case would have been different. But it was not, nor could it well have been without risk to Gillespie, as the draft might have been discounted and held by other parties. The money was deposited to the credit of Giliespie, and the bank could not have refused to pay it out on his check. It could not have paid it to Higbee & Co. because it had no such order; it had no knowledge even that they ever owned the draft; the draft itself was not there, and there could therefore have been no application to its payment. There was, at most, a direction to apply the money, which was a mere executory order and revocable: Morse on Banking, 304; Gibson v. Minet, 2 Bingham, 7; Geist’s Appeal, 41 Leg. Int., 500. We have discussed the case upon the theory that John B. Gillespie authorized the deposit in the manner above stated. The evidence is that he did not. He sent his brother to the bank with the $600 to apply on the draft. Thomas Gillespie had no instructions further ; certainly none to leave the money in the bank if the draft was not there; still less to pay it to the agent of Higbee & Co., or deposit it to their credit or for their benefit. We are of opinion that Higbee & Co. have no cause of action against the bank, and tlie judgment therefore must be reversed.

Opinion by Mr. Justice Sterrett, As shown by official returns of last municipal election in Braddock borough the appellant was elected justice of the peace by a majority of one vote. The petitioners alleged and succeeded in satisfying the court below that a certain rejected ballot should have been counted by the election officers. The result was a tie between appellant and his leading competitor John S. Lowry; and a new election was accordingly ordered. The controlling question is, whether the ballot referred to was illegal and rightly rejected by the election officers. There was only one justice of the peace to be chosen at said election, and of course no elector had a right to vote for more than one person for that office. In the petition to the court below, the contested ballot is described thus: “ Under the title, ‘ Justice of the Peace ’ (‘ mark one ’), in the left hand column of said ballot, in the square at the right of the name ‘ John S. Lowry ’ printed on said ballot and inside the lines inclosing the column, is marked a cross (X) and immediately following the cross (X) but in the right hand column, on said ballot, being a column of vacant spaces, and under the title, ‘ Justice of the Peace ’ (‘insert one ’), inside the lines inclosing the column, is written the name ‘ John S. Lowry.’ At the head of said column of vacant spaces are printed the words: ‘ The voter may insert in the column below the name of any person, whose name is not printed on the ballot, for whom he desires to vote.” It is averred in the petition that the “ Election officers received said ballot but refused to count ‘ the same * for the said John S. Lowry .... and said ballot so rejected was returned to the ballot box where the same now remains.” It is also averred “that said ‘John S. Lowry’ is the only person of that name resident in the borough of Braddock and is the identical person whose name is printed in the left hand column of said ballot, and whose name is written in the right hand column of said ballot and is the person for whom said ballot was intended and was legally cast for the office of justice of the peace of the borough of Braddock.” It is further averred that said contested ballot was “ cast by a qualified elector of ” said borough “ whose name is unknown to your petitioners.” In his answer, the respondent, among other things, represents “ that, if all the averments of fact contained in the petition were true, nevertheless the petition is insufficient in law, because under the averments of said petition the ballot therein mentioned and referred to is illegal and not cast according to law, and was properly rejected.” He further denies, on information and belief, all the material allegations of the petitioners, as to the description of the ballot rejected, the intention of the voter and the identity of the two persons voted for upon said ballot. We have recently had occasion in McCowin’s Appeal, 165 Pa. 233, to notice some of the provisions of the new ballot law of June 10, 1893. After referring, inter alia, to the 14th section relating to the blank space column of the ballot, and the 22d section, prescribing the way in which the voter shall prepare Ms ballot, etc., and commenting thereon, we said: “Everything necessaiy or proper to be done by the voter, in order to record the free and unconstrained expression of Ms choice of persons to fill the respective offices, is thus provided for; and the manner in which said right of choice shall be exercised is specifically pointed out. If he desires to vote for any of those whose names are printed on the official ballot, he must do so by 'marking’ as directed by the act. If he wishes to vote for persons whose names are not already on the ballot, he can do so by ‘inserting’ their names in the blank spaces prepared therefor; but he has no right to insert anything else in said blank spaces or in any part of the right hand column. In so far as the mode of voting is thus specifically prescribed by the act, all other modes are, by necessary implication, forbidden. Expressio unius est exclusio alterius.” The original ballot in question was not produced in the court below, but, assuming the copy attached to the petition to be correct, it shows on its face that the “unknown” voter, whoever he may have been, disregarded the plain requirement of the law in preparing his ballot, in that he voted or undertook to vote, by “marking,” for a person whose name was printed on the ballot, and also voted or undertook to vote by “ inserting ” an additional name in the blank space provided exclusively for names not already on the ballot. The presumption is that he knew the blank space was intended only for the insertion of names not printed on the ballot, and that the person whose name he wrote in the blank space was not the same person whose name, printed in the left hand column, he marked with a cross (X). If the voter’s first act, in preparing his ballot, was the “ insertion ” of the name found in the blank space, he had no right, whatever, to afterwards attempt to vote by “ marking ” for either of the candidates for justice of the peace whose names are printed in the left hand column. On the other hand, if his first act in preparing Ms ballot was marking with a cross (X) as appears in the left hand column, he had no right to afterwards “insert” the name “John S. Lowry” in the blank space. It was thus manifestly impossible for the election officers, or any one other than the voter himself, to determine which of the acts, — that of “ marldng ” in the left hand column or that of “ writing ” the name “ John S. Lowry ” in the blank space, — was first in order of time, or whether the voter intended by both acts to vote for two persons or for only one and the same person, or, in brief, what may have been his purpose in doing what he is admitted to have done in preparing his ballot. When the election officers came to count the votes, it must have been quite evident to them, on inspection of the ballot in question, that the specific mode of voting prescribed by the act had been disregarded by the voter, and hence they were clearly right in refusing to count the vote for any one. It was plainly a vitiated, illegal ballot made so by the act of the voter himself. If such an utter departure from the positive requirements of the act were sanctioned or encouraged, either by election boards or courts, it would lead to the most serious consequences. Under the new ballot law, it is not enough that the intention of the voter may possibly be ascertained, or his irregular and equivocal acts explained by evidence dehors his ballot. The purpose of the legislature, in prescribing the form of ballot and specifically directing how it should be prepared and used by the voter, was to avoid all such inquiries and the consequences likely to result therefrom. It was intended that the ballot, when prepared by the voter and delivered to the proper election officer, should be per se self-explanatory. There is no good reason why it should not be so. These views might be further enforced by other suggestions, but further elaboration of the subject iá unnecessary. Enough has been said to show that the ballot in question is irregular and illegal and should have been so held by the court below. This conclusion renders the consideration of other questions unnecessary. The decree of the Court of Quarter Sessions is reversed and set aside; and it is ordered that the petition be dismissed, and that the costs in the court below and here be paid by the petitioners. Mitchell, J., dissented.

CIRILLO, President Judge Emeritus: Appellant Pauline A Martin appeals from the order of the Court of Common Pleas of Tioga County. We affirm. On October 22, 1995, Pauline Martin gave birth to a daughter, Tiffany Martin. At that time, Pauline was divorced from her former husband, Leon Fuller, and was married to appellee David Martin, to whom she had been married prior to her marriage to Fuller. Although Pauline and David Martin were married when Tiffany was born, they did not reside together at that time. The parties lived together for a brief time during their second marriage; on August 27, 1996, David Martin moved out of the parties’ residence. Pauline Martin filed a complaint in support and a hearing was held in October of 1996. At the hearing, David Martin acknowledged paternity of the parties’ older child, David T. Martin, Jr., who was born on May 24, 1993, during the parties’ first marriage. At the conclusion of the hearing, the court entered a zero support order with respect to both children. On April 22, 1997, David Martin petitioned the court for blood tests to determine the paternity of Tiffany Martin. See 23 Pa. C.S.A. § 5101 et seq. In her answer, Pauline Martin responded that at the time of Tiffany’s birth, David Martin did not object to placing his name as the natural father on Tiffany’s birth certificate. She also contended that David Martin, Pauline, Tiffany, and the parties’ older son had lived together, as a family, and that David Martin had acknowledged Tiffany as his daughter, evidenced by a card he had sent her that he had signed, “Daddy.” Pauline also argued that David Martin was barred from contesting paternity under the doctrine of res judicata because his exceptions to the support order, wherein he had contested paternity, had been denied. Following a hearing, the court granted David Martin’s request and ordered blood tests for Pauline Martin, David Martin, Tiffany Martin and Leon Fuller. This appeal followed. Pauline Martin raises one issue for our review: Whether the court ignored a legal presumption and statutory law and abused its discretion when it ordered blood tests of mother, husband and child at the request of husband when husband had acknowledged the child for one and one-half years since the time of the child’s birth? Historically, the presumption of paternity has reigned as “one of the strongest presumptions in Pennsylvania law.” Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997). See Jóhn M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Ruth F. v. Robert B., 456 Pa.Super. 398, 690 A.2d 1171 (1997) (en banc); Paulshock v. Bonomo, 443 Pa.Super. 409, 661 A.2d 1386 (1995); cf. 23 Pa.C.S.A. § 5102(a). Although rebuttable, traditionally the presumption could be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband’s impotency or sterility. See John M., supra; see also Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1957) (the presumption can be overcome only by proof that the husband did not have access to his wife during the'period of conception); Kohler v. Bleem, 439 Pa.Super. 385, 654 A.2d 569 (1995) (clear and convincing evidence of husband’s vasectomy and subsequent lack of spermatozoa in his semen rebutted the presumption that child born during marriage was a child of the marriage). As one legal periodical has observed, this court has struggled to reconcile modem family structures with traditional principles of law. “Modem Love; Superior Ct. Straggles with Presumption of Paternity,” 21 Pennsylvania Law Weekly 211, pp. 30-31 (February 16,1998). And, as this court has recognized, time-worn principles of law may not be relevant where the family has been broken down, or where the structure does not conform to that contemplated by the law or doctrine in question. See Kohler, supra. In the case before us, Pauline was married to Leon Fuller at the time of Tiffany’s conception; she was married to David Martin at the time of Tiffany’s birth. Pauline argues that the court erred in refusing to apply the presumption of paternity against David Martin because she was married to him at the time of the child’s birth. See, e.g., John M., supra; Ruth F. v. Robert B., supra; Miscovich v. Miscovich, 455 Pa.Super. 437, 688 A.2d 726 (1997); Kohler, supra; see also 23 Pa.C.S.A, §§ 5102(a), 5104(g). Our supreme court recently reviewed the presumption in Brinkley, supra. Lisa Brinkley was married to George Brinkley when Lisa’s daughter was conceived. Lisa testified that although she was married at the time of conception, she and her husband did not have sexual relations. Lisa testified that at the time of conception she and Richard King had engaged in sexual relations. Upon learning that his wife was pregnant by King, Brinkley filed for divorce. Lisa testified that King came to the hospital when the child was born and, thereafter, for a period of approximately two years, visited the child on a weekly basis. The visits terminated when Lisa filed a complaint for support against King. King denied paternity and refused blood testing. Lisa sought an adjudication of paternity and King answered that the presumption applied and that Lisa Brinkley had failed to rebut the presumption that her former husband was the father. Id. at 24-L46, 701 A.2d at 178. The trial court agreed with King, concluding that Lisa was unable to establish that Brinkley “had no access during the period of conception[.]” Id. This court affirmed and the Supreme Court of Pennsylvania granted allocatur in order to review “the way in which the presumption of paternity functions in Pennsylvania law.” Id. In Brinkley, a plurality decision, the supreme court examined its decisions in John M., supra, and Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), and reiterated the fundamentals of the law of presumptive paternity: [A] child conceived or born during the marriage is presumed to be a child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access [ ] to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. Brinkley, 549 Pa. at 246-48, 701 A.2d at 179 (footnotes and citations omitted). The court observed that the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of es-toppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent. Id. at 248-50, 701 A.2d at 180 (emphasis added). The court then presented the essential legal analysis: First, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered. Brinkley, 549 Pa. at 244-46, 701 A.2d at 178. The court also stated that “[traditionally,” the presumption applies “if the child was conceived or bom during the marriage.” Id. (emphasis added). Noting the dramatic changes in the nature of family relationships, however, the lead opinion, authored by Chief Justice Flaherty, broke with tradition and stated that the presumption would not apply where it would not advance the policy underlying the presumption, that is, the preservation of marriage. Id. at 250-52, 701 A.2d at 181, The presumption, then, has lost much of its vigor. In Kohler, supra, this court suggested that blindly applying the presumption might well work an injustice: The presumption ... and the doctrine of paternity by estoppel grew out of a concern for the protection of the family unit; where that unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetuate a pretense. In [Kohler ], application of estoppel would punish the party that sought to do what was righteous and reward that party that has perpetrated a fraud. Kohler, 439 Pa.Super. at 395-98, 654 A2d at 575-76. In Miscovich, supra, this court repeated its concerns: Our society has embarked upon ah era in which the usefulness of the presumption of legitimacy as a legal tool must be questioned[;] ... our courts must make necessary adjustments in the law ... revisit the policies underlying the presumption, and insure that the equilibrium has not been shifted to a point of inequity. In keeping with this principle, it is suggested that the protection of the traditional family unit need not be dictated by the presumption. We need not blindly apply it, nor cling to timeworn principles to support the Commonwealth’s goal of protecting the family. A careful analysis of each factual scenario, in particular the relationship between the presumptive or putative father and child, ... as well as the “known factor” of a putative father against whom a support claim may be made, is necessary to .fair and just application of paternity law. Miscovich, 455 Pa.Super. at 445, 688 A.2d 726 at 730 (emphasis added). In Brinkley, our high court has responded: “Cessante ratione legis, cessat et ipsa lex. [,]” 549 Pa. at 250, 701 A.2d at 181,—“The reason of the law ceasing, the law itself also ceases.” Black’s Law Dictionary, p.