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ORDER PER CURIAM. AND NOW, this 13th day of September 2006, the Petition for Allowance of Appeal is granted limited to the following issues: Whether Schadler v. Zoning Hearing Bd. of WeiseNberg Twp., 578 Pa. 177, 850 A.2d 619 (2004), renders conditional land use permits approved in violation of the applicable MPC notice requirements void ab initio such that the statutory time period provided for appeals does not apply to challenges alleging procedural infirmities? Whether approval of a conditional land use permit without public notice violates Petitioners’ rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution?

OPINION BY PANELLA, J.: ¶ 1 The Commonwealth appeals from the order entered on July 5, 2005, in the Court of Common Pleas of Berks County, which granted the motion to suppress evidence of Appellee, J.A.K., a minor. After careful review, we reverse. ¶ 2 The trial court summarized the pertinent facts and procedural history as follows: The Reading Police Department (“Police Department”) in Berks County, Pennsylvania, received a seat belt enforcement grant. On May 18, 2005, the Police Department conducted seat belt surveys to determine compliance with seat belt usage at the locations where the photographic safety checkpoints were to be held. These surveys were taken between 9:39 A.M. and 11:45 A.M. The Police Department employs written guidelines for the checkpoints that were developed in conjunction with the National Highway Safety Administration. The Police Department issued a media release announcing that it would be conducting traffic safety checkpoints within the City of Reading to coincide with a national and state effort to encourage seat belt usage. The release further stated that the officers would conduct a systematic checkpoint with a sequence number to be determined. It closes with the following statements: The common sense fact remains that utilization of all restraints provided in vehicles can help to prevent injury and/or death and in those extremely violent collisions can help to reduce the level of injury by preventing the driver or occupants from being thrown around inside the vehicle. The City of Reading Police Department wishes that all the citizens of Reading and Berks County, and visitors, have a safe and happy holiday season and that we will be doing our part to encourage utilization of vehicle restraint systems and enforcing violations. We are asking for the cooperation of all to achieve the desired result of increased restraint system usage and a lessening of the incidence of injury and death through this effort. Commonwealth’s Exhibit Number 12. On May 25, 2005, the Police Department conducted a checkpoint in accordance with the provisions of the grant and in conjunction with the “Click it Or Ticket” state awareness program. According to the written guidelines every third car or those with obvious violations, such as invalid inspections, would be checked. The safety checkpoint began at 11:00 P.M. Officer Jose Gonzalez was one of the officers who worked at the checkpoint on May 25, 2005. He was not the officer who directed vehicles. At 11:40 P.M. the juvenile was driving a vehicle that was diverted to the checkpoint stop. Since Officer Gonzalez did not direct the vehicles he is uncertain if the juvenile’s vehicle was a third vehicle in the sequence to pass the checkpoint. Three passengers were also in the car. The owner of the vehicle was not present. Officer Gonzalez does not remember if the juvenile used a seat belt. He did not cite the juvenile for not wearing a seat belt. He did not observe the juvenile make any moving violations. Officer Gonzalez approached the rear passenger’s side of the car with a flashlight. He looked inside the vehicle and observed a clear plastic bag of suspected marijuana on the floor of the vehicle on the right side of the rear passenger seat. He immediately removed the passengers and the juvenile. Officer Gonzalez then observed a clear bag of suspected marijuana between the juvenile’s legs as he was exiting the vehicle. He arrested the juvenile and placed him in handcuffs. He subsequently found forty-six (46) bags of suspected crack and two (2) additional bags of suspected marijuana in the juvenile’s right pocket. A preliminary Yaltox Test showed positive reactions to the suspected illegal substances. Sergeant Michael Kalin went to the checkpoint to assist the uniformed officers with the car. Prior to getting into the vehicle Sergeant Kalin looked under the front driver’s seat to ensure his safety and found a Remington .32 caliber pistol loaded with the clip in and one (1) round in the chamber. Criminal Investigator Joseph Walsh obtained a search warrant to search the vehicle. Nothing additional was found in the car. The juvenile was charged with the acts of possession of a controlled substance [35 P.S. § 780-113(a)(16)], possession with the intent to deliver a controlled substance [35 P.S. § 780-113(a)(3)], firearms not to be carried without a license [18 Pa.C.S.A. § 6106(a)(1)], and possession of firearm by a minor [18 Pa.C.S.A. § 6110.1]. Neither he nor any of the passengers were charged with violating any of the provisions of the Motor Vehicle Code, including the provisions of the seat belt laws. Based on the foregoing evidence, the [trial] court granted the juvenile’s motion for the suppression of the physical evidence. The instant appeal followed. Trial Court Opinion, 08/18/05, at 1-4. ¶ 3 On appeal, the Commonwealth raises the following issue for our review: Whether the [trial] [c]ourt erred in granting the motion for suppression of physical evidence? Appellant’s Brief, at 4. ¶ 4 Initially, we set forth our standard of review. When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court’s findings of fact bind an appellate court if the record supports those findings. The suppression court’s conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts. Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa.Super.2003), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003); See also, Commonwealth v. Jones, 845 A.2d 821, 824 (Pa.Super.2004). ¶ 5 In the instant case, the Commonwealth argues that the trial court erred when it determined that “failure to comply with the mandatory seat belt law, in and of itself, was never intended to be a violation of the Motor Vehicle Code for which a motor vehicle could be stopped by a police officer,” and thus, “[t]he police lacked the authority to stop motor vehicles solely because their drivers and/or front-seat passengers over the age of four are not using seat belts.” Trial Court Opinion, 08/19/05, at 5, citing Commonwealth v. Henderson, 444 Pa.Super. 170, 663 A.2d 728 (1995). We disagree. ¶ 6 The authority to conduct a traffic safety checkpoint arises from 75 Pa. Cons. StatAnn. § 6308(b), which states in pertinent part: § 6308. Investigation by police officers b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. 75 Pa. Cons.Stat.Ann. § 6308(b) (emphasis added). ¶ 7 The trial court’s reliance upon Henderson for the proposition that police can never stop motor vehicles for seat belt violations is misplaced. In Henderson, this Court held that, “the fact that the occupants of a motor vehicle over the age of four are not using their seat belts, in and of itself, can never serve as articulable and reasonable grounds to stop a motor vehicle because the Motor Vehicle Code has not been violated under such circumstances.” Henderson, 663 A.2d at 737-38. However, in so deciding, this Court was not confronted with a situation in which an investigative stop was conducted under established, systematic procedures, but rather, with a vehicular stop conducted by a sole police officer, independent of prior administrative oversight. Thus, Henderson was only concerned with vehicular stops for seat belt violations under 75 Pa. Cons.Stat.Ann. § 4581(a)(2), which are secondary violations, and not vehicular stops for seatbelt violations pursuant to 75 Pa. Cons.Stat.Ann. § 6308(b). In the instant case, there is no suggestion that police officers were stopping cars at the roadblock to cite them for seatbelt violations, but rather, the police officers were merely insti'ucted to remind drivers that failure to wear a seatbelt is in violation of Pennsylvania law. As such, we find that this Court’s decision in Henderson is distinguishable from the instant factual developments. ¶ 8 Accordingly, we must next determine whether the legislature intended that the mandatory passenger restraint system under 75 Pa. Cons.StatAnn. § 4581 is an appropriate justification for an investigative stop conducted pursuant to a vehicle checkpoint. In order to interpret the statute, we turn to the rules of statutory construction, which require a court to construe the words of the statute according to their plain meaning. See 1 Pa Cons.Stat. Ann. § 1903(a). After review, we are convinced, by the plain language of 75 Pa. Cons.Stat.Ann. § 6308(b), that so long as a “systematic program of checking vehicles or drivers” is followed, then an investigative roadblock may be conducted to enforce any provisions of the Motor Vehicle Code. Indeed, the plain language of 75 Pa Cons.Stat.Ann. § 6308(b) clearly does not limit the situations under which such a roadblock may be conducted, other than to specify that such a stop must be “neces sary to enforce the provisions of [the Motor Vehicle Code].” See 75 Pa. Cons.Stat. ANN. § 6308(b). Therefore, we find that while 75 Pa. Cons.Stat.Ann. § 4581(a)(2) may prohibit a police officer from making routine traffic stops for a seatbelt violation, nothing in that provision prohibits an investigative roadblock that checks for general motor vehicle safety compliance, provided that a proper systematic program is implemented. Such roadblocks afford minimal personal interference, while furthering an important highway safety interest. ¶ 9 Having thus far decided that a checkpoint for seatbelt usage is lawful in Pennsylvania, we must lastly address whether the checkpoint in the instant case complied with specified procedural requirements outlined by the Pennsylvania Supreme Court. In Commonwealth v. Tarbert, 517 Pa. 277, 585 A.2d 1035 (1987), a plurality of the Supreme Court set forth guidelines to insure that an investigative roadblock is constitutionally acceptable: The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled [sic] by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision. Id. at 293, 535 A.2d at 1043. The Court held that a drunk-driver roadblock must be conducted “substantially in compliance” with the above guidelines. Id. These guidelines were adopted by a majority of the Supreme Court in Commonwealth v. Blouse, [531 Pa.] at 173, 611 A.2d at 1180. Commonwealth v. Ziegelmeier, 454 Pa.Super. 330, 685 A.2d 559, 561-562 (1996). See also, Commonwealth v. Stewart, 846 A.2d 738 (Pa.Super.2004), appeal denied, 584 Pa. 707, 885 A.2d 42 (2005). ¶ 10 In the instant case, J.A.K. conceded during the suppression hearing that the Commonwealth had complied with the appropriate prior administrative approval required for conducting investigative roadblocks. See N.T., 06/27/05, at 8-11. Moreover, J.A.K. also stipulated during the suppression hearing that the procedural guidelines for the roadblock as set forth in Commonwealth’s Exhibit No. 2, were ostensibly followed by the Commonwealth. N.T., 06/27/05, at 9. The procedures that J.A.K. agreed were followed included, inter alia: 1) every 3rd car would be directed to stop; 2) restraint usage would be checked, as well as whether the operator of the vehicle possessed a valid operator’s license, registration, and insurance; 3) other stations would be set up to follow-up with any discrepancies; and 4) individuals who were not properly restrained as required would be given a “click it or ticket” warning. See Commonwealth’s Exhibit No. 2. ¶ 11 Though these criteria, in fact, comport with the procedural guidelines for conducting a roadblock, the trial court nonetheless granted J.A.K.’s suppression motion, essentially on the grounds that “it is questionable that the real goal of the Police Department was to raise seat belt awareness since the checkpoint began at 11:00 P.M. ... By beginning the checkpoint only at 11:00 P.M., the police department was more likely to find criminal activity afoot and less need for vehicular safety.” Trial Court Opinion, 08/18/05, at 4. ¶ 12 The record does not support this observation. As noted in the Commonwealth’s Exhibit No. 3, the Reading Police Department had previously conducted a safety checkpoint at the same location on three prior occasions. On one of these occasions, the police conducted the checkpoint at the same time as the checkpoint in question — from 11 p.m. to 3 a.m. — during which several non-driving violations of the motor vehicle code were discovered, including seatbelt/child seat violations. See id. Accordingly, the police clearly had a basis to conclude that the time and place selected for the checkpoint would target motor vehicle violations, including noncom-pliant restraint usage. Since the roadblock in the instant case was conducted substantially in compliance with the above-referenced guidelines, we find that it did not violate the Pennsylvania constitution. Cf. Commonwealth v. Worthy, 903 A.2d 576, ¶¶ 12-13 (Pa.Super.2006) (finding that sobriety checkpoint did not comport with established procedures governing operation of roadblock where the decision to suspend the checkpoint and resume the checkpoint was controlled by the arbitrary discretion of the police officers, rather than a prefixed, objective standard). ¶ 13 In conclusion, we find that a roadblock conducted, in part, to check restraint usage is permissible under the laws of this Commonwealth. Moreover, we find that the roadblock at issue in the instant case substantially comported with the constitutional guidelines as set forth by our Supreme Court. Because the roadblock was constitutionally valid, the officer’s plain view observation of the bag of marijuana in the back seat of J.A.K.’s vehicle constituted probable cause to initiate a search of the vehicle. We therefore reverse and vacate the Order of July 5, 2005, granting the Motion to Suppress. ¶ 14 Order reversed. Matter remanded for further proceedings consistent with this opinion. Panel jurisdiction relinquished. . This appeal is permissible as the Commonwealth has certified in good faith that the order submitted for our review substantially handicaps the prosecution and the appeal is not intended for delay purposes. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Pa.R.A.P. 311(d), 42 Pa. Cons. Stat.Ann. . The statute provides, in pertinent part: § 4581. Restraint systems (a) Occupant protection.— (2) Except for children under eight years of age and except as provided in paragraphs (1) and (1.1), each driver and front seat occupant of a passenger car, Class I truck, Class II truck or motor home operated in this Commonwealth shall wear a properly adjusted and fastened safety seat belt system. A conviction under this paragraph by State or local law enforcement agencies shall occur only as a secondary action when a driver of a motor vehicle has been convicted of any other provision of this title. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system any occupant who is eight years of age or older and less than 18 years of age. 75 Pa.Cons.Stat.Ann. § 4581(a)(2). . Although our caselaw dealing with checkpoint procedures focuses on DUI checkpoints, we analyze the facts of this case utilizing the same guidelines, as there is no reasonable distinction between DUI checkpoints and vehicle safety checkpoints. . In so deciding, we find it instructive that the police officers in the case sub judice were instructed to not only check compliance with seatbelt usage, but also to check whether the drivers of the vehicles possessed a proper driver's license, registration, and proof of insurance. Commonwealth’s Exhibit No. 2. Thus, we cannot agree with the trial court's classification of the roadblock as one purely conducted to enforce restraint usage. Though seatbelt safety may indeed have been the main purpose of holding the roadblock, we do not find the checkpoint was based solely thereon. . ‘‘[I]n Blouse, the Court relied heavily upon the lead opinion in Tarbert to conclude that systematic, nondiscriminatory, nonarbitrary roadblocks instituted to detect registration, licensing, and equipment violations are consistent with Article I, Section 8 of the Pennsylvania Constitution, so long as they are conducted in conformance with the guidelines announced in Tarbert." Commonwealth v. Beaman, 583 Pa. 636, 646-647, 880 A.2d 578, 585 (2005).

OPINION BY Judge SMITH-RIBNER. Barbara Jean Lopez appeals from an order of the Court of Common Pleas of Crawford County that found her guilty of thirty-four counts of violating Section 201 of the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-201, relating to applications for dog licenses, and guilty of twenty-nine counts of violating Section 8 of the Rabies Prevention and Control in Domestic Animals and Wildlife Act (Rabies Act), Act of December 15, 1986, P.L. 1610, as amended, 3 P.S. § 455.8, relating to vaccinations required, both of which are summary offenses. Lopez questions whether these provisions applied to her in this case and whether the trial court had evidence beyond a reasonable doubt that Lopez owned all of the dogs that the trial court found that she owned. A non-jury trial in this matter was conducted on December 14, 2004. The sole witness, Roland Yochum, stated that he is employed by the Department of Agriculture, Bureau of Dog Law, as a Dog Warden primarily in Crawford County. He testified that on April 24, 2004 he and another person went to the residence of Lopez on Route 408 in Troy Township by appointment to determine if the kennel license previously issued for the property had been renewed or if the property no longer needed a license. He indicated that Lopez came out from the mobile home on the property and met them at the gate. There were approximately twelve pens in which dogs were housed around the driveway and the home, and Lopez took Yoc-hum and the person with him to each of the pens and identified the dogs by names, types and gender. Yochum observed half-full bowls of food and water in the pens, and he saw Lopez fork straw into a pen. Yochum additionally testified that Lopez told him that she and her husband, Mr. Lopez, were separated and that he had moved out. The dogs remained at the residence, and she was caring for them. There were thirty-four dogs, and Yochum determined that by their size and the amount of their hair they were all mature dogs. Lopez did not have a license for any of the dogs. Yochum also determined that Lopez did not have rabies vaccination certificates for twenty-nine of the dogs. He agreed that a licensed kennel had existed at the premises previously and that the premises appeared to be the same as when it was a licensed kennel, although there was no current kennel license. In its opinion and verdict of December 14, 2004 and in its opinion pursuant to Pa. R.A.P.1925 on Lopez’ statement of matters complained of on appeal, the trial court noted that when a kennel is being operated it is not necessary for each dog to be registered so long as the kennel has a kennel license issued by the Department of Agriculture. Section 207 of the Dog Law, 3 P.S. § 459-207. However, there was no evidence that a kennel was being operated at the time of the visit, and there was no kennel license. The court quoted the definition of “kennel” in Section 102 of the Dog Law, 3 P.S. § 459-102, which lists as examples various purposes for which dogs in a kennel are kept, including breeding, training and rental, and it concluded that there was no evidence that the premises met that definition. Therefore, the individual dogs were required to be licensed. As to whether Lopez was the “owner” of the dogs and so required to secure the licenses, the court quoted the definition of “owner” in Section 102 of the Dog Law, which includes both a person who has a property right in a dog and a person who keeps or harbors a dog and has it in his or her care. The trial court determined that the Commonwealth established that Lopez was harboring and caring for the dogs and permitting them to remain at her property. As for the charged violations of the Rabies Act, the court noted that neither the act nor the implementing regulations define “owner,” but the court concluded that it made sense to use the same definition as in the Dog Law. The court found Lopez guilty of the sixty-three citations and ordered that she pay a fine of $25.00 and costs for each. Lopez first contends that Section 201 of the Dog Law and Section 8 of the Rabies Act do not apply; rather, the kennel laws apply to the dogs at issue. Lopez states that there was no credible evidence that Mr. Lopez failed to apply timely to renew his kennel license or that he was ever advised that his license would not be renewed and afforded due process of law. She refers to testimony of Yochum stating that he made the appointment to follow up on why the kennel license was not renewed for the year 2004, N.T. p. 6, Reproduced Record (R.R.) 31; that they went there to find out if the kennel license had been renewed or if the operation had been closed, downsized or moved, N.T. p. 7, R.R. 32; and that Yochum knew that Mr. Lopez had not applied for a license, N.T. p. 22, R.R. 47. Lopez states that the trial court did not allow questioning on cross-examination to show that the kennel remained in operation as a kennel, citing N.T. pp. 25-28, R.R. 50-53. Yochum did testify, however, that basically nothing about the operation had changed since the time when he knew that there was a license. Lopez quotes the definition of “kennel” in Section 102 of the Dog Law, see n. 1 above, and she points out that the definition makes no reference to a license. Rather, the license requirement is stated in Section 206, 3 P.S. § 459-206, which provides in part: (a) Applications, kennel license classifications and fees. — Any person who keeps or operates a Class I, Class II, Class III, Class IV or Class V Kennel, Boarding Kennel Class I, Boarding Kennel Class II, Boarding Kennel Class III or nonprofit kennel shall, on or before January 1 of each year, apply to the department for a kennel license.... A kennel license is required to keep or operate any establishment that keeps, harbors, boards, shelters, sells, gives away or in any way transfers a cumulative total of 26 or more dogs of any age in any one calendar year. All kennel licenses shall expire on December 31. Lopez asserts that under the statute a license is something applied for because a kennel exists, not something that makes a kennel exist. She maintains that Section 207(a.l), 3 P.S. § 459-207(a.l), sets forth the procedure for dealing with a kennel operating without having or renewing its license. Lopez argues that this is a case where a kennel not belonging to her is alleged to have failed to renew its license. She characterizes Yochum’s testimony as conflicting in regard to whether he knew that the license had not been renewed, and she states that he never spoke to the kennel’s owner, Mr. Lopez, to find out. She submits that the Commonwealth failed to produce sufficient evidence that the kennel had ceased to exist so as to permit a person who worked at the kennel to become the dogs’ owner, and she finds no evidentiary support for the trial court’s statement that no license had been issued and therefore for its conclusion that the operation did not meet the definition of a kennel. Rather, the kennel law applied but instead of following procedures set forth in Section 207(a.l), the authorities inappropriately charged Lopez. Under the assertedly overbroad wording in the definition of owner, any worker at a kennel would be the owner of all the dogs for which he or she cared. Without citation, Lopez argues that the statutory definition permits ownership to attach in an arbitrary manner based on casual human to dog contact and permits the imposition of serious financial responsibility upon a person without his or her knowledge due to the failure of the kennel owner to act. Lopez’ closely related second argument is that there was no evidence before the trial court to prove beyond a reasonable doubt that she owned all of the dogs that it determined she owned. Although familiar with the statutory definition of owner, Yoc-hum responded “no” when asked if he had anything to prove that Lopez was the owner of the dogs. N.T. p. 24, R.R. 49. He stated that Lopez told him that Mr. Lopez had all of the information concerning current licenses and vaccinations. Further, she asserts that there was nothing of record to show that she owned the trailer or the land, and she contends that it is only an assumption that the area where the kennel was located was part of the parcel with the trailer in which she resided. Without sufficient proof that the dogs were at Lopez’ residence, she is not established as the owner under the statute, and the conviction cannot stand. The Commonwealth states that the proper standard of review of the sufficiency of the evidence to sustain a conviction is to view the evidence in the light most favorable to the Commonwealth as the verdict winner and to accept as true all evidence and reasonable inferences upon which, if believed, the fact finder could have based the verdict and to determine whether such evidence and inferences are sufficient to prove guilt beyond a reasonable doubt, citing Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). It responds to the second argument first, stating that at the summary appeal trial it provided the trial court with evidence that proved beyond a reasonable doubt that Lopez owned all of the dogs found at the premises. Yochum testified that Lopez told him that her husband had moved out, that she lived alone at the premises and that she was the one taking care of the dogs. She identified each of them by name, and she was providing food and water. Countering Lopez’ assertions regarding lack of proof of her ownership of the premises, the Commonwealth notes that Section 102 of the Dog Law does not require that a person be the land owner; it merely requires that she be a person who “keeps or harbors such dog or has it in [her] care” or who “permits such dog to remain on or about any premises occupied by [her].” Second, the Commonwealth argues that Section 201 of the Dog Law and Section 8 of the Rabies Act apply. Section 8 of the Rabies Act provides in part: “(a) Requirement. — Every person living in this Commonwealth, owning or keeping a dog or cat over three months of age, shall cause that dog or cat to be vaccinated against rabies.” Pursuant to Section 201(a) of the Dog Law: “the owner of any dog, three months of age or older, ... shall apply to the county treasurer of his respective county ... for a license for such dog.” Although Lopez argues that the matter should be treated as one where a kennel was in operation and the operator failed to reapply for a license, the fact is that Lopez never owned or operated a kennel. After her husband left and she assumed the care of the dogs, she became the private owner of thirty-four dogs under the terms of Section 102 of the Dog Law. She could have applied for a kennel license, but she did not; hence, she was subject to the requirements of licensing and securing vaccinations. Under the facts established, the Court must affirm the order of the trial court. First, there is no question whatsoever that the credited testimony of Yochum supported a finding that Lopez was caring for the dogs and permitting them to remain “on or about” a premises occupied by her. That finding brought her within the definition of “owner” in Section 102 of the Dog Law, which by its express terms is broader than a person simply having a property interest in a dog. The plain intent of the statute is that dogs be licensed, and if one having the property interest in a dog does not perform that function, then the statute requires one harboring or caring for the dog to perform it. The object of all statutory interpretation is to ascertain and to give effect to the intent of the legislature. See Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a). Furthermore, Yochum’s testimony that the former kennel license had not been renewed supported the trial court’s determination that no license was in effect. Under Section 206 of the Dog Law, a kennel license is required to operate any establishment that keeps, harbors or transfers twenty-six or more dogs in a calendar year. In the absence of a valid kennel license, this was not a kennel. The Court notes that had a charge of operating a kennel without a license been successfully prosecuted, the minimum fine of $100 per day under Section 207(a.l) would have resulted in substantially greater fines. The Court’s review of the statutory appeal in this case where the trial court heard the matter de novo is limited to determining whether its findings are supported by substantial, competent evidence, whether it committed an error of law and whether it abused its discretion. Commonwealth v. Hake, 738 A.2d 46 (Pa.Cmwlth.1999). Based on its review, the Court holds that the trial court’s findings were sufficiently supported and that it did not misapply provisions of the Dog Law or the Rabies Act in arriving at its conclusions. Id. The Court therefore affirms. ORDER AND NOW, this 28th day of September, 2006, the order and verdict of the Court of Common Pleas of Crawford County is affirmed. FRIEDMAN, J., files dissenting opinion. . Section 102 defines "Kennel” as "[a]ny establishment wherein dogs are kept for the purpose of breeding, hunting, training, renting, research or vivisection, buying, boarding, sale, show or any other similar purpose and is so constructed that dogs cannot stray therefrom.” . Section 102 defines "Owner” as follows: When applied to the proprietorship of a dog, includes every person having a right of property in such dog, and every person who keeps or harbors such dog or has it in his care, and eveiy person who permits such dog to remain on or about any premises occupied by him. . On cross-examination Lopez' counsel questioned whether it was the responsibility of a kennel owner, rather than others, to take care of the dogs. Counsel for the Commonwealth objected on the grounds of relevance, and the trial court sustained the objection stating that there had been no showing that there was a kennel because there was no showing of a license. . Section 207(a.l) provides: Prohibition to operate; injunction; fines. — It shall be unlawful for kennels described under section 206 to operate without first obtaining a kennel license from the department. The secretary shall not approve any kennel license application unless such kennel has been inspected and approved by a State dog warden or employee of the department. The secretary may file a suit in equity in the Commonwealth Court to enjoin the operation of any kennel that violates any of the provisions of this act. In addition, the secretary may seek in such suit the imposition of a fine for every day in violation of this act for an amount not less than $100 nor more than $500 per day. . Although dogs in a licensed kennel need not have individual licenses under Sections 206 and 207 of the Dog Law, all dogs must be vaccinated for rabies, with owners of certain kennels permitted to administer the vaccine pursuant to Section 8(b) of the Rabies Act, 3 P.S. § 455.8(b).

OPINION BY KELLY, J.: ¶ 1 Appellant, Progressive Halcyon Insurance Company, appeals from the order entered in the Court of Common Pleas of Philadelphia County denying in part and granting in part its motion for summary judgment in a matter presenting the question of whether an insured party injured in a car covered by the full tort option can be denied full tort benefits because he also owns an uninsured vehicle. We affirm. ¶2 Appellee, Anthony Kennedy, was a named insured of an automobile insurance policy issued by Appellant. In that policy, which covered Appellee’s 1997 Ford and 1989 Toyota, he had selected the full tort option as provided in § 1705(a) of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. §§ 1701-1799. Appellee also owned a 1986 Nissan that was not insured under any policy. On or about January 28, 2004, Appellee was involved in a motor vehicle accident while operating the Ford. He claims the accident was caused by an unknown vehicle swerving into his lane. He suffered injuries and presented Appellant with a claim for first-party benefits and an uninsured motorist claim. On November 3, 2004, Appellant filed a declaratory judgment action to determine whether Appellee was entitled to recover first-party benefits, and whether he was subject to limited tort provisions on the uninsured motorist claim. On August 1, 2005, Appellant moved for summary judgment on both counts. On September 30, the trial court granted summary judgment on the issue of first-party benefits and denied summary judgment on the issue of the uninsured motorist claim. This timely appeal followed. ¶ 3 Appellant raises the following issue for our review: BECAUSE THE LANGUAGE OF 75 PA.C.S.LA] § 1705(a)(5) IS IDENTICAL TO THE LANGUAGE IN 75 PA. C.S.[A.] § 1714 AND BECAUSE THE PENNSYLVANIA SUPREME COURT HAS HELD THAT THE LANGUAGE OF 75 PA.C.S.[A.] § 1714 REQURIES AN INSURED TO PROVIDE FINANCIAL RESPONSIBILITY FOR EACH AND EVERY MOTOR VEHICLE REGISTERED IN THAT PERSON’S NAME, WHETHER THE [TRIAL] COURT ERRED IN DECLARING THAT [APPELLEE] IS ELIGIBLE FOR FULL TORT COVERAGE FOR ANY UNINSURED MOTORIST CLAIM? (Appellant’s Brief at 4). ¶ 4 Appellant alleges that because Appellee owned an uninsured vehicle, even though that vehicle was not involved in the accident, he is deemed to have chosen limited tort coverage under § 1705(a)(5). Appellant relies on Swords v. Harleysville Ins. Companies, 584 Pa. 382, 883 A.2d 562 (2005), for the proposition that the requirement of financial responsibility applies to all registered vehicles, not just the vehicle involved in the accident. Applying that holding, Appellant reasons that Appellee is deemed to have selected limited tort coverage for all vehicles registered in his name and asserts that the trial court erred in denying summary judgment as to the uninsured motorist claim. We disagree. ¶ 5 Summary judgment is appropriate where there remains no genuine issue of any material fact. Id. at 566. In considering motions for summary judgment, we view the evidence in the light most favorable to the nonmoving party. Id. We may reverse summary judgment only when there has been a manifest abuse of discretion or an error of law, such as a mistaken interpretation of the MVFRL. See id. at 567. ¶ 6 In Berger v. Rinaldi, 438 Pa.Super. 78, 651 A.2d 553 (1994), appeal denied, 544 Pa. 641, 664 A.2d 971 (1995), this Court held that § 1705(a)(5) was not intended to preclude a full tort claim where the plaintiff owned an uninsured vehicle that was not involved in the accident from which the claim arose. Id. at 556. Later, in Swords, supra, our Supreme Court held that the language of § 1714 unambiguously prevented a motorist, who owned an uninsured vehicle, from collecting first-party benefits, whether or not the uninsured vehicle was being operated. Id. at 568; see also 1 Pa.C.S.A. § 1921(b) (stating that unambiguous statutes should be given their plain meaning). This raises the issue of whether the analysis of § 1714 in Swords changes previous interpretations of § 1705(b)(2) that have allowed an in jured party to recover full tort benefits in certain situations even where they own an uninsured vehicle. We find that it does not do so in this case. ¶ 7 In Berger, supra, the plaintiff was injured in an auto accident while driving a vehicle owned and insured with full tort coverage by his mother. Id. at 558. Because the plaintiff lived with his mother, he was considered insured under her policy even though he owned another vehicle and did not himself purchase any insurance. Id. at 554. The Berger Court found that § 1705(b)(2) contained two mutually exclusive scenarios: [Part One:] The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy. [Part Two:] In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise. Id. at 557 (quoting 75 Pa.C.S.A. § 1705(b)(2)) (emphasis removed). This Court held that part one applied when one policy was involved, and part two when the injured party could be covered by more than one policy. Id. In holding that § 1705(a)(5) did not apply when the uninsured car was not in the accident, this Court held that when part two applied, the policy on the vehicle involved in the accident determined the applicable coverage. Id. In other words, even if the plaintiff Berger was deemed to have chosen the limited tort alternative for his uninsured vehicle under § 1705(a)(5), since he was insured under his mother’s policy while driving her car he was considered a full tort plaintiff for an accident involving that car. See id. ¶ 8 We find it significant that our Supreme Court recently affirmed this rule in Hoffman v. Troncelliti, 576 Pa. 504, 839 A.2d 1013 (2003). The Court held that the plaintiff was eligible for full tort relief when she was injured as a passenger in her mother’s car because, although she had selected the limited tort option for her own vehicle, she was considered insured under her mother’s full tort policy. Id. at 1016. The Supreme Court’s analysis mirrored that of our Court in Berger, supra, which found that § 1705(b)(2) had two mutually exclusive parts and that when applying part two, the court should look to the tort option of the vehicle in which the party was injured. Hoffman, supra, at 1016. ¶ 9 In Swords, our Supreme Court addressed the specific language of § 1714. There, a son was injured in an accident while driving a car owned and insured by his father. Id. at 564. Though considered insured under his father’s policy, the son separately owned a vehicle for which he had not purchased insurance. Id. The Court held that, under the plain meaning of § 1714, the son must have his own financial responsibility to receive first party benefits. Id. at 568. Rather than overturning the previous rule established by Henrich v. Harleysville Ins. Companies, 533 Pa. 181, 620 A.2d 1122, 1124 (1993), in which the plaintiff was allowed to recover under the uninsured motorist provision when she was not operating her own uninsured vehicle, the Court held that the MVFRL uniquely prevented a plaintiff who owned an uninsured vehicle from recovering first party benefits but did not prevent the same plaintiff from “recovering damages for injuries sustained as a result of automobile accidents.” Swords, supra at 569. The Court reasoned that in enacting § 1714, the Legislature clearly intended to prevent owners without insurance from collecting first party benefits, regardless of whether they were injured in the uninsured vehicle, but nowhere did it enact similar language limiting uninsured motorist claims. Id. ¶ 10 Instantly, unlike the plaintiffs in Swords, Hoffman, and Berger, Appellee seeks to enforce a policy that he himself had purchased from Appellant and in which he was a named insured; he does not rely on coverage under a policy purchased by someone else. Compare Swords, supra at 564; Hoffman, supra at 1016; Berger, supra at 554. Since the instant case involves only one policy, we look to part one of § 1705(b)(2) and apply the full tort option chosen by Appellee. See Hoffman, supra at 1016; Berger, supra at 556. We find it especially noteworthy that, in Hoffman, even where the insured had selected and paid only for limited tort coverage on her own policy, our Supreme Court still applied the full tort coverage of the vehicle in which she was injured. See id. Here, Appellee’s claim is even stronger because he himself had selected and paid for full tort coverage. Appellant attempts to distinguish the instant case from Berger by arguing that Appellee was a named insured under his own policy but not financially responsible because his third vehicle was uninsured, while the plaintiff Berger relied on a policy of which the owner was financially responsible. (Appellant’s Brief at 10). However, we find this distinction untenable since it is hardly true that Berger, who had not purchased any insurance, was himself financially responsible. See Berger, supra at 554. Finding Berger “financially responsible as a resident/relative insured under his mother’s policy,” this Court reasoned that a plaintiff need not be financially responsible personally, but rather need only be financially responsible with respect to the car involved in the accident. Id. at 557. If anything, the distinction drawn by Appellant illustrates that Appellee, who had purchased insurance on two of his three vehicles, has an even stronger claim for full tort coverage than did Berger. ¶ 11 Appellant argues that since § 1705(a)(5) provides that an owner who does not have financial responsibility has been deemed to have chosen the limited tort option, and § 1782(a) of the MVFRL provides that proof of financial responsibility includes coverage for every registered vehicle, the limited tort provision should govern all of Appellee’s claims. (Appellant’s Brief at 8-9). We find that these statutory gymnastics ignore the plain meaning of § 1705(b)(2) and the holding of Hoffman. Because Appellee was a named insured under his own policy, and that policy is the only one in question, part one of § 1705(b)(2) requires that his choice of coverage be honored. See id. Since § 1705(a)(5) uses singular, nonexclusive language in applying to “an owner of a ... vehicle” (emphasis added), it does not on its face apply to every vehicle owned, and so Appellant’s interpretation requires us to read the words “of all owned vehicles” into the statute after “financial responsibility.” See 1 Pa.C.S.A. § 1921(b) (limiting courts to plain meaning of statute if clear). This we decline to do. Even if we were to grant Appellant’s claim and apply a limited tort option to Appellee’s uninsured vehicle, we would merely be presented with conflicting policies as in Hoffman. Consistent with the Supreme Court’s rule, we would find that under part two of § 1705(b)(2) we would apply the policy of the vehicle involved in the accident, making Appellee a full tort plaintiff. See id. ¶ 12 Appellant’s interpretation would also lead to an absurd result. See 1 Pa.C.S.A. § 1922 (stating courts should avoid statutory constructions that lead to absurd result). The purpose of the MVFRL was to address rising insurance costs by encouraging motorists to purchase insurance and to deny unlimited protection to those who did not choose full tort coverage. Swords, supra at 567. Application of this reasoning to a motorist who has actually bought and paid for full tort coverage on the vehicle involved in the accident fails signally to fulfill the purpose of the statute. See Hoffman, supra at 1018 (holding that purchased full tort protection was consistent with statutory purpose); Swords, supra at 569 (quoting Hen-rich, supra) (“[W]e will not attribute ‘harsh motives to the legislature unless they were clearly spelled out.’ ”). ¶ 13 We are also persuaded that any conflict about the interpretation § 1705 should be resolved in favor of Ap-pellee, as the MVFRL should be construed liberally in favor of the insured. See Hoffman, supra at 1019 (citing 1 Pa.C.S.A. § 1928(c)). Moreover, “in virtually every circumstance where there is a question about [which] coverage will apply, there is a conscious attempt to rule in favor of the full tort alternative.” Berger, supra at 557 (quoting House Legislative Journal, 2/7/90, at 214). Therefore, we must allow Appellee’s full tort claim and find no ambiguity in § 1705 as applied instantly. Accordingly, we hold that the trial court correctly decided that Appellee is entitled to full tort protection. ¶ 14 Finally, Appellee contends that Appellant’s actions have unreasonably delayed the claim and asks for sanctions in the amount of reasonable attorneys’ fees. (Appellee’s Brief at 13). We may impose such a sanction if we determine that the appeal is frivolous or taken solely for delay, or if Appellant’s conduct is dilatory, obdurate or vexatious. Pa.R.A.P. 2744. Because we find Appellant’s conduct does not meet these criteria, Appellee’s request for sanctions is denied. ¶ 15 Order affirmed. . The uninsured motorist claim is based on 75 Pa.C.S.A. § 1702, which defines an uninsured motor vehicle as, inter alia, “[a]n unidentified motor vehicle that causes an accident.” . That section states, "An owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort alternative.” 75 Pa.C.S.A. § 1705(a)(5). . Appellee does not challenge the trial court order granting Appellant’s motion for summary judgment on the issue of first-party benefits. .An “ineligible claimant” who cannot recover first party benefits is described in § 1714, in relevant part, as "[a]n owner of a currently registered motor vehicle who does not have financial responsibility.” 75 Pa.C.S.A. § 1714. . Under the MVFRL, a driver who resides in the same household as a named insured and is a spouse, relative or minor in custody of the named insured is deemed "insured.” 75 Pa. C.S.A. § 1702. . Appellants argue that allowing Appellee to recover non-economic damages but not first party benefits leads to an absurd result. (Appellant's Brief at 12 n. 3). However, the Supreme Court provides a valid reason for such a distinction in Swords, supra, reasoning that, to avoid an overly harsh outcome for an injured party, the Legislature intentionally left available the ability to sue for damages. Id. at 569.

OPINION BY HUDOCK, J.: ¶ 1 In this class action suit for breach of contract and bad faith, James Mee (Mee) appeals from the order granting summary judgment to Safeco Insurance Company of America (Safeco). Finding that the trial court misapplied this Court’s holding in Gilderman v. State Farm Insurance Company, 437 Pa.Super. 217, 649 A.2d 941 (1994), we reverse and remand for further proceedings. ¶ 2 Mee purchased a homeowner’s insurance policy from Safeco covering his home at 4540 Garland Road, Bensalem, PA 19020, with an effective date of August 29, 2001, to August 29, 2002. The policy provided replacement cost coverage, but also allowed for the possibility of loss settlement based on actual cash value. The policy defines actual cash value as follows: ‘When the damage to property is economically repairable, actual cash value means the cost of repairing the damage, less reasonable deduction for wear and tear, deterioration and obsolescence.” Policy Definitions, page 20, at ¶ 1(a). ¶ 3 On May 20, 2002, Mee suffered direct physical loss to his home as the result of an overflowing toilet. Mee reported the loss to Safeco the same day. On May 23, 2002, Safeco sent a general contactor, First General/Lewis Builders, Inc. (Lewis Builders), to inspect the damage to Mee’s home and to provide Safeco with a repair and replacement cost estimate. Lewis Builders submitted an estimate to Safeco of $3,892.38. This estimate did not include a line-item cost for a general contractor’s overhead and profit (O & P). Safeco also hired John Dwyer of Com-Search (ComSearch) to conduct an adjuster summary of Lewis Builders’ estimate. ComSearch concluded that the cost of repair to Mee’s home was $3,368.83, a difference of $523.55 from Lewis Builders’ estimate. Meanwhile, Mee hired a public adjuster, John Hansen, to inspect the damage and to provide a repair and replacement cost estimate. Using his own esti mate, John Hansen submitted a proof of loss form to Safeco on behalf of Mee in the amount of $7,112.09. The major difference between John Hansen’s estimate and Corn-Search’s estimate was the cost of replacing the hardwood floor in Mee’s family room. ¶ 4 On July 22, 2002, Safeco issued a check in the amount of $2,284.15 to Mee and his wife and John Hansen. This amount purportedly represented the cost of repairs, less Mee’s $500.00 deductible and twenty percent for O & P. Mee accepted the check as "partial settlement” of his claim. Then, in a letter from John Hansen to Safeco dated December 11, 2002, Mee presented a claim for twenty percent O & P based on the repair and replacement cost estimates. Safeco sent a letter on December 17, 2002, offering Mee O & P with regard to the unresolved flooring issue only and requesting that Mee provide the name of the general contractor who would be doing the repairs, as indication that Mee would incur an O & P expense. Mee did not respond to Safeco’s request. ¶ 5 On May 19, 2003, Mee filed suit against Safeco alleging breach of contract, insurance bad faith under 42 Pa.C.S.A. section 8371, and violation of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. sections 201-1-201-9.3. As noted, Mee brought this suit as a class action on his own behalf and as the representative of a class of similarly situated homeowners in Pennsylvania. Safeeo’s preliminary objection to the UTPCPL claim was sustained on December 18, 2002. Following discovery, Safeco filed a motion for summary judgment on December 1, 2004, to which Mee responded on December 29, 2004. Then, on February 14, 2005, Safeco filed a joint motion for summary judgment along with several other defendants in separate, related cases. The trial court granted summary judgment to Safeco on June 15, 2005. This appeal followed. ¶ 6 Mee asks us to review the following questions: 1. Did the trial Court commit error when it granted summary judgment in favor of the defendant insurance company, even though the record contained expert custom and usage evidence that whenever more than one trade is reasonably required to make repairs, a general contractor’s services (with the contractor’s overhead and profit) are reasonably required? Does Safeco’s’ [sic] homeowners insurance policy, together with relevant custom and usage, require that Safeco automatically and unconditionally pay, to a property damage claimant, general contractor’s overhead and profit whenever more than one construction trade is reasonably required to make the repairs or restoration? Mee’s Brief at 4. These questions challenge the trial court’s grant of summary judgment based on its finding that Safeco was not required to pay O & P to Mee because he did not use a general contractor to repair the damage to his home. Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. 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. 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. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party. Motions for summary judgment necessarily and directly implicate the plaintiffs proof of the elements of her cause of action. Summary judgment is proper “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2. In other words, “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law,” summary judgment is appropriate. Id. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions. The appellate [cjourt will disturb the trial court’s order only upon an error of law or an abuse of discretion. Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure. Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden. It is not sufficient to persuade the appellate court that it might have reached a different conclusion if ... charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused. Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 60-62 (Pa.Super.2006) (internal quotations and most internal citations omitted). ¶ 7 At the heart of the present dispute is conflicting interpretations of this Court’s decision in Gilderman v. State Farm Ins. Co., 437 Pa.Super. 217, 649 A.2d 941 (1994). According to Mee, Gild-erman stands for the proposition that, in any claim where more than one trade is required to perform the repairs, it is “reasonably likely” that the services of a general contractor will be required and, accordingly, the insurance company must include 0 & P as part of its actual cash value payment, even if the insured makes the repairs himself, hires a handyman instead of a team of subcontractors, or chooses not to make the repairs at all. Mee’s Brief at 15, n. 8, and 17. Safeco, on the other hand, interprets Gilderman as imposing a requirement that an insurer look at the facts of each case in making its determination of whether the use of a contractor is reasonably likely. Because Mee did not hire a general contractor but did the work himself, Safeco argues, use of a general contractor was not reasonably likely, and, therefore, Mee was not entitled to 0 & P. Safeco’s Brief at 8. The trial court agreed with Safeco, finding that Mee did not hire a general contractor; therefore, “[t]he use of a general contractor was never ‘reasonably likely’ because no general contractor was needed.” Opinion, 11/28/05, at 4. Both these interpretations miss the mark. Consequently, because the trial court misapplied our decision in Gilderman, it committed an error of law. ¶ 8 The Honorable John Hester stated the issue in Gilderman as “whether an insurer, which has agreed to pay repair or replacement costs less depreciation in advance of actual repair or replacement of a covered loss, may automatically withhold both depreciation and a flat twenty percent representing contractor overhead and profit from its advance payment.” Gilderman, 649 A.2d at 942. Tailoring the Gilderman issue to fit the case at hand, the question becomes whether an insurer, which has agreed to pay actual cash value in advance of the repair and replacement of a covered loss, is required to include twenty percent for 0 & P in its advance payment where no general contractor was used because the homeowner made the repairs himself. The answer to that question depends on whether use of a general contractor was reasonably likely. Whether use of a general contractor was reasonably likely is a question of fact for the jury- ¶ 9 Like the case at hand, Gilderman involved a replacement cost coverage insurance policy. Therein, the homeowner instituted a class action alleging that, since January 1, 1991, State Farm always deducted twenty percent from the top of its repair or replacement estimates for purposes of computing the actual cash value of a loss. Gilderman, 649 A.2d at 944. The homeowner argued “that contractor overhead and profit must always be included in repair or replacement cost estimates [because repair or replacement costs necessarily include contractor overhead and profit]. State Farm counter[ed] that contractor overhead and profit never has to be included in repair or replacement cost estimates since contractors are not always used to repair or replace damaged property.” Id. at 944. ¶ 10 Before addressing the parties’ arguments, Judge Hester made an initial observation: “Repair and replacement costs logically and necessarily include any costs that an insured reasonably would be expected to incur in repairing or replacing the covered loss.” Gilderman, 649 A.2d at 945 (emphasis supplied). Turning to the homeowners’ claim that repair or replacement costs estimates “necessarily” include twenty percent for a general contractor’s overhead and profit, Judge Hester opined: We believe that there clearly are certain types of property damage claims which will not require the services of a general contractor. An example is where the loss involves only a damaged pipe, and a plumber alone normally would be called to perform all necessary repairs. In this respect, we therefore agree with State Farm’s position that there are some types of covered losses where the services of a general contractor normally would not be utilized. Thus, in some cases, contractor expenses would not have to be included in repair or replacement cost estimates. Indeed, [Gildermans] implicitly concede that general contractors are not always needed, noting that “it is generally accepted in the budding trade that if more than three trade categories of subcontractors are involved in the repairs, the owner is entitled to the services of a general contractor to obtain bids, hire the subcontractors and coordinate/supervise the work.” On the other hand, however, there are types of property damage where a homeowner would use the services of a general contractor. There are many instances where the insured reasonably would be expected to call a contractor, especially where there is extensive damage to a home [emphasis supplied] requiring the use of more than one trade specialist. Thus, State Farm may not make repair or replacement estimates and then deduct twenty percent representing contractor’s fees when those expenses reasonably are expected to be incurred. Id, Based on this reasoning, Judge Hester rejected the homeowners’ argument that 0 & P must always be included in repair and replacement cost estimates. ¶ 11 Judge Hester then addressed State Farm’s reasons for always deducting 0 & P from its advance payments: State Farm defends its actions first by observing that a contractor’s costs are contingent and may never be incurred. State Farm posits that it is unfair for an insured to receive advance payment for such expenses. We make two observations in regard to this argument. First, contractor expenses may well be contingent; however, the same can be said of all repair or replacement costs. For example, the insured may be a plumber, repair a covered loss himself, and incur no labor costs. The insured may be able to obtain goods at wholesale, used, or free and never incur the retail cost of parts. All repair and replacement costs are, in theory, “contingent” prior to being incurred. Second, and more importantly, the issue is not whether a given cost is contingent. The issue is what State Farm, agreed to pay to its insureds prior to actual repair or replacement. It agreed to pay “actual cash value,” which means “repair or replacement cost less depreciation.” Thus, the real inquiry is what is included in “repair and replacement costs.” We hold that repair or replacement costs include any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss. In some instances, this will include use of a general contractor and his twenty percent overhead and profit. Gilderman, 649 A.2d at 945. ¶ 12 Like State Farm, Safeco complains that, because Mee did not use a general contractor, he did not incur an 0 & P expense; therefore, paying him 0 & P would result in a windfall. The trial court expressed the same concern. Opinion, 11/28/05, at 4 (“The purpose of insurance is to cover a loss, not to create financial windfalls ... ”). Judge Hester addressed this issue: State Farm offers a second rationale for its practice [of never including 0 & P], arguing that an insured would receive a windfall if permitted to recover a repair or replacement cost which may never be incurred. In this respect, we note that insureds under these policies have paid an additional premium for replacement cost coverage so that the insured can afford to repair or replace a loss at current market value and essentially keep the value of his property the same.... It can hardly be said that an insured reaps a -windfall by obtaining payment of actual cash value determined in a fair and reasonable manner when that is precisely what the insurer has agreed to pay under its policy in advance of actual repair or replacement. Gilderman, 649 A.2d at 946. According to Judge Hester, no windfall occurs where the insured receives benefits for which he has paid and to which he is entitled, even if repair or replacement costs are not incurred. Id. ¶ 13 In Gilderman, Judge Hester did not adopt a bright line rule for determining when an insurer should pay 0 & P based on the number of trades required to make repairs. Rather, Judge Hester established an objective standard by which an insurer may determine on a case-by-case basis whether to pay 0 & P, i.e., payment of 0 & P is required where use of a general contractor would reasonably be likely. Judge Hester suggested certain factors to be considered in reviewing the insurer’s decision regarding payment of 0 & P, i.e., the extent of the property damage, the number of trades required to repair the damage, and expert evidence of building industry standards regarding the correlation between use of a general contractor and the number of trades required to repair damage. Gilderman, 649 A.2d at 945. ¶ 14 From Gilderman, we take the following legal principles: (1) actual cash value includes repair and replacement costs; (2) repair and replacement costs include 0 & P where use of a general contractor would be reasonably likely; (3) because a homeowner pays higher premiums for repair and replacement coverage, he is entitled to 0 & P where use of a general contractor would be reasonably likely, even if no contractor is used or no repairs are made; (4) expert testimony about industry standards may be used to answer whether use of a general contractor is reasonably likely; and (5) whether use of a general contractor is reasonably likely depends on the nature and extent of the damage and the number of trades needed to make repairs. This last principle necessarily requires consideration of the degree of coordination or supervision of trades required to make the repairs. ¶ 15 Herein, the record establishes the following: (1) Mee paid premiums for a full value repair and replacement policy; (2) Mee suffered a covered loss; (3) Safeco agreed to pay Mee the actual cash value for repairs and replacement; (4) multiple trades would be needed to repair the damage to Mee’s bathroom, stairwells, family room, and foyer, e.g., plumbing, flooring, drywall, carpentry, painting, and electrical; and (5) Mee presented expert opinions as to when use of a general contractor is reasonably likely. ¶ 16 Applying the Gilderman principles to this case, Mee is entitled to the benefit for which he contracted with Safeco, i.e., 0 & P, if he can establish that use of a general contractor would be reasonably likely; the fact that Mee chose to — or was required to — make the repairs himself does not necessarily preclude him from recovering 0 & P. Viewing the evidence in the light most favorable to Mee as the non-moving party, we conclude that a genuine issue of material fact exists as to whether use of a general contractor would be reasonably likely under the facts of this case. We further conclude that a genuine issue of material fact exists as to whether Safeco acted in bad faith by not paying 0 & P on Mee’s claim. Because resolution of these questions is for a jury, the entry of summary judgment in favor of Safeco was improper. Thus, we remand for further proceedings. ¶ 17 Order reversed and case remanded for further proceedings. Jurisdiction relinquished. . The significance of the $523.55 difference, which ComSearch designates "Adjusted Amount,” is not clear from a review of Lewis Builders’ and ComSearch's estimates. However, a handwritten notation on a copy of the cover letter accompanying Safeco’s payment to Mee et al., dated July 22, 2002, suggests that this amount represents a deduction for O &P. . Given our inability to reconcile the amount paid by Safeco to Mee ($2,284.15) with either ComSearch's or Lewis Builders' estimates, less O & P and a $500.00 deductible, we are troubled by the possibility that Safeco withheld O & P which, Safeco admits, was not included in the original defense estimates, thereby further reducing the insurance proceeds paid to Mee. . We are aware of this Court's recent decision in Kane v. State Farm Fire and Cas. Co., 841 A.2d 1038 (Pa.Super.2003) . (involving State Farm’s practice of deducting depreciation from insureds’ settlements for partial loss claims), which rejects the definition of actual cash value originally stated in Canulli v. Allstate Ins. Co., 315 Pa.Super. 460, 462 A.2d 286 (1983), and relied upon in Gilderman as non-binding dictum. Kane, 841 A.2d at 1046. Our use of "actual cash value” in the present case neither contradicts the definition set forth in Kane nor undermines our interpretation of or reliance on Gilderman.