—(5th ed.1979). We find that Brinkley controls this issue, and we apply it to guide our analysis. In Brinkley, the child was conceived during the marriage; the presumption, therefore, could be applied. The court, however, chose to dispense with it because at the time Lisa filed for support, there was no marriage. Our learned Chief Justice reasoned: “The presumption of paternity ... has no application to this case, for the purpose of the presumption, to protect the institution of marriage, cannot be fulfilled.” Id. at 251, 701 A.2d at 181. The court concluded, therefore, that the trial court erred in failing to consider estoppel evidence, and the court noted that “[ejstoppel evidence may be presented where the presumption does not apply.” Id. Cf. 23 Pa.C.S.A. § 5102(b)(2) (the General Assembly has codified those principles of paternity by estoppel that are applicable in cases involving children born out of wedlock). In the instant case, Tiffany was both conceived and born during marriage. The two critical points, however, involve two different marriages. When Pauline sought support from David Martin, the parties were separated. Realistically, there was, and is, no intact family. Application of the pre sumption in this ease would not advance its underlying policies. See Brinkley, 549 Pa. at 251 n. 8, 701 A.2d at 181 n. 8 (“Our view, as expressed today, would be that when the parties separated, the presumption of paternity was inapplicable!;.]”) (emphasis added). See also Green, supra (applying Brinkley majority analysis, the court found there existed no marital unit to preserve so the presumption of paternity did not apply). Because the presumption is not applicable, our next inquiry under the Brinkley framework is whether estoppel principles are applicable. Id. at 248-50, 701 A.2d at 180. Because “the facts include estoppel evidence, such evidence must be considered.” Id. The evidence in this case indicates that Martin was present during the birth of the child and lived with the child for eighteen months. By his own testimony, Martin offered little caretaking and even less financial support. During the time the family lived together, Martin was unemployed and offered no financial assistance to his wife, in whose name the apartment was rented. Essentially, Martin fulfilled no fatherly obligations. A name on a certificate does not create a father/child relationship where one in fact does not exist. This alone is insufficient to support a finding of estoppel. We conclude, therefore, that the evidence presented does not support a finding of paternity by estoppel in Martin. Furthermore, we point out that the public policy behind the presumption, to preserve a marriage in the face of a dispute over parentage, is realistically advanced only when a third party, one outside the marriage, asserts his paternity as against the husband—a patent threat to the intact family unit. See Green, 704 A.2d at 684 (“[T]he interest of a third party pales in comparison to the overriding interest of the presumed father, the marital institution and the interest of the Commonwealth in the family unit.”). On the contrary, once a man attempts to refute his paternity and is met with the presumption, we delude ourselves if we believe clinging to the fiction can preserve the marriage. The goal of this Commonwealth, of our nation, is to foster responsibility in parenthood, not maintain barriers that shield one from it. A practical and effective paternity determination will arguably advance this goal; if blood tests cannot be so easily avoided, one may more fully realize the consequences of his or her actions. In essence, only one man can be the biological father, and when his paternity is determined, he is the only man legally obligated to support the child. In this case, where no intact family will be preserved by application of the presumption, the search for the truth should not be denied. We conclude that the presumption is not applicable here: Brinkley, supra. The evidence is not sufficient to establish paternity by estoppel, see Jones, supra; Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962), and therefore blood tests were properly ordered. We affirm the trial court’s order. Order affirmed. POPOVICH, J., concurs in the result. . Martin was unemployed at the time and receiving public assistance. . Madame Justice Newman, joined by Mr. Justice Castille, agreed with the Chief Justice’s determination that the presumption "does not apply where its purpose is not served.” Brinkley, 549 Pa. at 259, 701 A.2d at 185. Their disagreement with Chief Justice Flaherty’s opinion related to the means of rebutting the presumption, and not on when the presumption should be applied. Thus, four justices, a majority, agreed that the presumption should not be applied where there is no intact marital unit to protect. Id. See Green v. Good, 704 A.2d 682, 683 (Pa.Super.1997). Mr. Justice Zappala found non-access was established by Lisa Brinkley’s testimony that she and her husband did not have sexual relations at the time of her daughter's conception. Brinkley, 549 Pa. at 252-54, 701 A.2d at 182. Mr. Justice Nigro would abolish the presumption of paternity and "allow the trial court to determine paternity on a case-by case basis, unburdened by the obligatory application of a presumption or an estoppel theory.” Id. We echó Justice Nigro’s wisdom—abandoning the two doctrines in favor of the judicious use of blood testing will not result in any more strain on a marriage unit than would, for example, forcing a cuckolded husband, because of the presumption, to care for a child he knows is not his—a situation which would strain .both the marriage and the husband’s relationship with the child. Blood testing would also work to eliminate situations where a man is deceived into believing he is the father and is then made to bear legal responsibility, by reason of estoppel, for a child that is not his. Id. . We note our disagreement with the trial court’s reasoning that "there can be no presumption that David Martin is the father of the child” because he was not living with Mrs. Martin at the time of the child’s birth. Technically, this is incorrect. The parties remarried before the child’s birth, were married at the time of the child’s birth, but did not live together until after the child's birth.

OLSZEWSKI, Judge: James Greg Cooper (appellant) appeals from the decision of the Clarion County Court of Common Pleas affirming the Clarion County District Attorney’s denial of appellant’s private criminal complaint. This appeal requires us to again consider the proper standard for reviewing a trial court’s affirmance of such a denial. We conclude that our review is limited to determining whether the trial court abused its discretion or committed an error of law. We are also required to consider the applicability of the so-called “prisoner mailbox male.” We conclude that the rule applies to all appeals filed by incarcerated pro se litigants. Appellant is currently incarcerated at a state correctional institute. In October of 1996, appellant filed two private criminal complaints in Clarion County. The complaints allege that Milbum L. Cooper, appellant’s father, and one Lavita Lerch sold a vehicle belonging to appellant without his permission. Appellant requested that the district attorney indict the named individuals for theft. On February 2, 1997, the Clarion County District Attorney’s Office informed appellant that his request was denied. Appellant then petitioned the Clarion County Court of Common Pleas for review of the district attorney’s denial. The court affirmed the district attorney’s action by order dated April 14, 1997. The present appeal is taken from that order. We must first determine whether appellant has filed a timely notice of appeal. Although neither party raises this issue in their briefs, we are required to consider it sua sponte because the issue concerns our subject matter jurisdiction. If appellant has not filed the necessary notice within the time mandated by Pa.R.A.P. 903(a), then we lack authority to consider his appeal. See In re Greist, 431 Pa.Super. 188, 190-92, 636 A.2d 193, 196 (1994). Rule 903(a) provides that the notice of appeal must be filed within 30 days after the entry of the order appealed. Our Supreme Court has recently explained that, for prisoners proceeding pro se, a notice is deemed filed as of the date it is deposited in the prison mail system. See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997). This is known as the “prisoner mailbox rule.” We are unaware of any case where a Pennsylvania court has applied this rule outside the context of a prisoner challenging his or her own sentence or conviction. We are convinced, however, that the rule is not limited to that context. In its Jones decision, our Supreme Court specifically adopted the rationale of the U.S. Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Jones, 549 Pa. at 61-63, 700 A.2d at 425. That rationale is based on affording prisoners the same appellate opportunities as other litigants. See id. The reasoning does not depend on the importance of the rights at stake when a prisoner challenges his or her sentence or conviction. See id. In fact, the U.S. Supreme Court in Lack specifically rejected the argument that the rule depends on whether the appeal is criminal or civil. See Houston v. Lack, 487 U.S. at 272-76, 108 S.Ct. at 2382-85, 101 L.Ed.2d at 252-55. Because our Supreme Court relied on this rationale in adopting the prisoner mailbox rule, we conclude that the Supreme Court intends the rule to apply to all appeals filed by prisoners proceeding pro se. Having determined that the prisoner mailbox rule is applicable, we must next determine whether appellant has filed a timely notice of appeal pursuant to the rule. Because the order appealed was entered April 14th, the thirtieth day ending the appeal period fell on May 14th. The time stamp indicates that the Clarion County Clerk of Courts received the notice on May 16th. The proof of service filed with the notice, however, asserts that the notice was mailed on May 1st. Whether appellant actually deposited the notice in the prison mail system by May 14th is a factual question. Accordingly, a dispute over this issue may warrant remand for an evidentiary hearing. Jones, 549 Pa. at 65, 700 A.2d at 426 n. 3. Where, however, the opposing party does not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is plausible, we may find the appeal timely without remand. Id. This appeal presents the latter situation. As previously mentioned, neither party raised this issue. Furthermore, the clerk of courts received the notice only two days after the 30-day period expired. Therefore, we find that appellant filed a timely notice of appeal. We next turn to the merits of this appeal. Surprisingly, appellant devotes the major portion of his argument to the question of what standard of review is applicable. We commend the keen insight into our appellate system appellant thereby displays. Experienced members of our bar. frequently overlook the singular importance of this issue. Appellant argues that because the district attorney’s decision was based in part on a conclusion of law, we should therefore review the denial de novo. In the alternative, appellant argues that we should review the denial de novo because the district attorney’s decision was based entirely on a conclusion of law. While we congratulate the argument, we disagree with both of appellant’s conclusions. Pennsylvania courts have extensively discussed the appropriate standard for reviewing a prosecutor’s disapproval of a private criminal complaint. See, e.g., Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) (plurality). . Recently, a plurality of this Court held that it is not our role to directly review the prosecutor’s decision. Instead, we concluded that our function is limited to reviewing the trial court’s decision for abuse of discretion or error of law. See Commonwealth v. Brown, 447 Pa.Super. 454, 463-65, 669 A.2d 984, 989 (1995) (en banc) (plurality), aff'd per curiam by an evenly divided court, 550 Pa. 580, 708 A.2d 81 (1998). In affirming our Brown decision, the Supreme Court extensively discussed the appropriate standard for a trial court reviewing a prosecutor’s disapproval of a private criminal complaint. The Court unanimously agreed that “a trial court should not interfere with a prosecutor’s policy-based decision to disapprove a private complaint absent a showing of bad faith, fraud, or unconstitutionality.” See Commonwealth v. Brown, — Pa. at -, 708 A.2d 81, 84 (1998). The Court also clarified that “abuse of discretion” and “gross abuse of discretion” are indistinguishable standards of review. See id. at -, 708 A.2d at 83. The Supreme Court, however, did not discuss whether this Court reviews the trial court’s or the prosecutor’s exercise of discretion. Moreover, there was no majority in the Supreme Court as to the disposition of Brown. Accordingly, it is a non-precedential plurality decision. See Commonwealth v. Price, 543 Pa. 403, 408, 672 A.2d 280, 282 (1996); see also McDermott v. Biddle, 436 Pa.Super. 94, 115, 647 A.2d 514, 524 n. 8 (1994), rev’d on other grounds, 544 Pa. 21, 674 A.2d 665 (1996) (explaining that an opinion only creates binding precedent insofar as it commands “a majority of judges voting both as to the disposition and the principle of law expressed”). Subsequent to our decision in Brown, two panels of this Court have considered our standard of review. See Hearn v. Myers, 699 A.2d 1265 (Pa.Super.1997); Michaels v. Barrasse, 452 Pa.Super. 