OPINION BY PANELLA, J.: ¶ 1 Appellant, Anthony Wayne Hughes, appeals from the judgment of sentence entered on August 15, 2005 by the Honorable Robert E. Dalton, Jr., Court of Common Pleas of Tioga County. After careful review, we affirm. ¶ 2 On September 14, 2004, Troopers Robert J. Wolbert and Jason Miller of the Pennsylvania State Police were on midnight patrol traveling northbound in a marked patrol car on SR-15, a limited access highway in Liberty Township, Tioga County. The Troopers were traveling in the left northbound lane when, at approximately 12:40 a.m., they noticed Hughes’ vehicle traveling in front of them in the right northbound lane. The Troopers intended to pass Hughes until they observed his vehicle swerve right onto the berm, then back into the right lane, and then left across the white dotted line into their lane. According to Trooper Wolbert, their patrol car was within approximately three to four car lengths when thirty to forty percent of Hughes’ vehicle drifted across the dotted line and then back into the lane without a turn signal. At that point, the Troopers slowed down and began to follow Hughes’ vehicle in the right northbound lane. They followed Hughes’ vehicle for one-half to three quarters of a mile and observed his vehicle swerve into the other lane two more times. ¶ 3 Trooper Wolbert initiated a traffic stop to investigate the cause of Hughes’ erratic driving. Upon approaching the driver-side window, Trooper Wolbert noticed a strong odor of alcohol. In answering questions from Trooper Wolbert, Hughes stated that he had consumed alcohol. Trooper Wolbert also asked Hughes if he had any medical reason for not wearing his seatbelt and Hughes replied that he did not. Trooper Wolbert then proceeded to administer field sobriety tests, which Hughes, by his own admission, was unable to complete. Trooper Wolbert determined that Hughes was unfit to operate a vehicle and placed him under arrest. Hughes submitted to a blood test less than hour after being arrested and his blood alcohol content was 0.198 percent. ¶ 4 Prior to trial, Hughes filed an omnibus pretrial motion seeking to suppress the evidence obtained from the vehicle stop leading to the arrest for driving under the influence, claiming that there was no probable cause to stop his vehicle. The trial court held a hearing on Hughes’ motion to suppress on January 17, 2005 after which, the motion was denied. Following a bench trial, Hughes was convicted of Driving Under the Influence of Alcohol, Careless Driving, and Failure to Use Safety Belt System. Hughes was sentenced to a minimum of ninety days to sixty months incarceration. This timely appeal followed. ¶ 5 On appeal, Hughes raises the following issues for our review: 1. Whether the trial court erred by failing to suppress the evidence as Appellant’s arrest was illegal? 2. Whether the trial court abused its discretion in accepting the arresting officer’s testimony concerning the basis for the traffic stop when conflicting testimony was presented at the preliminary hearing, suppression hearing, and trial? Appellant’s Brief at 6. ¶ 6 Initially, we note that our standard of review when an appellant appeals the denial of a suppression motion is well established. We are limited to determining whether the lower court’s factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous. Commonwealth v. O’Black, 897 A.2d 1234, 1240 (Pa.Super.2006), citing Commonwealth v. Scott, 878 A.2d 874, 877 (Pa.Super.2005), appeal denied, 586 Pa. 749, 892 A.2d 823 (2005). ¶ 7 With this standard in mind, we address Hughes’ first claim that the trial court erred by failing to suppress the evidence because the arrest was illegal. A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. Commonwealth v. Conrad, 892 A.2d 826, 829 (Pa.Super.2006), appeal denied, 588 Pa. 747, 902 A.2d 1239 (2006). “This standard, less stringent than probable cause, is commonly known as reasonable suspicion.” Id., quoting Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676 (1999). In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In re D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give “due weight — to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Cook, 558 Pa. at 57, 735 A.2d at 676 (citation omitted). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676. ¶ 8 Based on his experience as a law enforcement officer, Trooper Wolbert had sufficient reason to suspect that Hughes was committing a crime based upon his observation of Hughes’ erratic driving, and therefore the detention and subsequent DUI arrest were both justified. The statutory standard for investigation by police officers provides that, “whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop the vehicle.... ” 75 Pa.CoNS.Stat.AnN. § 6308(b). ¶ 9 Trooper Wolbert, who had been employed as a Trooper with the Pennsylvania State Police for nine years at the time of arrest, had a reasonable basis to suspect that Hughes was driving while intoxicated. He and Trooper Miller were going to pass Hughes’s vehicle but deemed it unsafe because Hughes’ vehicle was swerving across the divided line into the other lane. They followed Hughes for less than a mile and observed him commit the same traffic vio lation at least twice before initiating the stop. Swerving in and out of a lane of traffic was a violation indicative of a DUI offense in Trooper Wolbert’s experience. ¶ 10 Upon approaching the vehicle, Trooper Wolbert, who was trained in observing violations indicative of DUI offenses as well as administering standard field sobriety tests, noticed a strong odor of alcohol from Hughes and that his eyes were extremely bloodshot. Hughes admitted that he had been drinking. After administering the field sobriety tests, which Hughes failed, Trooper Wolbert determined that Hughes was unable operate a vehicle safely and arrested him. The blood test revealed that Hughes’ blood alcohol level was 0.198 percent. ¶ 11 Considering the facts within the totality of circumstances and Trooper Wol-bert’s experience as a trained police officer, we find that Hughes’ traffic violations provided an adequate basis for reasonable suspicion justifying the initial traffic stop, and that the evidence of Hughes’ intoxication from his odor of alcohol, bloodshot eyes, and failure to perform the field sobriety tests were sufficient to justify the arrest for DUI. ¶ 12 Hughes next contends that it was an abuse of discretion for the trial court to accept Trooper Wolbert’s testimony concerning the basis for the traffic stop because conflicting testimony was presented at the preliminary hearing, suppression hearing, and trial. Hughes is essentially challenging the trial court’s determination of Trooper Wolbert’s credibility, claiming that there were “significant discrepancies in the arresting officer’s testimony as the case progressed through the court system”. Specifically, Hughes argues that Trooper Wolbert testified at the preliminary hearing that his patrol car was “five, six or seven car lengths” behind Hughes’ vehicle when he first noticed him swerve, but at trial Trooper Wolbert testified that the distance between the vehicles was “three to four car lengths”. Hughes also argues that Trooper Wolbert’s recollections about how erratically the vehicle was swerving and by how many inches it crossed the dotted line changed. Appellant’s Brief at 19-20. ¶ 13 It is well established that our Court will not reverse a trial court’s credibility determination absent the court’s abuse of discretion as fact finder. In a bench trial, as in a jury trial, “the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Zingarelli 889 A.2d 1064, 1069 (Pa.Super.2003), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004). Additionally, “the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.Super.2006). ¶ 14 We fail to see how the trial court’s conclusions were an abuse of discretion. As the fact-finder, the trial court was in the best position to assess the credibility of the witnesses’ testimony and other evi dence. Even if Hughes is correct in arguing that there were inconsistencies in Trooper Wolbert’s testimony, we do not agree with his argument that these were “significant discrepancies”; rather, they were innocuous in light of the overwhelming evidence beyond Trooper Wolbert’s testimony to support Hughes’ convictions. ¶ 15 Judgment of sentence affirmed. Jurisdiction relinquished. . 75 Pa.Cons.Stat.Ann. § 3802(a)(1); 75 Pa. Cons.Stat.Ann. § 3802(C). . 75 Pa.Cons.Stat.Ann. § 3714. . 75 Pa.Cons.Stat.Ann. § 4581(A)(2). . 75 Pa.Cons.Stat.Ann. § 3309(1) provides that, "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safely." . 75 Pa.Cons.Stat.Ann § 3802(c) categorizes any alcohol concentration above 0.16 percent as the "Highest rate of alcohol”.

OPINION BY POPOVICH, J.: ¶ 1 Burchick Construction Company, Inc. (Burchick), appeals from the grant of injunctive relief entered on September 20, 2005, in the Court of Common Pleas of Washington County, in favor of Greenm-oor, Inc. (Greenmoor). Upon review, we reverse. ¶ 2 The relevant facts and procedural history of this case are as follows: Bur-chick is the general contractor with the United States General Services Administration (GSA) for the renovation of the Moorhead Federal Building in downtown Pittsburgh, Pennsylvania. In June 2004, Greenmoor subcontracted with Burchick to perform the asbestos removal and abatement component of the renovation project. Greenmoor executed five contracts with Burchick; one contract for each of the five phases of the asbestos removal and abatement project. Greenmoor completed Phase I of the project, but Burchick was dissatisfied with Greenmoor’s performance on the project. Accordingly, during Phase II of the project, Burchick terminated Greenmoor from the project. Greenmoor disputed its termination with Burchick and asserted that the termination was Bur-chick’s means of retaliating against Greenmoor for a prior dispute between the two companies. Burchick notified Greenmoor of its termination on March 4, 2005. ¶ 3 On April 29, 2005, Greenmoor initiated suit against Burchick by fifing a mul-ti-count complaint that requested, inter alia, preliminary injunctive relief. Greenmoor’s request for preliminary in-junctive relief asked the trial court to en ter an order requiring Burchick to reinstate Greenmoor to the asbestos removal and abatement project, restraining Bur-chick from dismissing Greenmoor from the renovation project, and assessing Greenm-oor’s costs and attorney’s fees against Bur-chick. The trial court conducted hearings on Greenmoor’s request for preliminary injunctive relief on September 1 and September 6, 2005. On September 20, 2005, the trial court granted Greenmoor’s request for preliminary injunctive relief. The trial court’s September 20, 2005 order required Burchick to reinstate Greenmoor to work on Phases III-V of the asbestos removal and abatement and restrained Burchick from terminating Greenmoor from Phases III-V of said project. The trial court’s September 20, 2005 order also required Burchick to post a $200,000.00 bond with the Washington County Protho-notary. ¶ 4 Burchick filed a timely notice of appeal to this Court from the trial court’s September 20, 2005 order. Thereafter, the trial court ordered Burchick to file a concise statement of matters complained of on appeal. Burchick complied with the trial court’s order and filed the concise statement in a timely fashion. Thereafter, the trial court authored an opinion that addressed the issues presented in Burchick’s concise statement. ¶ 5 Burchick presents the following issues for our review: 1. Whether the trial court erred as a matter of law and abused its discretion through the misallocation and elimination of Greenmoor’s heavy evidentiary burden of proof under Pennsylvania law for the issuance of a mandatory preliminary objection? 2. Whether the trial court erred as a matter of law and abused its discretion where no reasonable grounds exist for the trial court’s finding that Greenmoor established each of the six (6) essential prerequisites for issuance of a preliminary injunction under Pennsylvania law? Burchick’s brief, at 3. ¶ 6 At the outset, we note that Bur-chick’s first issue is waived for failure to include the issue in its Pa.R.A.P.1925(b) statement. The failure of a party to include an issue in its Pa.R.A.P.1925(b) statement results in automatic wavier of the issue. See In the Interest of K.C., 2006 PA Super 153, 18, 903 A.2d 12. Therefore, Burchick’s first issue is waived, and we may not review it. • Id., 2006 PA Super 153, ¶ 18, 903 A.2d 12, 16-17. However, Burchick’s second issue is present in its Pa.R.A.P.1925(b) statement, and, therefore, we will proceed to a review of the merits of the issue. ¶ 7 Burchick contends that Greenmoor failed to establish each of the six essential prerequisites for a preliminary injunction and, therefore, that the trial court abused its discretion in granting mandatory preliminary injunctive relief in favor of Greenmoor. We begin with the observation that the preliminary injunction in the present case is a mandatory preliminary injunction in that it commands positive acts on the part of Burchick to maintain the status quo between the parties Mazzie v. Commonwealth, 495 Pa. 128, 134, 432 A.2d 985, 988 (1981). ¶ 8 We explained our unique standard of review for appeals from the grant of mandatory preliminary injunctions as follows: Generally, appellate inquiry is limited to a determination of whether an examination of the record reveals that “any apparently reasonable grounds” supports the trial court’s disposition of a preliminary injunction request. [Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt., Inc., 573 Pa. 637, 646, 828 A.2d 995, 1001 (2003) ]. The standard of review differs, however, where, as here, the trial court has granted a mandatory preliminary injunction. See id., note 7. Such a remedy is extraordinary and should be utilized only in the rarest of cases. See id., note 13. Our Supreme Court has deviated from the general standard applicable to review of preliminary injunctions, only when reviewing the grant of a mandatory preliminary injunction. See [Mazzie, at 134, 432 A.2d at 988]. The Mazzie Court explained: Generally, preliminary injunctions are preventive in nature and are designed to maintain the status quo until the rights of the parties are finally determined. There is, however, a distinction between mandatory injunctions, which command the performance of some positive act to preserve the status quo, and prohibitory injunctions, which enjoin the doing of an act that will change the status quo. This Court has engaged in greater scrutiny of mandatory injunctions and has often stated that they should be issued more sparingly than injunctions that are merely prohibitory. Thus, in reviewing the grant of a mandatory injunction, we have insisted that a clear right to relief in the plaintiff be established. [...]. Id. (citations omitted and emphasis supplied.) As the above elucidates, in reviewing the grant of a mandatory preliminary injunction we must examine the merits of the controversy and ensure that “a clear right to relief in the plaintiff [is] established.” See Id. Kessler v. Broder, 851 A.2d 944, 946-47 (Pa.Super.2004). ¶ 9 A petitioner seeking a preliminary injunction must establish every one of the following prerequisites: First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Second, the party must show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings. Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits. Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity. Sixth, and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest. Summit Towne Centre, at 646-47, 828 A.2d at 1001. If a petitioner fails to estab lish any one of the aforementioned prerequisites, a reviewing court need not address the others. Id., at 646, 828 A.2d at 1001. ¶ 10 As stated above, a plaintiff seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be compensated adequately by money damages. Summit Towne Centre, at 646, 828 A.2d at 1001. In order to meet this burden, a plaintiff must present “concrete evidence” demonstrating “actual proof of irreparable harm.” Kessler, 851 A.2d at 951. The plaintiffs claimed “irreparable harm” cannot be based solely on speculation and hypothesis. Id., 851 A.2d at 951. Moreover, for purposes of a preliminary injunction the claimed harm must be irreversible before it will be deemed irreparable. See Sovereign Bank v. Harper, 674 A.2d at 1085, 1093 (Pa.Super.1996). ¶ 11 Greenmoor, through its president, Fred Dellovade, claimed at trial that Bur-chick’s action in terminating them from the asbestos removal would result in the failure of Greenmoor. See N.T., 9/1/2005, at 39. Mr. Dellovade explained that Bur-chick’s termination of Greenmoor and the ensuing lawsuit precluded Greenmoor from obtaining proper bonding for future asbestos removal and abatement projects. Specifically, Mr. Dellovade testified that “until I settle this or this is determined whether we were terminated rightfully, [the bonding companies] won’t touch [Greenmoor]. They are waiting for the outcome of [the preliminary injunction litigation].” Id., at 39. As such, Greenmoor would not be able to procure future asbestos removal projects and the business would fail. Id., at 39. Mr. Dellovade also testified that, as a result of the termination, Greenmoor was forced to lay off many of its employees. Id., at 39. ¶ 12 Greenmoor also presented the testimony of its insurance agent, Gregory So-rokes, who corroborated Mr. Dellovade’s testimony regarding Greenmoor’s ability to procure bonding in the future. Mr. Sorokes testified that he attempted to procure bonding from five bonding companies for Greenmoor following its termination from its contract with Burchick, but the respective bonding companies would not bond Greenmoor because of the termination. See N.T., 9/1/2005, at 71. However, Mr. Sorokes testified that he would be able to procure future bonding for Greenmoor with certain bonding companies if the trial court issued the injunction and if Greenmoor completed the remaining work on the Burchick contract satisfactorily. Id., at 71-72. ¶ 13 In contrast to the testimony of Mr. Dellovade and Mr. Sorokes, Burchick presented the expert testimony of Jay Edward Black. Mr. Black is a bond broker for Seubert and Associates, a large bond broker in the Pittsburgh area. Based on his review of Mr. Sorokes’ solicitations to the bonding companies after Greenmoor’s termination from the Burchick contract, Mr. Black testified that the solicitations were improper and, essentially, invited rejection from the Pittsburgh bonding companies because the solicitations focused solely on Greenmoor’s termination from the Bur-chick project rather than other factors that play into a bonding company’s decision to bond a contractor. N.T., 9/1/2005, at 150. Mr. Black testified that it was not necessary for a contractor to procure a bonding agent in a particular area and that there were several bonding companies nationwide that could bond an asbestos removal contractor. Id., at 152. Likewise, Mr. Black testified that a termination of a contractor or subcontractor from a project would not preclude a contractor from obtaining bonding in the future. Id., at 151. ¶ 14 It is correct, as Greenmoor asserts, that a preliminary injunction may be granted where the defendant’s actions threaten monetary loss so great as to threaten the existence of the plaintiffs business. See Three County Services, Inc. v. Philadelphia Inquirer, 337 Pa.Super. 241, 486 A.2d 997, 1001 (1985). Nevertheless, viewing the “irreparable harm” prerequisite under our standard of review for mandatory preliminary injunctions, we cannot agree that Greenmoor established a “clear right to relief’ in this case. ¶ 15 First, and most importantly, the loss of work for Greenmoor on Phases III-V constitutes a monetary loss that is compensable via an action at law for breach of contract and a subsequent money judgment. See Three County Services, 486 A.2d at 1001. It is true that the breadth of the Moorehead Federal Budding project caused Greenmoor to forego other contracts for the five-year span of the Moorehead Federal Building project, but Greenmoor’s decision not to bid other projects aggressively cannot constitute “concrete evidence” of irreversible harm to Greenmoor. We reach this conclusion because Greenmoor’s decision not to bid on those projects had nothing to do with any wrongful conduct on Burchick’s part, and, therefore, the loss of those possible projects cannot be attributable to Burchick’s termination of Greenmoor from the Moore-head Federal Building project. Further, Greenmoor provided little demonstrable evidence to indicate whether Greenmoor would close its doors as a result of the lost business prospects. The sole testimony provided in this regard was from Mr. Dellovade, who offered nothing more than speculative conclusions regarding the economic future of Greenmoor. Likewise, the eonflict in testimony between Greenmoor’s witnesses and Mr. Black regarding the bonding issue indicates that the conclusions of Messers. Dellovade and Sorokes regarding the inability of Greenmoor to obtain bonding for future asbestos removal and abatement projects cannot be viewed as “concrete evidence” demonstrating an irreversible harm to Greenmoor via its inability to get bonding for future projects. See Summit Towne Centre, 646-47, 828 A.2d at 1001. ¶ 16 Therefore, the paucity of demonstrable evidence regarding Greenmoor’s economic future and the conflict in the aforementioned testimony indicates that Greenmoor has failed to demonstrate satisfactorily that an irreparable and irreversible harm will result to its business as a result of Burehick’s actions. See Summit Towne Centre, at 646-47, 828 A.2d at 1001. As such, Greenmoor cannot sustain its burden to prove a “clear right to relief’ in this mandatory preliminary injunction action. See Kessler, 851 A.2d at 946-47. Consequently, we are bound to reverse the trial court’s preliminary injunction. Id., 851 A.2d at 946-47. ¶ 17 Order reversed. Jurisdiction relinquished. . Phase II of the contract was near completion due to the work of Burchick's replacement subcontractor and, therefore, was not at issue during the preliminary injunction action. . Preliminarily, we note that we may exercise jurisdiction over this case pursuant to Pa. R.A.P. 311(a)(4), which provides that a direct appeal may be taken as of right by a party aggrieved by the entry of an order that grants an injunction. . Inasmuch as we conclude that Greenmoor cannot meet the "irreparable harm” prerequisite, we need not consider the other prerequisites. See Summit Towne Centre, at 646, 828 A.2d at 1001.

OPINION BY Judge SIMPSON. Gambone Brothers Development Co. (Gambone Brothers) and College Woods, Inc. (College Woods) (collectively Gam-bone) appeal the order of the Court of Common Pleas of Montgomery County (trial court) denying their motion for post-trial relief from a zoning ordinance enforcement decree. We affirm. In 1995, Gambone received final approval from Trappe Borough for a townhouse subdivision and development known as “Town Homes at College Woods.” The development is adjacent to the Pedens’ single-family home. Section 606F of Trappe Borough Zoning Ordinance (Ordinance) requires screening buffers along all exterior property lines between dwelling units of different size and density. The buffers are to consist of, generally, a 25-foot wide “natural” screen consisting of trees and shrubs. The approved development, however, did not provide for a 25-foot wide natural screen. Instead, it provided for a wooden fence six feet in height. The windows of the townhouses erected along the Pedens’ property line look over the fence into the Pedens’ property and into portions of their house. Concerned about privacy, the Pedens attempted to negotiate a solution through meetings with the Montgomery County Planning Commission and Gambone. After negotiations failed, the Pedens filed an equity action in the Court of Common Pleas for Montgomery County (trial court). Thereafter, the Pedens filed a motion for a preliminary injunction. Following a hearing, the trial court determined that Gam-bone was in violation of the Ordinance for failing to construct an appropriate screening buffer. The trial court granted the Peden’s motion for a preliminary injunction. The trial court, however, delayed execution of the injunction to permit Gam-bone to develop a “satisfactory landscape plan” within 180 days. Following an appeal, this Court affirmed, but remanded the case for imposition of an appropriate bond with the grant of the preliminary injunction. Thereafter, the trial court held a bench trial, during which Mr. Peden testified. He sent a letter to the solicitor for Trappe Borough in 1992 detailing his concerns about the proposed project. As early as 1995, he saw proposed development plans which did not contain a 25 foot vegetative buffer. In 1997, when excavation and con struction began, Mr. Peden sent another letter to the Borough Council detailing his issues over invasion of privacy issues and damage to trees on his property. On the advice of the solicitor for the Borough, Mi". Peden retained independent counsel. The Pedens also presented the testimony of David Clarke, the owner of a landscape contracting business in the area, whom they retained because Gambone failed to comply with the trial court’s order requiring preparation of a plan with a buffer. When Mr. Clarke was called to testify, counsel for Gambone objected that neither curriculum vitae nor report had been received from the witness despite timely discovery requests. The Pedens’ lawyer responded that Mr. Clarke’s name and the subject of his testimony was disclosed in writing about three months prior to trial. About two months before trial a plan showing a buffer and an estimate, both prepared by Mr. Clarke, were sent to Gambone’s lawyer. Over objection, the court permitted Mr. Clarke to testify. The trial court found in favor of the Pedens and rejected the argument that the fence constituted a free form screening buffer, noting: [N]o variance from the screening buffer provisions was applied for or granted by the proper authority. It is also incredulous to think that Council in approving the plan with a fence was granting the fence as an alternative buffer by conditional use within the protections of the MPC. No conditional use for an alternative buffer has ever been sought or mentioned, heretofore. Nor is there evidence that an alternative buffer was applied for, permission given by Borough Council on request, and there is no evidence that Borough Council approved an alternative buffer. A buffer is not mentioned amongst all the various applications, minutes, resolutions, development plans, discussions and approvals both in Trappe Borough Council meetings and the Trappe Borough Planning Commission. William Peden v. Gambone Bros. Dev. Co., No. 98-07818, filed November 6, 2000 (C.P.Montgomery). The court ordered Gambone to install a buffer in compliance with Mr. Clarke’s plan. The proposed cost of the landscaping was $135,000 and the cost of the plan’s preparation was $3,000, yielding a total cost of $138,000.00. At present, Gambone appeals from the trial court’s order denying Gambone’s post trial motion, thus leaving intact the trial court’s order that Gambone install a buffer zone pursuant to the Ordinance. In this appeal, Gambone raises three issues that are addressed below. I. First, Gambone contends that it is not in violation of the Ordinance because Trappe Borough approved its development plan that expressly provided for a wooden fence in lieu of a natural buffer. In particular, Gambone argues that the Borough acted within its discretion to approve the fence as an alternative- buffer pursuant to Ordinance section 606(F)(4). The Pedens counter that the “law of the case doctrine” bars us from considering this issue. The law of the case doctrine is a judicial rule that discourages a court involved in later phases of a litigated matter from reopening questions decided by another judge of the same court or a higher court in an earlier phase of the litigation. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995). The doctrine is designed to promote judicial economy, uniformity of decision making, protect the settled expectations of the parties, maintain the consistency of the litigation and end the ease. Id. The law of the case doctrine provides in pertinent part that “upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court....” PPG Industries v. Commonwealth, Board of Finance and Revenue, 567 Pa. 580, 790 A.2d 261, 268 (2002) quoting Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 586 (1999). The law of the case doctrine, however, does not apply where: (1) there has been an intervening change in the controlling law; (2) there has been a substantial change in the evidence or facts giving rise to the litigation; or (3) the prior ruling was clearly erroneous and would create a manifest injustice if followed. Starr. We previously held that the fence violates the ordinance. Gambone Bros. Dev. Co. v. William Peden, 748 A.2d 237 (Pa.Cmwlth., No. 1531 CD 1999, filed February 15, 2000) (Peden I). This prior holding is the law of the case. The Borough’s approval of the final development plan does not establish compliance with the ordinance, nor does it excuse Gambone from erecting an appropriate buffer. Because another panel of this Court already decided this question, we may not reconsider whether the fence complies with the Ordinance. II. Gambone also contends the Pedens’ enforcement action should be barred as untimely, noting that the Pedens had access to the development plan as early as 1995 and delayed in bringing an action to enforce the Ordinance. In support of these assertions, Gambone relies on sections 909.1(b)(2) and 1002-A of the Pennsylvania Municipalities Planning Code (MPC). Gambone argues that the Pedens were required to appeal within thirty days after borough council approved the development plan. Relying on Mars Area Residents for a Safe Community v. Zoning Hearing Board of Adams Township, 108 Pa.Cmwlth. 505, 529 A.2d 1198 (1987), Gam-bone contends that the Pedens were required to file an appeal within 30 days. In Mars Area, the objectors sent a letter to the zoning officer requesting enforcement of a zoning ordinance prohibiting a microwave tower. The zoning officer denied objectors’ request, and several months later objectors appealed to the board. On appeal, both the board and the trial court dismissed the appeal as untimely pursuant to section 915 of the MPC and objectors appealed to this Court. We held that because objectors had actual notice for several months and failed to file an appeal within thirty days, their claim was untimely. This case, however, is distinguishable. Here, the Pedens initiated their cause of action by filing a complaint in equity pursuant to section 617 of the MPC. The action taken by the Pedens was not an appeal from an action or decision of a municipal body or official as was the action taken by residents in Mars Area. The Pedens, an aggrieved property owner, filed their direct action with the trial court to enforce the Ordinance. Further, as noted by the trial court, the failure of Borough officials to properly enforce their own ordinances should not run to the Pedens’ detriment. The Pennsylvania Supreme Court’s decision in Frye v. City of Monongahela, 526 Pa. 170, 584 A.2d 946 (1991) is instructive. In Frye, a landowner constructed a carrier pigeon loft in his backyard contrary to the permissible uses in the zoning ordinance. Thereafter, an adjacent landowner filed a complaint in equity to enforce the ordinance. Relying on Section 617 of .the MPC, the Court determined that the adjacent landowner, “as an aggrieved neighbor, had an independent right to seek relief from a zoning violation next door and that right could be asserted in an equity action.” Id. at 175, 584 A.2d at 948. Further, the Frye Court held that when, “deliberate violations of a zoning ordinance have the effect of wrongfully infringing on the property rights of a neighbor, that neighbor is entitled to prompt vindication in a court of equity without regard to alternate administrative remedies that might be available. We have always so held and we continue to do so.” Id. at 176, 584 A.2d at 948. Based on this authority, we conclude that the Pedens properly brought their action pursuant to Section 617 of the MPC to enforce the Ordinance. Alternatively, Gambone contends that the affirmative defenses of estoppel and laches operate to bar the Pedens’ claim. Laches is an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another. Stilp v. Hafer, 553 Pa. 128, 718 A.2d 290 (1998). Thus, in order to prevail on an assertion of laches, Gambone must establish a delay arising from the Pedens’ failure to exercise due diligence and prejudice resulting from the delay. The party asserting laches as a defense must present evidence demonstrating prejudice from the lapse of time. Commonwealth ex. rel. Baldwin v. Richard, 561 Pa. 489, 751 A.2d 647 (2000). Further, a party asserting estoppel must show failure to enforce the law over a long period of time or some form of active acquiescence of illegal use, property owner’s good faith throughout proceedings and property owner’s innocent reliance evidenced by substantial expenditures. Smith v. Zoning Hearing Board of Conewago Township, 713 A.2d 1210 (Pa.Cmwlth.1998). Gambone claims that the Pedens failed to exercise due diligence, but fails to present any evidence to demonstrate that it was prejudiced by the delay, rendering this claim meritless. Moreover, in the context of equitable defenses, this Court has held that mere delay in the enforcement of a zoning ordinance does not create a vested right to use property in violation of zoning regulations. Smith. III. Gambone further contends the trial court erred by admitting the expert report and testimony of the Pedens’ landscaping expert, David Clarke. We disagree. The admission of testimony from an expert witness is within the sound discretion of the trial court. As such, our standard of review is very narrow; we may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also prejudicial to the complaining party. Majczyk v. Oesch, 789 A.2d 717 (Pa.Super.2001). Further, where an expert’s identity is disclosed sufficiently before trial, that expert’s testimony is admissible. Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396 (1995) (disclosure of expert’s identity six days prior to trial is sufficient to permit adverse party with notice and time to investigate the expert’s credentials). Here, disclosure made weeks before trial provided sufficient notice, and no abuse of discretion occurred in receiving Mr. Clarke’s testimony. Gambone also contends that it was an abuse of discretion for the trial court to select the more expensive of the two proposed remedies. In particular, the plan ordered by the trial court contains insufficient detail to justify the total cost quoted. At trial, Mr. Clarke testified that the cost of implementing his proposed landscape plan would be $135,000.00. R.R. 214a. He testified that the retaining wall would cost $45,900.00. R.R. 214a. Delivery and installation of the shrubs would cost $48,460.00. R.R. 215a. Removal of the trees currently on the Pedens’ property would cost $15,600.00. R.R. 215a. Finally, constructing the berm and mulching would cost $25,050.00. R.R. 215a. Mr. Clarke opined that this landscaping plan would comply with the Ordinance. R.R. 220a. Another written estimate discussed at trial, but not admitted into evidence, contained a quote of $88,610.00. R.R. 321a. With regard to this estimate, Mr. Clarke testified that the estimate only contemplates planting trees along the Pedens’ property line, whereas the more expensive estimate provides for plantings along both property lines. R.R. 217a. The Pedens requested that the trial court require plantings along both sides of the property line to create a complete visual buffer and the trial court agreed. We conclude that the trial court did not abuse its discretion or commit an error of law by approving the plan that will cost approximately $135,000.00 to implement. Accordingly, we affirm the order of the trial court. Judge LEADBETTER joins in Parts I and III and concurs in the result only as to Part II. ORDER AND NOW, this 13th day of May, 2002, the Order of the Court of Common Pleas of Montgomery County is affirmed. . Section 606 F of the Ordinance provides as follows: Buffer Requirements: Along all exterior property lines, screening buffers shall he provided in accordance with the following regulations, except when dwelling units in a proposed development shall abut dwellings of the same use and density.... 1. The owner shall place and maintain a planting area 25 feet in width containing deciduous trees, evergreen trees, evergreen and/or deciduous shrubs, flowering trees and/or shrubs and ground cover of sufficient planted density to produce a total visual screening consistent with the topography, the existing vegetation and the use of adjacent land. Wherever possible the owner shall make every effort to retain existing natural screening, such as vegetation and topography. The purpose of this planting is to block objectionable views, enhance good views, provide seasonal col- or, add texture and aroma, ameliorate possible noise and generally enhance the limits of the property. 2. All evergreen trees to be installed shall not be less than five (5) feet in height at the time of planting and shall be of such species that expected height at maturity shall not be less than 15 feet. All evergreen shrubs to be installed shall not be less than eighteen (18) inches in height at the time of planting and shall be of such species that expected height at maturity shall not be less than 6 feet for screening shrubs. 3. All deciduous trees to be installed shall not be less than twelve (12) feet in height and two and one-half (2-h) inch caliper at the time of planting. Deciduous trees shall be of such species that expected height at maturity shall not be less than 50 feet. Flowering trees shall have expected height of not less than 20 feet. 4. Applicants are encouraged to provide informal, free-form screening buffers when appropriate which need not be located entirely within the minimum required 25 foot width. Such alternative buffers shall be subject to approval by the Borough Council, upon recommendations of the Borough Planning Commission, either or both of whom may seek the advise [sic] of a licensed landscape architect in the review of the alternative plan. 5. Planting plans prepared by a licensed landscape architect in Commonwealth of Pennsylvania shall be required for all screening buffers, which shall clearly show and list the locations, size, species, and number of plant material proposed to be used. 6. All plant material shall be guaranteed for two years. All plant material which dies within that time shall be replaced by the applicant at his cost. . In our prior decision in this case we held: Appellants [Gambone] argue that their fence is simply an 'informal, free-form screening buffer’ and thus satisfies the requirements of 606F(4). This argument is simply absurd. Section 606F quite clearly requires a natural screen; it speaks of nothing else. A fence is neither informal nor free form. Moreover, a licensed landscape architect would not be needed to devise a planting plan for a simple fence separating the properties. Reading 606F as a whole, it is inconceivable that a six or eight foot wooden fence erected below townhouses of several stories would be contemplated as an acceptable alternative to a twenty-five foot swath of trees and vegetation meant to screen views from on property to another. . Gambone also argues the trial court erred in determining that § 606(F)(4) of the Ordinance is invalid on the grounds that it lacks constitutional notice and procedural safeguards mandated by the MPC. The trial court did not render § 606(F)(4) of the Ordinance invalid. The court merely stated that to the extent that § 606(F)(4) was applied here, the necessary constitutional safeguards were not present. In addition, in Peden I, we held the fence could not satisfy § 606(F)(4) . Act of July 31, 1968, P.L. 805, as amended, Section 909.1 added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1(a)(5). . Added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. 11002 A. . Section 915 of the MPC was repealed by the Act of December 21, 1988, P.L. 1329. The time limitations on appeals to the zoning hearing board originally found in Section 915 of the MPC are now found in Section 914.1 of the MPC which was added to the MPC by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10914.1. Section 914.1 requires all appeals from board determinations to be filed within 30 days after notice of the determination is issued. .Added by Section 61 of the Act of the December 21, 1988, P.L. 1329, 53 P.S. § 10617. That section, entitled, "causes of action,” provides: In case any building, structure, landscaping or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of any ordinance enacted under this act or prior enabling laws ... any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation ... may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation.... . We also note that after this Court affirmed the trial court’s grant of the preliminary injunction and remanded the case for the posting of an appropriate bond, the parties agreed on a $3,000.00 bond for the landscape plan to be prepared. R.R. 278a. However, because Gambone never submitted a plan prior to trial, the Pedens took it upon themselves to bring a resolution to this matter by presenting the testimony of Mr. Clarke. R.R. 278a. . As a final issue, Gambone asserts that the trial court erred by issuing an order, which required it to perpetually maintain the total visual buffer. However, Gambone failed to raise this issue in its post-trial motions filed with the trial court and, as a result, this issue is waived. Taylor v. City of Philadelphia, 692 A.2d 308 (Pa.Cmwlth.1997) (litigants must raise all allegations of error on post-trial motions or they will be deemed waived on appeal).

CLARK, J., On November 28, 1987, defendants were vacationing in Aruba with their minor son. At that time, their 19-year-old daughter, Kimberly, was living at home with her grandmother. On that date, at approximately 1:30 a.m., plaintiff’s decedent, Kenneth Maxwell, visited Kimberly without invitation in the defendants’ home. The two of them consumed large quantities of alcoholic beverages, which apparently lead to an argument. Kimberly stabbed decedent fatally. Subsequently, Kimberly Keas pled guilty to murder of the third degree and was sentenced to Muncy State Correctional Facility. Decedent’s estate sued Kimberly’s parents in trespass, averring they were negligent as to decedent in the following ways: (a) furnishing alcoholic beverages to Kimberly, age 19; (b) Purchasing alcoholic beverages for Kimberly; (c) allowing Kimberly to consume alcoholic beverages at their home; (d) failing to provide counselling for Kimberly, knowing of her alcohol problem; and, (e) fading to keep their alcoholic beverages under lock and key. Defendants moved for summary judgment, which was granted. Prior to leaving for vacation, Kimberly’s mother, defendant, Patricia Keas, instructed Kimberly that she was not to allow any friends into the house and there was to be no use of alcoholic beverages. Our perusal of Pennsylvania law indicates that there are no cases on this subject. However, we fail to see any duty owed by defendants to decedent. See Alumni Ass’n v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987), and Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332 (1985). Only Kimberly Keas was legally responsible for the death of Kenneth Maxwell. Accordingly, the entry of the summary judgment was proper.

KERNS, Member, Pursuant to Rule 208(d)(2) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendation to your honorable court with respect to the above-captioned petition for discipline. HISTORY OF PROCEEDINGS On September 6, 1990, a petition was filed before the Disciplinary Board of the Supreme Court of Pennsylvania against the respondent, [ ]. The petition for discipline arose out of respondent’s handling of a real estate closing. The pertinent facts are as follows: On August 15, 1987, [respondent] was retained by [A] relative to a purchase of real estate. Respondent agreed to represent [A] for a total fee of $175 and recording costs of $14, with the total of $189 to be paid out at the time of closing. It was further agreed that [respondent] would at the time of closing retain funds for the payment of liens and charges against the real estate. On October 8, 1987, the transaction closed and [A] paid the respondent’s fee in cash. Also at that time, respondent obtained a check for $3,500 representing the balance of the consideration due the complainant. Of that $3,500, $1,537.21 was for the payment of Kens against the real estate. Any balance remaining in the possession of [respondent] was by agreement due the seller, who is not a party to this action. The following day [respondent] retained in cash the balance of $1,537.21 after paying the obligation to the seller’s attorney. This balance constituted escrow funds which were distributable on behalf of the complainant and seller. During the next two months, respondent paid $466.32 of the obligations relative to the subject conveyance; [respondent] converted $1,084.89 to his own uses. The respondent at no time maintained any escrow account for the maintenance of [A’s] funds. In December 1987, [A] requested an accounting from the respondent, and by letter respondent indicated that he would fully account to [A] by mid-January 1988. This was despite the fact that nothing remained to be clarified relative to a lien on the subject property. After repeated inquiries on behalf of [A] and finally inquiries in August 1988 from the Office of Disciplinary Counsel, the respondent paid $751.23 to satisfy the Ken against the subject property. [Respondent] used his own personal funds to make this payment, and $333.66 was stifi due the seHer. Subsequently in October 1988, the Ken holder returned to [respondent] $426.49 of the $751.23 he paid in August 1988. Respondent did nothing with this check until November 1989 when, at the suggestion of the Office of the Disciplinary Counsel, he sent the proceeds to the seller’s counsel. [Respondent] has never fully accounted to his client, [A]. Respondent has also never maintained any appropriate financial or other records regarding this transaction. No answer to the petition for discipline was filed by [respondent] and on October 12, 1990 this matter was referred to Hearing Committee [ ]. Subsequently respondent filed an answer to the petition for discipline admitting all charges against himself. However, [respondent] requested mitigation based on the fact that he suffered from acute alcoholism at the time the matter in question occurred. He successfully completed an in-patient alcohol treatment program, has not been drinking for over a year and a half and regularly attends Alcoholics Anonymous meetings. [Respondent] by his admitted conduct violated the following Disciplinary Rules of the Code of Professional Responsibility for conduct prior to April 1, 1988, and the following Rules of Professional Conduct for conduct subsequent to April 1, 1988: (a) D.R. 1-102(A)(4), prohibiting an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; (b) D.R. 6-101(A)(3), dealing with neglect of a legal matter; (c) D.R. 9-102(A), requiring that an attorney deposit funds of a client into an identifiable escrow account; (d) D.R. 9-102(B)(3), requiring that an attorney maintain complete records of all funds of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them; (e) R.P.C. 1.3, requiring that an attorney act with reasonable diligence and promptness in representing a client; (f) R.P.C. 1.4(a), requiring an attorney to keep a client informed throughout of the status of a matter and to promptly comply with reasonable requests for information; (g) R.P.C. 1.15(a), requiring an attorney to maintain funds of a client or a third party in an escrow account; (h) R.P.C. 1.15(b), requiring an attorney to notify a client or a third party of funds in the possession of the lawyer payable to the client or third party, and to promptly pay over those funds; (i) R.P.C. 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. As previously noted, [respondent] filed an answer and admitted all allegations and requested mitigation. A hearing was held on December 19,1990 where he was allowed to testify at length on his own behalf regarding his severe state of alcoholism and subsequent steps to become and remain sober. A report of the Hearing Committee was filed on May 15, 1991, recommending an 18-month suspension with 6 months served and 12 months stayed. Also included was a two-year conditional probation during which [respondent] was directed to abstain from consuming alcohol, a sobriety monitor was to be appointed for respondent, a financial and practice monitor was to be appointed for respondent, and finally respondent was to take the next scheduled Pennsylvania Basic Legal Practice Course offered by the Pennsylvania Bar Institute. On June 11, 1991 respondent’s brief on exceptions was filed alleging that implementation of the Hearing Committee’s recommendation would permanently end his legal career, due to the fact that he is a sole practitioner, and that he has gotten in control of his alcohol abuse. Subsequently the Office of the Disciplinary Counsel filed a brief opposing respondent’s exception to the report of the Hearing Committee. Petitioner filed its brief on exceptions, citing the purpose of the disciplinary system to protect the public from unfit attorneys and to maintain the integrity of the legal system; and further that the com mittee’s recommendation serves the interest of both the disciplinary system and the respondent and thus should be adopted. These matters were referred to the board and were adjudicated on July 26, 1991. FINDINGS OF FACT Respondent has admitted all charges and allegations made by the petitioner and thus the Hearing Committee’s findings of fact set forth are true and correct as follows: (1) The respondent, [ ], Esq., was bom in 1949, admitted to practice law in Pennsylvania in 1979, and currently maintains an office for the practice of law at [ ]• (2) On August 15, 1987 respondent was retained by [A] relative to his contemplated purchase of real estate in [ ], [ ] County, Pa. At the time of respondent’s retention, complainant made a $1,500 down payment against the total consideration due of $5,000. (3) The respondent agreed to represent the complainant for a total fee of $175 and recording costs of $14, with the total of $189 to be paid at the time of closing. The respondent also agreed with the seller’s attorney, [B], that the respondent would at the time of closing retain funds for the payment of any hens and charges against the real estate. (4) On October 8, 1987, the transaction closed and complainant gave the respondent $189 in cash, consisting of the respondent’s fee of $175 and $14 to record the deed. Complainant produced a check of the [C] Federal Savings and Loan, dated October 8, 1987, payable to the respondent for $3,500, representing the balance of the consideration due the seller. (5) The respondent acted as the settlement agent for the buyer and the seller and respondent was to retain $1,537.21 from the $3,500 to pay obligations of the seller that constituted hens on the property conveyed. Any balance remaining in the possession of the respondent after the payment of the seller’s obligations was due the seller. (6) The $3,500 check the respondent received on October 8, 1987 represented funds he held in a fiduciary capacity. On October 9, 1987, the $3,500 check was cashed by respondent at the [D] Bank of [ ] and he obtained a cashiers check no. 04068771 of that bank for $1,962.79 payable to [B], Esq., the seller’s attorney, which check the respondent gave to [B] on that date. (7) The respondent on, October 9, 1987, retained in cash the balance of $1,537.21 remaining from the check of $3,500 after obtaining the check for $1,962.79 payable to [B], Esq. This $1,537.21 and the $14 recording fee received October 8,1987 constituted escrow funds totaling $1,551.21 which were distributable on behalf of the buyer and seller. (8) In 1987 the respondent paid, in cash, obligations relative to the real estate conveyance in the amount of $466.32. (9) Subsequent to the payments in November and December 1987, totaling $466.32, the respondent converted the balance of $1,084.89 in escrow funds to his own use. Respondent at no time pertinent hereto maintained any escrow account for the maintenance of client’s funds. (10) By letter of December 23, 1987, the respondent advised complainant, who had requested an accounting, that the respondent had contacted the Welfare Department in Pennsylvania and that the respondent anticipated concluding all matters relative to the settlement by mid-January 1988, and that he would then fully account to [A]. The respondent had been advised by notice of the Department of Public Welfare dated September 29, 1987 that the payoff on the lien against the [E] property was $751.23. There was nothing in December 1987 that remained to be clarified relative to the DPW lien. (11) On February 10, 1988 the respondent wrote to [A], in response to [A’s] continued inquiries regarding the status of the hens and the promised accounting, and misrepresented to complainant that respondent was waiting for the results of a certified tax search he had ordered from the courthouse. There was no reason to order a tax search relative to the property conveyed approximately four months after the closing. (12) On August 11, 1988, as a result of inquiries from the Office of Disciplinary Counsel on July 22 and August 5, 1988, the respondent paid $751.23 to the Department of Public Welfare to satisfy the hen against [A’s] property. Personal funds of the respondent or his wife were used to make this payment. After this payment the respondent remained accountable for $333.66 in funds relative to the subject conveyance. The $333.62 was payable to the seller as it represented the balance remaining after the payment of those obligations required to be paid to pass clear title to the buyer. (13) By check dated October 19,1988, the Department of Public Welfare returned to the respondent $426.49 of the $751.23 he paid in August 1988. The respondent did nothing with this check until on or about November 1989 when, at the suggestion of the Office of Disciplinary Counsel, he had the check reissued and tendered the proceeds to the seller’s counsel. The respondent in November 1989 also returned to the seller the balance of $144.66 which the Office of Disciplinary Counsel suggested to the respondent in July 1989 might be due the seller. (The $144.66 was based on a computational error. The respondent actually owed the seller $333.66 so a balance of $189 was still due.) The source of the $144.66 was personal funds of the respondent or his wife. (14) Until November 1990 the respondent remained accountable to the seller for $189 and had never fully accounted to his client, [A]. The respondent has never maintained any appropriate financial or other records regarding this transaction. (15) On November 5, 1990, the respondent made [A] whole by the payment to him of $581.45. This payment was from personal funds of the respondent as the respondent had failed to provide for the grantor to [A] to pay the 1987 real estate taxes due as of the October 1987 closing. The seller was then responsible for a pro rata share of the 1987 real estate taxes and the respondent’s payment of $581.45 to [A] as reimbursement for their paying these taxes extinguished the $189 due the seller by the respondent relating to the October 1987 closing. (16) Respondent is an alcoholic and was impaired by his alcohol addiction during the time the instant misconduct occurred. (17) Respondent’s impaired condition was a causal factor in respondent’s misconduct. DISCUSSION The respondent admittedly has violated the Disciplinary Rules and Rules of Professional Conduct. Respondent urges that the recommended six months of the suspension be served, due to the mitigating evidence concerning his alcoholism, be stayed. Respondent offered lengthy testimony detailing his many years of dependence on alcohol and the resulting impaired ability to consider his conduct. He discussed the lack of conscious intent to injure another party but does admit to negligence in drinking and trying to practice law. These circumstances have resulted in a steady decline in his professional practice since he was admitted to the bar in 1977. He testified at the hearing that he would wake up in the morning and have something to drink to steady his nerves. His tolerance to alcohol increased and his body started deteriorating, his pancreas was affected, then he started to get fuzzier and foggier. He would hide a fifth of alcohol in the toilet tank. He was only making $15,000 a year in gross receipts. Respondent had a liver impairment and elevated liver enzymes, and his mental capabilities were debilitated because of excess ammonia production because of the liver breakdown. By allowing conduct such as the respondent’s to go without actual suspension will be against the maintenance and integrity of the legal system. It must be noted that the primary purpose of this disciplinary system is to maintain the integrity of the legal system in addition to protecting the public from unfit attorneys. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Similar fact situations have resulted in suspensions from the practice of law. See In re Anonymous No. 42 D.B. 87, 49 D.&C.3d 488 (1987). Respondent’s admitted actions indicate that he handled the funds of a client in a questionable fashion, and did not fully account to his client. These actions by respondent should result in his suspension from the practice of law for an appropriate period of time. In re Anonymous No. 91 D.B. 87, 49 D.&C.3d 577 (1988). Respondent’s admitted neglect in addressing the subject real estate transaction coupled with his admission of his alcohol-related problems indicates respondent has made a positive step forward in dealing professionally with his practice of law. His health is improving and he has been sober for one year and nine months at the time of hearing before the board. He successfully completed in-patient treatment at [ ] in [ ], Pa., and has followed the program established. There is a prior history of two informal admonitions in April 1979 and March 1981 and a private reprimand in May 1987. This prior history, of course, should be considered as an aggravating factor but can be balanced with the mitigating factors as set forth by the respondent’s testimony and evidence. The Supreme Court of Pennsylvania has allowed consideration of mitigating factors such as alcoholism in the imposition of disciplinary sanctions for ethical violations. In re Anonymous No. 37 D.B. 88, 50 D.&C.3d 526 (1989). The respondent as a sole practitioner is completely aware of the trust placed in him by his clients. He admits the board’s recommendations are appropriate in this situation except for a six-month suspension to be served and not stayed. This is further indication of respondent’s willingness to see the wrongness in his conduct and accept the ramifications of his action and monitor his behavior in the future. Disciplinary Board Rules paragraph 89.293 allows substance abuse probation. In this case, as required by the rules, the respondent presented testimony from a counseling supervisor. He is a fully certified addictions counselor in the State of Pennsylvania and a member of the American Academy of Counseling and Development. His testimony at pages 38 through 40 clearly sets forth the respondent’s condition, that respondent was physically and mentally impaired by his substance abuse, and that this condition was a factor in causing his misconduct. As set forth in the rules this satisfies the requirement set forth in Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989). The Rules of the Disciplinary Board paragraph 89.293(c) provides that a sobriety monitor shall be ap pointed in cases of drug or alcohol abuse. [F] has agreed in writing to serve as [respondent’s] sobriety monitor. [F] is involved in the Pennsylvania Bar Association Drug and Alcohol Committee and thus can serve as [respondent’s] sobriety monitor by carrying out all the duties imposed by the rules. Respondent has received a two-year probationary period and the sobriety monitor shall perform his duties for that period also in accordance with paragraph 89.293(c) of the Rules. While keeping in mind the prior misconduct of respondent, the testimony of respondent as well as the expert witness presented by him provide a strong basis for recommending that a probationary period be set with certain conditions as provided by Rules of Disciplinary Conduct section 89.291. RECOMMENDATION The board recommends that respondent be suspended from the practice of law for 24 months; six months to be served and 18 months stayed. Following the six-month period of suspension to be served, a two-year conditional probation will begin. The conditions attached to this probationary period are as follows: (a) Respondent shall abstain from using alcohol or any other mind-altering chemical. (b) Respondent shall attend Alcoholics Anonymous meetings on a weekly basis. (c) Respondent shall maintain weekly telephone contact with his Alcoholics Anonymous sponsor and furnish the sobriety monitor with the sponsor’s name, address and telephone number. (d) Respondent shall provide written verification, on a form provided by the board, to his sobriety monitor of regular weekly attendance at an Alcoholics Anonymous meeting. (e) Respondent shall cooperate fully with his sobriety monitor. A sobriety monitor shall be appointed for respondent pursuant to board rules section 89.293(c) ([F], Esq., of [ ], Pa., has indicated a willingness to serve as respondent’s sobriety monitor). [F] is an attorney admitted to practice law in this Commonwealth, in good standing, and is involved in the Pennsylvania Bar Association Drug and Alcohol Committee. The sobriety monitor shall do the following: (a) Monitor the compliance by the respondent with the terms and conditions of the order imposing probation; (b) Assist the respondent in arranging any necessary professional or substance abuse treatment; (c) Meet with the respondent at least twice a month and maintain weekly telephone contact with the respondent; (d) Maintain direct contact with the Alcoholics Anonymous sponsor of the respondent; (e) File with the secretary of the board quarterly written reports; and (f) Immediately report to the secretary of the board any violations by the respondent of the terms and conditions of the probation. A financial and practice monitor shall be appointed for respondent during the period of his stayed suspension and probation ([G], Esq., of [ ], Pa., has indicated a willingness to serve as respondent’s practice monitor). The financial and practice monitor shall do the following during the period of respondent’s stayed suspension and probation: (a) Periodically examine the respondent’s office and escrow accounts, client ledgers, and other financial records to ensure that the respondent has appropriately established such records and is aware of the proper manner of handling funds and keeping appropriate records pertaining thereto; (b) Periodically, but not less than once every 60 days, examine the respondent’s financial records to ensure continued compliance with proper handling of funds and maintenance of appropriate records; (c) Periodically examine the respondent’s law office organization and procedures to ensure that the respondent is maintaining an acceptable tickler system, filing system, and other administrative aspects of the respondent’s practice; (d) Meet with the respondent at least monthly to examine respondent’s progress toward satisfactory and timely completion of clients’ legal matters; (e) File with the secretary of the board quarterly written reports that the above conditions have been met; and (f) Immediately report to the secretary of the board any violation by the respondent of the terms and conditions of probation; (7) The sobriety monitor and financial monitor must be members of the local Drug and Alcohol Committee. The board recommends further that respondent be ordered to pay the expenses of investigating and prosecuting this matter, pursuant to Rule 208(g), Pa.R.D.E. Messrs. Keller and Paris did not participate in the adjudication. ORDER And now, November 17, 1992, the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 21, 1991, are approved, and it is ordered that [respondent] be suspended from the practice of law for a period of 24 months; six months to be served and 18 months stayed. Following the six-month period of suspension to be served, a two-year conditional probation will begin. The conditions attached to this probationary period are as follows: (a) Respondent shall abstain from using alcohol or any other mind-altering chemical. (b) Respondent shall regularly attend Alcoholics Anonymous meetings on a weekly basis. (c) Respondent shall maintain weekly telephone contact with his Alcoholics Anonymous sponsor and furnish the sobriety monitor with the sponsor’s name, address and telephone number. (d) Respondent shall provide written verification, on a form provided by the board, to his sobriety monitor of regular weekly attendance at an Alcoholics Anonymous meeting. (e) Respondent shall cooperate fully with his sobriety monitor. A sobriety monitor shall be appointed for respondent pursuant to Board Rule Section 89.293(c) ([F], Esq., of [ ], Pa., has indicated a willingness to serve as respondent’s sobriety monitor). [F] is an attorney admitted to practice law in this Commonwealth, in good standing, and is involved in the Pennsylvania Bar Association Drug and Alcohol Committee. The sobriety monitor shall do the following: (a) Monitor the compliance by the respondent with the terms and conditions of the order imposing probation; (b) Assist the respondent in arranging any necessary professional or substance abuse treatment; (c) Meet with the respondent at least twice a month and maintain weekly telephone contact with the respondent; (d) Maintain direct contact with the Alcoholics Anonymous sponsor of the respondent; (e) File with the secretary of the board quarterly written reports; and (f) Immediately report to the secretary of the board any violations by the respondent of the terms and conditions of the probation. A financial and practice monitor shall be appointed for respondent during the period of his stayed suspension and probation ([G], Esq., of [ ], Pa., has indicated a willingness to serve as respondent’s practice monitor). The financial and practice monitor shall do the following during the period of respondent’s stayed suspension and probation: (a) Periodically examine the respondent’s office and escrow accounts, client ledgers, and other financial records to ensure that the respondent has appropriately established such records and is aware of the proper manner of handling funds and keeping appropriate records pertaining thereto; (b) Periodically, but not less than once every 60 days, examine respondent’s financial records to ensure continued compliance with proper handling of funds and maintenance of appropriate records. It is further ordered that respondent comply with all the provisions of Rule 217, Pa.R.D.E., and he shall pay the expenses of investigating and prosecuting this matter, pursuant to Rule 208(g), Pa.R.D.E. Messrs. Justice Larsen and Papadakos dissent and would enter an order suspending respondent for a period of 24 months.

JOHNSON, Judge: In this appeal, we are asked to consider the propriety of the judgment of sentence imposed following Louis Pearson’s convictions for possession of a controlled substance (cocaine), possession with intent to deliver a controlled substance, and possession of drug paraphernalia. We must also determine the proper procedure for the consideration of a claim of trial counsel’s ineffectiveness that was presented for the first time in the appellant’s concise statement of matters complained of on appeal filed pursuant to Pa. R.A.P.1925. For the reasons stated below, we affirm the judgment of sentence and remand the case to the trial court with the instruction to conduct an evidentiary hearing into Pearson’s remaining ineffectiveness claim. The record reveals the following facts. On July 8,1992, several police officers and detectives from the narcotics section of the City of Pittsburgh Police Department executed a search warrant at 328 Collins Avenue. This warrant was issued based upon probable cause that crack cocaine and drug paraphernalia were present in the residence. The warrant specified that the residence was to be searched, as well as Pearson himself, for those items. Upon their arrival at the residence, the officers and detectives informed Amy Fordham, a resident at this address, that they had a warrant to search the residence for suspected narcotics. The officers discovered twenty-four knotted baggie corners each containing a rock of crack cocaine, weighing an aggregate total of 3.30 grams; cash totalling $1,076 in bills of assorted small denominations; two scales; and a suitcase, stereo equipment, an afghan, jewelry, and coins. The crack cocaine was found in a dresser drawer in the master bedroom of the residence and both scales were seized from the kitchen. The money was found in a hat attached to a stuffed animal in the residence. The suitcase, stereo equipment, afghan, jewelry and coins were discovered together in a hallway closet. These items aroused suspicion and were seized by the police because the suitcase bore a tag bearing the name and address of Rebecca Lee Pumphrey, and this address was not 328 Collins Avenue. Upon further investigation of these items, the officers determined that Ms. Pumphrey had previously reported them stolen. The officers then informed Fordham that she was under arrest for possession of a controlled substance, possession with the intent to deliver cocaine, and possession of drug paraphernalia. Pearson arrived at the residence approximately twenty-five minutes later. Pearson first attempted to persuade the police that his name was John Ritter, but then, after the police told him that they had seized photo identification cards with the name of Louis Pearson and what appeared to be his photograph, he admitted to being Louis Pearson. The police arrested Pearson for possession of a controlled substance, possession with the intent to deliver cocaine, and possession of drug paraphernalia. When the police informed him that Fordham was also being arrested on the same charges, Pearson stated that she was uninvolved with the cocaine seized from the residence. Pearson further stated that the cocaine belonged to him and that although he was not a user, he did sell cocaine. Subsequently, Ms. Pum-phrey confirmed that the items found in the residence were those that she had reported stolen. Pearson was also charged with receiving stolen property as a result of the discovery of these items. Following a jury trial, Pearson was found guilty of possession of a controlled substance (cocaine), possession with intent to deliver a controlled substance, and possession of drug paraphernalia. The jury, however, found Pearson not guilty of receiving stolen property. The court sentenced Pearson to a term of three to six years’ imprisonment on the possession with intent to deliver conviction; no further penalty was imposed. Pearson did not file post-verdict motions. This appeal followed. On appeal, Pearson argues, in essence, that the court erred in refusing to grant a mistrial after the prosecutor elicited testimony from a witness concerning Pearson’s decision to invoke his right to remain silent, and permitting the Commonwealth to introduce inadmissible hearsay testimony. In addition, Pearson argues that his counsel was ineffective for failing to: (a) object to the court’s jury instruction concerning evidence that Pearson invoked his right to remain silent, (b) object to a portion of the prosecutor’s closing argument and request an instruction that hearsay testimony could not be received as substantive evidence, and (c) investigate and call essential -witnesses. First, Pearson contends that the court erred in refusing to grant a mistrial after the prosecutor elicited testimony from a witness concerning Pearson’s decision to invoke his right to remain silent. Initially, we note that “[w]hether to declare a mistrial is a decision which rests within the sound discretion of the trial court, whose exercise thereof will not be reversed absent an abuse of such discretion.” Commonwealth v. Bonace, 391 Pa.Super. 602, 608, 571 A.2d 1079, 1082, appeal denied, 526 Pa. 647, 585 A.2d 466 (1990). We acknowledge that “‘[i]t is a clear violation of the accused’s constitutional right against self-incrimination to make a reference at trial to his silence while in police custody.’ ” Commonwealth v. Holloman, 424 Pa.Super. 73, 78, 621 A.2d 1046, 1048 (1993), quoting Commonwealth v. Gbur, 327 Pa.Super. 18, 23, 474 A.2d 1151, 1154 (1984). Not every such reference, however, requires a new trial, Commonwealth v. Mays, 361 Pa.Super. 554, 558, 523 A.2d 357, 359, appeal denied, 516 Pa. 613, 531 A.2d 780 (1987), for the trial court may promptly and adequately give a cautionary instruction to cure what might otherwise be a reversible error. Gbur, supra, at 24, 474 A.2d at 1154. To determine whether a cautionary instruction can cure a reference to the accused’s silence, courts must consider “1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.” Id. “If the reference to the accused’s silence is of a nature that would seriously compromise the jury’s objectivity and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required.” Id. Here, the prosecutor called Detective David Whiteman to testify regarding inculpa-tory statements that Pearson made following his arrest. Detective Whiteman testified that after Pearson was provided with his Miranda warnings, Pearson admitted that the drugs recovered from Fordham’s residence belonged to him and that Fordham had no connection to the drugs. N.T., September 8, 1994, at 69. According to the detective, Pearson then stated: “I sell drugs. I sell crack. I just started to sell it.” Id. Later, the following exchange occurred: Q. [By the prosecutor:] Did [Pearson] indicate for how long he had been selling crack cocaine? A. [By Detective Whiteman:] When I attempted to ask him that he didn’t want to answer any more questions. Id. at 74. At that point, defense counsel moved for a mistrial, a conference was held at sidebar, and the jury was ushered out of the courtroom. Id. at 75. The prosecutor indicated that he neither intentionally elicited the statement nor expected the detective to respond as he did. Id. He thought instead that the detective would testify that Pearson stated that he had been selling drugs for “a couple of months.” Id. The trial court concluded that any damage done by the detective’s remark could be cured, and the court instructed the jurors upon their return as follows: At the conclusion of the last session the police officer’s response to a question was that at one point the Defendant did not want to answer any more questions. Once a person — any citizen of this country has been arrested they have an absolute right to remain silent. That is a right that is founded upon our Constitution. When you’re arrested you don’t have to say anything and that right is so important that a jury or a judge may not consider a person’s silence any evidence of guilt. The fact that the Defendant decided to no longer answer any questions is absolutely no evidence against him and you may not consider any inference or any adverse inference from the fact that at some point he decided or chose not to answer any more questions. Again, that is the most basic right that we all enjoy founded upon our Constitution so perhaps the best thing to do would be to disregard the statement or disregard the last response by the officer. Id. at 81-82. Turning to the four-prong test set forth above, we conclude that the nature of the detective’s reference concerning Pearson’s desire to stop answering questions was prejudicial. Gbur, supra (prosecutor’s reference to defendant’s assertion of Ms right to remain silent was prejudicial). However, the detective had previously testified that Pearson provided an inculpatory statement after being advised of Ms rights. N.T., supra, at 69. “Therefore, the degree of prejudice caused by the reference to appellant’s silence in this case was lessened somewhat by the fact that the jury had previously heard testimony that he did not remain silent.” Gbur, supra, at 25, 474 A.2d at 1155; see also Commonwealth v. Anderjack, 271 Pa.Super. 334, 345, 413 A.2d 693, 699 (1979). Second, the trial court found, and we agree, that there is no record evidence wMch suggests that the prosecutor intentionally elicited the reference to Pearson’s silence. Rather, the prosecutor stated that the detective’s response was unexpected. N.T., supra, at 75. Third, the prosecutor made no attempt to exploit the remark, as he did not refer to it again. Cf. Gbur, supra (no misconduct on the part of the district attorney where he did not refer to the defendant’s silence in any question directed to any witness). Finally, immediately upon the jurors’ return to the courtroom, the trial court instructed them to disregard the detective’s testimony concerning Pearson’s decision not to answer any more questions. Therefore, we conclude that the court’s instruction adequately cured the detective’s reference to Pearson’s silence following Ms arrest. Accordingly, we find no abuse of discretion in the trial court’s refusal to grant Pearson’s request for a mistrial. Next, Pearson asserts that the trial court erred in permitting the Commonwealth to introduce inadmissible hearsay testimony concerning police procurement of the search warrant. Pearson cites to three instances where he claims that the prosecutor was permitted to introduce such testimony. First, he cites the following passage from the prosecutor’s opening statement: On July 8, 1992, Detective Joseph applied for a search warrant which was granted and authorized by a local magistrate and it gave him permission to search the residence at 328 Collins [Avenue] in the City of Pittsburgh in the East Liberty area and it gave him authority to search the person of the defendant. [Defense Counsel]: Objection; irrelevant. N.T., supra, at 32. Next, he cites one of the prosecutor’s questions to Detective Wilson, whereby he inquired, “on or around June 8, 1992, did you receive information wMch led you to seek a search warrant? Did you, in fact, have a magistrate_” Id. at 41. Defense counsel again objected on the grounds of relevancy and, after the objection was overruled, the detective testified that the warrant authorized the police to search both Pearson and the residence at 328 Collins Avenue for narcotics. Id. at 42-44. Finally, Pearson cites the following portion of the prosecutor’s closing argument: Now think back? How is it that the police got to Collins Avenue? They got a search warrant. They had authority to go there and look. What was it they went to look for? They had authority to search for drugs at Collins Avenue and they had authority to search the Defendant. Id. at 179-80. Initially, we note that hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted therein. Commonwealth v. Smith, 436 Pa.Super. 277, 285, 647 A2d 907, 911 (1994). We fail to see how any of the above-cited language satisfies tMs defmition. Moreover, in none of these instances did defense counsel lodge a hearsay objection. Failure to raise a contemporaneous objection to the evidence at trial waives that claim on appeal. Pa.RA.P. 302(a); Commonwealth v. Burkholder, 528 Pa. 119, 595 A.2d 59 (1991). Further, Pearson may not raise a new theory for an objection made at trial on Ms appeal. Commonwealth v. Mehalic, 382 Pa.Super. 264, 555 A.2d 173 (1989). Accordingly, because the relevant evidence did not constitute hearsay and was, in any event, not subject to a timely hearsay objection, Pearson has waived these claims for appeal purposes. Pearson’s three remaining claims allege ineffective assistance of his trial counsel, G. William Bills, Esquire. The standard for evaluating the effectiveness of counsel is well-established: counsel will be found to be ineffective where there is (1) arguable merit to the underlying claim, (2) the course chosen by counsel does not have a reasonable basis designed to effectuate the appellant’s interest, and (3) the appellant demonstrates prejudice. Commonwealth v. Carter, 443 Pa.Super. 231, 242, 661 A.2d 390, 395 (1995), appeal denied, 544 Pa. 623, 675 A.2d 1242 (1996). Moreover, the “burden of establishing ineffective assistance of counsel rests upon the appellant since counsel’s representation is presumed to be effective.” Commonwealth v. Granberry, 434 Pa.Super. 524, 531, 644 A.2d 204, 207 (1994). Finally, counsel can never be found to have been ineffective for failing to raise a meritless claim. Commonwealth v. Bracey, 541 Pa. 322, 335 n. 8, 662 A.2d 1062, 1068 n. 8 (1995), cert. denied, — U.S. -, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996). With these standards in mind, we now address Pearson’s ineffectiveness claims. In his brief to this Court, Pearson asserts three bases for a finding of trial counsel’s ineffectiveness. First, Pearson asserts that counsel was ineffective for failing to object to the court’s jury instruction concerning Pearson’s invocation of his right to remain silent. In addition, Pearson contends that trial counsel was ineffective for failing to lodge a hearsay objection to that portion of the prosecutor’s closing argument that referred to the procurement of the search warrant, and for failing to request an instruction that hearsay testimony cannot be received as substantive evidence. Following our review of the trial transcript, we have concluded that the court’s instruction concerning Pearson’s right to remain silent was sufficient to cure any prejudice that may have resulted from Detective Wilson’s testimony that Pearson refused to answer one of his questions. Further, we reviewed the cited portion of the prosecutor’s closing argument and found that it did not constitute hearsay. Consequently, we conclude that these claims lack arguable merit, and trial counsel cannot be found to have been ineffective on this basis. Bracey, supra. As his final claim, Pearson asserts that trial counsel was ineffective for failing to investigate and call two witnesses! To establish a claim that counsel was ineffective for failing to investigate or call witnesses, [Pearson] must establish four essential points of information. First, he must identify the alleged witnesses. Second, he must demonstrate that defense counsel knew of the existence of those witnesses prior to the time of trial. Third, he must demonstrate the witnesses would have provided material evidence at the time of trial. Fourth, [Pearson] must establish the manner in which the witnesses would have been helpful to his or her case. Commonwealth v. Poindexter, 435 Pa.Super. 509, 521, 646 A.2d 1211, 1216 (1994), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). Here, Pearson asserts that counsel was ineffective for failing to call Orlando Jacobs and Donald Shrager, Esquire. At trial, Amy Fordham testified that the money recovered from her residence was part of a settlement Pearson had received from a lawsuit. N.T., supra, at 139-40. She stated that Pearson had given her part of the proceeds to buy clothes for her children. Id. at 147. In his brief to this Court, Pearson claims that he notified counsel that Jacobs and Shrager were potential witnesses and indicated that he wanted them to be called at trial. Pearson contends that Attorney Shrager’s testimony would have corroborated Fordham’s testimony, as he had represented Pearson in the above-mentioned lawsuit, and that Shrager would have testified that the money recovered from the hat attached to the stuffed animal came from that settlement. In addition, Pearson asserts that Orlando Jacobs would have testified that the cocaine and drug paraphernalia recovered from the residence belonged to Jacobs, not Pearson. Pearson further asserts that the absence of testimony from these witnesses prejudiced him. Thus, in his brief to this Court, Pearson alleges all of the elements set forth in Poindexter. Our review of this matter is hampered, however, by the procedural posture of this case. Although we can determine that Pearson’s underlying claim in this instance has arguable merit, and we will concede that Pearson may have suffered prejudice as a result of counsel’s action, we cannot, on this record, determine whether counsel had a reasonable strategy designed to effectuate Pearson’s interests in pursuing the chosen course of action. The trial court did not hold an evidentiary hearing concerning Pearson’s ineffectiveness claims. In fact, because of the way in which this appeal was taken, the trial court could not have held such a hearing. We note, again, that Pearson elected not to file post-verdict motions, as is his right under the current Rules of Criminal Procedure. Pa.R.Crim.P. 1410(B). Instead, Pearson filed a direct appeal of his judgment of sentence. Once a notice of appeal is filed, a trial court is divested of jurisdiction to act further on the case. Pa.R.A.P. 1701(a). It is true that, in some instances, the Rules of Appellate Procedure do permit the trial court to act after an appeal is taken; to wit: After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may: (1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant superse-deas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding. Pa.R.A.P. 1701(b)(1). In Commonwealth v. Wertelet, 446 Pa.Super. 352, 355, 666 A.2d 1087, 1089 (1995), a panel of this Court, in dicta, asserted that the trial court may conduct an evidentiary hearing following the taking of an appeal pursuant to Rule 1701(b)(1) because this is a matter “otherwise ancillary to the appeal.” We note that Wertelet, a one-issue case submitted to this Court without the benefit of oral argument, is similar to the present case in that the appellant raised his ineffectiveness claim for the first time in his concise statement of matters complained of on appeal prepared pursuant to Pa.R.AP.1925(b). In Wertelet, the appellant asserted that his counsel was ineffective for failing to advise her of her right to testify at trial. The Commonwealth argued on appeal that, because claims of counsel’s ineffectiveness must be pursued at the first available opportunity, Wertelet had waived her claim by failing to raise the issue in a post-verdict motion. The Wertelet court declined to require a criminal defendant to file post-verdict motions in all cases where ineffectiveness of counsel is claimed because the revised Rule 1410 no longer requires that such motions be filed. We agree with this determination and will also not impose such a requirement. An appellant cannot be required by this Court to file a post-verdict motion when the rules of procedure as promulgated by the Pennsylvania Supreme Court explicitly dictate otherwise. See 42 Pa.C.S. § 1722(a)(1) (the Pennsylvania Supreme Court shall have the power to prescribe the rules of procedure that govern Pennsylvania Courts); see also Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985) (“The formal purpose of the Superior Court is to maintain and effectuate the decisional law of this [Supreme] Court as faithfully as possible.”). However, a criminal defendant who fails to timely assert alleged errors in the trial court that require action on the part of that court may suffer a consequence for his failure to follow this avenue of redress prior to appeal. Cf. Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995) (holding that a criminal defendant’s election not to file an optional post-verdict motion resulted in a waiver of the claim that the verdict was contrary to the weight of the evidence); see also Commonwealth v. Holmes, 444 Pa.Super. 257, 263, 663 A.2d 771, 774 (1995) (“The fact that the trial court filed an opinion pursuant to Pa.R.A.P.1925(a) in the instant case does not distinguish it from Hodge in that notwithstanding appellant’s statement pursuant to Pa.R.AP.1925, the trial court had no basis upon which to grant a new trial without a motion for a new trial before it. Thus, it could not exercise its discretion in granting or denying same.”). In Wertelet, the trial court had correctly noted that it could not conduct a hearing or otherwise consider the matter because the case was on appeal. Wertelet, supra, at 355, 666 A.2d at 1088. The appellant’s underlying claim in Wertelet was found by the panel of this Court to have arguable merit and was determined to have established that the appellant suffered prejudice. Id. at 356, 666 A.2d at 1089. Thus, an evidentiary hearing was necessary, and the panel remanded the case to the trial court for a determination of whether counsel had a reasonable basis for choosing the course of action he adopted. Id. The Wertelet Court stated, however, that while Rule 1701(b)(1) permitted the trial court to conduct a hearing, in its view, this Rule prohibits the trial court from entering a dispositional order on the ineffectiveness claim. Id. at 355, 666 A.2d at 1088. While noting that “because of the newness of these procedures, the trial court could not have foreseen our holding that it could have conducted an ineffectiveness hearing following the filing of the appeal[,]” id. at 356, 666 A.2d at 1089, the Wertelet Court inferred that the trial court committed an error by failing to hold the evidentiary hearing on Pearson’s ineffectiveness claims. We hold that the trial court did not commit such an error. As stated previously, the trial court was totally divested of jurisdiction by the taking of the appeal. Pa.R.A.P. 1701. We cannot find, as the Wertelet court did, that an ineffectiveness hearing is permitted by Rule 1701 as being “ancillary to the appeal.” The rule gives examples of what is ancillary to an appeal; namely, the clarification of orders and the correction of formal errors in, for example, docket entries, transcription of the record, and the grant of a supersedeas motion. E.g., Pennsylvania Industrial Energy Coalition v. Pennsylvania Public Utility Commission, 653 A.2d 1336 (Pa.Cmwlth.1995), aff'd, 543 Pa. 307, 670 A.2d 1152 (1996) (finding that a trial court is empowered under Pa.R.A.P. 1701(b)(1) to correct non-substantial technical amendments to an order, make changes in the form of a decree, and modify a verdict to add prejudgment interest); Tanglwood Lakes Community Association v. Laskowski, 420 Pa.Super. 175, 616 A.2d 37 (1992) (finding that the trial court could properly enforce its order by imposing sanctions for lack of compliance with that order against an appellant who did not seek supersedeas or a stay of the court’s original order pending the appeal); First Pennsylvania Bank, N.A v. National Union Fire Insurance Company of Pittsburgh, Pa., 397 Pa.Super. 612, 580 A.2d 799 (1990) (finding that the trial court’s amendment of an order after the filing of an appeal to include specific damages amount was proper under Pa.R.A.P. 1701 as the court merely took action to correct a formal error). Consideration of a claim that trial counsel was ineffective is inherently different from such permitted ministerial actions in that it does not correct or add upon what the trial court has already decided; rather, such a claim attacks the integrity of the trial itself. A claim of counsel’s ineffectiveness is a challenge to the very validity of the conviction and sentence, and is an objection of Constitutional dimensions. We cannot conclude that such a challenge is subordinate to the taking of an appeal. We accordingly reverse that part of Wertelet that found that the trial court may conduct a hearing regarding claims of ineffectiveness of counsel after the notice of appeal has been filed. We hold, instead, that the trial court cannot conduct a hearing on the matter unless and until this Court remands a case with instructions to hold such a hearing. We note that not every claim will require this evidentiary hearing; in the present case, Pearson’s first two claims can properly be addressed based upon the record before us. Only when the underlying issue raised is arguably meritorious, and the appellant has established that he has suffered prejudice by the alleged ineffectiveness, will such a hearing become necessary. The instant ease presents such a claim. Moreover, we note that the only issue properly before our Court at this time concerns the validity of Pearson’s judgment of sentence. The Wertelet court also erred in failing to address the validity of the appellant’s judgment of sentence. As an appellate Court, we must either affirm the judgment of sentence or, where the trial court has committed an error, vacate that judgment. When this Court determines that an appellant’s judgment of sentence is proper pending resolution of the alleged ineffectiveness claim, the appellant will not be automatically free to escape his term of incarceration while awaiting the evidentiary hearing. This result will discourage the filing of frivolous claims asserting ineffectiveness of counsel in an attempt to avoid a duly imposed judgment of sentence. In this case, we have not found that the trial court committed error or abused its discretion in any way to permit us to do other than affirm Pearson’s judgment of sentence. Because his claim that trial counsel was ineffective for failing to call two witnesses may have merit, however, we must remand that issue to the trial court, with instructions to conduct an evidentiary hearing on counsel’s reasonable basis for the actions he took at trial. Based upon the foregoing, we affirm the judgment of sentence and remand solely for an evidentiary hearing on Pearson’s ineffectiveness claim which we have indicated is of arguable merit. If, on remand, the trial court concludes that Pearson’s counsel was ineffective, sentence should be vacated and a new trial granted, subject to the Commonwealth’s right of appeal. If the trial court on remand finds no ineffectiveness, however, Pearson shall have a right to appeal this finding within 30 days of the entry of the trial court’s order. Commonwealth v. Kauffman, 405 Pa.Super. 229, 237, 592 A.2d 91, 95 (1991), appeal denied, 529 Pa. 617, 600 A.2d 534 (1991). Judgment of sentence AFFIRMED. Case REMANDED for an evidentiary hearing. Jurisdiction RELINQUISHED. CAVANAUGH, J., joins in the Majority Opinion and files a Concurring Opinion.

UHLER, J., Before this court is defendant’s omnibus pretrial motion to quash the information against the defendant, Paul Williams. On or about June 1, 1992, a criminal complaint was filed against the defendant alleging 78 counts of forgery under 18 Pa.C.S. §4101(a)(2). On August 3, 1992, a preliminary hearing was held before District Justice Klinedinst. At the preliminary hearing the Commonwealth was permitted to amend the complaint to include nine additional counts of forgery. The district justice found that the Commonwealth made out a prima facie case against the defendant on all counts and bound the case over for trial. On September 21, 1992, the defendant filed his omnibus pretrial motion and a transcript from the prehminary hearing. A hearing was then set before this court for October 9, 1992. On October 7, 1992, the defendant requested that the hearing be cancelled and that the court base its decision on the preliminary hearing transcript. Counsel for the defendant was provided 15 days to file a brief and the Commonwealth was provided five days to respond to defendant’s brief. The parties were also advised that opportunity for hearing was available if requested. On October 26, 1992, the defendant’s brief in support of his motion was filed. On December 29, 1992, the parties entered into a stipulation whereby they agreed to submit the defendant’s motion to the court upon the transcript from the prehminary hearing and the defendant’s brief. Notice of the stipulation was brought to the attention of the court on or about March 11, 1993. After reviewing the transcript, the court makes the following findings of fact. In 1989-1990, the defendant (Paul Williams) and Edward Rodak formed a corporation known as Aretech Enterprises Ltd. Mr. Rodak put up an initial $9,000 to get the company going. The defendant’s wife was to be in charge of the accounting for the company. The company opened a bank account which required both the defendant’s and Edward Rodak’s signatures on the checks. The company was also responsible for paying Mr. Rodak’s health insurance. In July 1991, Mr. Rodak transferred his shares of stock in Aretech Enterprises Ltd. to his wife. In January 1992, Mr. Rodak was notified that his health insurance had been cancelled for lack of payment. Mr. Rodak estimated the company account had about $40,000 in it. However, when Rodak sought information from the bank regarding a copy of the checks paid to the health insurance company, he learned that the account had only $1,000 left in it. Mr. Rodak, at this time, requested copies of all the checks issued from the account. After examining the copies of the cancelled checks, Mr. Rodak found that 87 checks had his or his wife’s signatures forged on them. Mr. Rodak never gave the defendant permission to sign his name to any of the checks. The defendant had exclusive possession of the checkbook all the time. Mr. Rodak and the defendant had a meeting to attempt to resolve this situation. At this meeting, the defendant admitted to Mr. Kodak that he had signed Mr. Rodak’s name to the checks. The parties could not resolve their differences, so Mr. Rodak gave all his information to Chief Wolfe to further investigate and bring charges. The issue before this court is whether the evidence presented at the prehminary hearing was sufficient to establish the crime of forgery. At a prehminary hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983); see also, Commonwealth v. Gettemy, 404 Pa. Super. 504, 510, 591 A.2d 320, 323 (1991). To satisfy this requirement, the evidence must show that the existence of each of the material elements of the charge is present. Wojdak at 368, 466 A.2d at 996; see also, Commonwealth v. McBride, 528 Pa. 153, 158, 595 A.2d 589, 591 (1991). Section 4101, “Forgery,” of Chapter 41, “Forgery and Fraudulent Practices,” provides in pertinent part: “(a) Offense defined — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor: “(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed.” 18 Pa.C.S. §4101. In Commonwealth v. Bollinger, 274 Pa. Super. 112, 418 A.2d 320 (1979), the court states that in order to convict for forgery, the Commonwealth was required to prove: (1) the false making of some instrument in writing that was apparently capable of affecting a fraud and work ing an injury to another; and (2) a fraudulent intent. Bollinger at 118, 418 A.2d at 323; see also, Commonwealth v. DiPiero, 205 Pa. Super. 312, 317, 208 A.2d 912, 914 (1965). The defendant contends the Commonwealth faded in its burden of establishing a prima facie case for forgery against him because the Commonwealth did not prove the defendant had a fraudulent intent. However, in Commonwealth v. Wheeler, 200 Pa. Super. 284, 189 A.2d 291 (1963), the Pennsylvania Superior Court stated, “intent to injure or defraud may be shown or be inferred from the doing of the wrongful, fraudulent, and illegal acts which as a necessary result naturally produce loss or injury to the association.” Also, in another forgery case, the Pennsylvania Superior Court held, “it is not necessary to prove an intent on the part of the defendant to defraud any particular person but it shall be sufficient to prove a general intent to defraud.” Commonwealth v. Green, 205 Pa. Super. 539, 545, 211 A.2d 5, 8 (1965). In the case at hand, testimony from Edward Rodak at the preliminary hearing, as described above, revealed that Aretech’s checking account was an account that required two signatures. From the facts elicited, the court can infer that from the defendant’s wrongful act of signing or having Mr. Rodak’s name signed to the company’s checks without Mr. Rodak’s permission, the company as well as Mr. and Mrs. Rodak were harmed. Mr. Rodak is harmed because he was an employee, and his wife was a shareholder of Aretech. Also, Mr. Rodak’s health insurance was to have been paid by the company. Finally, Aretech’s checking account now contained only $1,000. This court may infer that the signing of Mr. Rodak’s name without permission caused a loss. The defendant also contends that the Commonwealth failed to meet its burden of establishing a prima facie case because the Commonwealth did not present a hand writing expert to show that the defendant forged Mr. and Mrs. Rodak’s signatures. At the preliminary hearing, Mr. Rodak testified that a great number of the signatures on the checks had been forged. Also, Mr. Rodak testified that at a meeting with the defendant in January of 1992, the defendant admitted that he had signed Mr. Rodak’s name to the checks. Finally, Mr. Rodak testified that the defendant had exclusive possession of the checkbook all the time. In Commonwealth v. Cohen, 203 Pa. Super. 34, 199 A.2d 139 (1964), the court held, “A non-expert witness is permitted to testify as to handwriting with which she is familiar.” Cohen at 74, 199 A.2d at 159. In the case at hand, Mr. and Mrs. Rodak testified that the signatures on the checks were not theirs. This testimony along with the testimony that the defendant admitted to signing the Rodaks’ signatures and the defendant having exclusive possession of the company’s checkbook at all times is sufficient evidence for the court to conclude that the Commonwealth has established a prima facie case for forgery against the defendant without presenting an expert. For support, a Pennsylvania common pleas court has held, “Expert testimony to determine the authenticity of disputed writings may be helpful, but it is not usually indispensable. A jury has the right to compare authenticated writings with alleged forged writings, and to use their own judgment in deciding whether they were made by the same party.” Commonwealth v. Scelp, 35 Beaver Leg. J. 45 (1975). Thus, at this stage of the proceeding, it is not necessary for the Commonwealth to present a handwriting expert or an authenticated writing. ORDER And now, March 30, 1993, this court orders that defendant’s motion to quash is denied.

KUHN, J., On April 11,1990, plaintiff filed a complaint in the District Court for the Middle District of Pennsylvania against defendant alleging employment discrimination under both federal, Title VIE, 42 U.S.C. §2000(e) et seq. and state, Pennsylvania Human Relations Act, 43 P.S. §951 et seq. law. On February 19, 1991, the District Court, pursuant to a motion for summary judgment, determined that defendant was not an employer under Title VII, dismissed the federal claim and, in turn, dismissed the state claim for lack of subject matter jurisdiction. Subsequently on September 26, 1991, plaintiff transferred the state claim to this court pursuant to the provisions of 42 Pa.C.S. §5103(b). Defendant seeks dismissal of the state claim by asserting that the transfer was not effectuated in a timely manner. The aforementioned statutory provision provides in pertinent part as follows: “§5103. Transfer of erroneously filed matters— “(b) Federal cases ... “When a matter is filed in the U.S. court for a district embracing any part of this Commonwealth and the matter is dismissed by the U.S. court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court... of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).” Unfortunately this section places no time limitation upon the transfer. In a case involving facts dissimilar to the case sub judice, the Superior Court noted: “Given the dearth of case law interpreting the provisions of 42 Pa.C.S §5103 ... we do not believe that appellants should suffer the harsh result of dismissal of their cause of action. However, for benefit of both bench and bar, we now emphasize that in order to protect the timeliness of an action under 42 Pa.C.S. §5103, a litigant, upon having his case dismissed in federal court for lack of jurisdiction, must promptly file a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action, Williams v. F.L. Smithe Machine Co. Inc., 395 Pa. Super. 511, 516, 577 A.2d 907, 910 (1990) alloc. den., 593 A.2d 422 (1991).” (emphasis added) In a footnote the court urged the Legislature to include a time limit in section 5103. To date, no such limitation has been added. Unfortunately, Superior Court gave no further hint as to what constitutes a prompt filing. I must, therefore, determine whether 219 days constitutes a prompt filing. Defendant urges this court to determine that any delay over 30 days is not prompt. It reasons that under federal rules one must appeal a final judgment dismissing a case within 30 days or the action ceases to exist. Plaintiff advances argument that two years should be available where the statute poses no time limit referring, by analogy, to Local Rule 10 allowing termination of cases which have been inactive for two years. I reject outright defendant’s position. Superior Court certainly did not equate promptness with two years. Whether 30 days is an appropriate measurement need not be determined in this case. The policy behind section 5103 is to protect a litigant who files a timely action in federal court, which is later dismissed for lack of jurisdiction, being able to prosecute that claim on its merits without fear of dismissal caused by refiling in another jurisdiction after expiration of the period of limitations. Suburban Roofing Co. Inc. v. Day & Zimmerman, 578 F. Supp. 374, 375 (E.D. Pa. 1984). Without having benefit of counsel’s argument on this point, I suspect the hmitations period available under the P.H.R.A. 43 P.S. §962, may be of concern to plaintiff. One area where parties are required to act promptly is in the opening of a judgment of non pros or a default judgment. Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988), McFarland v. Whitman, 518 Pa. 496, 544 A.2d 929 (1988). There, decisions are made on a case by case basis without clear delineation of what constitutes promptness. Generally, however, timeliness is measured not merely by the length of the delay but by the excuse for the delay, Esslinger v. Sun Refining & Marketing Co., 379 Pa. Super. 69, 74, 549 A.2d 600, 603 (1988). Here plaintiff’s counsel admitted in an affidavit that: (1) after the order of the District Court dismissing this matter, he set this case aside to deal with other matters; (2) he was familiar with section 5103 but never read the Williams case, supra; and (3) plaintiff made numerous calls to him inquiring of the status of the transfer to this court and whether prejudice would arise if action was not taken. This explanation does not justify counsel’s failure to act promptly but does indicate that failure to act was not caused by plaintiff. Certainly periods much shorter than seven months have not been considered prompt. See cases cited in Narducci, supra. However, there is also suggestion that where counsel but not the client is neglectful or dilatory, the court will not punish the client. See cases cited in McFarland, supra, and Esslinger, supra. Without having the benefit of legislative action or clearer appellate court direction, I feel the equities and lack of substantive prejudice to defendant compels rejection of the instant motion. I do this with much reluctance because I am hard pressed to appreciate counsel’s failure to perform the simple ministerial act of certified record transfer for seven months, especially when urged to do so by his client, and then to assert as an excuse ignorance of the instructive language in Williams. However, my reluctance is tempered by the general public’s growing lack of confidence in the legal profession. Confidence will not be bolstered by dismissing a case on procedural grounds rather than on the merits where the statute provides no time limit to act and the most the judiciary can do is urge promptness and legislative corrective action. This may not seem fair to defendant and others similarly situated who are left to wonder whether potential claims are ever put to rest. Sympathy, however, cannot replace equity in this case. Accordingly, the attached order is entered. ORDER And now, January 5, 1993, defendant’s motion to dismiss is denied. Defendant is granted 20 days from the date of mailing of this order to file a responsive pleading.

WALLITSCH, J., The plaintiffs, The Morning Call Inc., and Elliott Grossman, a reporter for The Morning Call, brought this action for declaratory judgment against the defendants, the Board of School Directors of the Southern Lehigh School District and its individual members. The complaint seeks a judicial declaration that the board violated the Sunshine Act, Act of July 3, 1986, P.L. 388, no. 884, as amended, 65 P.S. §278, by the alleged elimination of two of five finalists for the position of the district’s superintendent at a closed board meeting on February 27, 1992. The plaintiffs and the defendants have filed cross motions for summary judgment which are before this court for decision. The facts are not materially disputed. In October 1991, the superintendent of the district announced his resignation effective June 1992. The board, at a public meeting, voted to use the services of a consultant to aid the board in its selection process. The first step in this process began by the consultant advertising the superintendent position and screening the candidates who applied, reducing the number to six candidates who would be interviewed by the board. Noteworthy is the fact that one of these six candidates then withdrew his name before the interview because of the concern that his candidacy would become public and have a negative impact on his current employment. The board met in executive session on February 22 and 27,1992, to interview these remaining five candidates and discuss the hiring of a new superintendent, the public being notified of this process. On February 22, 1992, the board interviewed four of the finalists. On February 27, at the second non-public executive session, it interviewed the last finalist and then further discussed the candidates. The briefs of the parties place their respective “spin” on the process used in that executive session. However, it is clear that the purpose was to further reduce the candidates to three, whose names were then to be made public. The plaintiffs call this process “official action” which violated the Sunshine Act. The defendants argue that a decision was made “to move three candidates forward, although no one was eliminated,” which was not violative of the act but which was proper procedure in executive session. After this executive session on February 27, the names of the three “finalists” were made public and a public session was held for citizens to appear and have dialogue with these three candidates. On March 11, 1992, the board held another executive session at which the board further narrowed the candidates to one. Interestingly, this board action is not being attacked by the plaintiffs. Further investigation of this candidate was then done and on March 23, 1992, the proposed employment contract for the candidate was discussed in executive session. Thereafter, at a public meeting on April 16, 1992, the board voted to appoint the leading candidate and to approve the employment contract. The granting of summary judgment is proper when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Muller v. Borough of Parkesburg, 132 Pa. Commw. 321, 572 A.2d 859 (1990). In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and any doubts are to be resolved against the entry of summary judgment. Husak v. Berkel Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). In response to plaintiffs’ motion for summary judgment, defendants raise a number of contentions. First, defendants claim that the plaintiffs lack standing to bring this action. We disagree. Under the recent case of Press-Enterprise Inc. v. Benton Area School District, 146 Pa. Commw. 203, 604 A.2d 1221 (1992), the plaintiffs have standing. Secondly, since the plaintiffs do not seek to have the board’s action in reducing the number of candidates from five to three voided, this action is not invalidated by not joining the eliminated candidates. However, for the remaining reasons set forth below, we grant defendants’ motion for summary judgment and deny plaintiffs’ motion for summary judgment. The threshold question which must be addressed, apparently for the first time in the Commonwealth of Pennsylvania, is to what extent the process of hiring public employees is subject to the Sunshine Act. The plaintiffs argue that the board’s actions on February 27, 1992, were “official actions” under section 4 of the Sunshine Act, 65 P.S. §274, and were therefore required to be taken at a public meeting. The defendants argue that the selection process employed by the board, including the February 27 meeting, falls within section 8 of the Act, 65 P.S. §278, which permits appointment/employment matters to be dealt with in executive session. The purpose of the Sunshine Act is to promote the concept that the public’s business is everyone’s business. However, the Legislature of this Commonwealth wisely attempted to balance the rights of the public to be informed about “its” business with the needs of the public bodies to do “their” business. For that reason, exceptions were carved out of the general declaration of public policy that citizens have the right to attend most meetings where the public business is discussed. A reading of sections 4 and 8 of the Sunshine Act requires that all “official action and deliberations by a quorum of the members ... shall take place at a meeting open to the public unless closed under section 8....” Section 8 allows the discussion of employment matters to occur in private executive session subject only to the limitation in subsection (c) that any “official actions” on those discussions must be done at an open meeting. The Legislature thereby specifically eliminated the need for deliberations on matters affecting employment matters from being done at a public meeting. Turning now. to the case at bar, we hold that if the actions of the board on February 27, 1992, were merely “deliberations” or “discussions” (as defendants argue) rather than “official action,” (as plaintiffs argue) there was no violation of the Sunshine Act. “Official action” is defined in section 3 of the Sunshine Act, 65 P.S. §273, as: “(1) Recommendations made by an agency pursuant to statute, ordinance or executive order. “(2) The establishment of policy by an agency. “(3) The decisions on agency business made by an agency. “(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.” Plaintiffs contend that the process culminating in the reduction of the number of candidates from five to three who would thereafter be subject to further interviews, meetings, and visits to their home districts was “official action” under the Act. Specifically, they argue that the testimony of William Herring, president of the board, establishes that a “vote” was taken under subsection (4) above, thereby creating “official action” that, under section 4 or 8(c) of the Act, had to occur at an open meeting. We disagree. The problem with this contention is that it focuses on Mr. Henning’s choice of the word “vote” and ignores the process which was occurring. The board was engaged in a winnowing process, beginning with the selection of a consultant to aid the board. The consultant himself narrowed the field to six candidates. The board then interviewed the remaining candidates and discussed their relative strengths and weaknesses. The “vote” was really nothing more than a further rating and ranking of these non-finalists. Plaintiffs’ position would require all public officials of the Commonwealth to reveal their preliminary choices among a number of candidates when all that was being accomplished was reaching a consensus about a number of finalists who would then be subject to public scrutiny. This was clearly not the intent of the Legislature as the legislative history of the 1975 Sunshine Act reveals. During the debate on that Act, it was appropriately stated that: “There are time[s] when ... there needs to be confidentiality, and it is the intent of the [Act] ... to permit the confidentiality of an executive session that is necessary, but not to use an executive session to abuse the public or to run and to hide.” It is difficult to think of a greater need for the confidentiality of an executive session than when numerous candidates, many or all of whom hold positions with other employers, are rated and ranked. To expose all potential candidates, rather than merely the finalists who perhaps take the risk of public exposure, would be a serious obstacle for governmental bodies to attract candidates. An example was seen in this case, where one of the six candidates, knowing of the plaintiffs’ attempts to secure additional publicity on the process, withdrew his name from consideration. We cannot believe that the Legislature would have intended such an absurd and damaging result as is being urged by the plaintiffs in this lawsuit. The Pennsylvania Supreme Court has held that the (former) Sunshine Law requires openness for the policy-making decisions of governmental agencies in “clear distinction” to the confidentiality that is permitted for “decisions about the character and competence of individuals.” Consumers Education and Protective Assn. v. Nolan, 470 Pa. 372, 389, 368 A.2d 675, 684 (1977). This holding supports the need to protect the process used by the board in the present case. Plaintiffs cite a recent Michigan case, Booth Newspaper v. University of Michigan, 481 N.W.2d 778 (1992), to support their position. In that case, the plaintiff brought an action under the Michigan Open Meetings Act, M.C.L. 15.261, et seq., seeking judicial relief against the procedures used by the University’s Board of Requests in selecting the president of the University of Michigan. The Michigan Court of Appeals found that there were violations of the Act but those violations are not germane to the present case since the scope of that Act, as well as the fact scenario, is different than presented here. Nor did the defendants “use the executive session to abuse the public or to run and hide.” When they had narrowed the field of candidates to three, although none were eliminated from further consideration if necessary, the board released the names of the three finalists, invited the public to open sessions with these candidates, and publicly voted to appoint the leading candidate and to approve the employment contract. The intent of the Sunshine Act, to reasonably provide public access to governmental processes while maintaining reasonably necessary confidentiality in the preliminary stages of the employment process, was met by the defendants’ actions. We therefore find in favor of the defendants. ORDER Now, April 19, 1993, upon consideration of plaintiffs’ motion for summary judgment, and defendants’ cross-motion for summary judgment, the written briefs and oral argument of counsel, and for the reasons expressed in the accompanying opinion, it is ordered that plaintiffs’ motion for summary judgment is denied and defendants’ motion for summary judgment is granted. . Section 4 of the Act states: “Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 7, 8 or 12.” . Section 8 of the Act provides, in pertinent part, as follows: “An agency may hold an executive session ... [t]o discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of per formance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency’s decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).... “(c) Limitation. Official action on discussions held pursuant to subsection (a) shall be taken at an open meeting. Nothing in this section or section 7 shall be construed to require that any meeting be closed to the public, nor shall any executive session be used as subterfuge to defeat the purposes of section 4.65 P.S. §278.” . 1973 Pa. H.R.J. 1841 (remark of Representative Knepper).