325, 681 A.2d 1362 (1996). Those portions of the Supreme Court’s Brown decision in which all justices agreed are, of course, highly persuasive. Insofar as the Supreme Court’s decision in Brovm contradicts Michaels and Hearn, however, we must apply our decisions because they are binding precedents. See Ellis v. Sherman, 330 Pa.Super. 42, 478 A.2d 1339 (1984), aff'd, 512 Pa. 14, 515 A.2d 1327 (1986) (stating that a Superior Court panel is bound to follow the controlling precedent of the Superior Court rather than a non-precedential Supreme Court decision); see also Commonwealth v. Taylor, 437 Pa.Super. 102, 106-07, 649 A.2d 453, 455 (1994) (explaining that, when sitting as a panel, we are not empowered to overrule a decision of our Court). Michaels sets forth the standard of review as follows: When a trial court is asked to review a prosecutor’s disapproval of a private criminal complaint, the trial court must first determine the rationale behind the prosecutor’s decision. If the prosecutor’s decision was based upon a legal evaluation of the sufficiency of the complaint, then the trial court must undertake a de novo re view of the complaint to ascertain whether it establishes a 'prima facie cause of action. If, however, the prosecutor’s decision was based upon a policy determination that it would not be in the best interests of the Commonwealth to prosecute, then the trial court must defer to the prosecutor’s discretion absent a gross abuse of that discretion. When an appeal is brought from a common pleas court’s decision regarding the approval or disapproval of a private criminal complaint, an appellate court is limited to ascertaining the propriety of the trial court’s actions. Thus, our review is limited to determining whether the trial court abused its discretion or committed an error of law. Michaels, 452 Pa.Super. at 330, 681 A.2d at 1364 (emphasis omitted) (footnote added) (quoting Brown, 447 Pa.Super. at 466-67, 669 A.2d at 990). Accordingly, our review is limited to determining whether the trial court abused its discretion or committed an error of law in applying the test set forth above. We now turn to whether the trial court correctly applied the law and properly exercised its discretion. The trial court determined that the prosecutor’s disapproval was based upon the policy determination that it would not be in the best interest for the Commonwealth to pursue the matter because appellant has adequate civil remedies. The court, therefore, reviewed the district attorney’s decision for abuse of discretion and found none. Appellant’s first argument, that de novo review is required where the district attorney’s decision is a hybrid of legal conclusions and policy considerations, conflicts with our precedent. See Commonwealth v. Metzker, 442 Pa.Super. 94, 658 A.2d 800 (1995) (reversing a trial court’s de novo review of the denial of a complaint where the denial rested on both a legal conclusion and a policy consideration). Instead, de novo review is only appropriate where the trial court determines that the prosecutor’s decision is solely a product of legal conclusions. See id. at 96-98,658 A.2d at 801. Regarding appellant’s second argument, that the district attorney’s decision was solely a legal conclusion, we find no abuse of discretion in the trial court’s determination that the decision was based on policy considerations. The district attorney supplied the following explanation for the denial: First, incomplete information was provided by you to this office. Second, in your letters you state that your vehicle was sold and that the proceeds of the sale were forwarded to you. Your complaint, as I understand it, is that an inadequate consideration was obtained for the vehicle. Nonetheless, you did acknowledge that the funds were forwarded to you. This matter is more properly a civil action. Because of that, you can retain a private attorney and sue for damages. (Letter from Ronald T. Elliot to James Greg Cooper of 2/24/97.) The second explanation offered by the district attorney admits of two interpretations. The district attorney could be asserting that, because the proceeds were forwarded to appellant, the complaint fails to establish the necessary mens rea for theft. This interpretation would make the district attorney’s second reason a legal conclusion. See, e.g., Michaels, 452 Pa.Super. at 330, 681 A.2d at 1364 (failure of a complaint to establish a prima facie case is a legal basis for denial). Alternatively, the district attorney could be asserting that, because adequate civil remedies are available to appellant, it would not be in the best interest of the Commonwealth to pursue a criminal conviction. This interpretation would make the district attorney’s second reason a matter of policy. See Hearn, 699 A.2d at 1267-68 (ex--plaining that availability of adequate civil remedies is a policy reason for denial). The trial court interpreted the district attorney’s second reason as one of policy. Because this is a reasonable interpretation, we conclude that the trial court did not abuse its discretion. Moreover, where the prosecutor believes the private affiant is attempting to “utilize the justice system to redress grievances for which there are adequate civil remedies” and conveys this rationale with the single phrase “[a]ffiant should file civil action,” the prosecutor “sufficiently sets forth a clear statement as to the particular policy that dictates withholding prosecution.”- See Commonwealth v. McGinley, 449 Pa.Super. 130, 673 A.2d 343 (1996) (en banc) (plurality) (footnote omitted). Here, the trial court found that the district attorney concluded a civil action would be more appropriate because appellant was attempting to utilize the justice system for private purposes. This is a valid policy reason for the district attorney’s decision. There is no evidence of bad faith, fraud, or unconstitutionality. Accordingly, the trial court did not abuse its discretion in affirming the denial of prosecution. Finally, appellant contends that allowing the district attorney’s refusal to prosecute his complaint denies him due process and equal protection of the laws as afforded by the United States and Pennsylvania constitutions. Appellant does not allege that the trial court departed in any respect from Pa. R.Crim.P. 106 (establishing the procedure for handling private civil complaints). We have held that “the provision in the Rule allowing an appeal of the district attorney’s disapproval of such charges to the court constitutes sufficient checks and balances upon the district attorney’s actions to comply with eonsti-tutional due process requirements.” See Commonwealth v. Eisemann, 308 Pa.Super. 16, 20, 453 A.2d 1045, 1047 (1982). Thus, appellant’s due process claims lack merit. Appellant’s equal protection claim is based upon his status as a prisoner. Appellant contends that the district attorney showed deliberate indifference to the crime committed against him because of that status. This court, however, only reviews issues first presented to the lower court. See Pa. R.A.P. 302; Petition of Piscanio, 235 Pa.Super. 490, 494-96, 344 A.2d 658, 661 (1975) (finding that constitutional challenges to a denial of a private criminal complaint were waived by the affiant’s failure to raise the constitutional issues in the lower court); see also Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211 (1997) (explaining that, although post-sentence motions are no longer required to preserve issues in criminal matters, issues must still be raised initially in the lower court). Appellant did not allege discrimination in the petition for review he filed with the lower court. In fact, the sole allusion to any constitutional violation appellant presented to the court below is the single sentence, “I feel an investigation should have been done and at least an attempt to recover the vehicle and that not, to do so is in violation of my constitutional rights.” (Petition for Review of Decision of District Attorney 3/17/97, at 4.) This language pertains to only the procedure followed below (ie., appellant is claiming that the district attorney should have conducted further investigation before denying the petition). It does not in any manner suggest that appellant believes he was the victim of discrimination. Because the issue of whether the district attorney discriminated against appellant was not raised below, appellant’s equal protection claims are waived. Order affirmed. . As noted, "gross abuse of discretion” is indistinguishable from "abuse of discretion.” See Moore v. Moore, 535 Pa. 18, 28 n. 4, 634 A.2d 163, 168 n. 4 (1993). . Although McGinley is a plurality decision, all judges joined in this holding, which makes the holding binding on this panel. Cf McDermott v. Biddle, supra.

Mr. Justice Clark delivered the opinion of the Court, The contention of the plaintiff in error is, that the claim of the borough of New Columbus, in this ease, was adjudicated in the decree of 12th February, 1883, allowing to the said borough $16.65 as costs and charges, upon the appeal from the order of removal, taken by Huntingdon township. The present demand is $549.67, money paid out by the appellant, towards the relief of Philip Faux and family, the paupers, from the date of the removal, to the determination of the appeal. The 20th section of the Act of 13th June, 1836, consists of two clauses; the first provides as follows: “For the more effectual preventing of vexatious removals and frivolous appeals, the court of quarter sessions, upon every appeal in a ease of settlement, or upon proof being made before them of notice thereof, as aforesaid (though the appeal be not after-wards prosecuted), shall, at the same session, order to the party in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given, sucli costs and charges as the said court shall consider reasonable and just, to be paid by the overseers or other persons against whom such appeal shall be determined, or by the person that gave such notice.” If the Act made no further provision on this point, such practical difficulties must in many cases arise, as would defeat its purpose. By the removal, the pauper is transferred from the custody and care of the appellee to that of the appellant, and the expenditures made during the pendency of the proceedings on the appeal cannot, at the hearing, be anticipated; the litigation may be protracted not only in the sessions but by certiorari to this court; tbe expenditures, from time to time, may greatly increase or diminish according to the health and condition of the pauper. It would be impossible, therefore, to estimate beforehand the amount which an appellant would be entitled to receive at the close of the litigation. Until a final decree is entered in the sessions or here, the amount of money paid for relief, in the nature of the case, cannot be computed. If it be said that tbe computation may be made to tbe date of tbe decree in tbe sessions, how can the appellant know at what date the court may determine the appeal; or, knowing that, Iiow can he determine what disbursements he may be obliged to make before that day? It was doubtless to obviate the practical difficulties suggested, that the legislature added the second clause to this 20th section, as follows: “ And if the court shall determine in favor of the appellant, that such poor person was unduly removed, they shall, at the same session, on demand, award, to such appellant so much money as shall appear to them to have been reasonably paid by the city or district appellant, towards the relief of such poor person, between the time of such undue removal and the determination of such appeal with costs, as aforesaid.” It would seem, therefore, to be imperative upon the court to award to the appellant, if the appeal be determined in his favor, the sums expended for relief, at the same sessions, only on demand. But if no demand be then made the right of recovery still remains, and a demand being subsequently made, the court may still award the amount expended. This was ruled in Williamsport v. Eldred Township, 6 W. N. C., 188. The statute is remedial in its character, and is entitled to receive a liberal construction. The ruling of the ease cited is in exact accordance, not only with the letter, but the purpose and spirit of the statute. It follows, that when the appeal is determined in favor of the appellant, the award may be for costs and charges attending the suit only, or it maj1-, on demand, embrace also the moneys expended for relief. In the case at bar, the record discloses no claim filed or demand made, for the expenditures on part of the appellant prior to the adjudication of 12th February, 1883. In this form of procedure, the pleadings are, it is true, informal, but, in order to establish a plea of former recovery, there should be something disclosed by the record which would show the claim to have been adjudicated. It is certainly true as contended, that in a competent judicial investigation, the matters necessarily involved in the issue must, upon the determination thereof, as between the parties, be regarded as res adjudicaba; the judgment of the court is the conclusion of the law upon the facts contained in the record, and puts an end to all .further litigation on account of the same matter. But if the subject of litigation, the matter out of which the controversy springs, is not entire; if it is divisible in its nature into distinct, parts, so as to support separate actions, and the record does not in terms embrace the whole, we cannot assume that the whole has been adjudicated. In the case under consideration the court could only award the money expended for relief, on demand; until demanded the claim was in no sense before the court, and the court can not be considered as having adjudicated what was not before it. The matter directly involved in the issue was, whether or not. the last legal settlement of Philip Faux and his family was in the borough of New Columbus. This being adjudged against the appellees the costs and charges of the appeal followed as incident to tbe judgment, but tbe award to the appellants for money paid out for relief of the paupers, during the pendency of the appeal, was matter proper for adjustment on demand, and only on demand. This by the 20th section of the Act of 1886 is a distinct and severable item of claim, which may be enforced at the determination of tire appeal or afterwards, as the appellants may choose. There is no proof on the face of this record, however, and there can be no other proof, that any demand was made, that the claim was presented or in any manner considered by the court, and we cannot, therefore, conclude that it was covered by the decree. It is not denied, in point of fact, that the hill is moderate and fair, that the articles charged and the services rendered are correctly stated; it is not pretended that the bill as now-presented was at any time paid ; the defence rests wholly upon a supposed technical legal rule invoked by the appellees, which, however, we think is not applicable to this case. We are of opinion, therefore, that the learned judge of the sessions was clearly correct in the decree entered 19th January, 1885, directing payment of the appellants’ bill for moneys paid out during the pendency of the appeal. The decree of the quarter sessions is therefore affirmed.