UHLER, J., This case is before this court on defendant’s omnibus pretrial motion. In particular, the defendant requests this court to suppress the evidence found after the defendant was arrested on September 15, 1992. On December 31, 1992, a hearing was held before this court. In taking the evidence in a light most favorable to the Commonwealth, the following findings of fact were made: (1) Two officers in an unmarked vehicle, while on duty, were traveling north on Moul Street and then turned left on Carlin Street (an alleyway). (2) The officers, who were in full uniform, proceeded down Carlin Street and were traveling toward a number of vehicles parked in a perpendicular fashion in a housing project. (3) The officers observed a vehicle occupied by three individuals, lawfully parked in the first space described above. (4) This court finds that eye contact was made as between the passenger in the front seat of the first vehicle in question and the officers. (5) The vehicle commenced backing out of its spot toward the police vehicle. The police vehicle pulled immediately behind the exiting vehicle and then shone its spot light on the vehicle. (6) The court understands from the testimony of the officer that the exiting vehicle was in a position to exit forward, but instead the driver put the vehicle in park, whereupon the officers exited their vehicle and approached the subject vehicle. (7) No guns were drawn by the officers. (8) The officers requested the individuals’ identification and conducted a warrant search. (9) No vehicular violation or any other problems with the vehicle were testified to. (10) One officer testified that the area in question is one known for high drug trafficking. (11) The time of the encounter was at 8:42 p.m. and it was dark. (12) A positive warrant check was transmitted relating to defendant, Williamson. Upon Williamson’s removal from the vehicle, it was observed on the floor between his legs, a package with a substance in it, later identified as cocaine. (13) The total time of the incident took about five minutes. (14) The officer acknowledged that he would have stopped the vehicle if it would not have stopped. (15) The officers did not advise the individuals that they could not leave or that they could leave. At the outset, this court finds that it will grant defendant’s request that the evidence be suppressed. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Constitution, Amendment IV. The Fourth Amendment protects people wherever the individual may harbor a reasonable expectation of privacy. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). “An automobile is a place where an individual has a reasonable expectation of privacy.” Id. In justifying a particular intrusion, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889, 906 (1968). In Swanger, two officers stopped an automobile, in which defendant was a passenger, for a “routine” check. Swanger, supra. The court in Swanger held that, “before a police officer may stop á single vehicle to determine whether or not the vehicle is being operated in compliance with the Motor Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the Code.” Id. at 879. See also, Commonwealth v. Whitmyer, 415 Pa. Super. 393, 398, 609 A.2d 809, 811 (1992). In Swanger, the court found that the officers had no justification to stop the automobile in that there must be present probable cause based upon specific facts that either the driver or the vehicle is in violation of the Code, and that the “fruits” of the unlawful stop should have been suppressed. Id. In the case at hand, the officer testified that because the passenger had made eye contact with the officers and because the car had started to back out as the officers were proceeding down the alley, the police pulled behind the vehicle, shone its light on the vehicle and approached the occupants in the vehicle after the vehicle was stopped. The court finds that these facts alone are not sufficient to justify stopping the vehicle. It seems very logical to this court that the individuals in a vehicle backing up would be looking behind them to see if another vehicle was approaching. Thus, the “making of eye contact” is not a fact which would indicate to this court that criminal activity may be afoot. To the contrary, the passengers were only pursuing consistent behavior when backing from a parking area. In Commonwealth v. Dewitt, 530 Pa. 299, 608 A.2d 1030 (1992), a factually similar case, the trooper testified that he observed a vehicle parked partially on the berm and partially in a parking lot. Id. at 1031. The interior lights, but not the exterior lights, were on. Id. The trooper thought the vehicle might be disabled. Id. The trooper testified that he pulled alongside the vehicle, whereupon the interior lights were turned off and the occupants made suspicious movements inside. Id. at 1032. The vehicle then began to pull away. Id. In Dewitt, the Supreme Court of Pennsylvania found that the facts asserted by the trooper were not sufficient to support the trooper’s argument that he had probable cause to carry out a lawful traffic stop. Id. at 1033. The Supreme Court also found that the facts were insufficient to support a finding that criminal activity was afoot. Id. at 1034. In another similar case, In the Interest of F, no. 151 Juvenile Action 1990, this court found that there was no reasonable articulable suspicion that a crime had just been or was about to be committed where the defendant’s vehicle pulled over to the side of a one-lane dirt road at approximately 8 p.m. to allow the other vehicle to pass. Id. See also, Commonwealth v. Garner, 2930 C.A. 1992. The Commonwealth contends, because the vehicle was able to exit the space by pulling forward, but chose not to, that this was a “mere encounter” and not a seizure. In Florida v. Bostick, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court held, “that a seizure does not occur simply because a police officer approaches an individual and asks a few questions,” Id., 115 L.Ed.2d at 398. “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” Id., 115 L.Ed.2d at 398. In Bostick, two officers boarded a bus and without articulable suspicion picked out the defendant and asked to see his ticket and identification. Id., 115 L.Ed.2d at 396. The two officers explained their presence as narcotics agents and then requested the defendant’s consent to search his luggage, Id., 115 L.Ed.2d at 396-97. The police specifically advised the defendant that he had the right to refuse consent. Id., 115 L.Ed.2d at 397. (emphasis added) Also, at no time was the defendant threatened with a gun. Id., 115 L.Ed.2d at 397. The United States Supreme Court stated: “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated in a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.” Id., 115L.Ed.2dat402. The Supreme Court in Bostick refrained from deciding if a seizure occurred because the trial court made no express findings of fact and the Florida Supreme Court rested its decision on the single fact that the encounter took place on a bus, rather than on the totality of circumstances. Id., 116 L.Ed.2d at 400. The case at hand is clearly distinguishable from the Bostick case. First, there is no evidence that the defendant was free to leave because the Commonwealth faded to sustain its burden on proving the fact that the vehicle could have pulled forward. Except for the officer’s opinion that the vehicle could have exited, no dimensions or pictures of the alley were admitted into evidence to serve as a foundation for the opinion. Also in Bostick, the officers were “working the buses,” which meant the officers would routinely board buses at scheduled stops and ask passengers for permission to search their luggage. 115 L.Ed.2d at 394. In the case at hand, the officers focused their interests upon this particular vehicle, even though the officers did not have articulable suspicion that its occupants were engaged in criminal activity, nor were the suspects advised they did not have to cooperate. This court finds that since the Bostick case is factually different, it is not controlling in this case. However, this court finds that Commonwealth v. Dewitt and In the Interest of F. are factually similar. As such, this court finds that a seizure without probable cause or articulable suspicion took place because: (1) the police officers parked their vehicle behind the subject vehicle; (2) a search light was shone on that vehicle; (3) the Commonwealth provided no facts to prove that the vehicle could have freely driven away, nor were the occupants told they were free to do so. Thus, this court finds that the intrusion was unreasonable and the evidence found on the floor must be suppressed. An appropriate order shall be entered. ORDER And now, to wit, January 22, 1993, this court orders that defendant’s motion to suppress is granted.

KENDERDINE, J., Cathy and Michael Leininger were married in 1975. During their marriage and prior to their separation in 1991, the parties owned and operated a business under the registered fictitious name “Ko-Ka-Le-Ko Egg Farm.” Defendant’s parents, Vernon and Allegra Leininger, operate a poultry feed business. On September 3, 1991, the parents filed a suit against Michael and Cathy Leininger in the Lancaster County Court of Common Pleas (docketed at no. 2353 of 1991). This suit alleges that the parents made several deliveries of poultry feed to Ko-Ka-Le-Ko Egg Farm for which they were never paid. The parents seek a judgment of $466,881.01, the alleged value of the merchandise. This divorce action was filed on September 25, 1991. In the instant action, defendant filed a petition for special relief on October 5, 1992. On October 7, plaintiff filed a counterpetition and motion for special relief. In her counterpetition, plaintiff sought to join defendant’s parents to this action, anticipating that a determination of liability in the parents’ lawsuit would constitute a marital debt. Counsel for the parents appeared before this court at the special relief hearing on October 9 to oppose the joinder of parties. Other matters raised in the petition and counterpetition have been addressed in a separate order. Plaintiff’s motion for joinder of parties is denied for the reasons detailed below. The situation presented is not the scenario which typically may prompt joinder of third parties in a divorce action. Generally, when a party to a divorce case seeks to join additional parties, the additional parties have an interest in or control over property which the divorce litigant wants included in the marital estate for distribution. In the present matter, a divorce litigant seeks to join additional parties who have no control over the disputed property. Moreover, the third parties oppose involvement in this proceeding, even though the ultimate distribution of property may affect the parents’ ability to recover damages in their separate action. Jurisdiction to determine “[a]ny matters pertaining to ... marriage and divorce ... authorized by law,” including the disposition of property rights and interests of spouses and third parties, is conferred upon this court by the Divorce Code. 23 Pa.C.S. §3104. This court is expressly granted the discretion to join additional parties in a divorce action by Rule 1920.34 of the Pennsylvania Rules of Civil Procedure. The accompanying note of the Civil Procedure Rules Committee advises that “[t]he joinder of persons other than husband and wife may be essential in claims ... where persons other than the parties have an interest in property which is the subject matter of a distribution.” (emphasis added) However, Rule 1920.34 allows the court to deny joinder and proceed with an action if the party sought to be joined is not indispensable to the case. “A party is indispensable when he has such an interest [in property] that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.” Van Buskirk v. Van Buskirk, 527 Pa. 218, 223, 590 A.2d 4, 7 (1991); citing Hartley v. Langkamp and Elder, 243 Pa. 550, 555, 90 A. 402, 403 (1914). It is clear from the evidence presented that the parents are not indispensable parties to this divorce action. They do not have interest in or control over property which is subject to equitable distribution in the divorce action. Furthermore, plaintiff presented no argument or evidence that the parents advanced funds or property to acquire a property interest in the assets of Ko-Ka-Le-Ko Egg Farm. Thus, the parents have no interest in the marital assets. Assuming the allegations made in the parents’ separate lawsuit are true, the parents stand in a relationship of unsecured creditor to Cathy and Michael Leininger. The debt owed to the parents is not owed by a partnership or corporation. It is a personal obligation for which both Cathy and Michael may be found liable. Thus, because Cathy and Michael would remain liable after the distribution of the marital estate, the parents’ cause of action will not be affected by the underlying divorce. See Held v. Held, 36 D.&C.3d 448 (1985). ORDER And now, October 16, 1992, for the above reasons, the plaintiff’s motion to join additional parties to this action is hereby denied. Plaintiff’s counterpetition also requested this court to stay the proceedings initiated by the parents. As joinder of the parents as parties in this case is denied, there is no basis to interfere with separate litigation pending before the court.

O’BRIEN, On April 8,1991, plaintiff, Lewis Conaway, commenced this action by filing a complaint in trespass against defendant, Dieter L. Kirschner, seeking recovery for damages to his automobile resulting from a multiple-vehicle accident that took place on September 27, 1990. The accident occurred when plaintiff’s vehicle, operated by Michael L. Conaway, was traveling north on Route 3023, in Hamilton Township, Monroe County, Pa. Plaintiff’s vehicle struck a Pennsylvania Department of Transportation vehicle that had been parked on the side of Route 3023 by employee Leroy Batchler. Following this initial collision, defendant’s vehicle, while traveling north on Route 3023, collided with plaintiff’s stopped vehicle. On May 2, 1991, defendant filed an answer, counterclaim and joinder complaints naming Michael Conaway, Leroy Batchler and PennDOT as additional defendants. On March 9, 1993, additional defendants Leroy Batchler and PennDOT filed a motion for summary judgment. Fol lowing the submission of briefs and oral argument, additional defendants’ motion is now before this court for disposition. Pennsylvania’s Rules of Civil Procedure provide in pertinent part as follows: “Rule 1035. Motion for Summary Judgment— “(a) After the pleadings are closed but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits. “(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.” Summary judgment is a means to “eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 289 Pa. Super. 451, 567 A.2d 691 (1989). The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Pennsylvania Gas and Water Co. v. Nenna and Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983). A material fact is one which affects the outcome of the case. Beach v. Bums International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991). In deciding a motion for summary judgment, the record must be viewed in a light most favorable to the non-moving party and summary judgment may only be entered in cases where the right is clear and free from doubt. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). However, the party seeking to avoid the imposition of summary judgment is required to show by specific facts in its depositions, admissions or affidavits that there exists a genuine issue for trial. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Additional defendants’ motion for summary judgment alleges that the doctrine of sovereign immunity precludes the imposition of any liability attributable to PennDOT or its employees relating to the accident at issue in the case at bar. The doctrine of sovereign immunity prevents liability from being imposed on the Commonwealth. However, this immunity is not absolute. Our Legislature has carved out specific exceptions in which liability may be imposed upon a Commonwealth party. The exception regarding vehicle liability states as follows: “Exceptions to sovereign immunity— “(b) Acts which may impose liability — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by: “(1) Vehicle liability — The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.” 42 Pa.C.S. §8522 (emphasis added) Additional defendants assert that their vehicle was parked and not in “operation” at the time of the accident. Therefore, sovereign immunity has not been waived and no liability may be imposed in the case at bar. Original defendants argue, however, that even though additional defendant’s vehicle was parked along the side of the road it was in “operation” for purposes of vehicle liability. As we examine the statutory meaning of the term “operation” and apply it to the facts in the instant case, we are mindful of the fact that the exceptions to sovereign immunity are to be strictly construed “given the expressed legislative intent to insulate political subdivisions from tort liability.” Love v. City of Philadelphia, 518 Pa. 370, 374, 543 A.2d 531, 532 (1988) (quoting Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987)). In Love, supra, our Supreme Court had to define the term “operation” in the context of a personal injury claim arising out of a slip and fall from a city-owned van. The blind and elderly plaintiff was being transported from a public health center to her home when she fell as she was exiting the van. Our Supreme Court stated that: “To operate something means to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle. Thus, according to the common and approved usage of the word ‘operation,’ the van was not in operation at the time of Mrs. Love’s accident. Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of that vehicle.” Id. at 375, 543 A.2d at 533. Our Commonwealth Court has recently applied this definition of “operation” to facts similar to the scenario in the case at bar. In First National Bank of Pennsylvania v. PennDOT, 148 Pa. Commw. 158, 609 A.2d 911 (1992) alloc. denied, 532 Pa. 648, 614 A.2d 1144 (1992), a Department of Transportation vehicle had temporarily stopped on or near the right-hand berm of a road. The vehicle’s motor was running and its lights were flashing. There was one DOT employee in the driver’s seat and two other employees were in the bed of the vehicle preparing delineators to install on an adjacent highway. The court found that “the DOT vehicle was not in operation for purposes of imposing liability on DOT under the motor vehicle exception to sovereign immunity.” Id. at 163, 609 A.2d at 914. In the case at bar, original defendant’s alleged level of vehicle activity does not even come close to the activity found to exist in First National Bank of Pennsylvania. Accordingly, we conclude that the additional defendant’s vehicle was not in “operation” for purposes of the motor vehicle exception when it was struck by plaintiff’s vehicle. See also, Speece v. Borough of North Braddock, 145 Pa. Commw. 568, 604 A.2d 1760 (1992) (fire trucks engaged in pumping water onto fire were not in “operation” for purposes of sovereign immunity waiver). Original defendant’s reliance on City of Pittsburgh v. Jodzis, 147 Pa. Commw. 234, 607 A.2d 339 (1992) is not persuasive. In that case, plaintiff motorcyclist testified that “the police car, driven by Officer Barth, may have been moving slowly but accelerated as he tried to pass it on the right side and struck his motorcycle.” (See City of Pittsburgh v. Jodzis at 238, 607 A.2d at 347.) Additional defendant PennDOT has also moved for summary judgment on the basis that original defendant’s allegation of negligent supervision does not come within the vehicle exception to sovereign immunity. As noted above, the vehicle exception to sovereign immunity must be narrowly construed. The alleged liability must arise out of the “operation” of additional defendant’s vehicle. In Force v. Watkins, 118 Pa. Commw. 87, 544 A.2d 114 (1988), the court found that negligent training or supervising of employees does not fall within the vehicle ex ception to sovereign immunity when the alleged supervising personnel are not involved in the actual “operation” of the Commonwealth’s vehicle. In the case at bar, even if original defendant could produce evidence showing that additional defendant PennDOT was negligent in supervising or training its employees, no liability could be imposed. The vehicle involved in the accident was not in “operation” at the time of the collision and therefore the vehicle exception to sovereign immunity would not apply. Id. at 90, 91, 544 A.2d at 115, 116. ORDER And now, June 4,1993, the motion for summary judgment is granted and judgment is entered in favor of the Pennsylvania Department of Transportation and Leroy Batchler and against all other parties to this proceeding.

WETTICK, J., Plaintiff’s preliminary objections in the nature of a demurrer to defendants’ counterclaim are the subject of this opinion and order of court. Plaintiff, Elaine B. Panitz, is a medical doctor with a specialty in occupational and environmental medicine. Defendants Kenneth W. Behrend and Barbara Behrend Emsberger, individually and trading as Behrend and Emsberger (Behrend attorneys), are attorneys who represented John and Alice Chamey in a personal injury claim for injuries allegedly caused from exposure to formaldehyde. Plaintiff was hired to testify as a medical expert in support of the Chamey claims. She has sued to recover money allegedly due for her services. In their counterclaim, the Behrend attorneys seek damages arising out of Dr. Panitz’s failure to offer expert testimony favorable to the Chameys on a very critical issue in the underlying case. The Behrend attorneys allege that before Dr. Panitz was retained to testify on the Chameys’ behalf, the Behrend attorneys discussed with her the issues for which they sought expert testimony. Their evidence would establish that the Chameys were exposed to quantities of formaldehyde of less than one part per million contained in building materials used in constructing their home. Defendants in the underlying case would contend that this exposure was not sufficient to contribute to the health problems that the Charneys were experiencing. Furthermore, even if Dr. Panitz could testify that in her opinion the health problems were caused by this exposure, she would need to be able to address the issue that defendants would raise of why smokers who are exposed to far higher levels of formaldehyde do not apparently experience similar or greater health problems than those of the Chameys. After reviewing the medical records, Dr. Panitz advised the Behrend attorneys that she would be able to testify that in her opinion the formaldehyde contained in the building material caused the Chameys’ health problems. She also referred the Behrend attorneys to testimony that she had given in an Alaska case in which she, according to the Behrend attorneys, effectively addressed the tobacco smoke exposure issue. At the trial of the Chameys’ claim, Dr. Panitz gave her opinion that the formaldehyde in the building materials caused the Chameys’ health problems in the manner in which the Behrend attorneys anticipated. However, when defendants’ counsel asked her to explain why persons exposed to tobacco smoke do not experience similar reactions to formaldehyde, she testified that she could not offer an explanation. In the underlying case, the jury returned a verdict in favor of the defendants. The Behrend attorneys allege that Dr. Panitz’s failure to give the testimony that she previously had given in the Alaska case on the smoke exposure issue was a substantial factor for the unfavorable jury verdict. The Behrend attorneys have raised claims based on breach of contract, negligence, misrepresentation, and gross negligence in which they seek the lost attorneys’ fees they would have recovered if the Chameys had prevailed or, alternatively, the hours worked (439.9 hours) after Dr. Panitz advised the Behrend attorneys of the testimony that she would be able to offer. The Behrend attorneys do not allege that Dr. Panitz testified falsely at the trial or that she deliberately withheld testimony because of malice or fraud. It is their contention that she either negligently or intentionally misrepresented to the Behrend attorneys that there was a medical or scientific basis to support her Alaska testimony, that she failed adequately to prepare for trial, or that she breached a duty to inform the Behrend attorneys that she no longer had confidence in the opinions that she had earlier stated or implied. From early times, the common law has barred civil actions based on statements made in court proceedings so that witnesses can give complete and truthful testimony without fear of retaliatory litigation. Pennsylvania has consistently followed the common law. See Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907); Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967); Binder v. Triangle Publications Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971). In Clodgo by Clodgo v. Bowman, 411 Pa. Super. 267, 601 A.2d 342 (1992), a mother sued to recover the child support that she should have been awarded in support proceedings. In the initial support proceeding, Dr. Bowman had been appointed by the court to conduct blood tests. He sent a letter to the court which stated that the blood tests established that the person whom the mother had sued could not be the child’s biological father. On the basis of that statement, the court dismissed the support action. It was subsequently determined that Dr. Bowman had improperly recorded the blood test results, thereby erroneously excluding the defendant as the father. The mother instituted a second support action which was dismissed when the defendant raised res judicata as a defense. The mother, on behalf of herself and her child, then instituted a civil proceeding against Dr. Bowman based on medical malpractice. The trial court granted the doctor’s preliminary objections in the nature of a demurrer on the basis of an absolute testimonial privilege for communications made in connection with judicial proceedings. The Superior Court affirmed. In response to the argument of the mother’s counsel that the privilege should be limited to defamation actions, the Superior Court said: “Our precedent is clear. The form of the cause of action is not relevant to application of the privilege. Regardless of the tort contained in the complaint, if the communication was made in connection with judicial proceedings and was material and relevant to it, the privilege applies. Thus, while we agree with appellant’s premise that this action is not premised upon defamation but is a medical malpractice action, this does not alter the conclusion that the privilege applies.” Id. at 273, 601 A.2d at 345. Also see Moses v. McWilliams, 379 Pa. Super. 150, 164, 549 A.2d 950, 957 (1988), where the Superior Court stated, “While it is true that immunity from civil liability in judicial proceedings has been applied most frequently in defamation actions, many courts, including those in Pennsylvania, have extended the immunity from civil liability to other alleged torts when they occur in connection with judicial proceedings.” It is irrelevant that in the case before me the witness was an expert retained by a party rather than a court-appointed expert. In both instances, the just resolution of the claim depends upon the expert giving complete and honest testimony without fear of adverse financial consequences. In Belfonte v. Miller, 212 Pa. Super. 508, 243 A.2d 150 (1968), a real estate appraiser whom a property owner hired to provide expert testimony on the property owner’s behalf in an eminent domain proceeding sued the property owner to enforce provisions of the agreement between the parties that provided for the expert to receive a designated percentage of any amount that the property owner received. The property owner sought to avoid payment on the ground that the portion of the contract providing for a percentage of the award violated public policy. The Pennsylvania Superior Court agreed and invalidated the contract. It did so because “[i]mproper conduct or bias can be predicted easily when the compensation of the witness is directly related to the absolute amount of an award which may in turn be dependent to a great degree on the testimony of that same witness.” Id. at 514, 243 A.2d at 153. The court rejected the appraiser’s argument that the contract was not harmful to the administration of justice because the contingent fee portion governed the fees involved in preparing the appraisal rather than the contractual duties as a witness, because: “Such an approach, however, does not in fact address itself to the actual concern of the courts in prohibiting enforcement of such contracts, for the segregation here is merely one of form, the bias feared in the preparation of the appraisal inevitably coloring, if not constituting the sole basis for the testimony which the parties assume will follow. It is impossible to conclude, after reading the contract, that anything other than judicial proceedings were in the minds of both parties when the contract was executed, for the eminent domain proceeding had already been initiated. In a real sense, it is that fact plus the inference from the contract itself that the objective of appellant was to influence those proceedings in her favor that primarily establishes the objectionable circumstances.” Id. at 515, 243 A.2d at 154. It makes no difference whether the inducement is the opportunity to make a larger fee as in Belfonte v. Miller or to avoid suit brought by a disappointed litigant as in this case. In both instances, an expert would have a financial incentive to offer testimony which is not accurate and complete. My ruling is consistent with case law in other jurisdiction. In Griffith v. Harris, 116 N.W.2d 133 (Wis. 1962), the unsuccessful plaintiff in an underlying medical malpractice claim brought a breach of contract claim against physicians who had allegedly agreed to give favorable medical evidence against another physician. The plaintiff alleged that his malpractice claim was dismissed because the defendant-physicians first agreed to testify on plaintiff’s behalf, then subsequently advised plaintiff that they would not testify in a way that would benefit plaintiff, apparently at a time when plaintiff could not offer a substitute witness. The basis of the lawsuit, according to the Wisconsin Supreme Court, was the physicians’ unwillingness to give favorable medical evidence which resulted in the dismissal of plaintiff’s claim at the close of plaintiff’s case. The court dismissed the lawsuit on public policy grounds: “A litigant and a prospective witness may lawfully contract between themselves that the latter will appear at a trial; the breach of such contract would give rise to the damages which reasonably flow from a witness’s failure to appear. This might include the expenses involved in seeking a substitute witness or perhaps the costs incurred in procuring a postponement of the trial. However, a contract creating an obligation not only to appear but also to testify in a certain manner on behalf of a party to a lawsuit is against public policy.” Id. at 135. In Curtis v. Wolfe, 513 N.E.2d 1139 (Ill. App. Ct. 1987), the plaintiff sued a treating physician who allegedly violated his agreement to testify favorably to plaintiff in the underlying medical malpractice action. The court, citing Griffith v. Harris, supra, dismissed the claims against the physician because: “The Griffith case indicates parties may lawfully contract between themselves that a doctor will appear and testify at trial and we believe that a contract creating any further obligation with regard to the type of testimony falls within the parameters of Griffith as against public policy.” Curtis v. Wolfe, 513 N.E.2d at 1142. For these reasons, I enter the following ORDER OF COURT On this, February 9, 1993, it is hereby ordered that plaintiff’s preliminary objections to defendants’ counterclaim are sustained and this counterclaim is dismissed. Arbitration hearing is rescheduled for April 5, 1993. Rule 3.4(b) of the Rules of Professional Conduct provides that a lawyer may not make the compensation of an expert witness contingent upon the content of the witness’s testimony or the outcome of the case.

KELLER, Past Chair, Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline. HISTORY OF PROCEEDINGS The Pennsylvania Supreme Court issued an order on March 21,1988, immediately suspending respondent from the practice of law. The order was entered in accordance with Rule 214(d), Pa.R.D.E., on the basis of respondent’s January 22, 1988 conviction in the U.S. District Court for the [ ] District of Pennsylvania on charges of conspiracy to participate in the affairs of an enterprise through a pattern of racketeering in violation of 18 U.S.C. § 1962(d). As a result of his conviction, respondent was sentenced to serve a term of imprisonment of five years and fined the sum of $5,000. The Office of Disciplinary Counsel filed a petition for discipline against respondent on the basis of his conviction. The petition alleged that the conduct which led to respondent’s criminal conviction violated eight disciplinary rules. No answer was filed by respondent. A hearing of the matter was held on October 5, 1990, before Hearing Committee [ ], which was chaired by [ ], Esq., and included members [ 3» Esq., and [ ], Esq. Hearing Committee [ ] filed its report on June 6, 1991, and recommended that respondent be disbarred from the practice of law. On July 19,1991, respondent filed a brief on exceptions, in which respondent advocated for a sanction less than disbarment. On July 24, 1991,. the Office of Disciplinary Counsel filed a brief opposing exceptions, in which Disciplinary Counsel agreed with the Hearing Committee that disbarment of respondent is proper. The matter was adjudicated at the September 27,1991, meeting of the Disciplinary Board of the Supreme Court of Pennsylvania. FINDINGS OF FACT (1) Petitioner, whose principal office is located at 300 North Second Street, Harrisburg, Pennsylvania, is invested pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules. (2) Respondent, [ ], is currently suspended from the practice of law by order of the Supreme Court of Pennsylvania dated March 21, 1988, entered pursuant to Rule 214(d), Pa.R.D.E. (3) Respondent’s most recent registered residence address is [ ]. His attorney registration number is [ ]. (4) On or about August 20, 1987, respondent was indicted by a grand jury sitting in the U.S. District Court for the [ ] District of Pennsylvania in the matter of United States of America v. [Respondent] etal., Criminal no. [ ]. (5) On January 22, 1988, after a trial before the Honorable [A] and a jury, respondent was found guilty of Count I of the indictment charging conspiracy to participate in the affairs of an enterprise through a pattern of racketeering in violation of 18 U.S.C. §1962(d). (6) Count I of the indictment charged that respondent, while an attorney licensed to practice law in the Commonwealth of Pennsylvania, conspired with [B], then a judge of the Court of Common Pleas; [C], [B’s] personal aide; and [D], an associate of [B]; “and with other persons both known and unknown” to: “Unlawfully, knowingly and willfully combine, conspire, confederate and agree with each other and with others, to violate Title 18, U.S.C. § 1962(c), namely, to conduct and participate directly and indirectly in the conduct of affairs of the Court of Common Pleas of [ ] County, an enterprise engaged in and the activities of which affected interstate commerce, through a pattern of racketeering activity, as that term is defined in Title 18, U.S.C. §1961(5), consisting of: “(a) multiple acts of bribery of public officials in violation of 18 Pa.C.S. §4701; and “(b) multiple acts of extortion under color of official right, in violation of Title 18, U.S.C. §1951(a).” (Exh. B, pp. 2-4.) (7) The purpose of the conspiracy was to “corruptly influence the outcome of judicial proceedings pending in the [ ] court system through bribery and extortion.” (Exh. B, p. 4, para. 5.) (8) The indictment further charged that it was part of the conspiracy “that the defendants would and did utilize the Court of Common Pleas as a means of corruptly obtaining money and other things of value in exchange for the handling and disposing of judicial proceedings pending in the [ ] court system.” (Exh. B, p. 4, para. 5.) (9) Respondent was found guilty of a conspiracy which included: (a) steering cases involving criminal defendants to certain attorneys and judges in the court system of [ ] County to obtain favorable results; (b) raising bail or imposing jail sentences upon criminal defendants in order to solicit money from them or their relatives in exchange for their freedom; (c) corruptly handling and disposing of cases in the Courts of [ ] County for profit; and (d) soliciting criminal defendants, their relatives, or their attorneys in the Courts of [ ] County for money in exchange for favorable treatment of pending criminal cases. (10) Respondent was found guilty of conspiracy to affect the outcome of five criminal cases: Commonwealth v. [E], Commonwealth v. [F], Commonwealth v. [G], Commonwealth v. [H], and Commonwealth v. [II (11) On or about October 18, 1985, [E] was arrested and charged with various drug offenses. (12) On or about May 13, 1986, [E] appeared before [B], and was represented by respondent. (13) On or about May 13, 1986, [B] suppressed the drugs in the [E] case based on credibility, stating that the District Attorney’s Office should have produced two additional eyewitnesses to the police search and seizure. (14) On or about May 13, 1986, [B] told the court officer in courtroom [ ] of City Hall to tell respondent to leave and come back later because [B] did not want to hurt the assistant district attorney on the [E] case. (15) On or about May 14, 1986, [B] asked respondent if he had any objections to the [E] case being nolle prossed. (16) On or about May 14,1986, [B] and [C] discussed how respondent failed to raise the issue of the two additional witnesses who were not present to testify for the prosecution in the [E] case. [B] instructed [C] to go to see respondent because [B] “should not be talked to on the phone.” (17) On or about May 23, 1986, while discussing his need for money, [B] told [C] to find respondent. (18) Respondent paid [C] $700 to “fix” the [E] case. (19) [C] received $250; [B] received the balance. (20) [F], a court reporter who was sometimes assigned to [B’s] courtroom, was arrested on April 12, 1986, and charged with possession of controlled substances. (21) In or about April 1986, [B] referred [F] to respondent for representation. (22) [B] was to receive part of the fee for referring the case to respondent. (23) [F] retained respondent for a fee of $1,500. Her initial payment to him was in two separate checks for $500 each. (24) On or about May 19, 1986, [B] told an attorney in the anteroom/robing room of courtroom [ ] that [F] had called him and asked if her case was “fixed yet.” (Exh. B, p. 11) (25) The preliminary hearing for the [F] case was continued several times pending payment of respondent’s fee. (26) On or about September 9, 1986, respondent paid [B] $50 in the anteroom/robing room of courtroom [ ] in City Hall, [ ]. Following the payment, respondent discussed his need for a continuance on September 10, 1986, for the [F] case pending before a judge of the [ ] Court. (27) On or about September 10, 1986, [B] asked the [ ] Court judge in the [F] case to give respondent a continuance on the case and the case was then continued and reassigned to another court judge. (28) On or about September 10, 1986, [B] told [F] that he had obtained a continuance in her case and had moved her case before another judge. (29) On or about October 16, 1986, [F] was acquitted of all charges in [ ] Court. (30) On or about September 21,1985, [G] was charged with delivery, possession, and intent to deliver methamphetamine. (31) On or about May 28, 1986, [B] found [G] guilty of various drug offenses and raised the bail of defendant who was represented by the [J]. (32) Defendant [G] was immediately incarcerated. (33) Defendant [G] asked to see his attorney and fully expected to see the [J] who had represented him at trial; however, respondent met him in the cell room. (34) [B] had directed respondent to identify himself falsely as the attorney representing defendant [G]. (35) Respondent told defendant [G] that for $2,000 respondent could have him brought back down in front of Judge [B], have his original bad reinstated, and have him set up in a drug program and back on the streets. [G] would not have to do any time. (36) On or about May 30, 1986, [C] telephoned respondent at the direction of [B] and asked respondent to “stop by and see us with the big money?” (Exh. B, p. 13) (37) On or about September 13,1985, [¶] was arrested and charged with various burglary offenses. (38) [C] arranged for respondent to represent [H]. (39) [¶] did not pay respondent’s fee and on or about August 15, 1986, [B] revoked [H’s] bail and imposed bail of $50,000. (40) [¶] was immediately taken to the cell room in City Hall. (41) Respondent met with defendant [¶] in the cell room and informed him that he would remain in custody until the balance of his fee was paid. (42) Respondent telephoned [K], defendant’s father, and informed him that respondent represented his son; that his son owed respondent money, and that the judge was going to detain his son until some of the fee was paid. Respondent requested that $150 be paid immediately. (43) [K] took $150 to respondent’s office and left it with his secretary. (44) On or about August 15,1986, [B] told respondent to give him $50. (45) On or about August 15, 1986, [B] ordered the release of [¶] from custody. (46) On or about August 30, 1986, [I] was arrested and charged with possession of controlled substances. (47) [B] arranged for respondent to represent [I]. (48) In or about early October 1986, [I] delivered $500 to [L] in [M’s] Bar. (49) On or about October 7, 1986, the case of Commonwealth v. [I] was assigned to courtroom [ ] following [I’s] arraignment. (50) On or about October 10, 1986, following the assignment of [I’s] case to courtroom [ ], [B] told [L] that they needed money to pay the person who was doing arraignments “for putting the case there.” (Exh. B, p. 18) (51) As a result of respondent’s conviction on Count I, he was sentenced to a term of imprisonment of five years and fined the sum of $5,000 on March 2, 1988. (52) Respondent was suspended from the practice of law as a result of his conviction by order of the Supreme Court of Pennsylvania dated March 21, 1988, which was entered pursuant to Pennsylvania Rule of Disciplinary Enforcement 214(d). (53) The order of March 21, 1988, referred the matter to the Disciplinary Board pursuant to Rule 214(f) for the purpose of determining imposition of final discipline. (54) In August of 1989, Judge [A] reduced the respondent’s sentence from 5 years to 3 1/2 years, which made respondent eligible for parole after serving one-third of the sentence. (55) Respondent was released from custody on July 27, 1990. CONCLUSIONS OF LAW (1) Respondent’s January 22,1988, conviction for violation of 18 U.S.C. § 1962(d) is a conviction under Rule 214(d), Pa.R.D.E. (2) Respondent’s conviction constitutes a per se independent basis for discipline under Rule 203(b)(1), Pa.R.D.E. (3) Respondent’s aforementioned misconduct violated the following Disciplinary Rules of the Code of Professional Responsibility: “(a) D.R. 1-102(A)(1), which states that a lawyer shall not violate a Disciplinary Rule; “(b) D.R. 1-102(A)(3), which states that a lawyer shall not engage in illegal conduct involving moral turpitude; “(c) D.R. 1-102(A)(4), which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; “(d) D.R. 1-102(A)(5), which states that a lawyer shall not. engage in conduct that is prejudicial to the administration of justice; “(e) D.R. 1-102(A)(6), which states that a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law; “(f) D.R. 7-110(A), which prohibits a lawyer from giving or lending anything of value to a judge, official, or employee of a tribunal; “(g) D.R. 7-110(B), which prohibits a lawyer, in an adversary proceeding, from communicating or causing another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending; “(h) D.R. 9-101(D), which prohibits a lawyer from stating or implying that he is able to influence improperly or upon irrelevant grounds a tribunal, legislative body or public official.” DISCUSSION Respondent’s criminal conviction constitutes a per se ground for discipline pursuant to Enforcement Rule 203(b)(1), Pa.R.D.E. Since respondent’s misconduct establishes a basis for the imposition of discipline, the only issue remaining is the extent of the discipline to be imposed. The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system. Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987). Disciplinary procedures have been established as a catharsis for the profession and a prophylactic for the public. Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981). Where the disciplinary proceeding arises out of an attorney’s conviction of a crime, the inquiry must focus on whether the attorney’s character, as shown by his conduct, makes him unfit to practice law from the standpoint of protecting the public and the courts. Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). Respondent’s conduct consisted of bribing a judge and a judicial officer for favorable court rulings, conspiracy with a judge to raise bail or impose jail sentences upon criminal defendants until respondent’s legal fees were paid, conspiring with a judge to raise bail or impose jail sentences in order to extort money from criminal defendants, and conspiring to steer cases involving criminal defendants to certain judges in the court system of [ ] County to obtain favorable results. This conduct evidences a person of disreputable character. Respondent used the criminal justice system and the plight of criminal defendants for his extortionate desires and pecuniary benefit. Such a person is not fit to practice law in this Commonwealth. Individuals who subvert justice should expect “a termination of the license to practice law without a promise of its restoration at any future time.” Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1987). In addition to reflecting adversely on his character and his fitness to practice law, the acts evidenced by respon dent’s conviction seriously undermine public confidence in the judicial system by calling into question the fairness of its judges and advocates. All criminal defendants in this country have a right to a fair trial and are innocent until proven guilty. Respondent’s rapacious conduct made a mockery of this system and its goals. Furthermore by conspiring with a judge to raise bail and imprison defendants until they paid respondent his fee or a bribe, respondent, without due process, deprived these individuals of their right to liberty. The egregious behavior undertaken by respondent goes to the core of our criminal justice system and basic notions of fairness and truthfulness. The fact that others similarly charged were acquitted is irrelevant to this matter and should not be considered. Respondent has been convicted of a serious crime, and that is the basis for imposing discipline upon him. The power of a court to disbar an attorney should be exercised with great caution, but there should be no hesitation in exercising it when it clearly appears that it is demanded for the protection of the public. Johnson Disbarment Case, 421 Pa. 342, 219 A.2d 593 (1966). Respondent’s actions represented a dual injury to the public. First, motivated by greed, respondent extorted money from defendants or their relatives in order to facilitate the defendants’ acquittal or release from jail. Second, respondent corrupted criminal defendants and their relatives by convincing them that their only recourse was not a fair trial, but the payment of a bribe. In order to protect the public from further injury, respondent must be disbarred. Disbarment is an extreme sanction which must be imposed only in the most egregious cases because it represents a termination of the license to practice law without a promise of its restoration at any future time. Office of Disciplinary Counsel v. Keller, supra. It is necessary where the misconduct involves the types of breach of trust exhibited in this case. Respondent’s corrupt activities disparaged himself and the entire bar of this Commonwealth. Where one who has sworn to uphold the law actively conspires to breach it, his fitness to practice is unquestionably destroyed. Office of Disciplinary Counsel v. Campbell, supra. Having fully considered respondent’s multiple transgressions in violation of our criminal laws and eight of our Disciplinary Rules, the board is convinced that disbarment is the only appropriate sanction. RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent [ ] be disbarred. The board further recommends that the court direct that respondent pay all the necessary expenses incurred in the investigation and processing of this matter pursuant to Rule 208(g), Pa.R.D.E. Messrs. Schiller and Paris and Ms. Flaherty did not participate in the adjudication. ORDER And now, September 17, 1992, upon consideration of the report and recommendations of the Disciplinary Board dated August 6,1992, it is hereby ordered that [respondent] be and he is disbarred from the bar of this Commonwealth and he shall comply with alLthe 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.

BECK, Judge. We decide that pursuant to Pennsylvania Rule of Appellate Procedure 341(c) the Superior Court lacks jurisdiction to entertain an interlocutory appeal where the trial court failed to certify its order as final within 30 days of the order’s entry. We quash the appeal. Appellants Robert A. Korn, Jerome N. Kline and Alan R. Kutner filed this lawsuit against DeSimone Reporting Group and El-lyn M. Epstein alleging wrongful use of civil proceedings. On September 5,1995, the trial court granted defendant-appellee DeSimone’s motion for summary judgment. Because the action against defendant Epstein remained viable, the summary judgment order was interlocutory. Pa.R.App.P. 341(a) (a final order is one that disposes of all claims or of all parties); Note to Pa.R.App.P. 341 (order dismissing an action as to less than all defendants is not final and appealable). See also Robert H. McKinney, Jr., Associates v. Albright, 429 Pa.Super. 440, 632 A.2d 937 (1993). In accordance with Pa.RApp.P. 341(c), appellants filed an application with the trial court asking that the summary judgment order be certified as final. Subsection (c) provides: (c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order. (1) An order may be amended to include the determination of finality within 30 days of entry of the order. A notice of appeal or petition for review may be filed within 30 days after entry of an order as amended, unless a shorter time period is provided in Rules 903(c) or 1512(b). (2) The trial court or other governmental unit is required to act on an application for a determination of finality under subdivision (c) within 30 days of entry of the order. During the time an application for determination of finality is pending, the action will be stayed. Any denial of such an application shall be reviewable only for abuse of discretion pursuant to Chapter 15. Pa.R.App.P. 341(c), 42 Pa.C.S. The trial court did not act within 30 days of the entry of the summary judgment order. Four months after the entry of its original order, on January 19, 1996, the trial court amended the original order “to include an express determination that an immediate appeal would facilitate resolution of the entire case.” Appellants then filed their appeal directly to this court. We quash the appeal. Rule 341(c) requires the trial court to act within 30 days of the entry of the order. Pa.R.App.P. 341(c)(1) and (c)(2); Liberty State Bank v. Northeastern Bank, — Pa.Super. -, 683 A.2d 889 (1996). If the trial court does not act timely, the application is deemed denied. Despite the trial court’s failure to act timely, appellants urge us to accept jurisdiction over the appeal. They argue that they had no control over the trial court’s failure to act. In essence, appellant is asking us to overlook the untimeliness and create jurisdiction. This court’s jurisdiction is established by statute and in the absence of proper authority, we are barred from accepting jurisdiction. Municipal Publications, Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985) (quoting from Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959)). Appeal quashed. . The September 5, 1995 summary judgment was granted by order of then-judge Russell Nig- ro. At argument before this court, appellants’ counsel claimed that the application for certification of finality pursuant to Rule 341(c) "fell through the cracks” at Judge Nigro’s chambers during his transition to the Supreme Court of Pennsylvania. When the delay was brought to the court’s attention, the request for certification was decided in appellants’ favor by Judge Sandra Mazer Moss in her order dated January 19, 1996. Judge Mazer Moss’s order was entered on the docket on January 30, 1996. . We note that appellants have not lost their right to appeal the grant of summary judgment at a later time. We simply hold that an appeal at this time is premature. The matter will be ripe for appeal upon the lower court’s disposition of the claim against defendant Epstein, i.e., upon the entry of a final order. Robert H. McKinney v. Albright, 429 Pa.Super. at 443-44, 632 A.2d at 939.