DOYLE, Judge. This case involves a petition for review filed by the Laurel Lake Association, Inc. (Association) with respect to the promulgation by the Pennsylvania Fish and Boat Commission (Commission) of a regulation which, inter alia, restricted the use of boats on Laurel Lake, Susquehanna County, to those with motors not in excess of 60 horsepower. The Commission, as the Respondent, requests that this Court quash the appeal and dismiss the Association’s petition for review because its action in promulgating a regulation does not constitute an appealable adjudication or determination by an administrative agency. This ease originated on August 11, 1991, when the “Friends of Laurel Lake” Committee (Friends), a predecessor organization of the Association, wrote to the Commission requesting that the Commission restrict boat operation on Laurel Lake to boats with outboard motors not exceeding 10 horsepower. At the time, the Commission had not promulgated any specific regulations pertaining exclusively to Laurel Lake, and thus the lake was at that time subject to state-wide boating regulations. The Commission’s Boating Advisory Board (BAB) first considered the Friend’s request for regulations at its meeting on March 2, 1992, and voted to table further discussion- on the subject until a BAB meeting could-be scheduled in the vicinity of the lake. BAB again considered the Friend’s request at its June 13, 1992 meeting and, after weighing differing opinions and options, voted to recommend to the Commission that it consider promulgating a regulation that would: (1) prohibit the operation of boats with motors greater than 35 horsepower after January 1, 1995; (2) allow no more than one water ski device with a maximum of one water skier to be towed by any one boat; (3) limit the speed of boats on the lake to slow minimum height swell speed at all times on the lower lake and from sunset to sunrise on the upper lake; and (4) prohibit water-skiing before noon on Saturdays, Sundays and holidays. At a meeting held on July 11, 1992, the Commission considered the proposed special regulations for Laurel Lake for the first time. After considerable debate, the Commission ultimately voted to approve the publication of a notice of proposed ridemaking, seeking public comment on a regulation that prohibited the operation of boats with greater than 10 horsepower after January 1,1994. Except for this modification of BAB’s proposal, the Commission adopted the recommendations of BAB in all other respects. A notice of proposed rulemaking was published in the Pennsylvania Bulletin on October 10,1992, and the Commission considered the matter on final rulemaking at its November 9, 1992 meeting. After lengthy discussion on the issue, and recognizing that those using Laurel Lake were still divided over the issue, the Commission strongly encouraged the interested boat owners and homeowners to work together and devise a joint recommendation for regulatory action. The Commission then voted to defer- consideration of final rulemaking until its January 1993 meeting and requested all parties to file a report of their, progress by no later than January 6, 1993. At á meeting held on January 23,1993, the Commission considered the regulation for final adoption, and ultimately voted to adopt a regulation which prohibited the operation of boats with motors in excess of 60 horsepower after January 1, 1994, and which provided that no more than one water ski device with a maximum of one skier may be towed by a boat. The Commission also directed its staff, in conjunction with the BAB, to review the horsepower limits and report to the Commission during the October 1993 meeting. At the Commission’s meeting, held on October 4,1993, the BAB discussed the regulations at Laurel Lake and recommended that the regulation imposing a 60-horsepower limit remain in place for another year, as opposed to decreasing it per the Association’s request. Thereafter, on November 20, 1994, the Association presented to-the Commission a petition to reconsider the 60-horsepower restrictions on Laurel Lake and to prohibit the use of boats with motors in excess of 10 horsepower. The Association cited the size of the lake, more stringent restrictions on lakes of similar size, environmental concerns over the use of gasoline motors, the lack of enforcement by the Commission of the current restrictions, and interference with other uses of the lake caused by high speed operation of motorboats as valid reasons for the reconsideration. Between May 1, 1995, and July 19, 1996, further discussions and deliberations took place among the members of the Commission and the BAB. At its meeting on July 19, 1996, the BAB considered the proposed regulation and recommended to the Commission that the regulation be amended to restrict the operation of boats with motors greater than 10 horsepower, with a “grandfather” provision to cover existing boat owners who used the lake. The BAB also recommended that, through December 31, 2001, resident property owners should be permitted to continue using boats powered by motors greater than 10 horsepower that they owned and used on Laurel Lake prior to January 1, 1996. At its meeting held on January 25, 1997, the Commission adopted the final version of the regulation and ultimately promulgated 58 Pa.Code § 111.58(d), which was published in the Pennsylvania Bulletin on April 19,1997, and the current version of which provides as follows: (d) Laurel Lake (1) Internal combustion motors prohibited. After April 1, 1997, the operation of boats powered by internal combustion motors is prohibited except as otherwise provided in this subsection. (2) Operation of boats powered by motors of up to 60 horsepower. Resident property owners at Laurel Lake are permitted to operate boats powered by motors of up to 60 horsepower. It is unlawful for a person, other than a resident property owner or a member of the property owner’s immediate family, to operate a boat powered by an internal combustion motor on Laurel Lake. It is unlawful for a person, including a resident property owner and members of the immediate family, to operate a boat powered by a motor rated in excess of 60 horsepower. (3) Restrictions on operation of boats powered by internal combustion motors. Operation of boats powered by internal combustion motors is subject to the following restrictions: (i) Ski devices. No more than one water ski device with a maximum of one skier may be towed by a boat. (Ü) Upper Lake. Boat speed is limited to slow, minimum height swell speed except that, during the period from noon until 6 p.m., no more than two boats powered by internal combustion motors may, at any one time, operate at speeds greater than slow, minimum height swell speed in the marked boat operating zone. Boats operating in the marked zone shall circle in a counter-clockwise direction and shall be subject to the restrictions in this subsection and the code and this subpart. It is unlawful to water ski or to operate a boat at greater than slow, minimum height swell speed at any location on the upper lake from 6 p.m. until noon of the following day. (iii) Lower Lake. It is unlawful to water ski or to operate a boat at greater than slow, minimum height swell speed at any time at any location on the lower lake. (iv) Personal watercraft. The operation of personal watercraft is prohibited. 58 Pa.Code § 111.58(d)(l)-(3). On February 24,1997, the Association filed a petition for review in this Court’s appellate jurisdiction, seeking review of the Commission’s promulgation of this regulation. Thereafter, on March 25, 1997, the Commission filed a motion to dismiss the Association’s petition for review, and the Association filed a memorandum of law in opposition to this motion on April 25, 1997. By order dated April 28, 1997, this Court directed argument on the motion to dismiss along with the merits of the Association’s petition for review. The substance of the Association’s appeal pertains to the Commission’s failure to restrict the use of boats with motors in excess of 10 horsepower on Laurel Lake. It should initially be noted, however, that the Association’s petition for review purports to invoke this Court’s appellate jurisdiction, and states in pertinent part as follows: Petitioner, Laurel Lake Association, Inc. (“Laurel”), by and through its counsel, ... files this Petition for Review of the decision of the Pennsylvania Fish and Boat Commission dated [January] 25,1997, and in support of this Petition states the following: 1. This Court has jurisdiction [over] this matter pursuant to Section 763(a)(1) of the Judicial Code, 42 Pa.C.S. § 763(a)(1), and Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702. (Petition for Review at 1; Reproduced Record (R.R.) at la.) Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702, provides in pertinent part as follows: Any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). 2 Pa.C.S. § 702. The term “adjudication” is defined in Section 101 of the Administrative Agency Law as follows: Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made_ • 2 Pa.C.S. § 101. Also, Section 763 of the Judicial Code, 42 Pa.C.S. § 763, provides that, with certain enumerated exceptions, this Court has exclusive jurisdiction of appeals from “final orders” of government agencies. In support of its motion to dismiss, the Commission’s principal contention is that its action in . promulgating 58 Pa.Code § 111.58(d) is not tantamount to an appeal-able adjudication or “final order” by an administrative agency. In Insurance Co. of North America v. Insurance Department, 15 Pa.Cmwlth. 462, 327 A.2d 411 (1974), and in the companion case of Insurance Co. of North America v. Insurance Department, 15 Pa.Cmwlth. 460, 327 A.2d 414 (1974), we quashed two appeals which had been filed with respect to regulations promulgated by the Pennsylvania Insurance Department, stating as follows: [The appellant] contends that the promulgation of the instant regulations is a “determination” or “ruling” by the Insurance Department which affects its property rights and obligations, and is therefore an appealable “adjudication.” It is clear, however, that the “determination” or “ruling” referred to in Section [101 of the Administrative Agency Law] speaks of administrative action which is quasi-judicial in nature, and which determines only the personal or property rights or obligations of the parties before an agency in a particular proceeding. Contrasted with this is the quasi-legislative function an administrative agency performs in promulgating rules or regulations of general application to persons throughout the Commonwealth, and the exercise of which, in the absence of a specific statute vesting jurisdiction in a particular court, is not appealable.... This functional dichotomy is recognized by the definition of “regulation” contained in Section 2(e) of the Administrative Agency Law ..., which provides that: “ ‘Regulation’ means any rule, regulation or order in the nature of a rule or regulation, of general application and future effect, promulgated by án agency under statutory authority in the administration of any statute administered by or relating to the agency, or prescribing the practice or procedure before such agency.”[ ] No right of appeal is provided under the Administrative Agency Law from the mere promulgation of a regulation. Given the admitted general applicability and future effect of the instant regulations, it is clear that both fall within the definition of “regulation” under Section 2(e), and accordingly no right of appeal to this Court lies under Section [702] of the Administrative Agency Law at this time. As our prior discussion has indicated, the promulgation of the instant regulations and the administrative dismissal of INA’s objections thereto are not acts of a judicial character, and therefore no appeal lies therefrom. Insurance Co. of North America, 327 A.2d at 413-14 (second emphasis added) (citations omitted) (footnotes omitted); see also Popowsky v. Pennsylvania Public Utility Commission, 701 A.2d 277 (Pa.Cmwlth.1997); Concerned Citizens of Chestnuthill Township v. Department of Environmental Resources, 158 Pa.Cmwlth. 