KUHN,/., On August 1,1991,plain-tiffs, Kathleen M. and David B. Fitzerald, filed a 144-paragraph complaint against defendants, Alfredo G. Kaguyutan, M.D., Kaguyutan Medical Associates Inc. and the Gettysburg Hospital alleging negligence in failing to properly diagnose and treat placental abruption resulting in the death of plaintiffs’ unborn child on or about July 4, 1989. Hospital filed its answer with new matter on September 16, 1991. Subsequently, plaintiffs filed preliminary objections to hospital’s answer with new matter specifically requesting that paragraphs 57-69, 81 and 83 of the answer be deemed admitted or more specifically answered and that paragraphs 145-153 and 155 of the new matter be stricken. To paraphrase hospital’s answer, paragraphs 57, 60, 69 and 81 are denials with averments that after reasonable investigation hospital is without knowledge or information sufficient to form a belief as to the truth of the corresponding averments in the complaint. Paragraphs 58-9, 61-8, and 83 aver that to the extent Mrs. Fitzgerald’s medical records support plaintiffs’ averments they are admitted otherwise they are denied. Plaintiffs argue that pursuant to Pa.R.C.P. 1029(b) the aforementioned answering paragraphs must be deemed admissions because under these circumstances it was improper for hospital to simply deny allegations or make general reference to medical records. Rule 1029 makes clear that a general denial has the effect of an admission unless that denial falls within the exception appearing in subsection (c) of the rule. Hospital’s paragraphs 57, 60, 69 and 81 are attempts to fit within subsection (c). In determining if an answer is a general denial under the rule, the court must examine the pleadings as a whole. Commonwealth by Preate v. Rainbow Associates Inc., 138 Pa. Commw. 56, 61, 587 A.2d 357, 360 (1991). Nevertheless, reliance upon subsection (c) does not excuse a failure to admit or deny factual allegations when it is clear that hospital must know the validity of the averments. City of Philadelphia v. Hutler, 114 Pa. Commw. 475, 482, 539 A.2d 468, 472 (1988). The objective of subsection (c) is to protect a party from making an admission when he is unable to ascertain competent information to support a specific denial; however, a reasonable, good faith investigation must be made before invoking this section. Equibank v. Interstate Motels Inc., 25 D.&C.3d 149, 152 (1982). After carefully reviewing paragraphs 57, 60, 69 and 81, I am satisfied that hospital’s answers are sufficient. Each corresponding averment refers to matters within the knowledge of plaintiffs or Dr. Kaguyutan or is a matter not likely to appear in a medical record. Therefore, these paragraphs will not be deemed admitted nor will hospital be required to replead. A review of paragraphs 58-9, 61-8 and 83 yield a different result. Hospital surely had adequate time to review its own records regarding the incident in question. To the extent those records corroborate or contradict a specific averment then hospital should specifically respond. If the records or other information available to hospital at the time the answer is filed are inadequate to prepare a specific response then hospital may rely on Rule 1029(c). However, in this instance for hospital to simply aver that whatever the records reveal are respectively admitted or denied does not satisfy Rule 1029. Although hospital’s responses may have been inadequate, I reject the harsh sanction of having them be deemed admitted because of the effort hospital did make to respond. The better approach would be to allow hospital to amend those paragraphs. With regard to plaintiffs’ request to strike certain paragraphs of hospital’s new matter, Pa.R.C.P. 1028(a)(2) allows a motion to strike whenever a pleading lacks conformity with law or rule of court; or because of scandalous or impertinent matter. Plaintiffs correctly point out that Pa.R.C.P. 1019(a) requires material facts upon which a defense is based to be stated in concise and summary form. Hospital has, by very general averments, stated that: plaintiffs failed to state a cause of action; the statute of limitations may have expired; hospital was not negligent; hospital’s acts or omissions were not substantial causes of the injury suffered; plaintiffs were contributorily negligent; acts or omissions of others were intervening and superseding causes of the injury suffered; plaintiffs may have assumed the risk; the Comparative Negligence Act may be applicable; hospital’s acts or omissions were not the proximate cause of the injury suffered; and plaintiffs may have entered into a release with others which would discharge hospital. Hospital recognizes that the aforementioned paragraphs are general but argues that because (1) most affirmative defenses not raised in new matter are waived, Iorfida v. Mary Robert Realty Co., 372 Pa. Super. 170, 176, 539 A.2d 383, 386 (1988), alloc. den., 549 A.2d 136 (1988), (2) the time constraints imposed by the rules for response do not envision detailed factual averments supporting affirmative defenses, and (3) of the complexity of this case more specificity should not be required. Plaintiffs argue that they are unable to specifically deny these paragraphs as required by Rule 1029 or prepare a defense because the averments are too vague and not in conformity with Rule 1019(a). Ever since Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the courts have been increasingly called upon to determine whether pleadings comply with Pa.R.C.P. 1019(a). There, in a footnote, the court observed that the defendant could have moved to strike an averment in the complaint alleging it was negligent “in otherwise failing to use due care and caution under the circumstances” or at least to seek a more specific pleading. Research available to this court has revealed few situations where preliminary objections have been filed to general averments raising affirmative defenses in new matter. In Gotwalt v. York Hospital, 102 York L.R. 151 (1988), the Honorable Richard H. Horn denied motions to strike or for more specific pleading because (1) of the disparity in time available to plaintiffs and defendants in preparing their initial pleadings, (2) Pa.R.C.P. 126 allows courts to liberally construe the pleading rules, and (3) plaintiff had ample opportunity to examine the hospital’s pertinent medical records, so most facts are within the knowledge of both parties thereby making the defenses raised predictable. The Honorable Michael Georgelis opined otherwise in Rivera v. Arbor Place Inc., 4 D.&C.4th 44 (1989) when he felt compelled by Rule 1019(a) and the Connor standard to require more specificity to averments of affirmative defenses strikingly similar to the language used in hospital’s new matter. How this issue has been addressed by other courts is unknown. Without further direction and guidelines, however, I am inclined to follow the rules and be more liberal in allowing amendment upon discovery of affirmative defenses. Because affirmative defenses have no statute of limitations problems a defendant should be able to raise such defenses when they become known. Certainly, one might not be able to plead a defense within 20 days for which adequate time to investigate was unavailable. I do not believe the waiver provisions of Pa.R.C.P. 1032 apply in such situations. As is well known the rules allow for liberal amendment at any stage of the pleadings. Pa.R.C.P. 1033 and 126. Therefore, as defenses become known the defendant would be granted leave to amend. Where one fails to plead a known defense waiver may result but otherwise it should not be a cause for undue concern at this stage of the pleadings. Certain defenses will require more specificity than others. For example, alleging failure to state a cause of action, raising the statute of limitations, or denying negligence requires no further averments. However, pleading contributory negligence, intervening and superseding acts of others, assumption of risk, comparative negligence, and release requires more specificity. Accordingly, the attached order is entered. ORDER OF COURT And now, January 11, 1993, plaintiffs’ preliminary objections to the answer and new matter of defendant, the Gettysburg Hospital is granted in the following respects, otherwise denied: (1) Said defendant is granted 20 days from the date of mailing of this order to more specifically respond to paragraphs 58-9, 61-8 and 83. (2) Paragraphs 149, 150, 152 and 155 are stricken. (3) Unless said defendant repleads the defenses raised in paragraphs 149, 150, 151,152 and 155 within 20 days after the date of mailing of this order, either agreement or leave of court will be required to add these defenses thereafter. The action was initiated by a writ of summons filed June 28, 1991.

FRANKS, J., The issue before us arises from a petition to resolve subrogation filed by Jacqueline Iacconi. After oral argument, and full consideration of the briefs of counsel, we deny the petition. For the reasons stated herein, we hold that petitioners’ acceptance of Nationwide Insurance Co.’s offer of less than policy limits is not sufficient to satisfy the exhaustion clause in the underinsurance policies in order for petitioners to proceed to underinsurance arbitration. BACKGROUND On December 15, 1990, petitioner, Jacqueline Iacconi, was a passenger in an automobile driven and owned by Iona Iacconi, which collided with a vehicle owned by Elizabeth Mancovich, but driven by Charles J. Capanna. As a result, Jacqueline Iacconi sustained severe injuries. Nationwide Insurance Co., as third party liability carrier for the owner of the Mancovich vehicle, has offered petitioners $45,000 of the $50,000 policy limits. Petitioners are willing to accept this offer as full compensation for third-party liability, if Reliance and Allstate Insurance Cos. will waive their subrogation rights and allow petitioners to pursue underinsurance claims against them. To satisfy the exhaustion clause in the underinsurance policies, petitioners would extend a $5,000 credit to Re-fiance and Allstate. Petitioners contend that the limits of all applicable liability policies would then be exhausted, and petitioners could pursue underinsurance claims against Reliance and Allstate. Consequently, they would be liable to petitioners for only those underinsurance benefits over $5,000 awarded in arbitration. Allstate will accept this proposal in order to allow petitioners to proceed to underinsurance arbitration. However, Rebanee has refused. The instant petition was filed asking this court to compel Rebanee to accept petitioners’ proposal, waive its subrogation rights, and proceed to underinsurance arbitration. DISCUSSION In support of their argument, petitioners cite to this court May v. State Farm and Liberty Mutual, 18 Lycoming Rep. 21 (1991). The court in May was presented similar facts as before us. The insurance companies in May offered the plaintiff less than the aggregate pobey bmits. May, as with our petitioners, agreed to accept the offer, credit the insurance companies with the total amount of babibty coverage, and then proceed to underinsurance arbitration. State Farm and Liberty Mutual, in not accepting this proposal, relied on the exhaustion clause in the underinsurance pobcies to support their position. The exhaustion clause, which is standard in most underinsurance pobcies, and at issue in May and in the instant case, provides that an insured must exhaust all applicable bmits of babibty pobcies before fibng a claim for the underinsured motorist benefits. After a lengthy analysis of Pennsylvania law and the similar laws of other jurisdictions, the Honorable Clinton W. Smith held the exhaustion clause void as against the legislative intent of the Motor Vehicle Financial Responsibibty Law. May’s motion to resolve subrogation was granted, and he was abowed to proceed to underinsurance arbitration. As stated previously, the holding in May is not a pronouncement of law by a Pennsylvania appebate court, but merely an opinion and order of a common pleas court. Therefore, its holding is neither controlhng nor binding on us, and we wib not fobow it. We accept Rehance’s argument that the insurance contract must be interpreted to require petitioners to exhaust all liability limits of the Nationwide policy before pursuing an underinsurance claim. Accepting any lesser amount than policy limits cannot be deemed an exhaustion of all policy limits. It is well-settled in Pennsylvania jurisprudence that when the terms of an insurance contract are clear and unambiguous, the court must give effect to those terms. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). We find the language in the insurance contract is clear. The limits of all applicable liability policies must be completely exhausted before a claim for underinsured motorist benefits can be made. We hold that to allow petitioners to proceed to underinsurance arbitration, without having received from Nationwide the full policy limit of $50,000, would be contrary to the clear language in the insurance contract. Petitioners cannot satisfy the terms of the exhaustion clause by accepting less than limits, then extending credit to Reliance for the difference. Further, to hold otherwise would be to legislate, as no other interpretation would be logical. In conclusion, we hold that absent consent from the liability carrier, an insured may not accept less than policy limits from the liability carrier, then extend credit to his underinsurance carrier for the difference in order to proceed to arbitration for underinsurance benefits. To do so would not satisfy the exhaustion clause in this contract. Wherefore, we enter the following ORDER And now, January 6, 1993, it is hereby ordered and directed that petitioners’ petition to resolve subrogation is denied.

O’BRIEN,/., On April 1,1986, plaintiff, Caroline Hess, administratrix of the estate of Guy Keith Kitchen, initiated this action by filing a writ of summons. The plaintiff filed a complaint on June 11, 1987, seeking monetary damages from PennDOT, a consulting engineering firm, and Mount Airy Lodge Inc., in whose vehicle deceased was riding on June 14, 1985 when an accident resulted in his death. On August 25, 1992, upon PennDOT’s petition, this court issued a rule to show cause upon the plaintiff why a judgment of non pros should not be entered for lack of prosecution. Following an answer being filed to the rule, submission of briefs and oral argument, defendant’s petition is now before this court for disposition. It is well settled that “As a matter of common fairness, he who brings another into court should prosecute the claim against him with reasonable diligence.... There is no greater reflection upon the administration of justice than the permission of endless litigation....” Penn Piping Inc. v. Insurance Co. of North America, 529 Pa. 350, 356, 603 A.2d 1006, 1009 (1992) (citing Potter Title & Trust Co. v. Frank, 298 Pa. 137, 148 A. 50 (1929)). In an effort to achieve this objective, our Supreme Court in Penn Piping enunciated a three-part test to be applied when a trial court is considering whether to enter a judgment of non pros. The test first requires that it be shown that there has been a lack of due diligence in proceeding to trial with reasonable promptness. Secondly, there must not have been a compelling reason for the delay. Lastly, the delay must have caused some prejudice to the defendant, which is presumed if the delay has been for two years or more. It is plaintiff’s responsibility to exercise due diligence in moving the case to trial. Plaintiff has failed to meet this responsibility. In the case at bar, the docket reflects no activity from September 2,1988 until August 25,1992, when PennDOT filed its petition for non pros. In fact all steps taken by the plaintiff on the docket prior to September 2,1988 were taken only after being compelled to do so by the defendants. For example, plaintiff’s com plaint was not filed until more than a year after the summons was issued after being ruled to do so by the defendants, and obtaining the right for pre-complaint discovery. Further, the discovery exchange between the parties was accomplished only after a motion to compel was filed by the defendant. Plaintiff’s answer to the rule to show cause fails to provide any evidence of due diligence or any reasonable explanation for the delay. Further, the answer to the petition fails to contain any information to rebut the presumption that inactivity for two years is prejudicial to the defendant. It is noteworthy that in her brief and at argument, the plaintiff concedes that she does not have any additional witnesses or information available to prosecute her case other than that which was available prior to September 2, 1988. If this case were allowed to proceed to trial, the trial would be taking place at least eight years following the accident giving rise to the alleged cause of action. Such a delay is clearly prejudicial to the defendant, particularly since the period of inactivity of the docket is approximately four years. Therefore, we conclude that the plaintiff has not acted with due diligence in proceeding to trial, that there has been no compelling reason for this inordinate delay and the delay is prejudicial to the defendant requiring entry of a non pros. Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992). ORDER And now, January 7, 1993, the rule heretofore issued is made absolute and the petition of the Commonwealth of Pennsylvania, Department of Transportation for a non pros is granted. All defendants except PennDOT were granted summary judgment by a judge of this court on April 4, 1988.

JOYCE, J. ¶ 1 Wife, Lorie Portugal, appeals from the order entered on July 10, 2001, in the Court of Common Pleas of Chester County, directing her Husband, Howard Portugal, to make monthly support payments on behalf of their two minor children. Husband also files a cross-appeal from the same order. Upon review, we reverse and remand for further proceedings. The relevant facts and procedural history, as aptly stated by the trial court, are as follows. [Husband] and [Wife] met while students at Rensselaer Polytechnic Institute in the 1980’s. She majored in biology; he studied computer science. They married on June 14, 1987. After their marriage, [Wife] continued her education, obtaining a doctorate in veterinary medicine in 1992. In 1997, [Wife] opened her own veterinary care clinic, “Critter Care Veterinary Hospital, P.C.”, to address the needs of small animals and exotic pets in the Thorndale area. In January 1999, [Husband] moved to Washington State to begin working for- Microsoft Corporation as a Senior Applications Development Consultant. The company paid for his relocation. [Wife] and the couple’s two young children, Matthew, born May 7, 1995, and Rebecca, born June 21, 1997, were to have joined him soon after. Instead, the separation became permanent. [Wife] filed for spousal and child support on September 27, 2000. The court entered a Temporary Order on November 8, 2000 in the amount of $601.00 per month for spousal support and $2007.00 per month as child support. [Husband] moved for a separate listing on the same day. [The trial court] held an evidentia-ry hearing on June 13, 2001 at which both parties appeared and were represented by counsel. At the hearing, [Wife] agreed to the dismissal of her spousal support claim on the grounds of cohabitation. Trial Court Opinion, 7/10/01 at 3-4. On July 10, 2001, the trial court entered an order that directed Husband to pay $1599.00 in child support per month from September 27, 2000 until December 31, 2000 and to pay $1625.00 per month thereafter. The trial court also ordered Husband to provide health insurance for the parties’ children and to pay fifty-six percent (56%) of the children’s unreimbursed medical expenses. Furthermore, since Wife admitted that she was cohabitating with another man while receiving spousal support payments from Husband, the trial court ordered Wife to reimburse Husband at the rate of $200.00 per month. This appeal and cross appeal followed. ¶ 2 In her timely appeal, Wife raises the following issues for our review: 1. Whether Wife’s earning capacity should have been used when she testified that she was trying to build her business and would eventually surpass her colleagues who worked for other veterinarians. 2. Whether Husband’s income was correctly calculated, given the perquisites given to him by his company with regard to relocation. 3. Whether Husband’s income was correctly calculated, given the fact that his 401(k) contribution was deducted from his gross income. 4. Whether the court’s calculation of the taxes to be paid by each party, in consideration of the exemptions given to each party, was correct. 5. Whether the court’s calculation of support was incorrect, given the correct findings in regard to the parties’ respective incomes. Appellant’s Brief, at 3 (full capitalization omitted). ¶ 3 In his timely cross-appeal, Husband raises the following issues: 1. Whether the trial court committed legal error, abused its discretion, or misapplied the law in failing to direct Wife to cede one of the child dependency exemptions for federal income tax purposes to Husband? 2. Whether the trial court erred, abused its discretion, or misapplied the law in failing to order Wife to pay back in a lump sum the credit owed to Husband as a result of Wife’s bad faith continuation of her spousal support claim from the date of filing to the date of hearing? 3. Whether the trial court erred, abused its discretion, or misapplied the law in refusing to allow Husband to make direct payments to the provider for his portion of the childcare expenses? Cross-Appellant’s Brief, at 6. ¶4 In child support cases, our standard of review is as follows: The amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground. Kessler v. Helmick, 449 Pa.Super. 113, 672 A.2d 1380, 1382 (1996) (quoting Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75, 77 (1989) (en banc)). For our purposes, “an abuse of discretion requires proof of more than a mere error of judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice or partiality.” Kersey v. Jefferson, 791 A.2d 419, 423 (Pa.Super.2002) (citations omitted). ¶ 5 In her first issue, Wife argues that the trial court abused its discretion when it based her monthly income for support purposes on her earning capacity rather than on her actual monthly income. Appellant’s Brief, at 18. After the parties’ hearing, the trial court determined that an individual of Wife’s qualifications could earn $55,000.00 per year as an associate veterinarian in an established clinic. Wife argues, however, that the trial court should not have charged her with this earning capacity because she never actually held such a position and because her husband supported her decision to open her own clinic. Id. Additionally, Appellant maintains that her future earnings as a self-employed veterinarian will eventually surpass those of her colleagues and will make up for her current limited income. Id. ¶ 6 In this Commonwealth, it is well settled that [c]hild support is a shared responsibility requiring both parents to contribute to the support of their children in accordance with their relative incomes and ability to pay. Depp v. Holland, 431 Pa.Super. 209, 636 A.2d 204, 208 (1994) (citing DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987)). “Where a party voluntarily assumes a lower paying job, there generally will be no effect on the support obligation.” Pa.R.C.P. 1910.16-2(d)(1).... Where a party willfully fails to obtain appropriate employment, his or her income will be considered to be equal to his or her earning capacity. Pa.R.C.P.1910.16-2(d)(4). A determination of earning capacity must consider the party’s age, education, training, health, work experience, earnings history, and child care responsibilities. Id. Kersey, 791 A.2d at 423. Accord DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871, 877 (1987) (holding that “[a] parent’s ability to pay support is determined primarily by financial resources and earning capacity.... The obligation of support, then, is measured more by earning capacity than by actual earnings.”) ¶ 7 In the instant case, the parties stipulated that Wife would earn $55,000.00 per year if she worked as an associate veterinarian at an established clinic. N.T. Support Hearing, 6/13/01 at 69. Nonetheless, Wife opted to establish her own clinic and currently earns $25,000.00 as its proprietor. Although we recognize that Wife did not voluntarily depart from an associate position that paid $55,000.00 and that Husband supported Wife’s decision to open the clinic, the income Wife currently receives is simply not commensurate with her admitted earning potential. ¶ 8 Our court’s decision in Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Super. 226, 199 A.2d 512 (1964) is instructive. In Raitt, a father possessing a doctorate degree in pharmacology voluntarily assumed a position as a local pharmacist instead of seeking a higher paying position with a pharmaceutical research company. Id. at 513. Finding that the father’s actual earnings did not equal his earning potential, the trial court based the father’s support obligation on his earning capacity. Id. On appeal, a panel of our Court provided: The court below was correct in considering the earning capacity of the defendant. Usually a defendant’s earnings represent his earning capacity, but this is not always true and where the court is justified, as here, in finding that the defendant’s earning capacity exceeds his earnings, the amount of the order should be determined on the basis of earning capacity. Id. ¶ 9 Like the father in Raitt, Wife voluntarily assumed a lower paying position in the face of more lucrative opportunities. Therefore, we do not find that the trial court abused its discretion when it based Wife’s income for support purposes on her earning capacity. To hold otherwise would permit Wife to subordinate the immediate financial needs of her children to her own aspirations. See Kersey, 791 A.2d at 424. ¶ 10 In her second and third issues, Wife maintains that the trial court abused its discretion when it failed to consider that Husband’s earning capacity/income is enhanced by certain “corporate perquisites.” Appellant’s Brief, at 20-1. Specifically, Wife argues that the reimbursement Husband received from Microsoft for his relocation expenses, Husband’s bonuses, Husband’s contributions to his 401(k) and Microsoft’s matching contribution to Husband’s 401(k) should have been considered as income for support purposes. Id. We will discuss each of these perquisites in turn. ¶ 11 In 2000, Appellant left his position in Washington and relocated to Pennsylvania in an effort to reconcile with Wife. To facilitate Husband’s move, Microsoft paid $6703.00 in relocation expenses to third parties on Husband’s behalf and gave Husband a $10,000.00 relocation bonus. Since Husband was unable to deduct the moving expenses that Microsoft paid to these third parties from his federal income tax return, and since Husband would have to pay tax on the relocation bonus, Microsoft also remitted a “tax gross-up payment” to the IRS in the amount of $12,792.00 ¶ 12 In light of this evidence, the trial court deducted the relocation expenses and tax gross-up payment from Husband’s gross earnings but did retain the $10,000.00 relocation bonus for support purposes. See Trial Court Opinion, 7/10/01 at 3. We do not find that this was an abuse of discretion. ¶ 13 Pursuant to Pa.R.C.P.1910.16-2(d)(2), the trial court need not adjust a support payment for normal fluctuations in earnings. In the instant case, the trial court opted to include Husband’s one-time relocation bonus as income for support purposes, see 23 Pa.C.S.A. § 4302, but was unwilling to include the non-recurring relocation reimbursement and tax gross-up payment. Although we recognize that Husband’s income was temporarily enhanced by the employer’s payment of his relocation expenses and the generous tax gross-up payment, we find that it was within the trial court’s discretion to characterize these non-recurring payments as normal fluctuations in earnings. ¶ 14 Furthermore, Wife argues that the trial court failed to include Appellant’s 2000 and 2001 bonuses in its calculation of income for support purposes. Appellant’s Brief, at 20-2. Our review of the record, however, belies this contention. ¶ 15 In 2000, Husband received two bonuses from Microsoft. N.T. Support Hearing, 6/13/01 at 85. Each of these bonuses was reflected in Husband’s gross wages on his W-2 statement. Since the trial court never deducted this bonus when calculating Husband’s net income for support purposes, we find that the trial court properly included the bonuses as income available for child support. ¶ 16 However, at the time of the hearing in 2001, the trial court did not have the benefit of a W-2 statement. As such, the trial court amortized the wages that Husband received in the first five months of 2001 and added a $3456.00 bonus that Husband received in February 2001. Wife argues, however, that the trial court should have also included a bonus that Husband anticipated receiving in August 2001. Since the receipt of this bonus was not guaranteed and since the amount of the bonus could not be adduced with any reasonable certainty, the trial court refused to include this potential bonus in the calculation of Husband’s income. This was proper. See Urban v. Urban, 298 Pa.Super. 224, 444 A.2d 742, 745 (1982) (lower court should not include the possibility of a bonus in a party’s income when calculating a support obligation). In light of the aforementioned evidence, we find no merit in Wife’s contention that the trial court failed to include Husband’s bonuses in the calculation of income. ¶ 17 Moreover, Wife also maintains that the trial court should have included the contribution Husband makes to his 401(k) plan and Microsoft’s matching contribution to this plan in its determination of Husband’s income. Upon review, we agree with Wife. ¶ 18 We will first determine whether an employee’s contribution to a retirement plan is properly included as income. Pursuant to Pa.R.C.P.1910.16-5, the amount of support to be awarded is based in large part upon the parties’ net monthly income. Monthly net income is determined by subtracting only the following items from monthly gross income: (1) federal, state, and local income taxes; (2) F.I.C.A. payments and non-voluntary retirement payments; (3) union dues; (4) health insurance premiums for the benefit of the other party or the children. Pa.R.C.P.1910.16-5. Upon our consideration of this provision, we find that only non-voluntary retirement payments are properly excludable from a parent’s net monthly income. Conversely stated, the trial court must include any voluntary contributions that a parent makes to his/her retirement plan as income for support purposes. ¶ 19 We find additional support for this conclusion in our legislature’s definition of the income available for support purposes. See 42 Pa.C.S.A. § 4302. Specifically, this section broadly states that “all forms of retirement” and “pensions” constitute income. Id. Moreover, other state courts have determined that an employee’s voluntary contributions to a retirement plan are properly included as income in a support determination. For example, in Frazer v. Frazer, 23 Va.App. 358, 477 S.E.2d 290 (1996), the Virginia Court of Appeals determined that 401(k) contributions represent actual earnings that are voluntarily set aside for the future benefit of the employee. Thus, this court held that such contributions should be included in the employee’s gross income for the calculation of child support. Accord Nelson v. Nelson, 651 So.2d 1252, 1253-54 (Fla.Dist.Ct.App.1995) (no deduction from gross income allowed for party’s voluntary contributions to retirement account); Lebrato v. Lebrato, 3 Neb.App. 505, 529 N.W.2d 90, 98-99 (1995) (“The guidelines do not allow a deduction for contributions to voluntary retirement plans in arriving at net income ....”) ¶ 20 In light of the clear import of Pa.R.C.P.1910.16-5, the broad language of section 4302, and the persuasive authority of the aforementioned cases, we find that an employee’s contributions to his 401(k) constitute income for support purposes. Nonetheless, in the instant case, we are unable to determine from the record whether the trial court included these contributions as income when it calculated Husband’s support obligation. Therefore, we must remand this case to the trial court to determine whether these contributions were included. If the trial court finds that they were not, the trial court must recalculate Husband’s support obligation. ¶ 21 Next, Wife asks this Court to determine whether the trial court abused its discretion in failing to include the employer’s matching contributions to Husband’s 401(k) plan as income for support pur poses. In her brief, Wife cites no Pennsylvania case law that supports this proposition, nor does our search reveal such a case. ¶22 We find, however, that two decisions of the Supreme Court of North Dakota provide guidance on this issue. In Shipley v. Shipley, 509 N.W.2d 49 (N.D.1993), the high court determined that an employer’s contributions to an employee’s pension plan were properly included as part of an employee’s gross income since these funds constituted “income from any source” under North Dakota’s statutory definition of gross income. Id. at 63. Moreover, this same court determined in Shaver v. Kopp, 545 N.W.2d 170, 175 (N.D.1996) that an employer’s contribution to a tax-deferred savings plan qualified as gross income under the guidelines because the employee was able to “withdraw his employer’s contributions, as well as his own, at any time, subject to taxes and penalties.” Id. at 175. The court explained that this determination was proper since “children cannot wait for support, ... [and] obligors should not be allowed the option of deferring income until the child reaches adulthood and no support obligation remains.” Id. ¶ 23 Upon our consideration of our own statutory definition of income, we also find that an employer’s contribution to an employee’s retirement plan could constitute income as defined in section 4302. An employer’s contribution would constitute “any form of payment ... collectible by an individual regardless of source” if the employee could access his employer’s contributions (regardless of penalties) at the time of the support calculation. Indeed, such a determination would need to be made by the trial court on a case-by-case basis. For if an employee/parent is entitled to any portion of these funds at the time of the support calculation, his/her children should presently reap the benefit of the investment. ¶24 Additionally, if we were to determine that an employer’s matching contributions are not income, it would be possible for an employee to enter into an agreement with his employer to take less wages in exchange for a heightened matching contribution. This would effectively permit an employee to shield his income in an effort to reduce his child support obligation. ¶25 In light of the foregoing analysis, we must remand this case to the lower court for the determination of whether Husband possesses the present ability to access his employer’s contributions to his 401(k) plan. If the trial court determines that he has such access, employer’s contributions, less the penalty incurred for withdrawal, shall constitute additional income for purposes of the child support calculation. ¶ 26 In her fourth and fifth issues, Wife argues that the trial court’s calculations of the parties’ net monthly incomes and support obligations are necessarily incorrect due to the errors alleged in Wife’s first three issues. Appellant’s Brief, at 23-7. We need not address these claims in light of our foregoing conclusion that remand is appropriate. ¶ 27 In his first issue on cross-appeal, Husband maintains that the trial court erred in failing to allocate one of the child dependency exemptions for federal income tax purposes to Husband. Cross-Appellant’s Brief, at 12. Husband contends that the trial court intended to cede the exemption to him since the trial court deducted two personal exemptions (one for Husband and one for a child) from Husband’s gross income when it determined Husband’s support obligation. Id. In contrast, Wife argues that the trial court did not wish to allocate the exemption to Husband since it deducted three personal exemptions (one for Wife and two for the children) from her gross income. Cross-Appellee’s Brief, at 3. ¶ 28 A panel of our Court has recently decided that trial courts “may use their equitable powers to allocate the dependency exemption to the non-custodial parent.” Piso v. Piso, 761 A.2d 1215, 1218 (Pa.Super.2000). Accord Miller v. Miller, 744 A.2d 778, 786 (Pa.Super.1999). A noncustodial parent is entitled to the dependency exemption if the custodial parent signs a written declaration that the custodial parent will not claim the exemption and if the non-custodial parent attaches the written declaration to his/her return. Id. (citing 26 U.S.C.A. § 152(e)(2)). In this Commonwealth, trial courts have the power to order a custodial parent to execute the waiver at issue. Id. “Such an allocation is one method, among many, to effectuate economic justice for the parties and the children.” Piso, at 1219. ¶ 29 As a preliminary matter, we note that it was impermissible for both Husband and Wife to take a personal deduction for the same child. Section 151(d)(2) of the Internal Revenue Code provides: Exemption amount disallowed in case of certain dependents. — In the case of an individual with respect to whom a deduction under this section is allowable to another taxpayer for a taxable year beginning in the calendar year in which the individual’s taxable year begins, the exemption amount applicable to such individual for such individual’s taxable year shall be zero. 26 U.S.C.A. 152(d)(2). As each of the parties’ claimed their son as a dependent on each of their tax returns, they are in violation of the aforementioned section. As such, the trial court erred in its calculation of the parties’ income for support purposes in both 2000 and 2001 as it permitted each of the parties’ to claim their son as a dependent. ¶ 30 In light of this discrepancy, we are unable to determine from the record whether the trial court intended to allocate one of the dependency exemptions to Husband. Therefore, we must remand this case to the trial court so that it may determine whether such an allocation is appropriate. If the trial court determines that it intended to allocate the exemption to Husband, it should order Wife to execute the necessary waiver. Piso, 761 A.2d at 1220. In any case, the trial court must recalculate the parties’ net monthly income and support obligations once it determines which of the two parents may take the deduction. ¶ 31 In his second issue, Husband argues that the trial court abused its discretion when it did not order Wife to reimburse Husband for his spousal support payments in a lump sum. Cross-Appellant’s Brief, at 14. If Wife is permitted to reimburse Husband over a two-year period, rather than in a single payment, Husband argues that Wife is unfairly receiving an interest-free loan. Id. Upon our review, however, we do not find that the trial court abused its discretion. ¶ 32 In the instant case, Wife filed a spousal support claim, and Husband made spousal support payments to Wife under a temporary order for seven months. At the July hearing, however, Wife admitted that she was not entitled to these spousal support payments because she had been living with another man over the seven-month period. In light of this revelation, the trial court encouraged Wife to withdraw her request for spousal support and ordered that Husband receive a $200.00 credit each month on his child support payment until the full amount had been repaid. Husband now argues that the trial court should have ordered that Wife repay Husband in a lump sum. ¶ 33 As a threshold matter, we note that we do not have jurisdiction to entertain an appeal from an order of spousal support until a divorce is final. See Leister v. Leister, 453 Pa.Super. 576, 684 A.2d 192 (1996) (en banc) (an appeal from an order of spousal support prior to a divorce decree is interlocutory). In the instant case, however, Husband appeals from an order of child support that adjusted his child support obligation to reflect the amount Wife owes him for wrongfully accepting spousal support. As we may entertain an appeal from the order of child support prior to the entry of the parties’ divorce and as Wife has withdrawn her request for spousal support, we believe that it is proper to address the instant claim. See Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237 (1996) (child support orders are appealable before the entry of a divorce decree even though spousal support orders are not). ¶ 34 At the outset, we note that Husband fails to cite any legal authority that supports his argument. Nevertheless, we observe that the trial court’s allocation of a credit to correct Husband’s overpayment of his support obligation may be likened to a trial court’s efforts to allocate a party’s underpayment or non-payment of a support obligation. Traditionally, courts of this Commonwealth have been given broad discretionary power to remit accrued support arrearages. Kessler v. Helmick, 449 Pa.Super. 113, 672 A.2d 1380, 1384 (1996). Moreover, in Kessler, we determined that the trial court did not abuse its discretion when it ordered a party to pay his support arrearages in installments, rather than a lump sum. Id. at 1385. In light of the discretion afforded to trial courts to remedy a party’s underpayments, we do not find that the trial court abused its discretion when it remedied Husband’s overpayment with a monthly credit. ¶ 35 In his third issue, Husband contends that the trial court abused its discretion when it did not permit Husband to make direct payments to the children’s child care provider for his portion of the child care expenses. Cross Appellant’s Brief, at 16. Husband argues that a direct payment plan would be advantageous since Wife failed to provide the court with an accurate statement of the cost of the children’s daycare. Id. ¶ 36 Pursuant to Pa.R.Civ.P.1910.16-6(a), reasonable child care expenses are the responsibility of both the custodial and non-custodial parent. Accordingly, the trial court must allocate these expenses between the parties “in proportion to their net incomes and obligor’s share added to his or her support obligation.” Id. In the instant case, the trial court determined that the children incurred reasonable day care expenses in the amount of $1188.00 per month in 2000. N.T., Support Hearing, 6/13/01 at Exhibit P-11. To ascertain the children’s child care expenses for calendar year 2001, the trial court annualized the expenses incurred in the first five months of 2001 and determined that the parties would spend approximately $1308.00 per month in child care in 2001. N.T. Support Hearing, 6/13/01 at Exhibit P-12; Trial Court Opinion, 7/10/01 at 9. Upon our own review, we do not find that the trial court erred in this calculation. ¶ 37 Husband argues, however, that the statement reflecting the parties child care expenses from January to June of 2001 (Exhibit P-12) does not accurately reflect the expense parties will incur in the second half of the year. Husband testified that the child care rates will decrease in the latter half of the year because the parties’ eldest child will become a full time student in September of 2001, and the parties would only have one child in day care. In response, Wife testified that the rates will not change dramatically because the parties will lose the discount afforded to those families who enroll two or more children. After considering this evidence, the trial court stated in its opinion that it would not reduce the parties’ child care expenses because Husband “submitted no proof of the occurrence or amount of any such reduction.” Trial Court Opinion, 7/1/01 at 18. As such, we do not find that the trial court abused its discretion when it ascertained the amount of the parties’ child care expenses or when it ordered Husband to remit these payments to Wife. ¶ 38 Order reversed and remanded for a determination of whether (1) the trial court included Husband’s contributions to his 401(k) plan in its calculation of Husband’s net income, (2) Husband may presently access his employer’s matching contribution to his 401(k), and (3) the trial court intended to allocate a child dependency exemption to Husband. ¶ 39 Order reversed and remanded with instructions. Jurisdiction relinquished. . Wife also asserts that Microsoft’s repayment of Husband’s relocation expenses in 1999 and Husband’s health insurance benefits are also prerequisites that contribute to Appellant’s earning capacity. Appellant’s Brief, at 20-1. Nonetheless, Wife concedes that the value of Husband’s health insurance policy and the costs associated with the 1999 relocation are not of record. As such, we will not consider these claims. See Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647, 652 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, 506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992) (holding that an appellate court may only consider those facts which have been duly certified in the record on appeal). . We note that it is not determinative in the instant case that contributions to a 401(k) are not taxable as income at the time of the contribution. It is well settled that taxable income is not the same as net income for support purposes. See Darby v. Darby, 455 Pa.Super. 63, 686 A.2d 1346, 1349 (1996), appeal denied, 548 Pa. 670, 698 A.2d 594 (1997). This is so because tax law contains many preferences that have no relationship to the parties' support obligation. Id. . We note that Husband is free to petition the trial court to modify his child support obligation if he determines that the current child care expenses are not commensurate with his current obligation.

ORDER PER CURIAM. AND NOW, this 1st day of May, 2002, the above-captioned appeal is quashed.

ORDER PER CURIAM: AND NOW, this 13th day of November, 1996, A. George Glaseo, a/k/a Alphonz George Glaseo, having been disbarred from the practice of law in the State of California by Order of the Supreme Court of the State of California filed August 12, 1992; the said A George Glaseo, a/k/a Alphonz George Glaseo, having been directed on August 13, 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 upon consideration of the responses filed, it is ORDERED that A George Glaseo, a/k/a Alphonz George Glaseo is disbarred from the practice of law in this Commonwealth, and he shall comply with ail the provisions of Rule 217, Pa.R.D.E.

OPINION BY Judge PELLEGRINI. The School District of the City of York (School District) petitions for review of an order of the State Charter Appeal Board (Board) upholding its previous decision which reversed the School District’s decision to deny Lincoln-Edison Charter School’s (Lincoln-Edison) charter school application and continuing the charter. On November 15, 1999, Lincoln-Edison, a Pennsylvania non-profit corporation, submitted a charter school application to the School District seeking to convert Lincoln Elementary School pursuant to the Charter School Law (CSL). Upon filing its application, Lincoln-Edison disclosed its intention to enter into a management agreement under which Edison Schools, Inc. (Edison), a for-profit corporation, would provide the school with educational and administrative services. After hearing testimony at a public hearing on January 13, 2000, and during a regularly scheduled meeting on March 15, 2000, the School District voted seven-to-one to deny the charter school application. After facially securing the requisite number of signatures to appeal the School District’s denial as required by Section 1717-A(i)(2) of the Law, Lincoln-Edison then submitted a petition to appeal to the York County Court of Common Pleas (trial court) for a determination of the sufficiency of the signatures. By decree dated May 10, 2000, the trial court held that the petition was sufficient, and on May 12, 2000, Lincoln-Edison filed its appeal with the Board. Following a hearing, the Board reversed the determination of the School District and ordered it to grant Lincoln-Edison’s charter. The School District then appealed to this court. Concluding that proper review of a charter application cannot be had until the essential components of the application, such as a management agreement, are before the Board, and Lincoln-Edison only submitted a “model” management agreement, we held that the Board erred in granting Lincoln-Edison’s charter based upon that “model” agreement and remanded the matter for a hearing and determination by the Board as to whether a charter should be granted based on the final management agreement between Lincoln-Edison and Edison. School District of The City of York v. Lincoln-Edison Charter School, 772 A.2d 1045 (Pa.Cmwlth.2001). On remand, after conducting a hearing and reviewing the final management agreement between Lincoln-Edison and Edison, the Board found that the final management agreement satisfied the requirements of the CSL granting Lincoln-Edison’s appeal and continued its charter. This appeal followed. I. The School District contends that the Board erred in granting Lincoln-Edison’s charter application because of the relationship between the charter school and Edison, a for-profit company. It argues that the management agreement entered into between Lincoln-Edison and Edison vests control of the charter school in Edison and not the charter school’s Board of Trustees. Specifically, it argues that under the management agreement, Lincoln-Edison’s board of trustees does not have adequate control over the charter school because it is not free to establish rules, regulations and procedures, it did not maintain budgetary control of the charter school, and its power to terminate the agreement as a way to assure Edison’s performance was an illusory and inadequate remedy. Whether a charter school was entitled to a charter based upon its relationship with a for-profit entity was addressed by this court in West Chester Area School District v. Collegium Charter School, 760 A.2d 452 (Pa.Cmwlth.2000), petition for allowance of appeal granted, 566 Pa. 674, 782 A.2d 552 (2001). In that case, Collegium Charter School filed a charter application with West Chester Area School District indicating that it intended to enter into a management agreement with Mosaica Education, Inc., a for-profit corporation, under which Mosaica would provide the school with educational and administrative services. The school district denied Collegi-um’s application, however, and the Charter Appeal Board reversed the school district’s determination and directed the school district to grant Collegium’s charter application. On appeal, we held that a charter school may contract with a for-profit corporation in order to operate the charter school, stating: [T]here is no question that the CSL permits a charter school to be established by “any corporation,” even if that corporation is a for-profit entity. Therefore, as conceded by Petitioners, Mosaica was legally eligible to complete and submit the charter Application for Collegium. Clearly, however, the legislature did not want to entrust the management and operation of the charter school itself to entities seeking to make money from the school’s management and operation; rather, that power is granted to the charter school’s board of trustees who, as public officials, have a single purpose to promote the interests of the pupils. To this end, section 1716-A(a) of the CSL vest the charter school’s board of trustees with the “authority to decide matters related to the operation of the school, including, but not limited to, budgeting, curriculum, and operating procedures, subject to the school’s charter.” In addition, the trustees have “the authority to employ, discharge and contract with necessary professional and nonprofessional employes subject to the school’s charter.” 24 P.S. § 17-1716-A(a). The board of trustees also determines the level of compensation and all terms and conditions of staff employ ment. However, the CSL does not prohibit charter schools from contracting out certain management and administrative responsibilities to a for-profit corporation. Rather, the CSL grants charter schools all powers necessary or desirable for carrying out its charter, including, but not limited to, the power to acquire real property by purchase or lease and the power to make contracts or leases for the procurement of services, equipment and supplies. Thus as the CAB properly concluded, nothing in the [CSL] prohibits the involvement of for-profit entities in the establishment and operation of a charter school, so long as the school itself is not for-profit, the charter school’s trustees have real and substantial authority and responsibility for the educational decisions, and the teachers are employees of the charter school itself. (Emphasis in the original.) (Citations omitted.) As to the arrangement between Collegi-um and Mosaica, our review of the record indicated that Collegium’s by-laws and its charter school application specifically provided that Collegium’s board of trustees had full authority to operate the school, including determining general, academic, financial, personnel and other policies as outlined in the CSL. Because nothing in the arrangement between Collegium and Mosaica would deprive Collegium’s trustees of ultimate control of the charter school, we held that the arrangement was permitted under the CSL. See also Brackbill v. Ron Brown Charter School, 777 A.2d 131 (Pa.Cmwlth.2001). In this case, nothing in the Management Agreement would deprive Lincoln-Edison trustees of ultimate control of the charter school. Section 1.2 of the Management Agreement. Lincoln-Edison must approve any rules, regulations and procedures adopted by Edison for the day-today operations of the charter school. Section 4.6 of the Management Agreement. Lincoln-Edison must approve annual projected budgets submitted by Edison and must approve any material changes to the approved budgeted expenditures. Section 6.3 of the Management Agreement. Moreover, Lincoln-Edison has the authority to terminate the Management Agreement if Edison fails to make reasonable progress toward student achievement, provided Edison is allowed one academic year to remedy any such failures, or if Edison substantially breaches any material terms and conditions and fails to remedy the breach within 90 days. Sections 11.1(a)(1) and (2) of the Management Agreement. Initially, in each of the provisions cited by the School District, although Edison is entrusted with the authority to make necessary decisions regarding the day-to-day operation of the charter school, the board of trustees, at all times, retains the authority to oversee and approve those decisions. Based upon our review of the Management Agreement, there is sufficient evidence to support the Board’s finding that Lincoln-Edison’s board of trustees retained ultimate control over the charter school, and, therefore, the Board did not err in granting Lincoln-Edison’s appeal on that basis. II. The School District also argues that Lineoln-Edison was not eligible for a charter application because the Management Agreement between it and Edison gives Edison too much control of the teachers at the charter school in violation of Section 1716-A(a), 1724-A(a) and 1727-A of the CSL. It argues that the Management Agreement improperly delegates control of the teachers at the charter school to Edison with respect to hiring and firing of staff, the instructional material developed by the teachers, compensation and other terms and conditions of employment and collective bargaining. However, Section 7.1 of the Management Agreement specifically provides that all personnel working at the charter school shall be Lincoln-Edison employees, with the exception of the Business Services Manager. That section further provides that Lincoln-Edison has final decision-making authority regarding the hiring of all staff members and must grant approval for the employment and/or dismissal of all staff members. Section 7.3 of the Management Agreement provides that the level of compensation for all staff members must be included in the annual budget, which is subject to the approval of the Board of Trustees, and Section 7.4 provides that Edison will pay the charter school employees on behalf of Lincoln-Edison. Additionally, Section 7.6 of the Management Agreement provides that Lincoln-Edison must approve any material modification to employment policies. Because the provisions of the Management Agreement provided the board of trustees with the authority to ultimately decide, through its oversight and approval of Edison, matters related to the operation of the school such as the hiring and discharge of charter school staff and the level of compensation and other terms and conditions of the employment of that staff, there was sufficient evidence to support the Board’s finding that the employees at the charter school are Lincoln-Edison employees, not Edison employees. III. Finally, the School District contends that the Board erred in granting a charter to Lincoln-Edison because its charter application did not contain any lease arrangements for the Lincoln Elementary School Building as required by the CSL and because Lincoln-Edison refused to pay rent for its use of the building. Lincoln-Edison, however, argues that neither lease arrangements nor rent were required because, as a conversion charter school, it was entitled to use the Lincoln Elementary School Building without a lease or the payment of rent. Like most provisions of the CSL, this issue is dealt with only in the most minimalist way. Leases are only addressed in Section 1719-A of the CSL which sets forth the requirements for the contents of a charter school application. That section provides, in relevant part, “[a]n application to establish a charter school shall include all of the following information ... (11) A description of and address of the physical facility in which the charter school will be located and the ownership thereof and any lease arrangements.” 24 P.S. § 17-1719-A(11) (emphasis added). Because there is nothing in Section 1719-A that differentiates between the requirement of the contents of a charter application filed seeking to establish a conversion charter school and an application to establish a non-conversion charter school, this provision applies to all charter applications, including those seeking to establish a conversion charter school. To interpret Section 1719-A otherwise would allow a conversion charter school to occupy a public school building with no requirements or restrictions for such things as maintenance or upkeep of the building and property and provide no recourse to the school district and its taxpayers in the event that the building or property is damaged. The next question then is how the terms of a lease are determined. When a charter school applicant files an application with the local board of school directors within the school district seeking to establish a conversion charter school, it is required to submit a proposed lease pursuant to Section 1719-A of the CSL. After public hearing and an evaluation of the charter application, the local board of school directors must then decide to grant or deny the application, including the proposed lease arrangement for the public school building which the charter applicant seeks to use for the charter school. While both the school district and the applicant can and should negotiate over the terms, if the two parties are unable to reach an agreement, the charter application can be denied by the school district on the basis that the applicant failed to provide sufficient lease arrangements pursuant to Section 1719-A(11) of the CSL. If the charter application is denied, including denial based on inadequate lease arrangements, the charter applicant then has the right to a de novo review of the charter application by the Board. At that point, the Board .should evaluate the proposed lease to determine whether it adequately protects the public investment, e.g., provisions regarding maintenance of the building and terms to insure that the building can be returned to the school district in the same condition if the charter school fails or ceases operation. The board’s decision on whether to grant or deny the application would then finalize the lease terms which the school district would be required to execute. Accordingly, the CSL does not require a charter applicant to have an executed lease with the school district; however, it does require that the applicant provide lease arrangements that it proposes to enter for the “conversion building” if the charter is granted. The determination as to whether the proposed lease arrangements are acceptable would then be decided by the Board in its review of the charter application. In this case, we must first determine whether the issue regarding LineolnEdison’s leasing arrangement is properly before us. When we initially considered the case, the Board had found the proposed lease arrangements sufficient for the purposes of the CSL. In its July 25, 2000 Opinion and Order, the Board addressed the lease arrangement issue stating: The Application does include evidence of the terms and conditions under which the Charter School would use the Lin-coin Elementary School. The model management agreement provides details about the condition the budding must be in, costs related to additional or upgraded electrical or networking service, access to the building by all parties concerned, and the kind of equipment the School District shall supply including, but not limited to, desks, furniture and the like. Application at 982. The model management agreement also provides for capital repairs, improvements, security, transportation and food. Id. at 933. In addition, the model management agreement specifies Edison’s ability to make building adaptations and Edison’s responsibilities concerning cleaning and maintenance. Id. at 932; see also Application at 29-30. We also conclude that the Application contemplates a lease instead of a sale since the model management agreement states that, “[t]itle to the School Facilities shall not be transferred to Edison or the Charter Holder.” Id. Therefore, we hold that these provisions of the model management agreement describe the lease arrangements “in at least a general way.” In Re: Appeal of Phoenix Academy Charter School, Docket No. CAB 1999-10 at 21-22. We also note that it may be very difficult for a charter school applicant to provide extensive details about the leasing of a building from the school district that owns the building when the school district is, as in this case, opposed to the conversion. While an actual rental agreement, the cost of the rental agreement and other such provisions are not provided, the Model Management Agreement provides enough information to satisfy the requirement of the Charter School Law. (July 25, 2000 Order and Opinion of the Charter Appeal Board at 15-16.) (Emphasis in the original.) In its earlier decision, the Board relied solely on the Model Management Agreement to determine whether Lincoln-Edison fulfilled the requirements of Section 1719-A of the CSL; however, as we held on appeal, “the Board cannot grant a charter based on a ‘model’ agreement or promises that after negotiations it will comply with the law.” Lincoln-Edison, 772 A.2d at 1050. On remand, the School District petitioned the Board to clarify its earlier decision and determine whether Lincoln-Edison, as a conversion charter school, was required to enter into a lease with the School District and pay rent. Considering the petition to be an application for rehearing under 1 Pa.Code § 35.241, the Board dismissed it as being untimely filed. However, because a charter school is required to provide leasing arrangements in order to obtain a charter, and this court had previously vacated the Board’s order granting Lincoln-Edison’s charter, that issue was properly before the Board on remand. Accordingly, because the Board did not address whether Lincoln-Edison’s charter application, including the finalized Management Agreement, included a lease that Lincoln-Edison proposed to enter into for the Lincoln Elementary School Building that could be executed if found to be in accordance with the CSL, we must remand this matter to it to determine whether Lincoln-Edison proposed adequate lease arrangements for the use of the Lincoln Elementary School Building that entitled it to a conversion charter. As part of those lease arrangements, the Board is to determine if Lincoln-Edison is required to pay rent under the CSL to the School District for its use of the building, and, if so, the amount of rent. ORDER AND NOW, this 8th day of May, 2002, the order of the Charter Appeal Board, No. CAB 2000-11-A, dated July 5, 2001, is vacated and the matter is remanded to the Charter Appeal Board to determine whether Lincoln-Edison Charter School proposed adequate lease arrangements for the use of the Lincoln Elementary School Building that entitled it to a conversion charter. As part of those lease arrangements, the Charter Appeal Board is to determine if Lincoln-Edison Charter School is required to pay rent to the School District of the City of York for its use of the building, and, if so, the amount of rent. Pending resolution of this matter by the Charter Appeal Board, the charter of Lincoln-Edison Charter School shall remain in effect. Jurisdiction relinquished. . In addition to reversing the School District's denial of the charter school application, the Board also directed the School District to grant Lincoln-Edison’s application and sign Lincoln-Edison’s charter. . Act of March 10, 1949, P.L. 30, added June 19, 1997, P.L. 225, 24 P.S. §§ 1-1701-A-17-1732-A. Section 1717-A of the CSL provides that a charter school may be created by converting an existing public school, stating, in part: A charter school may be established by an individual; one or more teachers who will teach at the proposed charter school; parents or guardians of students who will attend the charter school; any nonsectarian college, university or museum located in this Commonwealth; any nonsectarian corporation not-for-profit, as defined in 15 Pa.C.S. (relating to corporations and unincorporated associations); any corporation, association, partnership; or any combination thereof. A charter school may be established by creating a new school or by converting an existing public school or a portion of an existing public school. No charter school shall be established or funded by and no charter shall be granted to any sectarian school, institution or other entity. No funds allocated or disbursed under this article shall be used to directly support instruction pursuant to section 1327.1. 24 P.S. § 17-1717-A(a).' . To be eligible to appeal the denial of a charter by the local board of- directors, the applicant must obtain the signatures of at least two per centum of the residents of the school district or of 1,000 residents, whichever is less, who are over 18 years of age. . On May 15, 2000, the School District filed a petition with the Board requesting that it not consider the appeal filed by Lincoln-Edison. Then, at oral argument before the Board on June 15, 2000, the School District withdrew its petition to dismiss the appeal. However, the School District subsequently refiled the petition. .Because the Board is the administrative agency charged with exclusive review of an appeal of a local school board decision not to grant a charter application, our review is appellate. Therefore, we shall affirm the Board’s determination unless we find that the adjudication violates constitutional rights, is not in accordance with the law, or is not supported by substantial evidence. Shenango Valley Regional Charter School v. Hermitage School District, 756 A.2d 1191 (Pa.Cmwlth.2000). . The School District argues that the trustees are not free to establish rules, regulations and procedures because under Section 4.6 of the management agreement, Edison and the charter school’s trustees jointly adopt rules and regulations concerning standards of student conduct and student discipline. That section specifically provides: Rules and Regulations. The Charter Holder hereby authorizes Edison to adopt and enforce such rules, regulations and procedures applicable to the day to day operations of the Charter School that do not conflict with federal or state laws, rules, regulations, or policies that have not been waived, including rules and regulations concerning student attendance, compulsory attendance and calendar, including without limitation hour requirements and the distinction between excused and unexcused absences, all subject to the approval and continuing oversight of the Charter Holder. The Charter Holder’s approval shall not be unreasonably be withheld. Edison and the Board shall jointly adopt rules and regulations concerning standards of student conduct and student discipline. No student shall be removed from the Charter School for disciplinary or other reasons in excess of ten (10) school days without the express approval of the Board after a hearing held in compliance with 22 Pa.Code Chapter 12. The Charter School shall comply with all applicable federal and state laws concerning welfare, safety and health of students. If Edison or the Charter Holder identify any federal or state rules or regulations that substantially inhibit the implementation of the Edison School Design at the Charter School, then the Charter Holder shall, with Edison’s assistance, apply for and support any available waiver of any such rules or regulations. . In support of its argument, the School District cites to Sections 6.2 and 6.4 of the Management Agreement. Section 6.2 provides, in relevant part: Operational and Board Expenses. In order for Edison to operate the Charter School pursuant to the Edison School Design, the Charter Holder shall, within five business days after their receipt, promptly remit to Edison all funds that it receives on behalf of the Charter School, less reasonable Charter Holder expenses, which shall be mutually agreed upon annually by Edison and the board as set forth in Exhibit 3 to this Agreement. Edison shall expend all funds it receives from the Charter Holder in compliance with their terms and conditions. Except as otherwise provided in this Agreement, from the funds remitted by the Charter Holder to Edison, Edison shall pay the costs associated with operating the Charter School in conformity with the Edison School Design, as detained in the budgets approved by the board pursuant to Section 6.3 below. If such costs exceed the funds remitted to Edison, Edison shall use its own funds to cover such excess costs. Edison will implement its "50/50 Sharing Plan” at the Charter School according to regular Edison fiscal policies. Accordingly, if, due directly to the efforts of the local management team at the Charter School (i.e. the principal, business services manager, etc.), the financial performance of the school exceeds the targets set by Edison, half of any savings generated by such performance will be reserved by Edison to be spent on program enhancements at the Charter School consistent with the Edison School Design. Upon reasonable advance request, Edison shall provide evidence to the Charter Holder that the Charter School is in compliance with the requirements, terms and conditions of all funds remitted to Edison and shall provide all reports, data, and information reasonably necessary for the Charter School to meet any reporting, certification or other requirements for such funding. Section 6.4 provides: Edison’s Compensation. In light of Edison's start-up investments and its obligations to pay the operating costs of the Charter School pursuant to Section 6.2 above, Edison shall retain any excess of the funds received pursuant to Section 6.1 above over expenditures as compensation for the variety of educational and management services it provides under this Agree ment. It is expressly agreed that any funds donated to the Charter Holder for charitable purposes or grants received by the Board due to its own efforts, however, shall not be retained by Edison as part of its compensation. To the extent that any such charitable or grant funds are remitted to Edison, Edison will spend such funds only in compliance with the Charter Holder’s directions and consistent with the terms of such funds, if any. . The School District argues that because the termination clause in Section 11.1(a)(1) and (2) uses undefined terms such as “reasonable progress,” "high standards” and "substantially,” Lincoln-Edison's ability to terminate the management agreement is illusory. Charter Holder Termination for Cause, (a) The Charter Holder may terminate this Agreement for cause prior to the end of the term specified in Article 2 of this Agreement, in accordance with the procedures set forth in subsection (b) below, for any of the reasons set forth in subparagraphs (1), (2) and (3) below: (1) if, at any time after the first academic year under Edison's management, the Charter School has failed to make reasonable progress toward student academic achievement; provided that the Charter Holder has advised Edison in writing that its performance has been deficient and has allowed Edison at least one academic year in which to remedy such failures: (2) if Edison substantially breaches any of the material terms and conditions of this Agreement and fails to remedy such breach within 90 days after receipt of written notice of such breach from the Charter Hold-erf.] . That Section provides: Authority. In performing its duties and obligations under this Agreement, and subject at all times to the oversight and approval of the Charter Holder as provided herein, Edison shall take such actions as are necessary or desirable to properly and efficiently operate the Charter School consistent with federal and State law and subject to other terms and conditions of this Agreement, the Charter Agreement, and the oversight of the Board as provided for herein, to take such actions as may be necessary or desirable to properly and efficiently operate the Charter School on behalf of the Board. . Section 6.3 of the Management Agreement provides: Budgets. Edison shall provide the Board with an annual projected budget, in reasonable detail, for the Charter School within 30 days after execution of the Agreement. For each subsequent school year, Edison shall provide to the Board for approval, not later than June 30 of each year during the Term and annual projected budget for the operations of the School for the then-upcoming academic year (the "Budget”). If the actual fees reasonably projected to be collected by Edison during the fiscal year with respect to the charter School fall below those projected in the Budget, each party shall promptly notify the other parly in writing. Edison shall notify the Board of its proposed budget amendments to offset such revenue shortfalls. Any material changes to the approved budgeted expenditures require Charter Holder approval. . Section 1716-A(a) of the CSL provides: The board of trustees of a charter school shall have the authority to decide matters related to the operation of the school, including, but not limited to, budgeting, curriculum and operating procedures, subject to the school’s charter. The board shall have the authority to employ, discharge and contract with necessary professional and nonprofessional employes subject to the school’s charter and the provisions of this article. 24 P.S. § 17-1716-A(a). . Section 17-1724-A(a) of the CSL provides for the charter school staff, stating, in part: The board of trustees shall determine the level of compensation and all terms and conditions of employment of the staff except as may otherwise be provided in this article. At least seventy-five per centum of the professional staff members of a charter school shall hold appropriate State certification. Employes of a charter school may organize under the act of July 23, 1970 (P.L. 563, No. 195), known as the "Public Employe Relations Act.” The board of trustees shall be considered an employer for the purposes of Article XI-A. Upon formation of one or more collective bargaining units at the school, the board of trustees shall bargain with the employes based on the provisions of this article, Article XI-A and the "Public Employe Relations Act.” 24 P.S. § 17-1724-A(a). . Section 1727-A of the CSL provides: For purposes of tort liability, employes of the charter school shall be considered public employes and the board of trustees shall be considered the public employer in the same maimer as political subdivisions and local agencies. The board of trustees of a charter school and the charter school shall be solely liable for any and all damages of any kind resulting from any legal challenge involving the operation of a charter school. Notwithstanding this requirement, the local board of directors of a school entity shall not be held liable for any activity or operation related to the program of the charter school. 24 P.S. § 17-1724-A. .Section 7.1 of the Management Agreement provides: Personnel Responsibilities. All personnel working at the Charter School shall be employees of the Charter Holder, except for the Business Services Manager and such other employees mutually agreed on by Edison and the Charter Holder. However, the Charter Holder hereby authorizes Edison to determine staffing levels in the Charter School and to select, evaluate, assign, and discipline personnel consistent with federal and state laws, rules, and regulations (unless waived by appropriate authorities), and policies, rules and regulations that may be adopted by the Board. However, the Charter Holder shall have final decision-making authority regarding the hiring of all staff members and must grant prior approval for the employment and/or dismissal of all staff members. Section 7.2 of the Management Agreement provides: Selection of Personnel. The Charter Holder hereby authorizes Edison, consistent with state law and subject to approval of the Charter Holder, to select or dismiss the Charter School principal. Edison will supervise each principal and hold her or him accountable for the success of the Charter School. Subject to Section 7.1 of this Agreement and the oversight of the Board, including but not limited to the Board’s final decision-making authority regarding the employment and dismissal of all staff members, Edison and the principal shall have authority to select and supervise the teachers and the non-instructional staff in the Charter School. . Section 8.1 of the Management Agreement provides, in part: Proprietary Information. Edison shall own all copyright and other proprietary rights to all instructional materials, training materials, curriculum and lesson plans, and any other materials developed by Edison, its employees, agents or subcontractors, or by any individual including Charter School employees working for, or supervised by, Edison. . Section 7.3 of the Management Agreement provides: Employment Terms. In accordance with its rights and obligations under Section 1724-A of Pennsylvania Act 22 of 1997, the Charter Holder hereby authorizes that employees at the Charter School will be compensated according to Edison's compensation policies, which may include performance-based incentives and Edison stock options. The levels of compensation for all staff members shall be included in the annual budget, which shall be provided to the Charter Holder for approval in accordance with Section 6.3 of this Agreement. Section 7.4 of the Management Agreement provides: Employee Salaries and Benefits. Edison shall pay the costs of the salaries, fringe benefits and employment taxes of Charter School employees on behalf of the Charter Holder and for Edison employees working at the Charter School. Section 7.6(a) of the Management Agreement provides: Personnel Policies, (a) Subject to § 7.1 of this Agreement the Charter Holder hereby adopts Edison’s employment policies, consistent with the Edison School Design and in compliance with federal and state law, concerning the recruitment, assignment, promotion, discipline and termination of personnel and the methods and standards for evaluating performance. A copy of Edison’s Human Resources and Benefits Guide in [sic] attached (Exhibit 5). Any material modification to these employment policies require Charter Holder approval to their adoption. .Section 7.7 of the Management Agreement provides: Collective Bargaining Agreements. The Charter Holder agrees to consult with Edison before entering into any collective bargaining relationship with any union which might represent employees of the Charter School. Section 11.2(a)(1) of the Management Agreement provides: Edison Termination for Cause, (a) Edison may terminate this Agreement for cause prior to the end of the term specified in Article 2 of this Agreement, in accordance with the procedures set forth in subsection (b) below, for any reasons set forth in sub-paragraphs (1), (2), (3), or (4) below: (1) If the Charter Holder fails to adopt the reasonable personnel, curriculum, program or similar recommendations of Edison with respect to the Charter School, which Edison reasonably determines to be necessary for the implementation of the Edison School Design at the Charter School. . The proposed lease described appears to be a “triple net lease” or a "closed lease” where the lessee is to pay all expenses normally associated with ownership.