248, 632 A.2d 1 (1993) (holding that, because the Environmental Quality-Board is a quasi-legislative and policy-making body, its order upgrading the water quality standard of a creek was not an “adjudication” from an administrative agency from which an appeal may be taken to this Court). Consequently, we must conclude that the actions of the Commission in adopting and promulgating 58 Pa.Code § 111.58(d) did not constitute an appealable adjudication or determination under Section 702 of the Administrative Agency Law and, thus, is not a proper subject of this Court’s appellate jurisdiction pursuant to Section 763 of the Judicial Code. The Association contends that, because the regulation was initially prompted by a “petition” submitted by Association members, and because the Association also submitted to the Commission a document, styled a “Petition to ... Reconsider the 60 HP Motor Restriction on Laurel Lake,” the Commission’s refusal to strictly incorporate the requests of the Association into the regulation ultimately promulgated at 58 Pa,Code § 111.58(d) conferred upon the Commission’s actions the character of an appealable adjudication or determination. However, we must reject this argument. The fact that the Commission’s actions were prompted by Association members and that the Commission solicited and considered comments from all interested parties in formulating the regulation does not alter the fact that the promulgation of the regulation at 58 Pa.Code § 111.58(d) constitutes an unappealable legislative act by an administrative agency. For the foregoing reasons, the Association’s appeal from the Commission’s adoption and promulgation of 58 Pa.Code. § 111.58(d) must be quashed, and, accordingly, its petition for review is hereby dismissed. ORDER NOW, April 3, 1998, upon consideration of the motion to dismiss filed by the Pennsylva nia Fish & Boat Commission, and the response of Laurel Lake Association, Inc. thereto, said motion is hereby granted. This appeal is quashed and the petition for review filed in the above-captioned matter is hereby dismissed. . Pursuant to Section 306 of the Fish and Boat Code, 30 Pa.C.S. § 306, the BAB is comprised of the Secretary of Environmental resources, or his designee, the executive director of the Commis sion, and the assistant executive director of the Commission in charge of watercraft safety, all of whom are ex officio members, and five volunteer members who are appointed by the Governor for terms of five years. The powers and duties of the BAB include advising the Commission on all matters relating to boating and making recommendations to the Commission with regard to any proposed rules or regulations affecting the equipment or operation of boats. . The Laurel Lake Community also has an organization known as the Cottager’s Association, which is comprised of boat owners. . Section 763 of the Judicial Code provides in pertinent part as follows: (A) General Rule.—Except as provided in subsection (c), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of government agencies in the following cases: (1) All appeals from Commonwealth agencies under Subchapter A of Chapter 7 of Title 2 (relating to judicial review of Commonwealth agency action) or otherwise and including appeals from the Environmental Hearing Board, the Pennsylvania Public Utility Commission, the Unemployment Compensation Board of Review and from any other Commonwealth agency having Statewide jurisdiction. 42 Pa.C.S. § 763(a). . This section of the Administrative Agency Law was repealed in 1978 by the Act of April 28, 1978, P.L. 202, No. 53, and was replaced by Sections 101 and 103 of the Administrative Agency Law. . The definition of "regulation” cited by this Court in Insurance Co. of North America has since been repealed, and thus whether a particular regulation is one of "general application” is not dispositive of whether the promulgation of that regulation by an administrative agency is an appealable event. We note, however, that, although the regulations promulgated by the Commission in the instant case relate to a specific subject matter, i.e., the permitted uses of Laurel Lake, the regulation is essentially one of general application attendant to a specific location, and, as a whole, applies with equal force to all persons throughout the Commonwealth by prohibiting specifically enumerated activities on the lake. In particular, the disputed part of the regulation prohibits anyone from operating a boat on the lake with a motor in excess of 60 horsepower. . Additionally, in United States Steel Corp. v. Department of Environmental Resources, 65 Pa.Cmwlth. 103, 442 A.2d 7 (1982), we affirmed an order of the Environmental Hearing Board which quashed the appeal of U.S. Steel Corp. on the basis that it had no jurisdiction to review an action of the Environmental Quality Board because "the promulgation of regulations by an administrative agency is not an appealable event.” Id., 442 A.2d at 8. . In support of its position that the Commission’s actions constituted an appealable order, the Association cites the following language from the minutes of the Commission’s January 25, 1997 meeting: No matter how the Commission decides to dispose of the pending rulemaking on Laurel Lake, it should be noted that this final rule-making represents the final agency action on the petition for regulations filed by the [Association]. (R.R. at 125a.) However, we cannot lend to the phrase "final agency action” the weight or import suggested by the Association. That phrase was clearly meant to convey the notion of finality in January of 1997 to a process which began in August of 1991 and the adoption of regulations which divided the community. It does not, as the Association suggests, mean that the members of the Commission believed that they were rendering an "adjudication” as that term is used under the Administrative Agency Law. . Because this case is not properly within our jurisdiction, we do not address the Commission’s other arguments for dismissing the petition for review, and we may not consider the merits of the Association’s attempted appeal.

Opinion by Mr. Justice Green, This proceeding was a bill in equity filed by the plaintiff as executor, etc., of Mary Kapp deceased against Morris Stein, for the purpose of having set aside a certain sealed instrument acknowledging that the plaintiff’s testatrix had received full payment and satisfaction of a mortgage for $2,000 held by helas mortgagee, against the defendant as mortgagor. The instrument in question was duly signed and sealed by the mortgagee and was also acknowledged before a magistrate and recorded. The allegations of the bill of the facts upon which the decree to set aside the instrument was asked are four: (1) That the paper was executed without consideration. (2) That it was executed without a full understanding or knowledge on the part of the mortgagee, of the meaning and effect of the instrument. (3) That at the time of the execution of the paper Mary Kapp, the mortgagee, was of unsound mind and mentally incapable of understanding business of any kind, and had been so for some time prior thereto, and (4), that while in a state of incapacity the paper had been procured from the mortgagee by the mortgagor, by the exercise of undue influence. Two of these allegations may be dismissed at once. It was not pretended that the mortgage, was paid off and that the acknowledgment of satisfaction was made for that reason. It was claimed to be a voluntary gift of the debt by the mortgagee to the mortgagor, and all the evidence in the case was to that effect. As a matter of course it was in the power of the mortgagee to make such a gift, and it therefore did not need any consideration to support it. The allegation of undue influence has not a particle of testimony to sustain it. All the testimony shows that the defendant had nothing whatever to do with the obtaining of the release. Not a witness testifies to a solitary act or declaration of the defendant, even by way of request or solicitation by the defendant, or that he ever exchanged a word with the deceased on the subject. The learned court below found in favor of the plaintiff but not upon any such ground. The case was heard directly by the court below without the intervention of a master, and the instrument was annulled upon two findings of fact in the following words : “ First. From the evidence in the case I find that the release referred to in the bill and answer was not duly and properly executed, and is invalid for that reason; that it was not read over to Mrs. Kapp or sufficiently explained to her so that she would know what she was doing. “ Second. That at the time that the paper was executed, and extending over a day or two before, and from that time on to her death, she suffered so much from pain, and was so frequently under the influence of morphine that she was not in a condition mentally to clearly understand and comprehend her affairs, or to execute a paper of this kind.” So far as the first of these findings is concerned it can very readily be determined whether it is justified by the testimony or not. There was but one witness who testified to the execution of the instrument and he was the scrivener who prepared it. His name was J. C. Williams, and he was a justice of the peace in the neighborhood. After testifying that he had known Mrs. Kapp since he was a boy and that he was sent for by her, he said that he went to her house on a Saturday morning and was taken to her room and asked her if she knew him: “ she said she did; she told me her business — what she wanted done. Q. State what she told you, just as nearly in her language as you can give it ? A. She said that Mr. Houserman the old shoemaker owed her some money on a lot, and that Mr. Stein owed her some money and she wanted to reheve them of any further payment of that money, that she could die happier if that was done before her death. She said that the papers were in a box on the bed — a tin box on the bed against the wall. Q. In her room ? A. In her room in the bed she was in, and we would find all the papers in relation to the matter in that box. The lady that was in the room reached over the bed and got the box and brought it to the window.” After testifying farther that they looked in the box for the necessary papers and found some of them, he advised that as to Mr. Houserman, a deed should be executed for the lot on which he owed some of the purchase money, and that Mrs. Kapp and her husband could sign it, and that they agreed to that, and he accordingly prepared such a deed and they executed it; he was asked: “ Q. What did she say with respect to Mr. Stein ? A. Well she said her desire was to release Mr. Stein. Q. From what? A. From the — what he owed her. She spoke of a mortgage and a note. Q. Did she say how much the mortgage was? A. If I remember rightly, $2,000. Q. Well now what direction did she give you then with respect to that? A. She wanted the same arrangements made with Mr. Stein as with Mr. Houserman ? ” He then explained why he did not go back on Saturday, because the doctor said she was worse in the afternoons than in the mornings, and that he went back on Monday. He saw her then and said, “ I asked her if she was in the same mind she was on Saturday and she said yes, that she was, and she told me to sign and that she would make her mark. She raised, her knees up in the bed under the covers, and I laid the paper down lightly, and she caught hold of the pen and made her mark. . . . Q. Did you read it over to her before you took the acknowledgment? A. Yes, sir. Q. And what did she say after that when you read it over to her ? A. She said it was just what she wanted to do; if she hadn’t of course I wouldn’t have insisted on her signing it. Q. You had no interest in it at all? A. No, sir, none at all. . . . Q. Did she say anything at all that indicated she didn’t know what she was doing? A. No, sir; she appeared very weak but rational.” The witness said further it was between two and three o’clock in the afternoon when he took the acknowledgment, and that he had asked her lawyer to prepare the paper for him, as he did not feel able to prepare it himself, and that it was so prepared. On cross-examination he was asked, “ Q. Did you explain to her the meaning of that paper? A. Yes, sir, she told me what she wanted done. Q. Did you explain to her what the meaning of that paper was? A. Yes, sir. Q. What did you say to her? A. I don’t remember the exact words; I told her I had come Avith the paper she had requested me to draw up in regard to the Stein case, and just about that time her daughter-in-laAv and Mr. Kapp came in; the daughter-in-law came in first and then the old gentleman, and there was quite a confusion there for a little bit. Q. Then what occurred? Did she sign it then? A. Then I asked the daughter-in-law to remain and witness the signature and she refused to do it. She touched the pen and made her mark. . . . Q. When did you read it to her ? A. I didn’t read it to her; I explained to her that it was the paper that was draAvn up to release Mr. Stein as she had requested on Saturday from the mortgage. Q. Didn’t you say in answer to Mr. Fitzsimmons that you had read it to her ? A. I don’t remember, I don’t remember the reading of it; I don’t think I took the time to read it, I wouldn’t be positive. Q. Did you tell her that the paper was to be recorded ? A. I don’t know that I did; I don’t remember. Q. Did you ask her if she acknowledged that to be her act and deed and desired it to be recorded as such? A. I think I did. Q. Do you know whether you did or not ? A. I wouldn’t be positive. I think I did at the time. Q. You think you told her what it was and she said to you that she would make her mark after it ? A. Yes, sir, she did. Q. Did she touch the pen? A. Yes, sir.” There is no other witness who testifies as to what took place at the execution of the paper. The nurse was in just before but went out when Williams came in with the paper. There was some evidence that Kapp the husband was in part of the time but none that he said or did anything. But there was another witness examined who had knowledge of Mrs. Kapp’s intention. It was John McNeal, a justice of the peace, for whom she sent before she sent for Williams. He testified that he went into the room “ and Mrs. Kapp reached her hand to me and says, ‘ Its pretty near the end; I am pretty near the end,’ and I don’t mind what I said but I said, ‘ I understand you sent forme.’ ‘Yes, I did,’ she says, ‘I want to change my will,’ and she spoke very well; she says, ‘ I want to forgive Morris Stein.’ Q. Did she point to him ? A. She pointed that way with her hand; she says, ‘ I want to forgive Morris Stein what he owes me,’ and I says, ‘ I came unprepared to write anything of that kind,’ and says I, ‘ Have you the will here I could put it in a eodieil,’ and she says — I don’t recollect whether she says ‘Ihave my will made long ago,’ or what, but it wasn’t there, and I says here’s four or five witnessess, I guess it will do, and I repeated to her, ‘ All you want to change in that will, you want to forgive Morris Stein what he owes you,’ and ‘ Yes,’ she says, and then I went to go out and bid her good-by, and as I went out of the door she held her finger out and says, ‘ Mind if I should happen to get better he must pay me.’ Q. That is all that was said? A. Yes, sir. Q. Did she say what he owed her? A. No, she said, ‘All he owes me,’ that’s the words she said. Q. Did she know you when you went in? A. Oh, yes. She named me; she said she wanted to see me. Q. -Did she shake hands with you ? A. She shook hands with me and pressed my hand very cordially. Q. How did she appear to be — all right? A. She appeared to be — I might say all right and intelligent, as far as I could judge; I think she was.” The witness explained that he could not write anything at the time for want of writing material, and that he could not go back on Monday as he was serving on the jury in court. The question arising upon the testimony is, can a finding that the paper executed “ was not duly and properly executed and is invalid for that reason; that it was not read over to Mrs. Kapp or sufficiently explained to her so that she would know what she was doing,” be sustained. We cannot see how. The paper was certainly duly and properly executed. Her name written by the justice was there with her mark properly made. The execution was duly attested. It was a sealed instrument and no formalities were omitted. It is impossible to say it was not duly and properly executed. As to its being read over to her, the witness said at first that he did read it to her but said afterwards that he «did not, or that he did not remember that he did, but- he adhered to his statement that he did fully explain it to her. This however is not of so much importance as the paper did contain precisely what she said she wanted to do. In. our judgment it is quite impossible to sustain the first finding of the learned court below. It must be remembered that the paper was an executed deed and that such papers cannot be set aside for light and trivial causes. In this case there was not a particle of testimony showing or tending to show the least degree of fraud, mistake, imposition or undue influence, and the paper expressed exactly what the party signing it said she wanted, to have done. There was no confidential relation between the parties, and there is no other circumstance to show that Mrs. Kapp did not understand fully what she was doing. The second finding does not declare that Mrs. Kapp was of unsound mind when she executed the instrument, and if it did it would be without any testimony to support it. The fact that she suffered much from pain, and was frequently under the influence of morphia does not in any point of view justify a finding that “ she was not in a condition mentally to clearly understand and comprehend her affairs or to execute a paper of this kind.” There was no testimony in the case that there was any excessive use of morphia, or that her mind was impaired by its use. And there is no standard of incapacity that is not at least mental unsoundness, that will suffice to avoid an executed deed. The physician who attended Mrs. Kapp was examined at much length for the plaintiff, but he gave no testimony either of excessive use of morphia or of mental incapacity from that or any other cause. He said she was under the influence of an opiate and he did not think she was in a fit condition to transact business at that time, but he admitted on cross-examination that her disease was not a mental disease but a disease of the liver, and it-did not affect her mind except as pain affected it. But his statement was the mere expression of an opinion which was of no consequence against the actual facts attending the execution of the paper. Courts do not permit solemn deeds to be annulled upon any such weak and flimsy testimony as is found in this record. The orphans’ courts and this court are in the constant habit of refusing to grant issues upon wills in eases where the testimony is vastly more voluminous and much stronger and more emphatic than any evidence appearing in this record. Forcible illustrations of this character will be found hi the following cases : De Haven’s Appeal, 75 Pa. 337: Cauffman v. Long, 82 Pa. 72; Wainwright’s Appeal, 89 Pa. 220; Wilson v. Mitchell, 101 Pa. 495; Combs & Hankinson’s Appeal, 105 Pa. 155; Eddy’s Appeal, 109 Pa. 406; Napfle’s Est., 134 Pa. 492. We are clearly of opinion that if this case had been tried before a jury and a verdict rendered against the defendant the court below should have set aside the verdict, and failing in that it would have been our duty to reverse the judgment for that reason. The decree of the court below is reversed and plaintiff’s bill is dismissed at the cost of the appellee.

Mr. Justice Paxson delivered the opinion of the Court, Upon the argument at bar the defendant company set up two distinct grounds of defence, viz.: 1st. A breach of warranty as to incumbrances; and 2d. The erection by the plaintiff below of an additional building near the one insured, by which the risk was increased so as to increase the rate of insurance, of which erection no notice had been given to the company. It appeared on the trial below that in the plaintiff’s application for insurance he answered “no” to the 11th interrogatory, which was : “ If incumbered, how and to what amount? ” In point of fact, at the time the policy was issued there was a mortgage upon a part of the insured premises. This mortgage was subsequently removed, and a new mortgage, covering the entire premises, placed thereon, with the consent of the defendant company, and for the approval of which they were paid. This condition of things continued for several years. and until the fire occurred by which the insured premises were destroyed. There is nothing to commend this branch of the defence to our favorable consideration. An examination of the record shows that it was little relied upon in the trial below, if relied upon at all. No point was put to the court as to the effect of the original mortgagé upon the contract of insurance. The alleged warranty was contained in the application; the policy did not in terms make the application a part of the policy. The only clause in the policy which could possibly bear this interpretation is the following: “And this policy is made and accepted in reference to the conditions hereto annexed, as well as the application and survey, which are to be used and resorted to, in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” No point was put to the court as to the effect of this clause. The court was not asked to say that it made the application a part of the policy, and thereby incorporated the warranty against incumbrances into the contract of insurance. The court did say in its general charge: “I have already said to you where the defendant undertakes to say that the answer to a certain question in this paper amounts to a warrant}',, and that warranty does not appear in the body of the policy itself, you are to treat the answers in the application simply as representations, and there can only be a defeat in case the jury find that those representations were falsely made.” This was assigned for error, and it is the only assignment which has any possible relation to the matter of the mortgage, or the alleged warranty. All of the other assignments, and all of the points put to the court below by the defendant company, relate to the question of the increase of risk, which was the ground upon which the company refused to pay, and upon which they attempted to defeat a recovery in the court below. Under the circumstances we are not prepared to reverse the case upon the above extract from the charge. It is not inaccurate as an abstract proposition; if the defendant company desired a more specific instruction they should have asked for it. Moreover, I am unable to see its importance or relevancy to this case. Conceding that the mortgage existed when the application was made and the policy issued, and that the warranty against incumbrances was made a part of the policy, the company are estopped from setting it up to defeat a recovery, for the reason that they subsequently gave their assent to the incumbrance, and were paid for it. And this occurred years before the fire. The palpable iniquity of such a defence may be the reason why it is so dimly shadowed forth upon this record. It remains to consider the second branch of the defence. In one of the printed “conditions of insurance ” I find the following: “If, during the insurance, any alterations be made on the premises, buildings erected, or change made in the use or occupation of the same or neighboring premises, or otherwise, whereby the risk or hazard is increased, so as to increase the rate of insurance, it shall be the duty of the insured to give notice thereof to the secretary, pay the additional premium and obtain the consent of the company thereto in writing, otherwise the insured shall not be entitled to recover for any loss or damage by fire originating in consequence of such change.” No change occurred on the premises insured. There was a change in the surroundings, made after the date of the policy. The insured erected a shop within about twenty feet of the insured premises, for which he obtained the consent of the company and paid an additional premium. He also demised a lot of ground adjoining the premises to a tenant, who erected thereon a frame building which he used as a carriage factory. Tliis building was about fifty foot from the premises insured. No notice of its erection was given to the company, nor was any additional premium paid. Had the condition of insurance required tbe insured to give notice to the company of any change in tbe surroundings, it would have been liis duty to give notice of tbe erection of the carriage factory. Such, however, was not the condition. The notice was only required in case the change was such as to increase the risk or hazard “so as to increase the rate of insurance.” Under this clause it is manifest that the insured must be shown to have knowledge that the building would not only increase tbe risk, but that it would also enhance tbe rate of insurance. The condition of the policy must be construed most strongly against the company. We are not to assume, when the plaintiff below seeks to recover on bis policies for what at least appears to be an honest loss, that be knew the factory building would increase the risk to such an extent as to increase the rate of insurance. There was nothing upon the face of his policy, or in the conditions attached, had he read carefully every word of both, which could have given him this information. It was a fact, the solution of which Avould be found outside tbe policy. There is not a word of evidence to show that the insured knew that the carriage factory would increase the risk to tbe extent specified iu the policy, nor indeed to any extent. There was evidence that the risk was increased, but none that the rates of insurance would be increased thereby. It must be remembered that the factory was about fifty feet away from the insured premises, and the plaintiff may well have thought there was no material increase of the risk. And it is not clear from the defendant’s own testimony that the risk was materially increased. Lewis P. Hecker, a witness on behalf of the company, says in answer to the inquiry whether there was an increase of risk: “ Not yery much, I should think; the risk was increased a little ; it was an additional exposure in the hazardous business carried on; the exposure was great, the risk and hazard, so far as fire was concerned, was increased.” Israel Reber, another witness, says: “In my opinion it would be rather more risky.” And John H. Helzich, agent of the defendant company, in response to a similar inquiry, answers in this cautious manner: “I would rather think it would (increase the risk) ; because two hazardous buildings make it more dangerous than one; that is natural.” The building insured was a livery stable, a hazardous risk, for which a high premium was paid. It was to this circum- ■ stance the last witness referred to when he spoke of two hazardous buildings. What has been said practically disposes of the assignments of error. I will say, however, in addition, that the defendant’s first, second and third points assume all the facts, as to some of which there was no evidence, and the court below committed no error in rejecting them. The defendant’s fourth and eighth points were also properly refused. Conceding that the fire originated in the carriage factory, that fact would not necessarily defeat the plaintiff’s right to recover. Such right depended upon other matters not involved in these points. The defendant’s fifth point was not pressed below, nor here, and need not be discussed. There is nothing in it. The remaining assignments relate to the exclusion of evidence offered on the part of the defendant company to show that the erection of the carriage factory would increase the rate of insurance. Most, if not all, of these offers were rejected upon the ground that the witness by whom the proof was proposed to be made, had not the information necessary for that purpose. The ruling was unquestionably right as to most of the cases, and we need not discuss the others for the reason that there was no attempt to show that the insured knew, or even that the circumstances were such that he ought to have known, that the erection of the carriage factory would so materially enhance the risk as to increase the rate of insurance. Judgment affirmed.