Hearing Committee, SUMMARY OF CASE An amended petition for discipline filed May 21,1992 alleges professional misconduct in violation of Rules of Professional Conduct 4.2 and 8.4(a). The only issue is whether the respondent’s actions in preparing and delivering to his clients a deed, at their request, for presentation to two of the opposing parties in a foreclosure action constitutes improper contact with a represented party and/or an attempt to induce his clients to violate a Rule of Professional Conduct. The Hearing Committee concludes that the respondent did not violate any of the Rules of Professional Conduct with which he was charged and that respondent should not be subject to any disciplinary action. STATEMENT OF CASE A petition for discipline was filed by the petitioner, Office of Disciplinary Counsel, on January 7, 1992 and later amended on May 21,1992, charging the respondent, [ ], with violation of the provisions of the following Rules of Professional Conduct: (A) R.P.C. 4.2, which prohibits a lawyer from communicating with a represented party unless he has consent of the other lawyer or is authorized by law to do so; (B) R.P.C. 8.4(a), which prohibits a lawyer from knowingly assisting or inducing another to violate or attempt to violate the Rules of Professional Conduct. Upon being duly served, respondent delivered an answer to the Office of Disciplinary Counsel to the original petition which was filed on March 4, 1992, and later filed an amended answer on May 21, 1992, per stipulation approved by the chairman of the Disciplinary Board. The matter was initially referred to Hearing Committee [ ] but was reassigned to Hearing Committee [ ] on September 3, 1992. In accordance with proper notice, a hearing was held on October 21, 1992. The parties presented a stipulation as to facts and exhibits. No additional evidence was presented by Disciplinary Counsel in support of the allegations of misconduct. Respondent testified. Respondent also called as a witness, his client, [A]. [A] testified that after conveying a parcel of property to four purchasers, a dispute arose as to a mortgage and judgment note and other matters relative to his remaining on the premises. Litigation followed and with a foreclosure hearing imminent, he undertook direct negotiations with two opposing defendants, husband and wife (the [B]), to reconvey their half-interest in the subject property in settlement of his claim against them. The [B] owned half the property as tenants in common with another couple who were also defendants in the foreclosure action brought by [A]. Respondent did not participate in the direct negotiations and agreement reached between the parties. [A] then asked respondent to prepare the deed of conveyance. Because of the Jewish holiday, other than receipt of information necessary for his secretary to complete the deed, respondent had no contact with his clients until the date of the foreclosure hearing, five days later, at which time the fully executed deed conveying the [B’s] interest in the property to his clients was given to him for filing. Respondent acknowledged that he at no time advised opposing counsel representing the [B] of his clients’ request or intentions in advance of the foreclosure hearing. In part because of the lack of legal precedent on the issue presented, the Hearing Committee determined that a prima facie showing of a violation had been made and proceeded to reconvene and accept evidence relating to disposition. The transcript was filed with the secretary of the Disciplinary Board on or about October 27, 1992. Briefs were submitted by the parties. Petitioner took issue with respondent attaching additional evidence in the form of exhibits attached to respondent’s brief and subsequently filed an application with the committee to reopen the record to respond to information respondent had injected into the proceedings in his brief. Respondent filed an answer to petitioner’s application to reopen record and offered to withdraw the contested exhibits. After giving due consideration, the Hearing Committee determined it was unnecessary to reopen the record and accept additional evidence in view of respondent’s voluntary withdrawal of the exhibits attached to his brief. FINDINGS OF FACT The Hearing Committee adopts and incorporates by reference thereto as if fully set forth herein the stipulation of facts admitted at the hearing: (44) There is no ethical rule that prevents parties to a matter from communicating directly with each other. (45) In preparing said deed, respondent did not suggest, advise, or otherwise cause his clients to communicate with the [B] in an effort to negotiate a settlement without the knowledge of counsel for the [B] and other adverse defendants. (46) In preparing said deed, at the request of his clients, respondent did not engage in a course of conduct designed to conceal from opposing counsel the negotiations and agreement reached directly between his clients and the [B] from the [B’s] own counsel. DISCUSSION The Hearing Committee recognizes the dearth of case law in Pennsylvania on the issue presented. Disciplinary counsel relies on cases from other jurisdictions in support of his position that it was unethical and a violation of Disciplinary Rules to prepare the deed as requested without notifying opposing counsel. The Hearing Committee has carefully reviewed the cases relied upon and believes each is distinguishable. In the instant case, respondent did not induce his client to attempt a negotiation directly with the adverse party without knowledge of the adverse party’s counsel. Rather, the discussions which led to the request for the deed were the result of direct contact between the adverse parties. Nor is there any evidence to suggest the respondent was aware of the settlement proposal between his clients and the [B] prior to the request to prepare the deed or that the adverse parties’ counsel knew or did not know of the intentions of his clients, the [B], at the time respondent prepared the deed. There is simply no evidence of record to support the allegation that respondent initiated or assisted his clients in contacting and commencing negotiations with the opposing parties in violation of any Disciplinary Rule. In the absence of any Pennsylvania authority, the Hearing Committee believes an infraction of the Disciplinary Rules has not been established. We are mindful, and state for the record, that we do not condone some of the actions of respondent throughout the course of the underlying litigation. At the very least, it exhibits lack of professional courtesy. But limited to the narrow issue of whether the Disciplinary Rules were violated when respondent prepared and delivered a deed to his clients, at their request and without any evidence of participation on his part in the negotiations and discussions which led to the request, the board must find that respondent did not violate the Disciplinary Rules as charged. CONCLUSIONS OF LAW The Hearing Committee finds that respondent, by his conduct, did not violate the following Rules of Professional Conduct: (1) R.P.C. 4.2; (2) R.P.C. 8.4(a). RECOMMENDATION For the foregoing reasons, this Hearing Committee respectfully recommends that the petition for discipline be dismissed. STIPULATIONS OF FACT (1) The respondent, [ ], was bom in 1928, was admitted to practice law in the Commonwealth on November 26, 1956, and maintains his office at [ ]. (2) On June 11, 1987, [A] conveyed a parcel of land in [ ], [ ] County, to [C] and [B]. The parcel included both residential property and a portion developed as a campground. (3) At the same time, the [C] and the [B] gave a mortgage and judgment note in the amount of $455,000 to the [A]. Quarterly payments in the amount of $9100 were payable in September 1987, December 1987, March 1988, June 1988, and thereafter. (4) At the time of closing, the [A] retained possession of a residence on the premises pursuant to an agreement between the parties. There was subsequently a dispute as to the nature of this tenancy. The [A] contended that they were entitled to remain in the premises without payment of rent until they could construct a home after being paid the sura of $80,000 from the sale of one of the purchasers’ houses or otherwise. (5) The [C] and the [B] were represented by attorney [D], of the firm of [E]. The respondent represented the [A]. (6) On October 1, 1987, [D], counsel for the [C] and the [B], wrote to the [A] expressing the view of his clients that the agreement required the [A] to vacate the residence by September 30, 1987. (7) On November 30,1987, the [C] and the [B] brought suit against the [A], docketed to no. [ ] Civil 1987, Court of Common Pleas of [ ] County, Pa., seeking ejectment of the [A] from the residence on the premises, and injunctive relief, replevin, and other relief regarding certain businesses allegedly conducted by the [A] on the premises. (8) The [C] and the [B] did not make mortgage payments due in December 1987, March 1988, and June 1988. One late payment was made in April 1988, and partial payments were tendered but rejected. (9) On April 21, 1988, respondent filed a complaint in mortgage foreclosure on behalf of the [A] against the [C] and the [B]. This action was docketed to no. [ ], Civil, in the Court of Common Pleas of [ ] County, Pa. (10) The two actions were consolidated and trial was set for September 14, 1988. (11) The [B] developed a desire to sell their interest in the campground and get out of the arrangement and the litigation. They asked [D] if they could sell their interest in the realty and the business, and [D] advised them that this could be done. The [B] did not discuss any particular proposal with [D]. (12) The [B] then negotiated to sell their interest in the campground to the [A], and an agreement of sale was reached September 8, 1988. No counsel were involved in or advised of these negotiations. (13) On or about September 9, 1988, respondent’s client, [A], advised respondent that he was negotiating with the [B] and might be able to make a deal to purchase the [B’s] interest in the premises, and asked him to prepare a deed in case the [B] would convey their interest in the premises to the [A]. Respondent dictated a deed late in the evening and directed his secretary to prepare it and turn it over to the [A]. She did so. The [B] executed the deed. Respondent did not see this deed until the morning of the trial on September 14, 1988. (14) Respondent did not have any direct contact with the [B] about this conveyance or any other issue. The conveyance was negotiated entirely between the [A] and the [B]. (15) Respondent did not notify counsel of record for the [B], attorney [D], of this event either before preparing the deed or before the opening of the trial. Respondent, believing that it was the responsibility of the [B] to communicate with their own counsel, did not seek [D’s] permission to prepare the requested deed. (16) The deed from the [B] to the [A] was executed bearing the date September 12, 1988. On September 14, 1988, the [A] gave the deed to respondent, who recorded it the morning of the trial, September 14, 1988. (17) The [B] did not advise attorney [D] that they had executed the deed, and [D] learned of this deed for the first time during [B’s] testimony at the trial on September 14, 1988. (18) When attorney [D] learned of the execution of this deed by the [B], he realized that there could be a conflict between the interests of his clients and moved to continue the trial and to withdraw. These motions were granted by the court, and the court directed both the [C] and the [B] to obtain new counsel. (19) After the hearing was continued, attorneys [F] and [G] entered their appearances on behalf of the [C] and the [B], respectively. (20) On September 27, 1988, attorney [F] filed a complaint in equity seeking injunctive relief to undo the purported conveyance of September 12, 1988, from the [B] to the [A]. (21) On October 5, 1988, all parties appeared, and the attorneys entered into negotiations to resolve the matter. A stipulation was read into the record which was approved by the court. (22) The attorneys for the plaintiffs, [F] and [G], later contended that the negotiated agreement included a term that the [A] would reconvey the [B] interest back to them, and that this term was inadvertently omitted from the recital of the stipulation. Respondent later contended that the stipulation did not provide for any reconveyance. There were other disputed issues as to the stipulation as well, including the amount of the arrearages to be paid and whether a parcel retained by the [A] was to be conveyed. (23) On November 15, 1988, attorney [F], on behalf of the [C], filed three motions, including a motion to strike the stipulation and motions to consolidate and for injunctive relief. These motions sought amendment of the stipulation to include the term regarding reversal of the September 12 conveyance, as discussed in the negotiations of October 5, 1988, and to clarify the amount of arrears to be paid. The [A] and the [B] separately filed responses. (24) On December 19,1988, attorney [F] and attorney [G] appeared before the court. At that time the court allowed attorney [F] to amend her motion to strike the stipulation into one which sought to modify the stipulation to reflect alleged oral understandings of the parties. (25) In an opinion dated March 2, 1989, the court denied injunctive relief, but held that the provisions of stipulation, both as read into the record and negotiated by the parties, were enforceable and binding on all parties. The court set a hearing for April 17, 1989, to allow the attorneys who conducted the negotiations leading to the stipulation to testify as to their understanding of the exact terms of the agreement on which the stipulation was based. The court advised all parties to obtain other counsel for the purposes of this hearing, as counsel would be required to testify. (26) On April 17, 1989, all parties appeared. The [C] and the [B] appeared represented by new counsel, but the [A] advised the court that they were without other counsel. The court continued the hearing and directed all parties to appear with new counsel. (27) On April 28,1989, the respondent filed a petition for review with the Superior Court seeking to overturn the court’s order of March 2, 1989, which was docketed to no. [ ] miscellaneous docket no. [ ], [ ]. The Superior Court, per curiam, denied the petition for review on June 13, 1989. (28) The evidentiary hearing was held May 31, 1989, at which counsel for all parties testified as to their understanding of the nature of the agreement that led to the stipulation. (29) On July 13, 1989, the court entered an opinion and order bearing the nominal date June 13, 1989. (30) On July 26, 1989, respondent filed a notice of appeal of the order entered July 13,1989, to the Superior Court. (31) The [A] believed that the [C] and the [B] committed a new default on the mortgage by failing to make a payment in July 1989. On July 18, 1989, respondent issued a notice of intention to foreclose mortgage (Act 6 Notice) to the [B]. (32) On July 28, 1989, the court entered an order correcting the date of the order entered July 13, 1989. (33) On August 8, 1989, the [C] filed a motion for contempt or, in the alternative, application for supersedeas upon posting of security, alleging that the [A] had not complied with the court’s order of July 13, 1989, by conveying the disputed interest back to the [B]. (34) On August 13,1989, the [A], through respondent’s office, executed a deed in compliance with the order of July 13, 1989, conveying their interest in the property back to the [B], which was recorded at Deed Book [ ], page [ ] of the recorder of deeds of [ ] County, on August 17, 1989. (35) On August 16, 1989, the [B] executed a deed conveying back to the [A] the same interest that had been conveyed to them by the corrective deed dated August 13, 1989. A notation typed on the deed stated, “This deed is given in lieu of foreclosure, pursuant to default of July 11, 1989.” (Exh. no. 29) (36) The [B] advised [G] that they did not desire his representation on August 11,1989, and thus they were not represented by counsel at the time they executed the deed of August 13, 1989. (37) The [B] did not advise either the [C] or [G] that they intended to and in fact did execute the deed in lieu of foreclosure. (38) Respondent did not prepare the deed in lieu of foreclosure, and did not contact the [B] directly in the negotiation of either conveyance. (39) The [A] to [B] deed of August 13, 1989, and the [B] to [A] deed executed August 16,1989, were both recorded by [A] in the recorder of deeds office at the same time, at 2:34 p.m. on August 17, 1989. (40) In response to the [C’s] motion for contempt of August 8, 1989, the court entered an order on August 30, 1989, specifically directing the [A] to “properly execute a deed for the conveyance required by the court’s order dated June 13, 1989, as amended July 28, 1989...” and setting hearing on the matter for September 26,1989. (Exh. no. 30) (41) On September 18, 1989, respondent filed an answer to the motion for contempt and the court’s order of August 30, 1989. (42) On October 13,1989, the court entered an opinion and order, directing the [A] to convey the interest back to the [B], to pay the [C’s] attorneys’ fees, and to pay damages to the [C] at the rate of $800 per month for the period from July 13, 1989, until the date of the order (October 13, 1989). (43) All of the cases were settled and discontinued by stipulation dated December 28, 1989, approved by the court on January 6,1990. The appeals to the Superior Court were discontinued on January 16, 1990, and the cases were marked settled and discontinued in the Court of Common Pleas on February 6, 1990. ORDER And now, February 26 , 1993, upon consideration of the report and recommendation of Hearing Committee [ ] filed February 1, 1993, it is hereby ordered that the charges against [respondent], docketed at no. 127 D.B. 91, be dismissed.

OPINION OF THE COURT Justice CASTILLE. In this appeal, this Court reaffirms that the doctrine of informed consent, whether involving non-consensual surgery or a lack of informed consent, sounds in battery, not in negligence, despite observations to the contrary in the published Superior Court opinion below. The appeal also presents the question of whether, and when, expert medical testimony is necessary to prove damages resulting from a medical battery. On this question, we are in agreement with the careful distinction drawn by the Superior Court and, hence, we affirm its mandate. In August of 1989, appellee, John Montgomery, began treating with Dr. Kuldeep Sehgal, a board certified urologist specializing in male impotence, for complaints of premature ejaculation and inability to maintain an erection. Sehgal took a history, performed a complete physical examination and ordered tests. Sehgal’s ultimate diagnosis was that Montgomery’s impotence was caused by Peyronie’s disease and a slight venous leak, resulting in an insufficient blood supply to his penis to form and maintain an erection. The following month, in an effort to treat Montgomery’s impotence non-surgically, Sehgal administered injections of Papave-rine and Regitine, medications which are designed to increase the blood flow in the penis. In February of 1990, Montgomery returned to Sehgal and reported that the injections had not improved his condition. Sehgal decided that corrective surgery was necessary. On March 30, 1990, Sehgal performed surgery on Montgomery at Ali-quippa Hospital during the course of which he implanted an inflatable pump prosthesis in Montgomery’s penis. The facts to this point are undisputed; it is the nature of the surgery performed, and whether Montgomery consented to the specific procedure, that is disputed. Since the legal questions involve the propriety of the trial court’s refusal to permit any aspect of appellees’ case to go to the jury, the primary focus here must be upon appellees’ evidence. Appellees claimed that, prior to the surgery, Sehgal merely told them he intended to perform a revascularization, an outpatient procedure. A revascularization is designed to open and repair the blood vessels leading to the penis to increase blood flow. Appellees alleged that the possible insertion of a penile implant was not discussed with them prior to the surgery, nor did John Montgomery ever consent to the implantation of the prosthesis — a procedure which resulted in Montgomery being admitted to the hospital for several days. Appellees claimed that they first learned of the implantation when Montgomery awoke from the surgical anesthesia and a nurse presented him with a warranty card for the prosthesis. Montgomery asked the nurse whether there was some mistake, whereupon the nurse informed him that the prosthesis had been implanted in his penis. Dr. Sehgal denied appellee’s claim that he never informed appellees about the prospect of implanting a penile prosthesis. Appellees then tried to reach Sehgal by telephone but were unable to speak to him until three days after surgery, when Seh-gal appeared in Montgomery’s hospital room to discharge him. Appellees asked Sehgal why he had implanted the prosthesis, and the doctor explained that he was saving Montgomery from a second surgical procedure at some later date. John Montgomery replied that it was not up to the doctor, but up to him to determine whether he wanted such an object placed in his body. Montgomery also told Seghal that he did not want the prosthesis and wanted it removed, but Sehgal informed him that removal was not an option because there was “nothing there now.” According to Marsha Montgomery, when her husband was discharged, he remained in a “state of shock,” and was also in “plenty of pain” from the surgery. John Montgomery testified that he has never gotten used to the device. He explained that he had to be careful how he sits because it is “like sitting on a pin cushion,” the device hurts at times, and there had been times “that it felt like it wanted to come out through the head of it and it is plain discomfort.” Montgomery also testified to the mental effect of the implantation of the prosthesis, explaining that: I sure as hell don’t feel like a man, I’ll tell you that. I don’t feel one bit like a man. I mean, I felt like half a man before because I had ejaculated early but I don’t feel like no man, even half a man anymore because I go [sic] to pump this thing up. Like I told my wife, I feel like I am a machine. N.T. 1/12/98 at 179. Montgomery also testified that he could not achieve an erection without employing the device and that there is no sensation or “fulfillment” upon ejaculation. Appellees filed suit on May 28, 1993, alleging professional negligence, lack of informed consent and battery. Appellees failed to identify any liability expert witnesses by the date established by the trial court, causing the trial court to issue an order on June 15, 1995, which precluded appellees from calling any liability expert witnesses at trial. On September 15,1995, Dr. Sehgal and Greater Pittsburgh Impotence Center, relying on the trial court’s preclusion order, filed a motion for partial summary judgment arguing that appellees could not prove their professional negligence claim absent expert testimony and requesting that the negligence claim be dismissed. The trial court granted the motion on November 8,1995. The matter then proceeded to a jury trial on the lack of informed consent and battery claims. At the close of appellees’ case, appellants motioned for compulsory non-suit on the grounds that appellees could not prove a connection between the alleged battery and the requested damages without expert testimony. The trial court denied the motion, finding that Montgomery’s testimony regarding his objection and reaction to the presence of the prosthesis and the fact that it was cumbersome did not require supporting expert testimony because the connection to the tortious conduct was obvious: Mr. Montgomery’s protestations to the presence of the prosthesis do[ ] not require an expert for him to say that it is cumbersome and he never expected it to be there. I don’t think that would require an expert.... [E]xpert medical testimony is necessary to establish the causal nexus of the injury to the tortious conduct in those cases where the connection is not obvious. Clearly, as to the things of which [appellees’ counsel] complained, the connection is obvious. At the close of all evidence, appellants moved for a directed verdict on the same ground alleged in support of a non-suit. This time, the trial court, after reviewing Montgomery’s testimony that he had a reduced or different physical sensation in his penis, was unable to feel the physical pleasures of intercourse and could not sustain an erection without inflating the prosthesis with a pump, determined that expert testimony was necessary to connect this sort of physical injury to the implantation of the prosthesis and granted a directed verdict as to those damages. As to the mental anguish and loss of consortium components of appellees’ claims, the trial court initially denied the motion for direct ed verdict on the same basis that it had denied appellants’ motion for non-suit. After further discussion with the parties, however, the trial court reversed itself and found that appellees’ claims for mental anguish and loss of consortium also could not be sustained absent expert testimony. The trial court concluded that it could not determine the dividing line between which damages would require medical testimony and which would not. Thus, the trial court granted a directed verdict as to all remaining aspects of the case. Upon appeal by the Montgomerys, a divided panel of the Superior Court issued a published opinion reversing and remanding to the trial court to permit appellees the opportunity to pursue the battery claim and certain claims for damages without the necessity of producing an expert witness. Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1134 (Pa.Super.1999). The majority opinion, authored by the late former President Judge Cirillo, began by opining that the differences between a medical battery case and “a medical malpractice informed consent case grounded in negligence” were at the “heart” of the appeal. Among those differences was the fact that an informed consent case requires expert medical testimony to establish the physician’s duty, while a medical battery claim requires only a showing of a non-consensual contact. The court then noted that the matter sub judice involves a battery claim, and not a claim of negligence/informed consent. On the battery claim, the court concluded that the evidence that Dr. Seghal had implanted an inflatable prosthesis into John Montgomery’s penis, without his permission, was sufficient to warrant the jury in a finding that a battery was committed. Turning to the question of damages, and whether medical testimony was required to prove damages, the court took issue with the trial court’s inability to draw a “dividing line” between which alleged damages resulting from the battery would require medical expert testimony and which would not. In the Superior Court’s view, the law was clear that compensatory damages were available in a medical battery action, even in the absence of expert testimony, for “direct, obvious and foreseeable results” of the battery. It is only where the connection between the battery and the harm is not obvious that expert testimony is required. Applying this distinction, the court determined that any injury involving Montgomery’s “physical sensation” would require expert testimony since, in light of his preexisting condition, the causal connection between the battery and any diminished physical sensation was not so obvious as to be within the range of ordinary experience of non-experts. On the other hand, the causal connection between the battery and the alleged mental and emotional injuries arising from a non-permitted implantation of the prosthesis was sufficiently clear and direct that that question should have been left to the jury. This Court granted discretionary review to consider two claims: (1) whether expert medical testimony is necessary to prove that the performance of a surgical procedure — here, the implantation of a pende prosthesis — to which a patient did not consent caused mental/emotional injury to the patient; and (2) whether the Superior Court was correct that non-con sensual surgery cases are distinguishable from informed consent cases because non-consensual surgery constitutes a battery, while lack of informed consent sounds in negligence. Although we disagree with the Superior Court on the latter point, that disagreement does not affect our ultimate judgment, for we agree with the Superior Court that expert testimony was not necessary for appellees’ mental and emotional damages claim to go to the jury. We will address the second issue first, given its importance and relevance as background about the very nature of informed consent and medical battery. “It has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure.” Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617, 619 (1997), citing Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). The informed consent doctrine requires physicians to provide patients with “material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition.” Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137, 1140 (1993). We have on several occasions defined the nature of this “material information.” We have stated that the information provided by a physician must give the patient “a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.” Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663, 674 (1966). Thus, a physician must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation.” Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331, 334 (1992). A claim that a physician failed to obtain the patient’s informed consent sounds in battery. Id.; see also Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617 (1997). Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255, 1258 (2001) (emphasis supplied). As this Court has emphasized, the informed consent doctrine derives from the very fact that surgical or operative procedures, if not consented to, amount to a battery: The rationale underlying requiring informed consent for a surgical or operative procedure and not requiring informed consent for a non-surgical procedure is that the performance of a surgical procedure upon a patient without his consent constitutes a technical assault or a battery because the patient is typically unconscious and unable to object. Morgan v. MacPhail, 704 A.2d at 620, citing Gray v. Grunnagle, 223 A.2d at 668-69. See also Gouse v. Cassel, 615 A.2d at 334 (“Lack of informed consent is the legal equivalent to no consent; thus, the physician or surgeon who operates without his patient’s informed consent is liable for damages which occur, notwithstanding the care exercised”). Thus, this Court has made clear on repeated occasions over a period of several decades that a claim based upon a lack of informed consent involves a battery committed upon a patient by a physician, an action which is distinct from a claim of a consented-to, but negligently performed, medical treatment. Since surgery performed without a patient’s informed consent constitutes a technical battery, negligence principles generally do not apply. It follows, of course, that a claim involving a surgical procedure performed without any consent at all by the patient, such as the implantation in the case sub judice, also sounds in battery, and negligence requirements have no bearing on the matter. Indeed, a claim concerning the lack of consent for surgery can be maintained even where there is no allegation of negligence in the actual performance of the procedure. While negligence claims and informed consent claims often co-exist in the same tort action, they need not do so. A lack of informed consent or a lack of consent claim is actionable even if the subject surgery was properly performed and the overall result is beneficial. In light of this discussion, it is apparent that the Superior Court erred in stating that, “[t]he differences between a medical malpractice informed consent case grounded in negligence (commonly referred to as an “informed consent” case) and one based on battery are at the heart of this case and must be kept clearly in mind.” Montgomery v. Bazaz-Sehgal, 742 A.2d at 1180. The Superior Court also erred in further distinguishing informed consent from medical battery premised upon the alleged applicability of negligence principles in informed consent cases. Id. (“Another difference is that while an informed consent negligence claim requires the presentation of expert testimony in order to establish the physician’s duty ..., a medical battery claim does not”) (citation omitted). No such distinction exists in our jurisprudence. Lack of consent for surgery involves the same general concept without regard to whether consent was uninformed or completely lacking. The result is the same — the patient is subjected to a surgical procedure to which he did not consent. The fact that the Superior Court misconceived the battery contours of the informed consent doctrine, however, did not affect its approach to the specific question of damages that led to its reversal in this case, since the claim at issue here in fact does not involve the informed consent doctrine, but a claimed lack of consent at all for this particular procedure. The Superior Court correctly set forth the parameters of an action in battery: ie., “there need be no physical injury, but only some contact; the matter of permission goes to the quality of the contact, and consent to being so touched is a defense.” Montgomery v. Bazaz-Sehgal, 742 A.2d at 1133. Appellees unquestionably established a prima facie case of bat tery by introducing evidence that Dr. Seh-gal made physical contact with John Montgomery. Specifically, appellees testified that, during consented-to revasculari-zation surgery on Montgomery, Sehgal implanted a penile prosthesis without Montgomery’s knowledge or consent. This contact left a palpable reminder in the form of the prosthesis, which Montgomery discovered only after he awoke. This evidence was sufficient to allow a jury to pass on the question of whether Sehgal committed a battery. We turn now to the issue of whether appellees were required to present expert testimony to prove that the implantation of the penile prosthesis without Montgomery’s consent caused appellees’ alleged mental and emotional injuries. The Superior Court correctly set forth the governing law with respect to the need for expert testimony in a case of alleged battery. It has long been the law that damages for emotional injuries are compensable, even in cases not involving negligence, where there is some evidence of physical contact or injury, even if the physical contact or injury is trivial in nature. In Hess v. Philadelphia Transp. Co., 358 Pa. 144, 56 A.2d 89 (1948), for example, this Court allowed damages for mental suffering where an electrical wire fell on the plaintiffs automobile while he was in the ear, even though the plaintiff suffered no physical injury beyond the electrical shock he suffered when the wire contacted his automobile. “ ‘The nervous system is a part of the physical organization, and this affidavit sufficiently alleges a physical injury. Mental suffering, as distinct from bodily pain, can be considered in an action for damages for injury to the person, when such suffering is attendant upon and results from a physical injury.’ ” Id. at 91, quoting North German Lloyd Steamship Co. v. Wood, 18 Pa.Super. 488, 1901 WL 3880 (1901), citing Wilcox v. Richmond & Danville R. Co., 52 F. 264 (4th Cir.1892). Whether expert testimony is required to prove a causal connection between emotional injury and the physical injury suffered, of course, is a separate issue. In Smith v. German, 434 Pa. 47, 253 A.2d 107 (1969), the issue was whether the plaintiffs automobile accident caused his subsequent paranoia and schizophrenia. This Court set forth the following general propositions governing when expert testimony is necessary to establish damages for mental injuries: The law of this Commonwealth is well settled as to when medical testimony will be required to establish a causal connection between the event demonstrated and the result sought to be proved. Though most of the cases deal with plaintiffs who wish to show that a certain event caused a given injury, the rules are equally applicable when a defendant seeks to disprove the causal connection (the automobile accident) presented by the plaintiff by proving one (the marital difficulties) of his own. Thus in Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957), this Court held “Where there is no obvious causal relationship, unequivocal medical testimony is necessary to establish the causal connection.” See Auerbach v. Philadelphia Transp. Co., 421 Pa. 594, 221 A.2d 163 (1966); Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966). This test has resulted in medical testimony being required to prove the causal connection between a heart attack and heavy exertion thirty minutes earlier, Washko v. George L. Ruckno, Inc. 180 Pa.Super. 606, 121 A.2d 456 (1956), between a paralytic stroke and being struck by a swinging door, Fink v. Sheldon Axle Co., 270 Pa. 476, 113 A. 666 (1921), between a refracture and failure on the part of the attending physician to be as attentive as his patient requested, Dornon v. Johnston, supra. But where “the disability complained of is the natural and probable result of the injuries, the fact-finding body may be permitted to so find, even in the entire absence of expert opinion.” Florig v. Sears, Roebuck & Co., supra, 388 Pa. at 424, 130 A.2d at 447. The two must be “so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection.” Id. See Tabuteau v. London G. & A. Co., 351 Pa. 183, 40 A.2d 396 (1945); Mohr v. Desimone & Sayers, 110 Pa.Super. 44, 167 A. 504 (1933). Id. at 108-09. The German Court held that, while the fact that the plaintiff was emotionally upset by the accident was within the purview of the jury without the necessity of expert testimony, whether he suffered serious personality disorders arising therefrom required expert testimony. Applying these time-tested principles respecting whether and when expert testimony is required, the Superior Court drew a careful distinction in this case between damages relating to a reduced or different physical sensation in John Montgomery’s penis and damages arising from the mental anguish and emotional impact of the very fact that the prosthesis was inserted without his knowledge and consent. That distinction, we believe, was entirely proper. There is no question that appellees’ testimony concerned both physical and emotional damages and was often overlapping. Thus, John Montgomery spoke of diminished sensation in his penis during intercourse, the fact that he could not achieve an erection without pumping up the device and that he experienced pain and discomfort “like sitting on a pin cushion” emanating from the device itself. Likewise, Marsha Montgomery testified that John was in a great deal of pain subsequent to the procedure. But there was also ample evidence of anguish and harm arising from the very fact of the presence of the unwanted device. John Montgomery testified that the prosthesis was cumbersome and embarrassing, and made him feel like a machine because he had to pump the prosthesis in order to achieve an erection. Both appellees testified that the device had a negative emotional impact on their marital relations. The Superior Court correctly recognized the validity of the distinction initially drawn by the trial court between injuries arising from physical sensations— i.e., John Montgomery’s lack of sensation or sense of fulfillment from intercourse and the fact that he could not achieve an erection without utilizing the prosthesis— and those involving the emotional impact of the unwanted implantation of the prosthesis — i.e., John Montgomery’s embarrassment, his feelings of being machine-like, and the concomitant effect of the prosthesis on appellees’ marital relations. Expert testimony obviously was required to prove that Montgomery’s physical injuries resulted from the implantation of the device. This is true particularly in light of Montgomery’s prior medical history, which included difficulties with premature ejaculation and soft erections. Absent expert testimony, the ordinary layperson would be unqualified to determine whether these diminished physical sensations were a result of the prosthesis or a result of the natural progression of Montgomery’s preexisting condition. The alleged emotional injuries, however, are obvious and clearly connected to the prosthesis. It is within the range of comprehension of jurors whether emotional injuries might reasonably be attributable to the implantation of a penile prosthesis to which a patient did not consent and which he first became aware of only-after awaking from anesthesia and being presented with a warranty card for the device. John Montgomery spoke directly to the emotional difference between his pre-existing condition and his condition after implantation of the prosthesis. The jury did not require an expert to explain to it the connection between an unwanted implantation of a penile prosthesis and the emotional injuries for which appellees sought recovery. That John Montgomery might suffer these types of injuries is a direct and readily foreseeable consequence of the unwanted procedure. The law is well established that expert testimony is not necessary where the cause of an injury is clear and where the subject matter is within the experience and comprehension of lay jurors. As the Superior Court so aptly noted, laypersons are certainly capable of comprehending, without the assistance of an expert, appel-lees’ mental and emotional damages and determining whether those difficulties were occasioned by the unwanted and unexpected implantation of a penile prosthesis. For this reason, the Superior Court decision vacating the trial court’s grant of a directed verdict and remanding to the trial court on this issue is affirmed. Justice NIGRO and Justice NEWMAN did not participate in the consideration or decision of this case. Former Chief Justice FLAHERTY did not participate in the decision of this case. Justice SAYLOR files a concurring opinion. . Dr. Sehgal died while the Superior Court appeal was pending. On October 12, 1999, that court granted the application of his widow, Vitasta Bazaz-Sehgal, M.D., for substitution of personal representation. . Peyronie’s disease is an accumulation of plaque in the corpora cavernosa, which are two cylinder-like structures inside the penis through which blood must flow to create an erection. . Aliquippa Hospital was dismissed from the case during trial with no opposition from any other party. Therefore, Sehgal and Greater Philadelphia Impotence Center were the sole remaining defendants. . Judge Popovich dissented on grounds that he was "not convinced that the evidence of causation of [appellees’] psychological injuries is sufficiently simple, obvious, clear and direct to allow recovery in the absence of expert testimony.” Thus, it appears that Judge Popovich agreed with the majority’s legal standard, but disagreed with its application of that standard. . The issues in this appeal are purely questions of law which, of course, are subject to plenary review by this Court. E.g. Navickas v. Unemployment Compensation Review Board, 567 Pa. 298, 787 A.2d 284, 288 (2001), citing Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 772 A.2d 416, 418 n. 1 (2001); Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 703 A.2d 452, 456 (1997). . Beyond accurately pointing out the error in the Superior Court’s description of informed consent as negligence-based, appellants do not articulate in any persuasive fashion how that error prejudiced them. Appellants note that the Superior Court’s error led it to disregard their argument premised upon relevant authority in the form of the Superior Court’s informed consent decision in Maliszewski v. Rendon, 374 Pa.Super. 109, 542 A.2d 170 (1988). Appellants' argument based upon Maliszewski is to the effect that, in informed consent cases, the plaintiff must produce expert medical testimony to prove that the surgery caused the physical injuries for which the plaintiff seeks recovery. Brief for Appellants, 12-16. As our discussion infra will make clear, the Superior Court in this case was careful in its opinion to distinguish between claims for damages based upon physical injuries, for which it agreed that expert testimony was necessary, and claims for mental or emotional damages, which it held did not require expert testimony. Accordingly, the error identified by appellants in Superior Court’s approach did not affect that court’s decision on the controlling issue before us.