Opinion by Mr. Chief Justice Sterrett, This case was before the orphans’ court M banc on exceptions to the decree of the learned auditing judge, in which he hold “ that the net profits realized from the sales of the Adams and McKelvy properties belong to the corpus of the trust estate,” and thereupon dismissed appellant’s exceptions to the surviving trustee’s account and confirmed the same absolutely. The court being equally divided in opinion as to the controlling question before it, neither of the exceptions was sustained, and hence the decree of the auditing judge stood as the final decree of the court below. From that decree this appeal was taken, and the main question here, as in the court below, is what, under the facts of the case, properly constitutes “ income and profits,” and what “ principal.” That question has been so thoroughly considered and so satisfactorily solved by the learned president of the orphans’ court in bis dissenting opinion, that for reasons therein given we are all satisfied the court erred in bolding as it did. Tbe decree is therefore reversed, with costs to be paid by appellant, and it is ordered that tbe record be remitted, with instructions to correct tbe surviving trustee’s account in accordance with said dissenting opinion.

Mr. Justice Gordon delivered the opinion of the court, The rulings of the Court below cannot be sustained. We are brought to this conclusion for two reasons which to us .seem sufficient. The agency of Deshler, the assignor of the plaintiff, was sufficiently proved, or, at least, the evidence thereof as adduced by the defendant, ought to have been submitted to the jury. Deshler had charge of the business of the Machine Company; its machines, marked with its name, were in his hands for lease or sale. The lease given in evidence was written on the company’s blank; it was executed by Deshler, and in if he was recognized as a special agent. This lease, or conditional sale, when executed, was sent to the company’s office, and when paid it was returned to Thoyken as the company’s vendee. In this the case resembles that of the Baltimore and Philadelphia Steamboat Co. v. Brown, 4 P. F. S.,“ 77, in which it was held, that where the company’s printed bill of lading held out one as a general agent, it was idle to attempt to deny his authority. So we may say here; Deshler was attending to the plaintiff’s business, and selling its machines, and in the face of the fact that his name appears as special agent on its printed blanks, which were filled up and sent to its general office, it was idle to attempt to deny that agency. There is, however, this second reason for sustaining the exceptions of the plaintiffs in error. The assignee of a specialty takes it subject to the equities of the obligor, and this rule holds good as well in the case of a mortgage as of any other sealed instrument: Mott v. Clark, 9 Barr, 399; Twitchell v. McMurtrie, 27 P. F. S., 383. In the absence of a certificate of no set-off it is the business of the assignee of a mortgage to make inquiries of the mortgagor as to its condition in the way of payment or equitable set-off, and if he does not choose so to do he must take upon himself the risk of such neglect. Now, if the evidence is to be believed, Deshler took an assignment of Theyken’s mort gage to Ruhf under the express arrangement that the commissions due him, Theyken, from the company, were to be applied in payment of it, and as these were in excess of the amount thereof, the moment the assignment was executed to Deshler, the mortgage was, in equity, satisfied, and there was nothing left which he could assign to the company. In other words, the plaintiff, having received a transfer of this specialty without a certificate of no set-off, and without inquiry of Theyken, is in no better position than its assignor. This is not like the case of a mere set-off which the mortgagor might have against the assignee, and which, as we held in Blair v. Mathiott, 10 Wr., 262, and Downey v. Tharp, 13 P. F. S., 322, could not be made'available against a subsequent assignee, for in the case in hand there was the equivalent of an actual payment by Theyken to Deshler, and the assignment afterwards to the plaintiff was a fraud, easily discoverable by inquiry of the mortgagor. In this it is like Reineman v. Robb, 2 Out., 474, and we must regard it as governed by the principles therein announced. We may also'observe that Mr. Justice Thompson, who delivered the opinion of the court in Blair v. Mathiott, seems to admit that a payment to the first assignee might be made available as a prior and superior equity, but says, “ every claim would not possess the same merit.” This is undoubtedly correct, but as in the case in hand the defendants’ offer was to prove a direct payment, or, as we have said, what was equivalent to a direct payment, we think it should have been received. The judgment is reversed and a new venire ordered.

Opinion by Mr. Justice Dean, The plaintiffs’ bill in this case avers, as follows: In 1832 a religious congregation was organized at Howard, Centre county, Pennsylvania, denominated “Disciples of Christ;” at the commencement of these proceedings, it numbered sixty persons, and was not incorporated; one R. C. Leathers made a report to the Pennsylvania conference for the year 1889, that there were but fifteen members in good standing composing the congregation; that this report dropped from the rolls of the congregation a majority of its members without notice or hearing, and without warrant. On February 7, 1890, the majority appealed to an impartial tribunal (not named), and ashed the elders to join in choosing said tribunal, which they, the elders, refused to do; then, a majority of the congregation, acting through a committee, appealed to the elders of a sister church at Eagleville to hear and determine the complaint which had created schism; the elders of the Eagleville church entertained the appeal, and called in elders of the sister congregations of Loch Haven and Williamsport, and together they heard the complaint on June 13,1890, and rendered a decision, recommending the calling of a meeting of the congregation at Howard on June 25,1890, following; due notice of the meeting was given; on the day named defendants closed and locked the doors of the church and prevented the meeting in the church; those members who had complained and appealed, then organized a meeting outside and in front of the church, presided over by Rev. Ryan of Williamsport; at this meeting, J. Z. Long, one of plaintiffs, was elected a trustee in place of H. L. Harvey, then a trustee, and one of these defendants, N. G. Pletcher, theretofore and then a trustee, and one of plaintiffs, was approved, as was also A. J. Gardner, one of defendants; A. J. Gardner and R. G. Leathers were deposed as elders, and the congregation, for the time being, was placed under the supervision and jurisdiction of the elders of Eagle-ville and Lock Haven; notwithstanding their deposition, the old board of trustees continued to act, and the old board of elders persisted in holding on to their offices, and by force and violent demeanor prevented the elders of Eagleville and Lock Haven churches from assuming and exercising the jurisdiction and supervision conferred upon them by the 25th of June meeting, and persisted by force and threats to debar a majority of the congregation from engaging in worship in the church; that the 25th of June meeting was constituted and held by competent authority of the denomination, and all its proceedings were regular under the usages of the church, and that the exercise of authority by defendants was wrongful. The prayers for relief were: that Harvey, the two Gardners and Leathers be enjoined from acting as trustees or elders, and from preventing Long and Pletcher from assuming the offices to which they had been elected, and that they be further enjoined from preventing the elders of Eagleville and Lock Haven from assuming supervision of the congregation: and further, that they and each of them be enjoined from excluding a majority of the congregation from worshiping in the church. The answer of defendants denies that those who appealed, called on the elders of Eagleville and Lock Haven churches and held the meeting of 25th of June are a majority of the congregation ; on the contrary they aver that they compose but a small minority; that O. T. Noble and A. M. De Haas, neither of them members of the congregation, but acting as a committee for the meeting, attempted to take possession of the church property and turn it over to the minority composing the meeting, thus ousting the regular organization and putting a wholly irregular one in control; they admit they resisted this unauthorized interference; they further aver that one Rev. W. L.-Hayden, of Bellefonte, came with the sheriff at the hour of public worship, on the 10th of August following the meeting, and read a lecture or proclamation to them, commanding them to surrender possession of the church to the minority, which they refused to do. They further aver that the action of the 25th of June meeting with the elders of the churches of Eagleville and Lock Haven and clergymen from other congregations was wholly unauthorized and unknown to the rules and discipline of the church; that there exists no other power to adjust differences in a Disciple congregation but the elders and the congregation, and the congregation alone can depose officers duly elected. That this was a regular and fully organized congregation, with a duly elected pastor, Rev. G. W. Headley; that the defendants, the duly elected officers representing a majority of the congregation, do not exclude any, but invite all the members to worship in said church. They therefore pray that the bill be dismissed at plaintiffs’ costs. The court appointed the late D. S. Keller, Esq., master to report facts and suggest a decree; he took much testimony, and heard full argument by counsel, but died before reporting to the court. Clement Dale, Esq., was appointed in his stead, who without hearing the argument made report; he suggested for decree that defendants be enjoined from acting as officers, or otherwise interfering with the occupation of the church, and that some person be appointed to give two weeks’ notice of a congregational meeting of the members now in good standing, for the purpose of electing two elders, three deacons and three trustees to serve for two years, and thereafter the elections to be conducted according to the usages of the church; the same person appointed to give notice, to preside at the election; after the election, the terms of present incumbents’ office to end. The president judge approved the report of the master, made in substance the decree suggested by him, and appointed A. M. De Haas, one who sided with plaintiffs, to give notice and preside at the meeting of the congregation. The two associate judges filed a dissenting opinion, dismissing the bill at the costs of plaintiffs. We have before us now the appeal from the decree of the president judge awarding the injunction. Our power of adjudication in disputes between warring church parties is limited. In such cases we can look into the rules of a church organization only to ascertain the church law, and if that be not in conflict with the law of the land, all we can do is to protect the rights of parties under the law they have made for themselves. Our Brother Williams has so fully discussed this subject, and so clearly stated the rules that must govern courts in such litigation in the late case of Krecker v. Shirey, 168 Pa. 551, that we need not repeat them. Each party here claims to be a majority; when this trouble arose the defendants were in office; presumably, they were put there by a majority, and there was no evidence even offered to rebut this presumption. It is admitted their term of office was indefinite, and they could only be deposed by a majority of the members. Assuming that a majority of the members demand the removal of these officers, what method should they legally adopt to effect their purpose ? The law is settled that it must be done in compliance with the rules and discipline of the church. “ A majority of a church organization may direct and control church matters consistently with the particular and general laws of the organization or denomination to which it belongs, but not in violation of them:” Sutter v. The Church, 42 Pa. 503. The master finds as a fact that every Disciples’ congregation is practically independent; other congregations of the same denomination may advise, but there is no superior tribunal of appeal. Both parties concede that they recognize no rule of conduct in cases of dispute except the New Testament. Alexander Campbell, the Disciples’ greatest preacher, if not their founder, says, “ It (the church) knows nothing of superior or inferior church judicatures, and acknowledges no laws, no canons or government, other than that of the Monarch of the Universe and its laws.” Daniel Sommer, an authority in the church, discusses the whole subject, and while he favors an appeal to other churches for advice and aid in allaying church dissensions, he comes to this conclusion: “ The question is often asked, have we no right to appeal from the decision of a church ? Certainly, the right of appeal is as free as the air we breathe. For our own justification, we may appeal to one church or a dozen, to one man or a hundred; but among religious people who are strictly congregational in their church government, there is no authority in any tribunal that may be thus selected, especially a tribunal chosen by only one party. The decision of such a tribunal may have a moral weight, but it has no legal authority. There is nothing official about committees, even if mutually chosen. ... As each family is a separate government by itself, so is each congregation. No other family on earth has a right to come in and dictate to me and my family, and no other congregation on earth has the right to come in and dictate with reference to the affairs of the congregation where I hold my membership.” Many other authorities were put in evidence before the master ; the decided weight of them tends to establish the rule in this particular denomination that each congregation is absolutely independent of any legal control by any other congregation, or by the clergy or officers of such other congregation. What are the admitted facts here ? Against the protests of defendants, delegations from Eagleville and Lock Haven churches, two ministers, one from Bellefonte and one from Williamsport, met with members of this congregation outside the church, and by a vote deposed these defendants and elected in their places part of these plaintiffs, and approved and continued in office part of them. Where in the rules of the church organization exists the semblance of authority for this proceeding? The master does not point out, and we have failed to find it in the evidence. It is said that Leathers and one of the Gardners were present at one of the hearings before the 25th of June, and had notice of the meeting; this is denied; but assume it to be true, both objected to the meeting when held, and refused to take part. We decline to consider the arguments bearing on the fairness and desire for peace displayed by the respective parties; discussion of this subject would neither determine the existence of authority in the meeting nor the want of it. In the exercise of such a high authority as was attempted here, parties must point us to a clear “thus saith our church law.” We are of opinion, the meeting of June 25th was wholly without authority to depose the old officers or to elect new ones. But, it is asked, if the members represented by these plaintiffs be in a majority, how shall they obtain the rights of a ma jority? We reply, by exercising them as members of tbe congregation, and as the majority, for more than sixty years, has exercised them: the reply to this, perhaps, is, those in possession will exclude us from lawful participation in congregational government. We are averse to assuming that any of the members of this congregation, now that their lawful course of action is pointed out to them, will act with lawlessness; but if peace among members of a Christian church be impossible, then the courts are open to the wronged members, as members, and such remedy as the law warrants will be afforded. But the courts cannot sustain wholly unlawful attempts to right even wrongs. The decree of the court below is reversed and set aside, and the bill is dismissed at costs of plaintiffs!