CAVANAUGH, J. ¶ 1 This appeal is from the denial of a motion for a writ of habeas corpus. The appellant was held in custody for a period of 79 days before she had the benefit of a preliminary hearing on the charge of endangering the welfare of her infant son. She argues on appeal that she was unlawfully denied her liberty because the Commonwealth failed to show good cause for the several continuances which were ordered. We agree with appellant, and, therefore, reverse the lower court. Appellant was entitled to release from custody until her preliminary hearing was held. ¶ 2 The factual background, as supported by the record, is that appellant was arrested on September 20, 2000, pursuant to a warrant dated September 19, 2000. She was charged with endangering the welfare of children in violation of 18 Pa. C.S.A. § 4304(a). The basis of the charge was continual neglect of her four-month old son’s health and welfare where he had been left alone at their residence for extended periods of time and was suffering from a severe rash due to infrequent diaper changes. ¶ 3 A preliminary arraignment was held on September 20, 2000, before District Justice Thomas R. Carr. Bail was set in the amount of $10,000, which was not posted. District Justice Carr set a preliminary hearing date for September 27, 2000, before District Justice Daniel S. Bowman. On September 21, 2000, District Justice Bowman issued a notice of continuance, upon his own request, and set the preliminary hearing date for November 14, 2000. The reason given for the continuance was that District Justice Bowman was scheduled to attend a special court judges committee meeting on September 27, 2000. The notice stated no reason as to why the particular date of November 14th was chosen. ¶ 4 Appellant filed a motion for reduction of bail on September 28, 2000. The court, the Honorable John D. Kuhn, J., ordered, after hearing on October 6, 2000, that the matter be referred to the probation department for evaluation and recommendation as to whether appellant was a viable candidate for the intensive bail supervision program. Appellant remained in custody pending the referral. ¶ 5 On October 24, 2000, District Justice Bowman issued a second notice of continuance, again upon his own request, and set December 7, 2000, as the new date for the preliminary hearing. The reason for the continuance was that District Justice Bowman was scheduled to attend a convention on November 14, 2000. Again, no reason was given as to why the particular date for the continued hearing was chosen. ¶ 6 On November 8, 2000, the third and final notice of continuance was issued by District Justice Bowman upon the request of the investigating officer. No reason was stated for the officer’s request. The new date for the preliminary hearing was December 8, 2000. ¶ 7 The instant motion for writ of habeas corpus was filed by appellant on November 15, 2000. On November 22, 2000, the court ordered that a hearing on this motion be held on December 1, 2000. Appellant remained in custody at the time the hearing on December 1st took place before Judge Kuhn. ¶ 8 District Justice Bowman was the sole witness at the December 1st hearing. He testified that he relied upon his staff to schedule preliminary hearings. The staff was instructed to schedule preliminary hearings for the earliest date on which all necessary persons were available. This coordination of schedules included those of the district justice, the prosecuting attorney, defense counsel, and the arresting officer. Regarding his own schedule, District Justice Bowman testified that he was chairman of the crimes code committee of the Special Court Judges Association and that there was a committee meeting in Harrisburg on September 27, 2000. For that reason he entered the first continuance. He further testified that approximately ten days before November 14, 2000, the new date for the hearing, he checked his schedule and saw that he was to attend a conference on November 14th and 15th; he advised his office manager to reschedule all hearings previously set for those two days. District Justice Bowman stated that the notices did not state the reasons for choosing the particular dates for continuance because to do so would be “... just too burdensome.” ¶ 9 The preliminary hearing was held on December 8, 2000, and appellant was held for trial on the charge of endangering the welfare of a child. Also on December 8th, the instant order was entered denying the motion for a writ of habeas corpus. On December 11, 2000, appellant was released from custody into the supervised bail program. ¶ 10 The lower court denied relief because it found that the reasons proffered for the continuances constituted good cause. Nonetheless, the court expressed concern that, “... under any circumstances an accused should languish in jail 79 days while awaiting a preliminary hearing.” It admonished all parties to “... closely monitor such situations [as][p]er-sonal liberty is one of our most treasured rights and one not to be treated lightly because someone has been accused of a crime.” ¶ 11 Although appellant is no longer in pretrial custody, we have jurisdiction over the instant appeal. The matter is not moot because it presents an issue which is capable of repetition but likely to evade review. Since pretrial detentions are by their nature temporary, appellate review of a challenge would be unlikely to occur before ultimate disposition of the case by the trial court. See Commonwealth v. Bernhardt, 359 Pa.Super. 413, 519 A.2d 417, 419-420 (1986). The Commonwealth does not dispute that this appeal is properly before us, and we find it to be so. ¶ 12 Preliminary hearings are to be held not less than three nor more than ten days after the preliminary arraignment. Pa.R.Crim.P. 540(E)(1) (formerly Rule 140(f)(1)). Regarding continuances, the rules provide as follows: The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with: (1) the grounds for granting each continuance; (2) the identity of the party requesting such continuance; and (3) the new date and the reasons that the particular date was chosen. Pa.R.Crim.P. 542(E) (formerly Rule 142). ¶ 13 An accused must still be insured as speedy a preliminary hearing as practical in instances where a continuance beyond the original ten-day period is necessary. Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73, 75 (1977). The setting of a date for a continued preliminary hearing by a district justice should not be delayed pending responses from either the assistant district attorney, id., or defense counsel, id. at n. 2 (citing Commonwealth v. Wade, 240 Pa.Super. 454, 360 A.2d 752 (1976)). ¶ 14 The record in the instant case shows that the first two continuances were at the behest of the district justice. However, the record does not state the reasons that the particular dates, i.e., November 14, 2000 and December 7, 2000, were chosen, in contravention of Rule 542(E)(3). Moreover, the record does not sufficiently establish the unavailability of District Justice Bowman on September 27, 2000, the first date set for the preliminary hearing. Although he testified that he had a meeting of the crimes code committee of the Special Court Judges Association in Harrisburg, he did not state the time for which the meeting was scheduled or its estimated duration. We take judicial notice that the Borough of Bonneaueville, in which District Justice Bowman’s office is located, is situated some 40 miles south of Harrisburg. This distance, without more, does not substantiate the necessity for the district justice’s conducting no other court business that day. See Pa.R. Governing Standards of Conduct of District Justices 3A — Priority of Judicial Business, “A district justice shall devote the time necessary for the prompt and proper disposition of the business of his office, which shall be given priority over any other occupation, business, profession, pursuit or activity.” ¶ 15 We find that, applying the reasoning of Wansley and Bernhardt, supra, the lower court erred in denying the motion for writ of habeas corpus. The delay in the scheduling, occasioned by the district justices’s attendance at a committee meeting and a convention, is not justified by cause shown. The record does not support a finding that the Commonwealth established good cause for the delay in the preliminary hearing since the reasons for the particular dates chosen do not appear of record. For the foregoing reasons, we reverse the order denying the motion for writ of habeas corpus. Appellant was entitled to her liberty pending the conduct of the preliminary hearing. ¶ 16 Order reversed. . We are aware that our disposition does not afford appellant individually any immediate relief as a result of her being denied her liberty. Nonetheless, we note that she asks for no form of relief other than a declaration of the right to have been released, and we know of no other relief which we are empowered to award at this stage of the proceedings.

LAWRENCE, J., This is John W. Albright’s appeal of the court’s order of February 17, 1993 granting summary judgment to one of two named defendants. The background facts of the case are as follows: John W. Albright, as executor of the estate of Elizabeth Jean Albright and individually in his own right, commenced a wrongful death and survival action against Abington Memorial Hospital and Montgomery County Emergency Service on or about November 3, 1989, for their failure to compel his mentally ill wife’s attendance at outpatient treatment, which purportedly resulted in her death. Mrs. Albright had been committed by court order to defendant’s facility for treatment due to her mental condition. Thereafter she was instructed by way of court order to continue outpatient treatment at Abington Hospital for a 90-day period. She attended the first two required treatment sessions but did not attend her third appointment and, on December 23, 1988, allegedly died as a result of a fire she started in her bedroom at home. Plaintiff initially attempted to plead gross, willful and wanton misconduct on the part of defendant. As a result of defendant’s preliminary objections to plaintiff’s claim for punitive damages, all references to “reckless,” “wanton,” “willful,” “gross” or “outrageous” conduct were stricken by order of June 6, 1990. Plaintiff filed an amended complaint, to which defendant filed preliminary objections, which the court granted in part on December 3, 1990. As a result of this court’s orders of June 1990 and December 3,1990, plaintiff was left with a complaint in simple negligence. Defendant filed an answer which contained new matter. In its answer, it specifically denied all averments of negligence and other misconduct contained in the complaint. In its new matter, it set forth that it is immune from suit in this case in that it qualifies for the partial immunity conferred upon a facility by section 114 of the Mental Health Procedures Act, 50 P.S. §7114. Defendant subsequently filed the instant summary judgment motion on the ground that defendant was immune from suit as a matter of law under the act. It argues that when this court struck the allegations of “reckless,” “wanton,” “willful” and “grossly negligent” behavior, it effectively left plaintiff only with allegations which were within the immunity provided to the defendant under the act. This court granted summary judgment, and plaintiff now appeals. DISCUSSION A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. Under this standard, summary judgment was properly granted. The immunity provisions of the act, 50 P.S. §7114(a), provide: “In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care of leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or otherwise authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.” Although plaintiff disputes defendant’s status as a facility as defined in section 7103 of the act, the court properly took judicial notice of the fact that defendant is a “mental health establishment, hospital, clinic, institution, center, day care center, base service unit, community health center, or part thereof, that provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons, whether as outpatients or inpatients.” 50 P.S. §7103. As a community mental health center, defendant is entitled to partial immunity conferred by section 7114. Farago v. Sacred Heart General Hospital, 522 Pa. 410, 562 A.2d 300 (1989). Turning to plaintiff’s first allegation of error, he asserts that the determination of whether an act or failure to act constitutes gross negligence is always for the jury. This is not accurate. It is an issue that may be removed from consideration by a jury and decided as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671 (1991). It is important to note that notwithstanding that the court struck the “buzz words,” i.e., “gross negligence” from the com plaint in ruling on the preliminary objections, the motion for summary judgment was properly granted because the facts as pled in the complaint were incapable of giving rise to an inference of gross negligence. The distinction between ordinary negligence and gross negligence was recently discussed: “[W]e are still without clear guidance as to what the legislature might have intended by its use of the term ‘gross negligence’ in the Mental Health Procedures Act. Nowhere is the phrase defined either in the act itself or in the generally applicable definitions in our statutory law. It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity or indifference. We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must flagrant, grossly deviating from the ordinary standard of care. ” Bloom, supra, at 98-99, 597 A.2d at 679. (emphasis added) A review of recent case law supports the position that a genuine issue of material fact which would tend to prove the existence of gross negligence has not been raised in this case. In Willett v. Evergreen Homes Inc., 407 Pa. Super. 141, 595 A.2d 164 (1991), alloc. denied, 600 A.2d 539 (1991), the court was called upon to decide whether appellees/defendants, a family counseling center and two of its employees, were exempt from the immunity that attached under section 4603 of the act, applicable to non-profit organizations, in a suit against them for the drowning death in the bathtub of a residential facility for mentally retarded individuals where the plaintiff’s decedent was residing. Appellant/plaintiff contended that because the conduct of the appellees rose to the level of gross negligence, they were not immune and the trial court erred in granting summary judgment as to them. In evaluating the allegations made against the appellees/employees, the court stated: “The allegations made against employee Dana Heggenstaller included claims that she was responsible for instituting the transfer of appellant’s son to the new residence, that she persuaded appellant to approve the transfer, she ignored reports of his adjustment to the facility where he was residing and she failed to properly evaluate the program content, quality of supervision and personnel prior to recommending his placement in the new facility. With respect to defendant-employee Betty Beale, appellant alleged that she caused appellant to rely on her expertise and, without a proper investigation informed appellant that Evergreen Homes Inc. was experienced in dealing with epileptic residents. It was also alleged that Ms. Beale ignored the advice of personnel at the facility where appellant’s son was residing concerning the inadvisability of a transfer and that she based her decision to approve the transfer on the advice of co-workers rather than her own finding.” Willett, supra at 147, 595 A.2d at 167. The court held that these allegations did not form the basis for a complaint of gross negligence which would limit appellees’ immunity, as they concerned appellees’ approval of a transfer which was allegedly made without obtaining a sufficient evaluation of the program and against the advice of others. In contrast, the court believed that a fact-finder could infer gross negligence from the facts alleged against the other defendant, Evergreen Home Inc., namely, that it was aware of the decedent’s history of seizures, knew the importance of monitoring his bathing activities, and yet left the decedent unattended resulting in his death. In Bloom v. DuBois Regional Medical Center, supra, the court found that the complaint could be construed to plead facts sufficient to give rise to a finding of gross negligence. There it was alleged that the defendants, who held themselves out as competent to provide psychiatric treatment to one in the position of the plaintiff, completely failed to diagnose her mental condition and treat her in a manner that would protect her from serious harm. It was further averred that upon admission the defendants were informed of plaintiff’s mental disorder and nevertheless failed to take adequate precautions to assure her safety which, it was alleged, resulted in plaintiff’s failed suicide attempt in her hospital room. Additionally, in Rhines v. Herzel, 481 Pa. 165, 392 A.2d 298 (1978), the Supreme Court reversed the trial court’s dismissal of individual defendants (hospital personnel, staff psychiatrists and the superintendent of the hospital) in a wrongful death and survival action, and stated: “The facts alleged in the complaint that individual defendants allowed a patient with homicidal tendencies, who required maximum security control, to associate with patients who required no such supervision; that because of the lack of such supervision patient Miller was able to kill patient Rhines and conceal her body on the hospital grounds for several weeks thereafter are ones from which gross negligence could be inferred.” Id. at 167-68, 392 A.2d at 300. The amended complaint in the instant case does not admit of a claim for gross negligence. The averments here are that Mrs. Albright was evaluated at defendant’s facility and determined to be in need of treatment. She was court-ordered to undergo involuntary treatment on an outpatient basis at Abington Hospital for a 90-day period starting September 28, 1988. She attended her October and November appointments but failed to attend her December appointment. On December 21, 1988, plaintiff contacted Abington Hospital, who referred him to defendant. On December 22, 1988, plaintiff called defendants facility, who ultimately told plaintiff that it could not help him and that he should seek assistance from Abington Hospital. Abington Hospital allegedly never took any action and Mrs. Albright lost her life in the fire. Under the facts as alleged, the only connection defendant had with Mrs. Albright was that she had been previously committed there for evaluation. It is not alleged that she was harmed as a result of an improper evaluation. The sole basis for the claim against defendant is that it failed to secure Mrs. Albright’s attendance at her December appointment at Abington Hospital. It is not alleged, however, that defendant had any particular knowledge that Mrs. Albright had become a danger to herself. Moreover, she was committed for outpatient treatment to Abington Hospital, not defendant’s facility. If there was any duty to ensure that Mrs. Albright attended her outpatient therapy at Abington Hospital in accordance with the court order, it was Abington Hospital’s, not defendant’s. Even if defendant had breached a duty owed to Mrs. Albright, under the facts alleged, this breach amounts to no more than negligence. Unlike the claims raised against Evergreen Homes in Willett and unlike the complaints in Rhines and Bloom, plaintiff’s amended complaint cannot be said to include allegations that would rise to the level of the required gross negligence against defendant, Montgomery County Emergency Service. Accordingly, the amended complaint was properly dismissed as to this party, and plaintiff’s appeal should be dismissed. . Plaintiff does not argue that defendant’s conduct was willful. Thus, defendant is immune from suit unless its conduct was grossly negligent. . The court recognizes that disposition of the motion for summary judgment does not hinge on the presence or absence of “buzz words.” . Section 4603 contains a general immunity provision applicable to non-profit health care organizations who are instrumental in rendering a diagnosis or opinion. Similar to section 7144 of the act, this immunity does not extend to grossly negligent conduct. . To the extent that the claim raised in plaintiff’s affidavit (that Dr. Nell at defendant’s facility assumed a duty to “handle” any situation that subsequently arose as to Mrs. Albright) sufficiently raises a claim for gross negligence against defendant, we believe such claim to be barred by the statute of limitations.

LOKUTA, J, NATURE OF PROCEEDINGS This matter is before the court on the preliminary objection of defendant, Pittston Area School District, in the nature of a demurrer. HISTORY AND FACTS On November 5, 1992, the plaintiff, Mary O’Brien, filed a four-count complaint seeking damages for injuries allegedly sustained in an accident which occurred on or about April 16, 1991, when her automobile was struck by a bus owned by defendant Yatesville Bus Co. Inc., and operated by the defendant Jacqueline W. Bennote, which was transporting Pittston Area School District stu dents. Count III of plaintiff’s complaint against the Pittston Area School District alleges negligence as follows: “(a) In employing the Yatesville Bus Co. Inc. to transport students when they knew or should have known that the company employed unqualified, reckless and negligent drivers; “(b) Directing and instructing the defendant, Yatesville Bus Co. Inc., to transport students in a vehicle which they knew, or in the exercise of reasonable care, should have known, that such direction and instruction created a risk of harm to the plaintiff; “(c) In allowing the defendant, Yatesville Bus Co. Inc., an agent, servant, worker and/or employee, to provide an inadequate and unsafe vehicle for the transportation of school students; “(d) In allowing the defendant, Yatesville Bus Co. Inc., an agent, servant, worker and/or employee, to designate, direct, authorize and instruct an unqualified, reckless and dangerous driver to transport the school students; “(e) In allowing the defendant, Yatesville Bus Co. Inc., its agents, servants, worker and/or employee, to transport school students in an unsafe vehicle.” On November 20,1992, defendant Pittston Area School District filed the instant preliminary objection alleging governmental immunity pursuant to section 8541 of Title 42 of the Pennsylvania Consolidated Statutes (42 Pa.C.S. §8541). Plaintiff in turn counters that the cause of action falls within the section 8542(b)(1) exception relating to operation of a motor vehicle. DISCUSSION AND LAW It has been held that a demurrer admits all well-pleaded facts as well as inferences which are fairly deducible therefrom. Creeger Brick v. Mid-State Bank, 385 Pa. Super. 30, 560 A.2d 151 (1989). A demurrer should be sustained only in cases where a plaintiff has clearly failed to state a claim upon which relief may be granted and should not be sustained if there is any doubt as to whether the complaint states a claim under any theory of law. Wicks v. Milzoco Builders Inc., 503 Pa. 614, 470 A.2d 86 (1983). With these principles in mind, we turn to a consideration of Pittston Area School District’s preliminary objection. Section 8541 of Title 42, Pennsylvania Consolidated Statutes, mandates that, “except as otherwise provided, no local agency shall be hable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” There is no dispute that Pittston Area School District is a “local agency” pursuant to 42 Pa.C.S. §8501. Title 42 Pa.C.S. §8542(b) provides that “the following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: “ ‘(1) Vehicle liability — the operation of any motor vehicle in the possession or control of the local agency....’” Plaintiff argues that her complaint specifically alleges that the school district employed Yatesville Bus Co. to bring children to and from school, and that it was through this employment that the accident occurred, and, therefore, the exception set forth in section 8542(b)(1) should pertain. We disagree. Paragraph 2 of the plaintiff’s complaint avers that the defendant, Jacqueline W. Bennote (the operator of the bus), was an “agent, servant, workman and/or employee of defendant, Yatesville Bus Co. Inc....” The vehicle exception to governmental immunity applies only to situations where an employee of a local agency operates the vehicle in question. See Bumatoski v. Butler Am bulance Service, 130 Pa. Commw. 264, 567 A.2d 1121 (1989); Capuzzi v. Heller, 125 Pa. Commw. 678, 558 A.2d 596 (1989). The Pennsylvania Supreme Court has construed the term “operation” to mean actually putting a vehicle in motion. Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988). Mere control of the motor vehicle by a local agency is not sufficient to trigger the motor vehicle exception to governmental immunity. Burkey v. Borough of Auburn, 100 Pa. Commw. 110, 514 A.2d 273 (1986), appeal denied, 515 Pa. 625, 531 A.2d 432 (1987). In order for the exception of section 8542(b)(1) to apply, there must be facts indicating that the vehicle was operated by a government official. Burnatoski, supra at 269-70, 567 A.2d at 1124. Plaintiff, by her own pleading, avers that the operator of the bus was an employee of defendant, Yatesville Bus Co., and, even if the school district had the authority to direct the bus company, the motor vehicle exception does not apply. See Burkey, supra. To hold otherwise would be to broaden the scope of local agency liability in contravention of expressed legislative intent to insulate political subdivisions from tort liability. See Farber v. Pennsbury School District, 131 Pa. Commw. 642, 571 A.2d 546 (1990). Accordingly, we enter the following ORDER It is hereby ordered, adjudged, and decreed: (1) The preliminary objection of the defendant, Pittston Area School District, in the nature of a demurrer is sustained, and Count III of plaintiff’s complaint is dismissed; (2) The prothonotary is directed to give notice of the entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.

MILLER, J., Plaintiff and defendant, now divorced, are the parents of a son, Myles Jordan Urlaub, bom March 21, 1990. Since the time of the parties’ divorce in this county, on April 19, 1991, the child has been residing with plaintiff. Plaintiff initiated an action for support of the minor child under the Uniform Reciprocal Enforcement of Support Act (URES A) by filing a complaint which was forwarded to the Circuit Court of Cook County, 111. — the site of defendant’s residence. As a defense to plaintiff’s attempts to impose a child support obligation upon him in Illinois, defendant alleges that the post-nuptial agreement, executed by the parties on November 20, 1990, prevents plaintiff from seeking child support from him. He maintains that the parties agreed to relinquish any rights to support from each other which they may have had prior to the execution of the agreement, and that, further, said waiver included child support as well as spousal support. On December 29, 1992, the Monroe County Domestic Relations Office received an order from the Cook County Court, Domestic Relations division, requiring that a declaratory order be issued by this court regarding the validity of the parties’ post-nuptial agreement as it relates to the defense being raised by defendant in the URESA action in Illinois. Monroe County Domestic Relations then filed the instant request for relief. With this as factual and procedural background, we proceed to a disposition of the issue before us. We are empowered to grant the relief requested by the Declaratory Judgments Act, 42 Pa.C.S. §7531 et. seq., which provides, in section 7532, that: “§7532. General scope of declaratory remedy— “Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.” July 9, 1976, P.L. 586, no. 142, §2, effective June 27, 1978. Further, under section 7533: “§7533. Construction of documents— “Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.” July 9, 1976, P.L. 586, no. 142, §2, effective June 27, 1978. In addition, we recognize that we are obligated by the provisions and spirit of URESA to comply with Illinois request for the ruling. As noted by the Commonwealth Court in Curtis v. Cleland, 122 Pa. Commw. 328, 331, 552 A.2d 316, 318 (1988): “The Declaratory Judgments Act is remedial in nature and its purpose is to provide relief from uncertainty and establish various legal relationships.” However, declaratory relief is only available where an actual controversy exists, is imminent or inevitable. Pennsylvania Turnpike Commission v. Hafer, 142 Pa. Commw. 502, 597 A.2d 754 (1991). As we find an actual controversy does exist in the instant matter, we shall proceed. The Pennsylvania Rules of Civil Procedure 1601-1604 permit a plaintiff to seek declaratory relief either exclusively or as ancillary relief in a pending matter. Here we find that a declaration of the parties’ rights and obligations under the post-nuptial agreement executed as part of their divorce proceedings is essential to plaintiff’s ability to prosecute defendant for child support. Our examination of the parties’ agreement reveals the following language: “Paragraph 1 (a) ‘Each of the parties hereto covenants and agrees that neither will deny or endeavor to abridge any right of support or maintenance which the other might have because of any alleged conduct with regard to any third persons; provided, however, the parties hereto recognize that it is intended that this agreement shall and does supersede any rights or claims to support....’ “Paragraph 3 (b) ‘Each of the parties specifically covenants ... that the execution of this agreement and its terms are accepted by them as including, inter alia, full and complete payment by the other for any and all past, present, or future obligations of support, care, education, maintenance ... of the other and each covenants ... that no action will be instituted by them (or claim of any kind be made) for their support ... against the other in any court or any jurisdiction whatsoever. The parties hereto recognize, acknowledge and agree that each of them hereafter shall not have and does not have any rights or claims for support, care and maintenance ... because the provisions herein in the nature of post-nuptial agreement are fair....’ “Paragraph 4 ‘Both parties do hereby relinquish ... any claim, right or interest which they may have pursuant to the Divorce Code or otherwise to receive alimony, alimony pendente lite, temporary alimony, and/or spousal support from the other....’ “Paragraph 20 ‘This agreement shall be construed under the laws of the Commonwealth of Pennsylvania.’” Further examination discloses that while the minor child is mentioned in the agreement (in the whereas clause and in paragraph 14), he is not a party to the agreement. Our interpretation of the plain language of the document leads us to conclude that the parties were only bargaining with their right to support vis a vis each other, that is, with the right of each of them to claim spousal support from the other. The issue of support for the child is never expressly dealt with by the terms of the agreement. Moreover, the Pennsylvania Supreme Court, in Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991), expressly held that child support is not a proper subject for negotiation between divorcing parents; rather, the amount of support must be geared toward what is in the best interests of the children, not what is the best deal that can be had for the parents. The court wrote: “Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests.... They have no power, however, to bargain away the rights of their children.... Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short.” [citing Sonder v. Sonder, 378 Pa. Super. 474, 549 A.2d 155 (1988), and Brown v. Hall, 495 Pa. 635, 43 A.2d 859 (1981).] Id. 527 Pa. at 86, 588 A.2d at 505. Based upon the foregoing, we hold that the provisions of the parties’ post-nuptial agreement relating to support obligations determined only the issue of spousal support and did not in any way affect plaintiff’s right to pursue defendant for support for their minor child.

OPINION Justice CAPPY. In April of 1993, pursuant to the power of condemnation granted in the Eminent Domain Code, 26 P.S. § 1-101 et seq. (the “Code”), the Appellant, the Commonwealth of Pennsylvania, Department of Transportation (the “Department”), filed a declaration of partial taking for property owned by the Appellee, Dennis Sluciak. In this appeal, we are called upon to decide two questions: (1) whether Section 406(a) of the Code, 26 P.S. § 1-406(a), required Appellee to raise by preliminary objections the claim that the condemnation landlocked his remaining property and diminished its fair market value to virtually zero; and (2) whether Section 602(a) of the Code, 26 P.S. § l-602(a), allowed the admission of evidence of the Department’s later taking in February of 1997 of a neighboring piece of property, which served to insure that Appellee had legal access to his remaining property, on the issue of damages. We conclude that under the Code, Appellee was not required to file preliminary objections and that evidence of the Department’s subsequent taking was not admissible in determining the just compensation to which Appellee was entitled. Thus, for all of the following reasons, we affirm the order of the Commonwealth Court. In April 1938, Appellee’s parents, Joseph and Helen Sluciak, purchased a sixty-acre parcel of land in Cecil Township. Several months later, Rudolph and Mary Dagsher purchased an adjoining parcel. Both pieces of property fronted on Grude-vich Road, a township road running roughly northwest/southeast. Even though their property had frontage on Grudevieh Road, the Sluciaks accessed that thoroughfare by using a driveway that crossed a sliver of land approximately twelve feet long by twenty feet wide at the corner of the Dagher’s property (the “Driveway”). In the 1970s, Appellee established a landscaping business on his family’s property, where he also continued to reside. In the mid-1980s, Helen Sluciak subdivided the property, deeding one 44.624-acre portion to Appellee, and the other portion to his brother. Appellee’s business, located on the portion he was given, was expanded to include excavation operations, and consisted of a repair shop, storage areas, a barn and trailers. Appellee continued traveling to and from Grudevieh Road over the Driveway. To provide a connecting ramp for State Route (Interstate) 79 and State Route 1082, the Department filed a declaration of taking on April 28, 1993, acquiring 12.190 acres of Appellee’s property, including the frontage on Grudevieh Road, and leaving a residue of 32.324 acres. Appellee received notice of the condemnation, and copies of the declaration of taking and property plat. He did not file preliminary objections. Valuing the property at $460,000 prior to the taking and at $315,000 after the taking, the Department paid Appellee $145,314 as estimated just compensation on May 23,1993. On October 12, 1993, Appellee petitioned for appointment of a board of viewers (the “Board”). At the Board’s hearing, Appellee testified that before the taking, he had 800 linear feet of frontage on Grudevieh Road, but that after the taking, he had none. He also testified that the Driveway, which he did not own, was his only access to Grudevieh Road. Appellee argued, therefore, that the taking had “landlocked” his remaining property. An appraiser called on Appellee’s behalf testified that the value of Appellee’s land prior to the condemnation was $500,000, and that the value after the taking was $15,000. The appraiser’s opinion was based on his understanding that Appellee’s remaining property was landlocked. Asserting that he could not relocate his business, Appel-lee contended that the assembled economic unit doctrine applied. Appellee’s expert also opined that Appellee’s total damages were greater than 3 million dollars. Although the Department acknowledged that it may have been mistaken in believing that Appellee’s property borders Grudevieh Road in the vicinity of the Driveway, it contended that the facts showed that Appellee’s remaining property was not landlocked because Appellee had access to Grudevieh Road via the Driveway. The Department also offered evidence to prove that the estimated just compensation it had paid to Appellee was sufficient. On the question of damages, the Department was permitted, over Ap-pellee’s objection, to present testimony relating to the efforts it was taking to “cure” the “defect” in Appellee’s access to his property. (Viewers’ Report at ¶ 16, R. 45a). The Board found that the Appellee’s property does not border Grudevieh Road. The Board also found that the Appellee and his predecessors in interest had always used the Driveway to travel to and from Grudevieh Road, and that Appellee continued to do so. Accordingly, the Board concluded that Appellee “has an irrevocable license to the Mary Dagsher access road or an easement by necessity.” (Viewers’ Report at ¶22.3, R. 47a). The Board also found that Appellee continued to operate his business. In light of the foregoing, the Board rejected application of the assembled economic unit doctrine, accepted the Department’s appraisal of damages at $145,000, and awarded as special damages any future costs and fees “to cure the technical defect.” (Viewers’ Report at ¶ 22.7, R. 48a). Appellee filed an appeal from the Board’s award in the court of common pleas, alleging that the Board erred in determining what the value of his property was before and after the taking; in assessing his damages at $145,000; in finding that he had an irrevocable license or an easement by necessity over the Driveway; and in rejecting application of the assembled economic unit doctrine. Pursuant to Section 517 of the Code, 26 P.S. § 1-517, Appellee filed a motion with the trial court on February 27, 1995, asserting that access to his property was a question for the court to decide, and asking for a preliminary determination of the matter. Initially, the court denied the motion, but upon the Department’s request, reconsidered, and decided to hold a hearing for purposes of determining whether Appellee’s remaining property was landlocked. In February of 1997, the Department condemned the land upon which the Driveway is constructed in order to confirm Appellee’s right to use it. On April 2 and April 14, 1997, the trial court held a hearing to determine whether Appellee’s remaining property was landlocked. At the hearing, the Department made an oral motion to dismiss Appellee’s appeal from the Board’s determination for failure to raise that question by way of preliminary objections. The trial court denied the motion. Before the trial court, both parties submitted proof regarding property boundaries and the Driveway’s location and use. Appellee offered evidence to show that his remaining property did not front Grude-vich Road. As to the Driveway, Appellee testified about the several unsuccessful attempts that he or his father had made to purchase the property with the Driveway on it from the Dagshers. He also testified that he removed snow from the Driveway in the winter and added stone and slag to it from time to time. Mrs. Dagsher’s son-in-law testified that although Appellee and his family never acquired the land beneath the Driveway or an easement or a right-of-way, it was his understanding that Appel-lee had permission to cross the Dagshers’ property. Appellee’s mother testified as to her and family’s continued use of the Driveway over the years. One of the appraisers the Department had retained testified that he did not appraise the Appellee’s remaining property as landlocked because of Appellee’s continued use of the Driveway to and from Grudevich Road. When the Department attempted to elicit testimony from the Department’s Right-of-Way Administrator about the Department’s February 1997 condemnation of the Dagshers’ sliver of land which included the Driveway, Appel-lee objected that such evidence was inadmissible. The trial court sustained the objection. Despite its having sustained Appellee’s objection as to evidence of the Department’s subsequent condemnation of the Dagshers’ land, in an order dated April 18, 1997, the trial court ruled that Appellee’s property “is not landlocked as the Commonwealth of Pennsylvania has cured the access issue.” (Trial Court Order, R. 88a). The court went on to state that “from 1938 to the present date the Sluciak family has utilized the subject driveway for ingress and egress. In addition, the Sluciaks have been solely responsible for the maintenance, repair and snow removal from said driveway. Finally [Appellee] has transacted his business from the remaining tract of land uninterrupted.” (Trial Court Order, R. 83a). The court then designated a date for a jury trial on the issue of damages. Appellee filed an appeal in the Commonwealth Court. On appeal, the Department once again argued that Appellee had waived his claim that his remaining property is landlocked due to his failure to file preliminary objections pursuant to Section 406(a). Like the trial court, the Commonwealth Court rejected the Department’s argument, ruling that Appellee’s claim was not the sort of issue that falls within the statute’s purview. In re Condemnation of Right of Way for State Route 0079, Section W10, 727 A.2d 618, 623-24 (Pa.Cmwlth.1999). The Commonwealth Court reversed, however, as to the trial court’s holding that Appellee’s remaining acreage was not landlocked because the Department had insured Appellee’s access to Grudevich Road by its subsequent condemnation of the Driveway. Relying on its prior decision in Appeal of Philadelphia Electric Co., 135 Pa.Cmwlth. 100, 580 A.2d 424 (1990), alloc. denied, 528 Pa. 615, 596 A.2d 161 (1991), the court held that Section 602(a) of the Code does not allow the admission of evidence relating to actions the Department took in February 1997. The court stated: “[b]y focusing on the subsequent condemnation, the trial court erroneously based its decision on evidence properly excluded for the purpose of after value.” Id. at 622, 596 A.2d 161. Tacitly approving of the consideration that the trial court gave in its holding to the fact that Appellee and his family had continually used and maintained the Driveway since 1938, the Commonwealth Court remanded the case to the trial court for a determination as to “whether [Appellee] had any interest, be it right-of-way, easement, license or irrevocable license over the Sliver and the effect of that interest, if any, on whether [Appellee’s] property was landlocked when determining the after value.” Id. at 624, 596 A.2d 161. This appeal taken by the Department followed. The issues before us as to the meaning of Sections 406(a) and 602(a) raise, of course, questions of statutory construction. As with all such questions, the rules set forth in the Statutory Construction Act (the “Act”) govern. 1 Pa.C.S. §§ 1501-1991. Under the Act, the object of interpreting Sections 406(a) and 602(a) is to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a); Frontini v. Commonwealth Dep’t of Transp., 527 Pa. 448, 593 A.2d 410, 411-12 (1991). In this regard, the language the General Assembly used in the statutes controls. 1 Pa.C.S.A. § 1921(a)-(b); Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887, 889 (1974). A court must give effect to the obvious meaning of clear and unambiguous statutory language, and such language cannot be disregarded under the pretext of pursuing the statute’s spirit. 1 Pa.C.S. § 1921(c). The words and phrases of a statute are construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). Lastly, the Act specifically states that all provisions conferring the power of eminent domain must be strictly construed. 1 Pa.C.S. § 1928(b); Butler Fair & Agric. Ass’n v. School Dist. of Butler 389 Pa. 169, 132 A.2d 214, 219 (1957). We turn first to the Department’s argument that Appellee violated the dictates of Section 406(a) by failing to file preliminary objections raising the claim that the condemnation landlocked his remaining property. Section 406(a) provides in relevant part: Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the condemnor to appropriate the condemned property unless the same has previously been adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condemnor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof. 26 P.S. § 1-406(a). The Commonwealth Court has repeatedly stated, and we agree, that “[preliminary objections under Section 406 of the Code are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking before the parties move to the second distinct proceeding of qualifying damages.” See, e.g., West Whiteland Associates v. Commonwealth, Dep’t of Transp., 690 A.2d 1266, 1268 (Pa.Cmwlth.1997), alloc. denied, 550 Pa. 714, 705 A.2d 1313 (1997). The proper characterization of the question that Appellee’s landlocking claim raises lies at the heart of the parties’ dispute over Section 406(a)’s dictates. On the one hand, the Department argues that Appellee’s claim challenged the “scope” of both the declaration of taking and the taking itself; it essentially asserted a de facto condemnation of Appellee’s entire property; it objected to the inclusion of the Driveway on the property plat contained in the declaration of taking; and it questioned the Department’s “right” to appropriate the property as portrayed. (Appellant’s Brief at 14; Appellant’s Reply Brief at 1-2). On the other hand, Appellee asserts that he did not pursue a theory of a de facto total taking nor challenge the Department’s authority, procedures, or the declaration of taking. Instead, his claim related to “value”, to the “[just] compensation” to which he is entitled for the “impact” the Department’s condemnation had on the remaining portion of his property. The claim was not, therefore, an appropriate subject for preliminary objections. (Appellee’s Brief at 4). In support of its position, the Department relies on the Commonwealth Court’s opinion in West Whiteland, and urges us to follow it. In West Whiteland, the Department filed a declaration of taking in June of 1989 that included a plot plan and property plat showing property consisting of 71.526 acres before condemnation and 23.866 acres after the taking. The con-demnee did not file preliminary objections. Almost four years later, the condemnee petitioned for the appointment of a board of viewers, and requested additional compensation based on the allegation that his property before the taking actually consisted of 179 acres. The Department argued that because the condemnee failed to file preliminary objections pursuant to Section 406(a), he had waived the right to raise his claim. The Commonwealth Court agreed. The court first observed that in accordance with Sections 402 and 405 of the Code, 26 P.S. §§ 1 — 402, 405(c)(8), respectively, the Department had included in the declaration of taking a description of the property condemned and a reference to the place where the plans showing the condemned property were recorded and could be inspected, and had sent the condemnee a plot plan showing his entire property and the area taken. The court then concluded that the issue the condemnee sought to contest, i.e., “the size of Condemnee’s entire property”, related to “information that must be included in the declaration of taking and notice of condemnation,” and was so basic to the case that it had to be decided at the earliest possible stage by the filing of preliminary objections. Id. at 1269. In this case, by contrast, Appellee’s claim did not challenge the Department’s description of his entire property or the Department’s description of the property taken. Moreover, it did not, as the Department argues, object to the property plat incorporated in the declaration of taking or object to the Department’s authority as reflected therein. Indeed, Appellee had no reason to make such objections. From Appellee’s perspective, the plat accurately reflected his understanding that following the taking, his property would have no remaining frontage on Grudevich Road; that the Driveway connected his land to that thoroughfare; and that the Driveway was on the Dagshers’ property. Rather, we find, as Appellee asserts, that his claim went to the value of his remaining property after the condemnation, a value that he contended was diminished due to a lack of legal access to Grudevich Road. This is not a matter that Section 406(a) designates must be raised by preliminary objections. This same precept was evident in Matter of North Huntingdon Township, 36 Pa.Cmwlth. 1, 387 A.2d 183 (1978). In that case, the condemnor filed a declaration of taking for a right-of-way or easement. The condemnees did file preliminary objections, asserting, inter alia, that the declaration of taking incorrectly stated the nature of the title acquired and the description of the property condemned. According to the condemnees, under the guise of condemning an easement, the effect of the condemnor’s action was to take all of their property by rendering it valueless. The Commonwealth Court affirmed the order below dismissing the preliminary objection. The court explained: “[t]he condemnees are seeking a judicial determination of the value of their property after condemnation of the easement for the sewer line. This is not a judicial function. The condemnees are entitled to the difference between fair market value of their property before and after the condemnation, both values to be fixed by a jury they are not entitled to a judicial declaration that their property has no value after the take.” Id. at 184. The court further stated: “[t]his is not a case ... of a preliminary objection raising a de facto taking; the condemnees have failed to describe anything done to their property by the condemnor other than it has condemned an easement which destroyed the property’s value.” Id. Accordingly, we hold that Appellee’s claim, which related to the value of his remaining property as affected by the taking, was not required to be, nor could it have been, raised by preliminary objections under Section 406(a). Next, we determine whether under Section 602(a), evidence regarding the Department’s taking of the Driveway on the Dagshers’ property in February of 1997, four years after the condemnation of Appellee’s land on April 23, 1993, is admissible. Section 602 sets forth the Code’s “Measure of damages”, and governs the “just compensation” a condemnee is awarded in eminent domain proceedings. 26 P.S. § 1-602(a). In Chester Township v. Commonwealth, Dep’t. of Transp., 495 Pa. 369, 433 A.2d 1353, 1355 (1981), we stated that “[t]he fundamental principle underlying the requirement of ‘just compensation’ is one of indemnity: a condemnee is entitled to be placed in as good a position pecuniar-ily as if his property had not been taken.” To that end, a common law principle developed to calculate just compensation fairly and predictably. This principle is commonly referred to as the “before and after rule”, and provides that just compensation consists of the difference between the fair market value of the condemnee’s property immediately before the taking and as unaffected thereby, and the fair market value of his property remaining immediately after the appropriation and as affected by the taking. Pennsylvania Gas & Water Co. v. Pennsylvania Turnpike Comm. 428 Pa. 74, 236 A.2d 112, 116 (1967). The General Assembly specifically incorporated the “before and after rule” into Section 602(a). 26 Pa.C.S. § l-602(a), Comment — Joint State Government Commission 1964 Report. Section l-602(a) states: § 1-602. Measure of damages (a) Just Compensation shall consist of the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of this property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code. 26 P.S. § 1-602(a). The gist of the Department’s argument in this appeal is that an interpretation of Section 602(a) which serves to exclude evidence of the Department’s 1997 taking of the Driveway is erroneous because it is unduly “narrow” and “temporal”. (Appellant’s Brief at 18). According to the Department, under our decision in Frontage Inc. v. Allegheny County, 400 Pa. 249, 162 A.2d 1 (1960), Section 602(a)’s “principle of valuation on the date of taking is [not] so inflexible as to ignore all circumstances occurring after a taking”, and only precludes the introduction of “speculative testimony designed to improperly reduce just compensation based on circumstances that do not exist at the time of trial and may never occur.” (Appellant’s Brief at 18). The Department further complains that the Commonwealth Court’s holding is unfair, and that it penalizes it for remedying the unintended effects of a taking prior to their impact and affords a windfall to the Appellee. (Appellant’s Brief at 21-23). Appellee’s counter-argument is straightforward. Given the plain meaning of the words with which the General Assembly expressed its intent in Section 602(a), the value of his remaining property “immediately after” the taking cannot be determined by reference to an event which took place four years thereafter. 26 P.S. § 1-602(a). Based on guiding principles of statutory construction, we agree with Appellee. In our view, the measure of damages in eminent domain cases under Section 602(a), which is framed in terms of a limited window of time, could not have been stated more precisely. It provides that just compensation is the difference in relevant fair market values “immediately before” and “immediately after” a condemnation. 26 P.S. § 1-602(a) (emphasis added). The General Assembly’s use of the word “immediately” in Section 602(a) literally allows for no lapse between the taking and the point at which a condemnee’s remaining property is valued. Clearly then, in light of the plain meaning of the statute, the Department’s position is unsustainable. Likewise, the Department’s contention that our decision in Frontage stands for the proposition that Section 602(a) precludes only the admission of evidence relating to circumstances that are speculative is meritless. In Frontage, the condemnor condemned certain property owned by the condemnee for the purpose of constructing terminal facilities at the Greater Pittsburgh Airport. The property had frontage on the Airport Parkway. Thereafter, Commonwealth officials indicated that they intended to declare the Airport Parkway a limited access highway, which would have eliminated access to the Airport Parkway from the condemnee’s property. At the date of the taking and at the date of trial, the Airport Parkway had not been designated. Nevertheless, at trial, the court allowed counsel for the condemnor to cross-examine a witness for the con-demnee about the Commonwealth’s unexecuted intentions with regard to the Airport Parkway, and to obtain from him an admission that without access to that road, the remaining property had a fair market value of only half as much as the amount to which he had previously testified. Finding that the trial court erred in allowing such questioning, we reversed the judgment and granted the condemnee a new trial. Our holding was based on the requirement in the “before and after rule” that damages in eminent domain cases be assessed at the date of taking. We stated: [The condemnor], in its brief, has strenuously contended that this line of inquiry was relevant because ‘It is obvious that the plaintiff [appellant], before the Board of Viewers and before the jury, predicated its whole theory of damages in this case on free access to the Airport parkway.’ And well it might — ii had such access as of the date of the taking .... That the Parkway has not been declared a limited access highway to this day is the strongest indication that statements by public officials do not always bear fruition. Moreover, the fundamental principle of the law of eminent domain is that market value is determined upon the date of taking. Id. at 4 (emphasis in original). We also observed that the hypothetical question propounded to the witness based upon a nonexisent state of facts was highly misleading, speculative and confusing to the jury. Id. at 4-5. We did not, however, as the Department suggests, interpret the “before and after rule” as disallowing no more than the introduction at trial of mere possibilities. In Frontage, we held that the condemnor’s evidence was inadmissible under the “before and after rule” because it was not relevant, not because it was speculative. See id. at 5-6. This is not the first time we have been invited to expand the traditional application of “before and after rule”, currently embodied in Section 602(a). In Dyer v. Commonwealth, 396 Pa. 524, 152 A.2d 760 (1959), the Commonwealth’s Department of Highways (“Commonwealth”) sought to introduce proof of a certain action taken by the condemnees after the condemnation for purposes of establishing just compensation. We held that the proof was inadmissible. We find the reasons for our decision in Dyer as compelling today as they were when we decided that case. In Dyer, the Commonwealth condemned 3.97 acres of the condemnees’ 20.3 acre tract. One of the improvements on the condemned portion of appellees’ tract was a multiple dwelling. Subsequent to the taking, the condemnees relocated the dwelling to a portion of their land that was not condemned. The parties contested the amount of damages, and eventually went to trial. At a pretrial conference, the Commonwealth asserted that the measure of damages should be the difference between the value of the entire 20.3 acre tract before the condemnation, including all the buildings situated thereon, and the value of the remaining tract after the condemnation, including the multiple dwelling that the condemnees had relocated. The Commonwealth submitted a written offer of proof of such values, which the trial court refused. The jury was instructed instead that the multiple dwelling was to be considered in fixing the value of the land prior to the condemnation, but was to be excluded from its consideration in determining the value of the remaining un-condemned portion of appellees’ land. The Commonwealth appealed. We affirmed, determining that the Commonwealth’s offer of proof was properly rejected as contrary to the “before and after rule”: With the “taking” by the Commonwealth of appellees’ land it acquired title, subject to appropriate compensation therefor, not only to the soil thereof but to all the improvements thereon, including the multiple dwelling. Upon the “taking” the owner-appellees acquired the right to be compensated for the difference in the value of their land, including the improvements thereon, immediately before and immediately after the “taking”; such right to compensation was not subject to qualification by the fact that between the time of taking and the time of actual construction of the highway the multiple dwelling had been removed to another location on the uncondemned portion of their land. To hold otherwise would be to ignore well-recognized and established rules in eminent domain proceedings and would add confusion in an already complicated field of the law. Id. at 762 (emphasis in original) (footnote omitted). In response to the Commonwealth’s complaint that under the circumstances, application of the rule was essentially unfair, forcing it to pay an excessive amount in damages to appellees, we pointed out that the Commonwealth should consider pursuing alternative remedies: The Commonwealth argues that, by the application of this rule, it is forced to pay the value of the multiple dwelling as such value is reflected in the “before” value and at the same time permit the owner-appellees to retain the multiple dwelling itself. The Commonwealth, however, does not lack a remedy in this situation. The owner-appellees are subject to an action in trespass for the removal of the dwelling, title to which had been acquired by the Commonwealth. Furthermore, if, as the owner-appellees contend, the Commonwealth had agreed to removal of the building— denied by the Commonwealth' — the Commonwealth would have an action for the fair value thereof. Id. at 762-63. We then concluded that under our holding, the interest of both parties was served, and discussed the adverse consequences that would follow in eminent domain proceedings if the “before and after rule” were ignored. Our conclusion, which we embrace in this case, bears repeating: Under the views herein expressed, the interest of both the Commonwealth and the landowners are fully protected. If appellees’ action in removing this multiple dwelling after the “taking” resulted in a loss to the Commonwealth, the Commonwealth has its remedy to recoup such loss. On the other hand, to permit the establishment and the recoupment of such loss in this condemnation proceeding would be not only contrary to our salutary and well-established “before” and “after” rule but would be productive of an impractical and unworkable measure of damages. “Proofs of countervailing collateral matter will follow the introduction of collateral matter; confusion of the issue on trial will be worse confounded; and litigation over damages of land taken by condemnation will become truly interminable.” Id. at 763 & n. 4 (quoting Berger v. Public Parking Auth. 380 Pa. 19, 109 A.2d 709, 719 (1954) (Jones, J., dissenting)). Next, we address the Department’s assertion that a ruling which prohibits evidence of its subsequent condemnation of the Dagshers’ property “deprives condemnors of the same fundamental fairness that is granted to condemnees” because condemnees have been allowed to present evidence of outlays expended to cure the impact of a partial taking on remaining property. (Appellant’s Brief at 21). In support of its argument, the Department points to Section 705(2)(v) of the Code, 26 P.S. § 1-705(2)(v), which governs the evidence that a qualified valuation expert may present at a hearing before viewers or in the trial court. Section 705(2)(v) provides that “[a] qualified valuation expert may testify on direct or cross-examination in detail as to the valuation of the property on a comparable market value,” and include in his testimony “[t]he cost of adjustments and alterations to any remaining property made necessary or reasonable required by the condemnation.” 26 P.S. § l-705(2)(v). This case, however, in volves the proper construction of Section 602(a). To the extent that the Department believes that Section 602(a) treats condem-nors unfairly in light of the evidentiary provisions set forth in Section 705(2)(v), the Department should take up this matter with Pennsylvania’s Legislature. We cannot rewrite Section 602(a) to suit the Department’s notions of fairness. Turning last to the Department’s concern that without consideration of the subsequent condemnation, Appellee may be unjustly enriched because the Department mitigated the impact of the condemnation prior to any termination of Appellee’s access to Grudevich Road and a final determination of damages, the principle that guides us is quite clear. Even assuming that the Department’s concern has merit, we cannot disregard the plain meaning of Section 602(a) in this one case in order to advance its spirit. See 1 Pa.C.S. § 1921(c). Thus, we hold that under Section 602(a), evidence of the Department’s condemnation of the Driveway on the Dagshers’ property in February of 1997 is inadmissible on the issue of Appellee’s damages. At the time of the condemnation of Appellee’s land on April 23, 1993, however, the substantial evidence of record reveals that Appellee was using and maintaining the Driveway, as he had used and maintained it for a number of years, and that he continued to use and maintain the Driveway after the taking. Under the circumstances, Appellee may have had before and/or after the time of taking a legal interest in the Driveway, the existence of which may have relevance to Appellee’s landlocking claim as to his remaining property, and to the calculation of just compensation. Accordingly, we affirm the order of the Commonwealth Court, which reversed the trial court and remanded this case to the trial court for a determination of those matters. Justice NEWMAN did not participate in the consideration or decision of this case. Former Chief Justice FLAHERTY did not participate in the decision of this case. Chief Justice ZARPALA files a dissenting opinion in which Justice CASTILLE joins. This opinion was reassigned to this author. . According to Black’s Law Dictionary, "[(landlocked” is "[a]n expression applied to a piece of land belonging to one person and surrounded by land belonging to other persons, so that it cannot be approached except over their land.” Black’s Law Dictionary 878 (6th ed.1990). . Under the doctrine, it is determined whether machinery, equipment and fixtures constitute part of an assembled economic unit and, are therefore, part of the condemned realty. If so, a condemnee is entitled to just compensation for their taking. Singer v. Redevelopment Auth. of the Oil City, 437 Pa. 55, 261 A.2d 594 (1970). . Section 517 provides in pertinent part that “[a]ll objections, other than the amount of the award, raised by the appeal shall be determined by the court preliminarily.” 26 P.S. § 1-517. . In this case, our review is limited to determining whether the trial court abused its discretion or committed an error of law or whether the findings of fact are supported by the substantial evidence. Denes v. Pennsylvania Tpk. Comm’n, 547 Pa. 152, 689 A.2d 219, 222 (1997). As the proper construction of the Code implicates a pure question of law, our review is plenary. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995). . The 1964 Comment to 26 P.S. § 1-602(a) states that "[t]his section sets forth what damages the condemnee is entitled to when his property is condemned. The first paragraph of this section codifies the existing case law by adopting the 'before and after rule’, which is firmly entrenched in the law. Brown v. Commonwealth, 399 Pa. 156, [159 A.2d 881] (1960)....” Comment — Joint State Government Commission 1964 Report. . The dictionary defines "immediately” as follows: "1. without lapse of time; without delay; instantly; at once .... 2. with no object or space intervening. 3. closely .... 4. without intervening medium or agent; concerning or affecting directly_5. the moment that; as soon as.” The Random House Dictionary of the English Language 957 (2nd ed.1987). . Frontage arose and was decided prior the passage of the Code. We were, therefore, considering the “before and after rule” as developed in case law. . Dyer also arose and was decided prior the passage of the Code. Again, we were considering the “before and after rule” as developed in case law. . In this regard, we and the dissent part ways. The dissent contends that certain sections in the Code, like 26 P.S. § 1-705 or § 1-603, indicate a change in the law, such that the traditional understanding of the "before and after rule” as articulated in Dyer is no longer controlling. We disagree. The Comment — Joint State Government Commission 1964 Report to 26 P.S. § l-602(a) explicitly states that 26 P.S. § l-602(a) embodies the “before and after rule” as the courts in Pennsylvania developed and applied it before the Code’s enactment. See supra n. 5. Moreover, we can find no support for the dissent’s proposition that the legislature meant to liberalize or relax the traditional “before and after rule” with its enactment of 26 P.S. § 1-705(2)(v) or any other Code section. . We, unlike the dissent, do not believe that the evidence the Department sought to introduce constitutes "[t]he cost of adjustment and alteration to any remaining property made necessary or reasonably required by the condemnation” within the meaning of that section. As stated in the Comment — Joint State Government Commission 1964 Report, 26 P.S. § 1-705(2)(v) covers a principle which the courts applied before the Code’s enactment and which this court set forth in Puloka v. Commonwealth, 323 Pa. 36, 185 A. 801 (1936) as follows: ‘Estimates as to the costs of rebuilding specific items of property or injury to particular uses affected by the taking are not recoverable or admissible as distinct items of damage, but such losses may become useful as elements bearing on the market value before and after the appropriation.’ Here the elements of damage shown were separation of buildings by the road, interference with access, additional costs of fencing, and alteration of grades. Id. at 803 (quoting Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 176 A. 13, 14 (1934)). The cases we have reviewed reveal that the evidence which has been admitted on fair market value pursuant to the principle articulated in Puloka or under 26 P.S. § 1-705(2)(v) is evidence of the cost of restorative measures typically undertaken by the condemnee to correct a condition that the condemnation of a portion of his property imposed on the property he continued to own. See, e.g., Westinghouse, 176 A. at 13 (costs of filling and building abutments and retaining walls); Parry v. Cambria & I.R. Co., 247 Pa. 169, 93 A.336 (1915) (cost of additional fencing); Patton v. Philadelphia, 175 Pa. 88, 34 A. 344 (1896) (costs of filling a lot); Dawson v. Pittsburgh, 159 Pa. 317, 28 A. 171 (1893)(costs of raising a house); Middletown Twp. v. Baker, 105 Pa.Cmwlth. 1, 522 A.2d 1182 (1987) (costs of restoring trees, soil, grass, electric and water lines). In light of this teaching, we do not see how proof of the Department’s subsequent condemnation of a piece of property not owned by Appellee, but owned by his neighbors, constitutes an element of fair market value which falls under 26 P.S. § 1-705(2)(v).