Opinion by Mr. Chief Justice Sterrett, This is the fourth time that questions involving the title in controversy have been presented to and passed upon by this court. In Goodman v. Sanger, 85 Pa. 37; Same v. Same, 91 Pa. 71; and Sanger v. Goodman (not reported), substantially the same questions, that are now presented, were considered and disposed of. The last was a writ of error to the judgment for plaintiff below on the verdict directed by the learned trial judge. After referring to the fact that the case had been here twice before, the court, in unanimously affirming the judgment, said that every material question had already been passed upon; that Robinson et al. v. Williams et al., 6 Watts, 281; and Devor v. McClintock, 9 W. & S. 80, ruled the controversy, etc. As will be seen by reference to the cases referred to and authorities therein cited, all the material questions presented in the record now before us have already been ruled adversely to the contention of the present plaintiff. The question as to the discharge of the Northumberland county taxes, by the alleged sale for taxes due Columbia county, was raised and decided when the title now in controversy was before this court the third time. As shown by that record, the offers of evidence are substantially the same as those in the record now before us. As to the questions of abandonment, estoppel, redemption, etc., the language of Mr. Chief Justice Agnew in Goodman v. Sanger, 85 Pa. supra, is equally applicable to the evidence in this case. We find nothing in the record that would justify us in sustaining either of the assignments of error; nor do we think that further discussion of the questions presented by either of them is necessary. Judgment affirmed.

Opinion by Me. Justice McCollum, There are but two questions involved in this appeal. The first is whether a married woman who receives a conveyance of land is required in a contest with her husband’s creditors respecting the possession and ownership of it to prove that she paid for it with her own money, or that it was a gift to her from her grantors. In the case before us the defendants claim to have a good title to the land in dispute by virtue of the deed of it from John R. Albright and Minnie M. Albright to Susan Brubaker, and the plaintiff claims to have a like title to it based on a judicial sale of it as the property of John R. Albright. It appears to be conceded that Milton K. Brubaker was the owner' of the property on the 4th of January, 1888, and that he and his wife, Susan Brubaker, on that day made and delivered a deed of it to their married daughter Minnie M. Albright, who on the 24th of March, 1888, united with her husband in a con veyance of it to her mother. The consideration named in each deed was $6,500 and each was subject to the payment of $2,000 of that sum to Milton K. Brubaker on or before the 15th of April, 1889. After the deed was made to Minnie M. Albright, and before the deed was made to Susan Brubaker, Annie K. Fleming obtained a judgment against John R. Albright for $7,889 and on this judgment an execution was issued by virtue of which the land in dispute was seized and sold by the sheriff. If John R. Albright owned the land when the judgment was obtained, his title to it was divested by the sale and the plaintiff is the present owner of it. In other words the plaintiff has whatever title Albright acquired by the deed from the Brubakers to his wife. It is a familiar and well settled principle that in a contest between a married woman and the creditors of her husband concerning the ownership of property which she claims to have purchased during coverture she must “prove distinctly that she paid for it with funds which Ayere not furnished by her husband : ” Gamber v. Gamber, 18 Pa. 363. This principle or rule “ applies to purchasers of real estate as well as personal: ” Keeney v. Good, 21 Pa. 349; Walker v. Reamy, 36 Pa. 410; Baringer v. Stiver, 49 Pa. 129. The rule thus established has been upheld in a long line of cases and distinctly recognized and enforced in the recent case of Bollinger v. Gallagher et al., 170 Pa. 84. As it appears from the circumstances connected with and surrounding the transaction in question, and apart from the Fleming judgment, that the grantee had actual notice of the husband’s equity, Ave cannot say that the learned court below erred in holding that in the absence of eAÚdence that the property was purchased by Minnie Albright with her own means the plaintiff was entitled to recover. We do not think that the rule we have considered is in any degree affected by the act of June 3, 1887, or by the act of 1893. These acts enlarge the capacity of a married Avoman to contract, and to acquire and dispose of property, but they do not remove the burden winch rests on her of proving title to the property she claims against her husband's creditors. The remaining question is whether the learned court below erfed in rejecting the offer contained in the sixth specification.. It was an offer to prove by John R. Albright that his wife, Minnie M. Albright, paid for the property with her own money. The only objection to it was that the person by whom it was proposed to prove it was not a competent witness. If there was any warrant for the objection it must be found in clause “ e ” of section 5 of the act of April 23, 1887. We are unable to find anything in the record, in the evidence submitted, or in the offers of evidence made on the trial, fidiich brings John R. Albright within any of the excluding clauses of section 5. ' He is not “ a surviving or remaining party to the thing or contract in action,” or to the suit, and he has no interest adverse to any right of the deceased party who was at most, according to the record, an intervening purchaser who devised the property to the plaintiff’s vendor. The suggestion that if Minnie M. Al-bright was the owner of the property, her husband has an estate by the curtesy in it which he is interested in maintaining, over looks the fact that whatever title he had in it passed to her mother by the deed in which he joined. We think that John R. Albright was a competent witness as to all relevant matters, and that the conclusion we have reached in respect to his competency is in accord with the decisions of this court, among which we may mention Brown v. Carey, 149 Pa. 134; Dixson v. McGraw, 151 Pa. 98; Gerz v. Weber, 151 Pa. 396; Smith v. Hay, 152 Pa. 377; Tarr v. Robinson, 158 Pa. 64, and Smith v. Rishal, 164 Pa. 181. We cannot say that, in the absence of evidence showing or tending to show the purchase of the property by Minnie M. Albright with her own means, it was error to reject the offer of her deed to her mother. We sustain the sixth specification and overrule the first, second, third, fourth and fifth. Judgment reversed and venire facias de novo awarded.

Opinion by Mr. Justice Green, If the mechanics’ hens claims in this case had been entered of record before the mortgage was entered, as a matter of course the mortgage would not have been the first lien, and it would have been divested by the sale. It seems to be conceded in the several cases that have been before us, that if the liens had disclosed on their face, the date of the commencement of the building in question, they would in legal contemplation have been prior liens although not filed until after the mortgage was recorded, and the mortgage would have been discharged. If the mortgagee had received distinct notice of the commencement of the braiding before he took or entered his mortgage, it is difficult to understand why he would not be bound by such notice, just as much as he would have been bound by notice of a prior unrecorded mortgage by such a notice. As to the latter class of Kens the law is so thoroughly well settled by an unbroken line of decisions that it is not necessary to cite them. A mere reference to a few of them is sufficient: Britton’s Appeal, 45 Pa. 172; Lahr’s Appeal, 90 Pa. 507; Phillipsburg Sav. Bank’s Appeal, 10 W. N. C. 265. Now in the present case it happens that the mortgage which was taken by Peter A. Miller, and which is claimed to be the first Ken, contains a distinct recital of the buildings on the land bound by the mortgage, including the factory building in question. The words of the mortgage are, “ The improvements on said land are as follows, to-wit; two’dwelling houses and one barn and one factory building, including all the machinery therein, engine and boiler attached thereto.” As there is no pretense that there was more than one factory building on the premises, the mortgagee had distinct notice of its existence prior to the date of his mortgage. If there were any question upon this subject it would have to be left to the jury to determine. So far then as the mortgagee is concerned he had distinct notice by his mortgage that the building had been, at least commenced, before he took his mortgage. He also had notice because of the visible erection of the building which was proceeding on the ground. In Reading v. Hopson, 90 Pa. 494, we said, Sharswood, C. J., “ It did not appear on the face of the claim when the building was commenced. The question then is, whether the purchaser at the sheriff’s sale can give parol evidence of this fact so as to show that the Ken of the mortgage was divested. As between the claimant and the mortgagee this undoubtedly might have been done for the reason, that if the fact were so, the mortgagee was bound to take notice of it. He is affected by the actual state of things on the ground. If when he takes his mortgage a building has been commenced, he knows, or ought to know, that the liens of mechanics and material men for work done, or materials furnished, subsequently, will relate back to the commencement of the building. But an entirely different case is presented when the question arises between the mortgagee and the purchaser at sheriff’s sale. As the bidder at sheriff’s sale is not bound to look beyond the record in determining what he shall bid, and it cannot be shown as against him that a prior lien has been paid or is not subsisting, so neither can he take advantage of any fact dehors the record to discharge the land from the lien of the mortgage. It is very important that all parties at a sheriff’s sale should have a plain simple rule to go by. . . . At the sheriff’s sale the same rule must apply equally to all the bidders, the mortgagee, as well as others, without regard to what their private information may be of facts dehors the record. This puts them all upon an equal footing, as the bidder is not bound to look beyond the record, neither has he any right to affect his relation to others by any such evidence.” Upon the foregoing reasoning we held that the purchaser at the sheriff’s sale was not bound by the constructive knowledge of the mortgagee, and he could not show by parol testimony the fact of the commencement of the building before the mortgage was taken, in order to discharge the lien of the mortgage by proving a prior lien. Following this ruling we held the same doctrine in Wilson’s Appeal, 172 Pa. 354. But the whole force of the ruling is based upon the proposition that the prior commencement of the Building did not appear upon the record at the time of the sheriff’s sale, and therefore the bidder was not bound to regard the fact, and his title must be adjudged by the state of the record as he found it. In the present case however this reasoning is inapplicable. The face of the record did show affirmatively, and positively, that the building, or a building of the character described in the claims, was erected on the ground before the mortgage was given. And it is the record of the mortgage itself which contains this information. An intending bidder therefore upon examining the record before his bid was made would find precisely the facts which would, or might, discharge the lien of the mortgage by the sale. Having this knowledge apparent upon the record before the sale, he would have a right to presume that the law would apply, and if there were liens filed before the sale which antedated the mortgage, the hen of the mortgage would be discharged. Now the property was not sold by the assignee until the 9th of May, 1894, but the mechanics’ hens were filed as early as November, 1893, and shortly thereafter. So that there was ample time for the bidder, and ah other persons to examine the records, and learn the precise facts long before the sale. The hen claims were all spread upon the record and they disclosed the character of the building and ah the particulars of materials, machinery and labor furnished in and about the erection of the building. Some of the hens showed that materials and labor were furnished before the date of the mortgage. In these particulars the case differs from Reading v. Hopson and Wilson’s Appeal, and is brought within the operation of Hahn’s Appeal, 39 Pa. 409, when, the question being one of distribution, just as here, it was held that the hen of the mortgage was discharged though the claims of hen were not filed until after it was recorded. It also appears that no distribution was allowed upon the bond which was secured by the mortgage, which also was erroneous. We are of opinion that the decree of the learned court below should be reversed, and that the fund should be distributed in accordance with the first report of the auditor. The decree of the court below is reversed at the cost of the appellees, and the record is remitted with direction to distribute the fund in accordance with the first report of the auditor.