KUHN, J., The issue before this court is whether John J. Wells, paternal grandfather of the subject children, has standing to seek their general physical custody. Based upon the record created to date, the following history is relevant to this discussion. The plaintiff, Theresa M. (Wells) Van Coutren, hereinafter “mother,” and John J. Wells Jr., hereinafter “father,” are the natural parents of John J. Wells HI, bom December 26, 1977, Kathleen Rose Wells, bom August 23,1979, and Kimberly Ann Wells, bom January 15, 1984. This family resided together until approximately December 1987, when the parties separated. Mother and the children remained liv ing in Bonneauville, Pa., until May 13, 1991, when the children began living with father in Frederick, Md. Unfortunately, father developed a serious illness and moved with the children to the home of Florence Wells, the children’s paternal grandmother in Seaford, N.Y. In late June 1992, mother learned of this move and on June 29, 1992, through counsel, wrote to father requesting an opportunity to see the children and for their return if father’s illness proved fatal. Father died on July 7,1992. Mother learned of father’s death on July 9, 1992, and drove to Seaford, New York on July 11, 1992, the date of the funeral. Mrs. Wells denied mother’s request to return the children without mother having an opportunity to see and/or speak with the children. On July 21, 1992, mother filed a complaint seeking custody of the children. On August 11, 1992, Mrs. Wells and another defendant, Susan Schramm, filed preliminary objections to the court’s jurisdiction. On September 11, 1992, mother was served with custody petition filed on August 17, 1992 by another defendant, John J. Wells, hereinafter “grandfather,” of East Hampton, N.Y., seeking custody of the children. Therein grandfather alleged that the children had lived with him since July 7, 1992. By order dated September 14,1992, the undersigned deferred disposition of the jurisdictional issue until contact had been developed with the Family Court of Suffolk County, N.Y., where grandfather’s custody action was filed. By order dated December 18, 1992, the New York court dismissed grandfather’s custody action and remanded the matter to our court. On January 7, 1993, I directed the scheduling of a custody conference which was arranged for February 11, 1993. By letter dated January 15,1993, mother questioned whether grandfather had standing to pursue custody of the children. Pursuant to order of February 11, 1993, the parties were granted an opportunity to submit legal memorandum on the standing issue. Mother relies on Gradwell v. Strausser, 416 Pa. Super. 118, 610 A.2d 999 (1992), wherein the court held that: “Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parents.” 416 Pa. Super, at 123, 610 A.2d at 1002. (emphasis added) In that case, the maternal grandparents instituted a custody action against the child’s natural parents and the paternal grandfather. When the action was filed, the child was residing with the paternal grandfather while legal custody was with the parents who also had partial physical custody rights pursuant to a court order. The court ruled against all grandparents regarding their standing to seek general custody. It was noted that: “The appropriate manner for a third party to challenge child custody is through dependency proceedings, set forth in the Judicial Code. See 42 Pa.C.S. §6301 et seq.... It is only after a child is found dependent that a court will engage in custody proceedings where the standard is the best interests of the child.... Prior to that the burden is on the party seeking to take the child from the parents to show by clear and convincing evidence that the child is dependent.... Unless the parents’ prima facie right to custody is successfully overcome, this court cannot confer standing on third parties to interfere with the parent/child relationship....” Id. In this case, grandfather has not alleged that the children are dependent. Therefore, he has failed to cross the threshold set forth in Gradwell. I believe that grandfather will allege that the children have not resided with mother since May 1991, but have resided with him since January 1992. This contrasts with the averments of his New York custody complaint wherein he stated that the children began residing with him on July 7, 1992. Prior to that time they resided with father in Maryland or Seaford, N.Y. He may also raise the children’s preference, his relationship with the children, the adequacy of mother’s home and the extent of her contact with the children. These matters speak to best interests and not standing. While a party in loco parentis has been permitted to maintain a custody action, grandfather would not qualify as such. As noted, the children have only resided with him since July 7, 1992, the date of father’s death, and then against mother’s wishes and demands for return of the children. Grandfather has cited a litany of cases wherein third parties have asserted custody. In light of Gradwell, however, I find they are distinguishable. In conclusion, mother’s request to dismiss grandfather’s claim for general custody on the basis of a lack of standing will be granted. However, this court is reluctant to abruptly pull the children from their present educational environment in New York and place them where they will finish the last 10-12 weeks of school in Pennsylvania. Of course, I recognize that such transitions often occur. Nevertheless, I have yet to be convinced that such disruptions are educationally sound. The Domestic Relations Code, 23 Pa.C.S. §5311, has provided grandparents with the right of partial physical custody or visitation where one parent is deceased. The standing issue would not be relevant. I propose to grant grandfather partial physical custody of the children until the end of school subject to mother’s right to partial physical custody and/or visitation during school vacations or whenever she travels to New York to the extent she makes such a request. Otherwise, during the first weekend after school ends, the children shall be returned to mother. Accordingly, the attached order is entered. ORDER And now, March 17, 1993, upon motion of plaintiff any claim for general custody of the subject children by defendant, John J. Wells, is hereby dismissed on the basis of a lack of standing. Defendant, John J. Wells, is granted temporary partial physical custody through the current school year so the children can be maintained in their current educational environment. Pending the transfer of physical custody during the first weekend after the end of the school year, mother shall have such rights of physical custody during school holidays or when she travels to New York as she shall request. Defendant is directed to make no disparaging remarks regarding plaintiff in the presence of the children and is further directed to be cooperative in arranging a peaceful transition of custody. . This court expresses its gratitude to Honorable Joseph J. Snellenburg II, of the Family Court of Suffolk County, N.Y, for his cooperative and professional communications in the disposition of this matter. . See Gradwell, supra, 416 Pa. Super, at 126, 610 A.2d at 1003, wherein the court asserted that a party cannot place himself in loco parentis status in defiance of the parents’ wishes.

SOLOMON, J., This matter is before the court on the plaintiff’s petition to remove property from tax claim sale. The defendant has challenged, inter alia, the jurisdiction of this court to hear this matter. STATEMENT OF FACTS The city of ConnellsviUe is the owner of the Connellsvüle Community Center. From 1983, when the city acquired the property, until 1988, the center was tax exempt. On November 24, 1987, the city received notice that the property’s status for assessment purposes had been changed from exempt to taxable. The center was eventuaUy scheduled to be sold at tax claim sale as the taxes due were not paid. On September 27, 1991, the city filed with the Fayette County Court of Common Pleas a petition to remove property from tax claim sale. The defendant has challenged this court’s jurisdiction to hear this matter, stating that 72 P.S. §5453.704 requires that appeals from assessments be initially made to the board, rather than to the Court of Common Pleas. The plaintiff argues that this section is inappUcable here, and that jurisdiction is properly with the Court of Common Pleas, due to various defects in the status change procedure utiUzed by the board. The defects complained of by the plaintiff are: (1) that the board was not authorized to make the status change at any time other than between July 1 and July 15; and (2) that the board did not comply with the notice provisions of 72 P.S. §5453.701(1.1). DISCUSSION It is clear that section 5453.704 requires that appeals from assessments be made initially to the board, 72 P.S. §5453.704. Thus, the only question remaining is whether the alleged defects in the assessment process would excuse plaintiff’s failures to comply with the section 5453.704 appeal procedures and vest jurisdiction in the Court of Common Pleas. The plaintiff’s first argument is that the board was not authorized to add to the assessment roll any property not already subject to taxation at any time other than between July 1 and July 15. However, under section 5451.701(a.l), the board is authorized to add to the assessment roll property subject to local taxation at any time in the year, 72 P.S. §5453.701(a.l). The plaintiff argues that section 5453.701(a.l) is inapplicable here because it allows the board to add property to the assessment roll at any time during the year only when the property to be added is already subject to local taxation, but cites no authority to support its argument. It is unlikely that this section was meant to be construed in this manner, since there would be very few instances where the board would need to add a property already subject to local taxation to the assessment roll. The only logical interpretation of this language is that the board is authorized, at any time during the year, to add property which has become subject to local taxation to the assessment roll. Thus, it is obvious that section 5453.701(a.l) appeal procedures are not inapplicable here for the reason argued by the plaintiff. As the board was authorized to add the property to the assessment roll at any time, the only question remaining is whether the board complied with the notice provisions of section 5453.701. Section 5453.701(a) requires that notice of any changes are to be mailed to property owners within five days of the date that the change in any assessment was made and shall state that any person aggrieved by such change may appeal to the board for relief by filing with the board, within 40 days of the date of such notice, a statement, in writing, of such intention to appeal. Under section 5453.701(a.l) the notice provisions of section 5453.701(a) apply when the board makes additions and revisions to the assessment roll. Here, the plaintiff received notice of the status change on November 24, 1987. It is not clear from the notice when the status change was made and no evidence was produced at the hearing to show when the change was made. Thus, we cannot determine whether the notice was mailed within five days of the change as required by section 5453.701(a). As applied to taxpayer appeals, the notice provisions of section 5453.701(a) are mandatory. ASR Realty Corp. v. Revenue Appeals Board of Northampton County, 90 Pa. Commw. 122, 494 A.2d 497 (1985). If the notice provisions, as to taxpayers, are mandatory, it must follow that they are likewise mandatory as to the board. We would note that this position is supported by the fact that taxpayers, who are usually faced with these provisions only once, are strictly bound by them, whereas the board deals with these provisions on a daily basis. Having concluded that the notice provisions are mandatory as to the board, it was incumbent upon the board, to support its position, to show that it had complied with those provisions, and that its notice of change in status was mailed within five days of the date that the change was made. However, the board did not establish this fact either through testimony developed at the hearing held on this matter, or through the introduction of the notice which was mailed to the city. Therefore, since the mandatory notice provisions of section 5453.701(a) were not complied with by the board, the change in status was void, ab initio. Thus, there being a fatal defect in the status change process, jurisdiction has vested in this court, and the plaintiff’s petition must be granted. Should the board desire to attack the tax exempt status of the plaintiff, it may certainly do so, provided it follows the required procedure. Wherefore, we will enter the following ORDER And now, October 14, 1992, the plaintiff’s petition to remove property from tax claim sale is hereby ordered granted. It is further ordered that the subject premises be removed from the tax assessment rolls of Fayette County.

LALLY-GREEN, J. ¶ 1 Appellant, K.W.F., Inc. and William D. Morgan, Esq. appeals an order of the Court of Common Pleas of Lackawanna County granting Appellee’s Petition for Supplementary Relief in Aid of Execution and directing that all shares of K.W.F., Inc. stock be delivered to Appellee. We affirm. ¶ 2 The trial court stated the factual and procedural history as follows: In February of 2000, the Court reviewed this sixteen year old case to determine whether we should strike the hen, garnishment, and lis pendens filed by Plaintiff Moses Taylor Hospital. The petition to strike had been filed by garnishee K.W.F., Inc. a party which did not dispute that the Hospital is owed the amount of $217,312.00 for medical services provided to Kenneth V. White, who is now deceased. In attempting to satisfy the debt, the Hospital entered a default judgment, and filed a garnishment and attachment on certain property of K.W.F. The garnishee, K.W.F., denies responsibility for Mr. White’s debt and, for procedural and factual reasons, sought to have stricken the lis pendens, hen, and garnishment. We denied that request, and excerpts for our decision so doing are set forth below. On August 26, 1999, KWF presented a Petition to Strike Lis Pendens, Lein [sic] and Garnishment before the Court. The Petition seeks to strike the indexing as lis pendens and any hen or garnishment in this matter on the grounds that KWF never entered into an agreement with the Hospital to assume liability for the medical services provided to Kenneth V. White. The Petition also asserts that the garnishment against KWF should be stricken because said garnishee was never served as a party defendant or garnishee in the original complaint. Additionally, the Petition asserts that an individual named William D. Morgan, and not Kenneth V. White or Karen White, was the only shareholder of KWF stock. Therefore, the Petitioner asserts, the garnishment against KWF is not effective because of Karen White is not an authorized agent of KWF to accept service on behalf of the corporation. The record, however, shows a much more noticeable connection between Karen White and KWF, a relationship which, according to the Hospital, shows that KWF is actually a corporation whose existence is for the benefit of Karen White and Kenneth V. White, deceased.... At present, Defendant Morgan refuses to turn over the corporate stock, and the Hospital asks for supplemental relief, with the ultimate goal of having the substantial bill stemming from Kenneth White’s illness paid in part or full. Moses Taylor Hospital call [sic] the Court’s attention to these facts: The underlying judgment of the Hospital is valid. The property at issue, which is the corporate stock, of K.W.F. Inc., is property in which the debtor has an interest. Defendant Morgan has possession of the corporate shares of K.W.F., Inc. In reliance on Pa.R.C.P. 3118(a)(5), the Hospital requires supplementary relief in aid of execution on [sic] order to enable Lackawanna County Sheriffs Office to seize the corporate stock pursuant to a writ of execution. Corporate shares of stock constitute property subject to seizure. Gulf Mtg. and Realty Investments v. Alten, 282 Pa.Super. 230, 422 A.2d 1090 (1980). Trial Court Opinion, 2/9/01, at 1-4 (footnote omitted). ¶ 3 Appellant raises seven issues on appeal: 1) Whether the seizure of the stock fails to preserve the status quo? 2) Whether the court below may decide title to the stock pursuant to Rule 3118? 3) Whether the stock, always owned by another, is property in which the estate or widow have an interest, that is property of the estate or widow? 4) Whether the corporation or the sole stockholder is liable for the medical services debts of the estate or widow? 5) Whether there [sic] any basis to seize the stock if the corporation or the sole stockholder is not hable for the medical services debts of the estate or widow? 6) Whether inchoate or other interests, if any, provided in the Trust between the corporation, the sole stockholder, the widow and the deceased been fully heard and decided in the court below? 7) Whether the estate or widow have an inchoate or other interest in the stock of the corporation to warrant seizure of the stock? Appellant’s Brief at 5. ¶ 4 Preliminarily, we observe that the Pennsylvania Rules of Appellate Procedure set forth the rules applicable to the content of an appellate brief. Pa. R.A.P. 2119 provides in pertinent part: (a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a). Issues are waived when they are not addressed in conformance with the rules. Korn v. Epstein and DeSimone Reporting Group, 727 A.2d 1130, 1135 (Pa.Super.1999). When an appellant attempts to incorporate by reference issués addressed elsewhere and fails to argue them in his brief, the issues are waived. Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100, 109 n. 8 (1999) (citing In re Petition to Reapportion School Director Regions, 688 A.2d 1275, 1281 n. 14 (Pa.Cmwlth.1997)). See also, Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237, 241 (1996) where we stated: The Rules of Appellate procedure do not authorize the adoption by reference, of arguments introduced on prior appeal. Attempts to employ such unorthodox practices result in waiver of the claims thereby identified. See Smothers v. Smothers, 448 Pa.Super. 162, 670 A.2d 1159 (1996) (briefs which inadequately explain the claims at issue foreclose meaningful appellate review and may justify quashal); Commonwealth v. Rodgers, 413 Pa.Super. 498, 520, 605 A.2d 1228, 1239 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (1992) (“an appellate brief is simply not an appropriate vehicle for the incorporation by reference of matter appearing in previously filed legal documents”). 676 A.2d at 241. ¶ 5 Our review of the record reflects that Appellant presents no argument in support of the issues raised on appeal. The argument section of Appellant’s brief provides in full: The KWF argument set forth in KWF’s Reply Memorandum of 26 October 2000, and the citations and other authority set forth therein, are fully incorporated herein. (Reply Memo, 27 Oct 2000, 1-10; R. 215a-224a). For the reasons set forth therein, Judge Walsh’s order of 9 February 2001, must be reversed and remanded. The issues regarding the inchoate lien, if any, must also be remanded. KWF’s other Briefs on striking lis pendens, lien and garnishment, and the citations and other authority set forth therein, are also fully incorporated herein. (Memo of Law, 18 Oct 1999, 1-4; R. 61a-64a. Reply Memo, 9 Nov 1999, 1-5; R. 161a-165a). In addition, KWF’s Brief of Appellant filed in the Superior Court in the Pileggi matter, Docket # 03162PHL96, is also fully incorporated herein. (Brief of Appellant, 18 Nov 1996; R. 225a-271a). Appellant’s Brief at 9. Appellant incorporates by reference a memoranda of law and a reply memoranda of law found in the record of the case. Also, Appellant incorporates by reference a brief in a 1996 Superior Court case. Such adoption by reference results in an inadequate explanation of the issues and forecloses any meaningful appellate review. We are constrained to conclude that such incorporation by reference constitutes waiver of Appellant’s issues on appeal. Madison Construction Company; Hrinkevich. ¶ 6 Order affirmed. . Even if Appellant’s issues were not waived, we would conclude that the trial court’s determinations on the issues presented to it are supported by the record and involve no error of law or abuse of discretion. Thus, we would affirm on the basis of the Trial Court Opinion of the highly regarded Senior Judge Walsh dated February 9, 2001.

OPINION BY Senior Judge DOYLE. Dolores Romine petitions for review of an order of the Workers’ Compensation Appeal Board (Board), which reversed and remanded the case to a Workers’ Compensation Judge (WCJ). The order of the WCJ had denied a review petition filed by the employer, CNF, Inc./The Potato Sack (CNF). Unfortunately, we find that we must quash Romine’s appeal to this Court because the Board’s order is interlocutory and, as such, is unappealable. The relevant facts of this case are as follows: Romine sustained a wrist injury-on December 22,1995, while working as an employee of CNF, and she filed a claim petition with the Bureau of Workers’ Compensation (Bureau) on January 23, 1996. By order circulated February 25, 1998, a WCJ found that Romine sustained a work-related ligament tear of the left wrist and awarded benefits at the rate of $195.89 per week. CNF appealed the WCJ’s decision and the Board affirmed. CNF filed a motion for rehearing with the Board, which was denied on December 30, 1999. Earlier, on December 9, 1997, Romine had filed a complaint in the Court of Common Pleas of Allegheny County against RPS, Inc. (RPS) for the recovery of personal injury damages resulting from her wrist injury on December 22, 1995, because an employee of RPS had moved the boxes that fell on Romine’s left wrist. The complaint alleged that the employee of RPS was responsible for her injuries. CNF’s workers’ compensation insurance carrier, Legion Insurance Company (Legion), and its counsel were notified of a pretrial conference, which was to take place on October 14,1999, before the Common Pleas Court, in light of Legion’s $60,000 subrogation lien for workers’ compensation benefits paid to Romine. Despite receiving notice of the pretrial conference, Legion declined to attend. At the pretrial conference, the trial judge issued an order scheduling a second pretrial conference to take place on October 27, 1999, to determine the application of Legion’s subrogation hen to the proceeds of any settlement between Romine and RPS. Prior to the second pretrial conference, Romine agreed with RPS to settle the portion of Romine’s claim that was not subject to Legion’s hen. On October 20, 1999, Romine filed and served on Legion a Motion for Approval of Settlement and to Substitute a Party, seeking to substitute Legion as the plaintiff, pursuant to Pennsylvania Rule of Civil Procedure No. 2004, and to have the settlement with RPS approved. The motion indicated that the parties would settle Romine’s claim for $80,000 contingent upon receiving that amount free and clear of Legion’s hen. Despite receiving proper notice of the October 27, 1999, pretrial conference, Legion again failed to appear. On that date, the Common Pleas Court issued the following order: AND NOW, this 27th day of October, 1999 it is hereby ORDERED, ADJUDGED and DECREED that Legion Insurance Company is substituted as plaintiff and that gross settlement in the amount of $80,000.00 represents payment of all claims other than those to which Legion Insurance is subrogated and that plaintiff, Dolores Romine, may retain it free and clear of ... [Legion’s] subrogation lien; further, as a sanction for failing to appear for this court appearance today, and after notice, Legion Insurance is precluded from recovery against defendant and/or Dolores Romine. (Certified Record, C.R., Romine’s Exhibit 17 at “J”). On November 3, 1999, Romine signed a Full and Final General Release with RPS, and RPS paid Romine $80,000 in return. The release states that it “does not extinguish any right which Dolores Romine’s employer, The Potato Sack Restaurant, CNF, Incorporated, or its workers’ compensation carrier may have to pursue its claim for subrogation against RPS.... ” (C.R., Romine’s Exhibit 17 at “L”). Pursuant to correspondence between RPS and Legion, RPS and Legion agreed to settle Legion’s subrogation lien for $36,689.78, an amount that was 60 percent of Legion’s lien, contingent upon Romine’s agreement not to seek attorney’s fees from Legion. Legion also filed a Motion to Vacate the Common Pleas Court’s October 14, 1999 and October 27, 1999 orders. By memorandum order, dated November 8, 1999, the Common Pleas Court denied Legion’s motion to vacate the earlier orders, stating that Legion had already availed itself of the benefits of the October 27, 1999, order by settling with RPS and by having Romine’s counsel waive attorney’s fees. Legion appealed to the Superior Court. In a decision without a published opinion dated February 20, 2001, the Superior Court affirmed the order of the Court of Common Pleas; the Superior Court later denied reargument on May 3, 2001. Legion filed a petition for allowance of appeal with the Supreme Court. In a per curiam decision at Romine v. RPS, Inc., 567 Pa. 512, 788 A.2d 370 (2002), the Supreme Court on January 31, 2002, not only granted Legion’s appeal petition but reversed the Superior Court’s decision and remanded the case for reconsideration in light of its decision in Thompson v. Workers’ Compensation Appeal Board (USF & G Co.), 566 Pa. 420, 781 A.2d 1146 (2001) (Thompson II), filed on October 17, 2001. In the meantime, while Legion pursued its appeal before the Superior Court, it also filed a petition for review with the Bureau of Workers’ Compensation on November 16, 1999, alleging that, pursuant to the third-party settlement, Legion received a payment towards its subrogation lien on the medical and indemnity payments that it had made, but that the issue of future credit of workers’ compensation benefits had not been resolved. As such, it requested that the Bureau review the third-party settlement for the purpose of calculating Legion’s entitlement to subrogation funds in the future. A WCJ denied the review petition by order dated April 25, 2000, determining that, pursuant to Thompson v. Workers’ Compensation Ap peal Board (USF & G Co.), 730 A.2d 536 (Pa.Cmwlth.1999) (Thompson I) (later vacated and remanded by Thompson II), the Common Pleas Court had the authority to settle all matters before it, including the issue of whether or not a workers’ compensation insurance carrier may effectively waive its subrogation claim against a third party tortfeasor. Legion appealed to the Board and, on March 13, 2001, the Board ultimately issued an order reversing the decision of the WCJ and remanding the case. The Board determined that, although the Court of Common Pleas had the authority to approve a settlement entered into by the parties to the third-party action, it did not have the authority to determine Legion’s rights pursuant to the Act and, consequently, it lacked jurisdiction to eliminate or modify Legion’s subro-gation rights. It is from the Board’s decision that Romine brings the instant appeal. On appeal to this Court, Romine raises several issues. First, she argues that, by filing its petition for review with the Bureau, Legion sought to collaterally attack the determination of the Common Pleas Court that it had the authority to deny Legion the ability to enforce its subrogation hen by issuing a sanction to Legion for failing to appear at a hearing. Accordingly, Romine asserts that Legion’s review petition is barred by the doctrine of res judicata. Second, she argues that the Court of Common Pleas had the authority to issue a sanction to impair Legion’s lien and that Legion’s right to subrogation is not absolute under these circumstances. Third, Romine argues that the Court of Common Pleas had the authority to settle her claim. Finally, Romine argues that recovery for pain and suffering is not subject to a workers’ compensation carrier’s subrogation lien in a personal injury action and that a contrary holding would render the Act unconstitutional. Before reaching these issues, however, we must first decide whether the Board’s March 13, 2001, remand order is appealable. Under Section 763(a) of the Judicial Code, 42 Pa.C.S. § 763(a), this Court’s appellate jurisdiction over decisions by Commonwealth agencies is limited to final orders. Pennsylvania Rule of Appellate Procedure 341(b), which defines a final order, provides as follows: Definition of Final Order. A final order is any order that: (1) disposes of all claims and of all parties; or (2) any order that is expressly defined as a final order by statute; or (3) any order entered as a final order pursuant to subdivision (c) of this rule [permitting entry of a final order as to less than all of the claims or parties upon the express determination by a court or governmental unit that an immediate appeal would facilitate resolution of the entire case]. Pa. R.A.P. 341(b). Here, Romine’s case has not yet been resolved within the workers’ compensation system. The order of the Board reversed the WCJ’s decision and remanded the case to the WCJ; accordingly, the order of the Board did not dispose of all of the claims. Moreover, the order of the Board is not expressly defined as final by statute. As such, the Board’s order is interlocutory and is not final within the meaning of Pa. R.A.P. 341. We have held that a remand order of the Board is interlocutory and unappealable as a matter of right. Murhon v. Workmen’s Compensation Appeal Board, 51 Pa.Cmwlth. 214, 414 A.2d 161 (1980). In FMC Corp. v. Workmen’s Compensation Appeal Board (Wadatz), 116 Pa.Cmwlth. 527, 542 A.2d 616 (1988), we reasserted and reaffirmed our decision in Murhon. Our reasoning in FMC Corp. guides the decision before us today: Our reasoning in Murhon remains viable now. Appellate courts ought not to be called upon to decide a case until every issue involved has been finally resolved in the proceedings before the trial court or administrative agency. Only then will our decision put to rest the opposing claims of the litigants. By holding fast to the Murhon rule, we remove all doubt for trial courts, administrative agencies and counsel for litigants as to our position with respect to the appealability of interlocutory orders. At the same time, we would be in complete compliance with Pa.R.A.P. 702(a) which authorizes appellate review of “final orders[.]” 542 A.2d at 617. See LeDonne v. Workmen’s Compensation Appeal Board (Graciano Corp.), 686 A.2d 891 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 548 Pa. 689, 694 A.2d 624 (1997); Berks County Intermediate Unit v. Workmen’s Compensation Appeal Board (Rucker), 158 Pa.Cmwlth.305, 631 A.2d 801 (1993), petition for allowance of appeal denied, 537 Pa. 614, 641 A.2d 313 (1994). Accordingly, since the order before us is interlocutory, not appealable as of right, and Romine did not ask this Court for permission to file an interlocutory appeal, we must quash Romine’s petition for review. ORDER NOW, this 23rd day of May, 2002, the petition for review filed by Dolores Romine in the above-captioned matter is hereby QUASHED. . Section 319 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671, provides as follows: "[w]here the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party to the extent of the compensation payable under this article by the employer. ...” . Pa. R.C.P. No.2004 of the Pennsylvania Rules of Civil Procedure provides the following: Transfer of Interest in Pending Action— If a plaintiff has commenced an action in his or her own name and thereafter transfers the interest therein, in whole or in part, the action may continue in the name of the original plaintiff, or upon petition of the original plaintiff or of the transferee or of any other party in interest in the action, the court may direct the transferee to be substituted as plaintiff or joined with the original plaintiff. . Although it disapproved of ad hoc equitable exceptions to the statutory right of subrogation, the Supreme Court in Thompson II, while recognizing that subrogation may not be appropriate where there is a showing of deliberate, bad faith conduct on the part of the employer, determined that, since there was no showing that the employer in that case acted in bad faith, the employer's right to subrogation was absolute. The Supreme Court also remanded that case to this Court to address the issue of whether the third-party settlement in that case, designating that the settlement funds be paid as compensation for pain and suffering and loss of consortium rather than for medical bills and/or lost wages, improperly defeated the employer’s subrogation interest. Pursuant to the Supreme Court's decision in Thompson II, this Court heard oral argument on remand on May 7, 2002. . Again, the Board issued its decision on March 13, 2001, prior to the Supreme Court's decision in Thompson II, which was filed on October 17, 2001. . The issues set forth by Romine in her brief and in her argument before this Court on October 11, 2001, were raised prior to the Supreme Court’s decision in Romine dated January 31, 2002. .After the parties filed briefs with this Court, and prior to oral argument, we issued an Order filed on August 7, 2001, indicating that the parties should be prepared to argue the issue of the appealability and finality of the Board’s order of March 13, 2001. Despite this order, the parties failed to address this issue at the time of oral argument on October 11, 2001. .We note, however, that, pursuant to Pa. R.A.P. 311(f), an interlocutory appeal of a remand order from an administrative agency may be taken as a matter of right where the appeal is taken from "an order of a ... government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion.” Pa. R.A.P. 311(f)(1). Nevertheless, this rule does not apply here, because an employer's right to subrogation is a question of law based upon findings of fact, Helms Express v. Workmen’s Compensation Appeal Board (Lemonds), 106 Pa.Cmwlth.287, 525 A.2d 1269 (1987), and, as such, a decision on the merits in this matter would require the exercise of the WCJ’s administrative discretion. See P.R. Hoffman Materials v. Workmen’s Compensation Appeal Board (Zeigler), 694 A.2d 358 (Pa.Cmwlth.1997). Nor has it been established that this matter fits within the other exception found in Pa. R.A.P. 311(f), where a matter is remanded to "an administrative agency or hearing officer that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.” Pa. R.A.P. 311(f)(2). It is possible that the issues currently raised by Romine could again be raised to this Court during any appeal process that might follow the WCJ's decision on remand. . See Section 702(b) of the Judicial Code, 42 Pa.C.S. § 702(b), and Pa. R.A.P. 1311 (allowing an interlocutory appeal by permission if certain requirements are met). . Although we are constrained to quash Ro-mine’s appeal, we agree with the Board’s reasoning, which is in line with our Supreme Court’s holding in Thompson II. In a well written opinion, Commissioner Harold V. Fergus, Jr., explained the Board’s reversal of the WCJ's denial of Legion’s subrogation right. The Board stated as follows: [T]he issue before us is not an attempt by a WCJ or this Board to reexamine a third party settlements [sic] for purposes of determining the employer’s subrogation interest. Instead, the issue is whether the Court of Common Pleas has jurisdiction to determine that a Defendant Carrier has no sub-rogation right to a settlement or that it waived said right by its mere mistake of forgetting to attend a settlement conference of which its counsel had been previously notified. We agree with Defendant’s contentions that the WCJ erred as a matter of law in finding that [the trial judge] had jurisdiction to deny it rights it had under the Act as to the subrogation at issue. Section 319 of the Act provides that where an injury is caused in whole or in part by a third party, "the employer shall be subro-gated to the right of the employe, his personal representative, his sate [sic] or his dependents against such third party.” Clearly [the trial judge], while he may have had authority to approve a settlement entered into by all the parties to the third party action other than [Legion], did not have the authority to determine whether [Legion] had or did not have certain rights under the Act. The Act clearly sets forth a procedure for the adjudication of claims under the Act that does not involve any jurisdiction of any Court of Common Pleas. Instead, claims are to be adjudicated by an administrative law judge and any appeals from decisions of such judges are to he made to this Board. Under the Act, appeals of this Board’s Decision may only first be brought before the Commonwealth Court. As such, the Court of Common Pleas has no jurisdiction to adjudicate matters under the Act, including the issues of the application of any subrogation liens. While the WCJ may not have authority to examine allocations of third-party settlements, at least as to a wife's consortium claim, likewise a Court of Common Pleas has no jurisdiction to determine whether [an insurer] has any subrogation interest arising under the Act. A WCJ is vested with the authority to determine questions of sub-rogation, the Court of Common Pleas is not. (Board Op., March 13, 2001, at 5-6). The Board also confirmed that the employer's right of subrogation is absolute, pursuant to Section 319 of the Act. In this regard, the Board held the following: Our Supreme Court has stated that an employer’s right of subrogation under Section 319 is absolute. [Winfree] v. Philadelphia Electric Co., [520 Pa. 392, 554 A.2d 485 (1989)]. Section 319 is clearly a legislated right that falls outside a mere equitable remedy. The case before us does not deal with the issue of spoliation, where equitable principles may overrule a legislated right, but whether the Court of Common Pleas has authority, contrary to the express delegation of jurisdiction by our Legislature to the WCJ, to eliminate an employer’s right of subrogation to force a settlement on all the parties, including the carrier. We find that [the trial judge] clearly did not have any jurisdiction under the Act to eliminate or modify certain rights [Legion] may have had under the Act as to the subrogation issue. While the Court may determine the exact nature of the claims that are involved in a third-party settlement, and by such determination effectively preclude any subrogation lien by determining that such payments do not involve claims that normally arise under the Act, the Court may not directly determine, without the consent of the parties, that an employer or its carrier does not have any subrogation lien that arise [sic] under the Act. Such a determination is the sole jurisdiction of the WCJ under the Act. (Board Op., March 13, 2001, at 7) (emphasis added).

SCHILLER, Judge. Appellant appeals from the order of the Court of Common Pleas of Westmoreland County denying his post-sentence motions regarding his conviction on August 18, 1995, of one count each of rape, indecent assault, simple assault, and unlawful restraint. Ap pellant was sentenced to 4-8 years on the rape count, and 6-12 months (concurrent) on the simple assault and unlawful restraint counts. We affirm. FACTS: The appellant was convicted of a rape that occurred on May 4, 1993, at approximately 11:00 P.M. on a poorly lit roadway near the city of Jeannette. The assailant covered the eyes of the victim during the attack, then smoked a cigarette before departing. Seminal fluid from the victim and a “Bel-Aire” cigarette butt were recovered from the scene. On September 25, 1993, Trooper Kenneth Karas of the Pennsylvania State Police visited appellant’s home to discuss this assault. The appellant admitted that he smoked “Bel-Aire” cigarettes, and provided a saliva sample for the officer. This saliva sample was then tested by the Pennsylvania State Police laboratory, and indicated that the appellant had type A blood. The cigarette butt had previously been tested and was found to have come from someone with type A blood. Based on this information, on October 15, 1993, Trooper Karas secured a search warrant to obtain samples of appellant’s blood, head hairs, chest hairs and pubic hairs. DNA tests were then performed by the Pennsylvania State Police laboratory on the blood sample taken from the appellant and the semen sample obtained from the victim, and these were found to match. Appellant was arrested on February 15, 1994. Prior to trial, the court held a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to determine the admissibility of statistical evidence derived from DNA tests performed on the blood sample taken from the appellant and the semen sample obtained from the victim. The court heard the testimony of several expert witnesses and concluded that the two primary statistical methods, the product rule and the ceiling principle, met the test of general acceptance in the scientific community and were admissible. The DNA evidence introduced at trial showed that the samples taken from the victim and from the appellant matched. Depending on which statistical method was used, the chances of another genetic match were either 1 in 2,220; 1 in 30 million, or 1 in 10 billion. The jury found the appellant guilty on all counts. Sentence was imposed on September 28,1995. Appellant filed a post-sentence motion on October 10, 1995, which was denied on February 8, 1996. This appeal followed. DISCUSSION: Appellant raises six issues on appeal: (1) whether the taking of the appellant’s saliva by Trooper Karas was an unconstitutional search under the United States and Pennsylvania Constitutions; (2) whether the trial court erred in refusing to strike three prospective jurors for cause; (3) whether the Commonwealth was required to have its DNA experts prepare written summary reports for use by appellant; (4) whether the trial court erred in admitting the DNA statistical evidence of the Commonwealth; (5) whether the trial court erred in refusing to admit a report compiled by appellant’s expert; and (6) whether the appellant’s right to a fair trial was prejudiced by the trial judge’s remark regarding the qualifications of appellant’s expert. Appellant’s first argument is that the trial court erred in denying his motion to suppress the saliva evidence introduced at trial. Appellant contends that this evidence was obtained via a search that violated his rights under the United States Constitution and the Pennsylvania Constitution. When reviewing a ruling of the trial court regarding a motion to suppress evidence, “an appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom.” Commonwealth v. Gommer, 445 Pa.Super. 571, 573, 665 A.2d 1269, 1270 (1995), alloc. denied, 1996 Pa. Lexis 1484 (July 22, 1996) (citation omitted). If the evidence supports the suppression court’s findings, “we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.” Commonwealth v. Gommer, supra, at 573, 665 A.2d at 1270 (citation omitted). See also Commonwealth v. Miller, 541 Pa. 531, 555, 664 A.2d 1310, 1322 (1995), cert. denied, — U.S. -, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996). When a defendant files a motion to suppress, the burden is on the Commonwealth to prove, by a preponderance of the evidence, that the challenged evidence is admissible. Pa.R.Crim.P. 323; Commonwealth v. Benton, 440 Pa.Super. 441, 444, 655 A.2d 1030, 1032 (1995), citing Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992). However, on appeal from a decision denying suppression, our scope of review is limited and we must consider only the Commonwealth’s evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Epoca, 447 Pa.Super. 183, 185, 668 A.2d 578, 579 (1995), alloc. denied, 544 Pa. 623, 675 A.2d 1243 (1996). In addressing appellant’s argument, the threshold question is whether the taking by the police officer of saliva from appellant constituted a “search,” thereby triggering the constitutional protections of the Fourth Amendment and Article 1, § 8. A search “is an examination of a man’s house, buildings or of his person, with a view to the discovery of contraband or some evidence of guilt to be used by the prosecution for a criminal action.” Commonwealth v. Anderson, 208 Pa.Super. 323, 326-27, 222 A.2d 495, 498 (1966) (citation omitted). Not all searches raise constitutional concerns; it is only “when the government intrudes on an area where a person has a ‘constitutionally protected reasonable expectation of privacy”’ that an issue is raised under the Fourth Amendment and Article 1, § 8. Commonwealth v. Robbins, 436 Pa.Super. 177, 184, 647 A.2d 555, 558 (1994), quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The United States Supreme Court has set forth a two part test to determine if a search occurred: (1) whether a person exhibited an actual expectation of privacy; and (2) whether such an expectation was one that society is prepared to recognize as reasonable. Katz v. United States, supra. Whether the taking of saliva constitutes a search appears to be a question of first impression in Pennsylvania. Previously, the taking of blood, breath, and urine samples have been held to constitute searches under both the United States Constitution and the Pennsylvania Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966) (blood); Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616-17, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989) (breath and urine); Com., Dept. of Transp. v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987) (blood, breath and urine). The foundation of these decisions was a recognition of the purpose of the constitutional protections, i.e., “to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber, supra, at 767, 86 S.Ct. at 1833-34. We believe that a person has an expectation of privacy that includes the taking of his saliva, as he does with his blood, breath, and urine. As one court remarked, “[s]uch a scenario, wherein a citizen is directed to submit to an intrusion into his body, is properly viewed as implicating his dignitary interests.” United States v. Nicolosi 885 F.Supp. 50, 55 (E.D.N.Y.1995). Therefore, we hold that the taking of saliva from an individual by a police officer constitutes a search under the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution. Next we must determine whether the saliva sample was taken pursuant to the requirements of the United States and Pennsylvania Constitutions. According to the Supreme Court, “a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause.” Commonwealth v. Kohl, 532 Pa. 152, 166, 615 A.2d 308, 315 (1992). However, a warrant is not required if the person voluntarily consents to the search. Schneckloth v. Bustamante, 412 U.S. 218, 242-43, 93 S.Ct. 2041, 2055-56, 36 L.Ed.2d 854 (1973); Commonwealth v. Latshaw, 481 Pa. 298, 303, 392 A.2d 1301, 1304 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979). In order for the consent to be valid, it must be “unequivocal, specific, and voluntary.” Commonwealth v. Gibson, 536 Pa. 123, 132, 638 A.2d 203, 207 (1994). The burden is upon the Commonwealth to prove by clear and convincing evidence that a valid consent was given by appellant. Commonwealth v. Pichel 229 Pa.Super. 103, 106, 323 A.2d 113, 114 (1974). See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Appellant contends that the consent given to the officer for the saliva sample was obtained by coercion. For consent to be valid, it must be given free from coercion, duress or deception. See e.g. Commonwealth v. Burgos, 223 Pa.Super. 325, 329, 299 A.2d 34, 37 (1972); Commonwealth v. Slaton, 530 Pa. 207, 215, 608 A.2d 5, 9 (1992); Commonwealth v. Gibson, supra, at 132, 638 A.2d at 207. The question of whether consent was voluntarily given is one circumstances. Commonwealth v. Washington, 438 Pa.Super. 131, 137-38, 651 A.2d 1127, 1130 (1994), alloc. denied, 541 Pa. 638, 663 A.2d 690 (1995) (citations omitted). This Court has held that the following factors should be considered in determining whether consent was voluntarily given: “the setting in which the consent was obtained; what was said and done by the parties present; [and] the age, intelligence, and educational background of the person consenting.” Commonwealth v. Burgos, supra, at 330, 299 A.2d at 37. The facts surrounding the taking of the saliva sample in this case are as follows: On Saturday September 25,1993, Trooper Karas of the Pennsylvania State Police visited appellant at his home at approximately 7:00 P.M. The officer, who was not in uniform, identified himself as a police officer and asked to speak to the appellant. He told appellant that he was investigating a sexual assault and that the appellant was a suspect, but that the appellant did not have to speak to him. Appellant agreed to speak to the officer and invited him into his home. The two sat at appellant’s dining room table dur ing the course of their meeting. During their conversation, the officer asked if the appellant had tank tops and shorts. Appellant answered yes, and the officer asked appellant if he could see them. Appellant then went into his bedroom and retrieved those items. The officer did not follow him but remained seated at the table during the time he was in appellant’s apartment. The officer asked appellant if he would provide blood and hair samples, which appellant refused. The officer then asked appellant if he would provide a saliva sample. Appellant agreed, and expectorated into a piece of paper. It was from the testing of this saliva sample that the police were able to link appellant to the sexual assault for which he was eventually convicted, and were able to secure a search warrant to take blood and hair samples from the appellant. Appellant contends that the officer told him he would be arrested if he did not cooperate with the officer. As a result, appellant testified that he felt scared and threatened by the officer, and cooperated out of fear of being arrested. The officer denied ever making such statements, and testified that he did tell appellant that appellant could terminate the meeting at any time. The officer also testified that he asked appellant to give a voluntary saliva sample, and informed appellant that he did not have to do so. On this evidence the suppression court found that the appellant was not coerced by the officer into providing the saliva sample. Given our limited scope of review, we have no basis upon which to upset this determination. See Commonwealth v. Epoca, supra. We have held that “it is the sole province of the suppression court to weigh the credibility of the witnesses.” Commonwealth v. Benton, supra, at 445, 655 A2d at 1032. In addition, the suppression court judge “is entitled to believe all, part or none of the evidence presented.” Id. Deference should be given to the decision of the suppression court since “that court had a firsthand opportunity to observe the appearance and demeanor of the witnesses, and therefore, to evaluate the credibility of the witnesses.” Commonwealth v. Graves, supra, at 189, 456 A.2d at 564. Moreover, on this record we agree with the suppression court’s conclusion. First, we note that appellant was not under arrest or taken into police custody at the time he gave the consent: he had the right to ask the officer to leave, or to cease questioning at any time. See generally Commonwealth v. Burgos, supra, at 330, 299 A2d at 37. Second, appellant was aware of why the officer was there and was informed by the officer that he was investigating a crime where appellant was a suspect. Finally, appellant’s claim that he felt coerced into giving a saliva sample is contrary to his actions immediately prior to his expectoration, when he declined to give a blood or hair sample. Therefore, the court acted properly in denying appellant’s motion to suppress the saliva sample. The next allegation of error is that the trial court improperly denied challenges for cause for three jurors during the voir dire process. Appellant argues that his counsel was forced to use three of his seven peremptory challenges on prospective jurors who should have been excused for cause, and as a result he exhausted his peremptory challenges before the jury was seated. When a criminal defendant is forced to use a peremptory challenge to excuse a juror who should have been excused for cause, and as a result exhausts his peremptory challenges before the jury is seated, a new trial will be granted. Commonwealth v. Impellizzeri, 448 Pa.Super. 296, 305, 661 A.2d 422, 426-27 (1995). The standards for dismissing a juror for cause are well settled: A challenge of a prospective juror should be sustained in two types of situations. One is where the juror indicates by his answers that he will not be an impartial juror. Another is when the juror has such a close relationship, familial, financial or situational, with the parties, counsel, victims or witnesses that the court will presume a likelihood of prejudice, irrespective of the answers given on void dire. Commonwealth v. Perry, 441 Pa.Super. 409, 412, 657 A.2d 989, 990 (1995). The three jurors at issue in this case have been designated by their voir dire numbers, i.e. Juror No. 25, Juror No. 34, and Juror No. 48. Each was challenged for cause but the basis of each challenge was different. Juror No. 25 was an engineer whose job involved analyzing data. He testified on direct that he would be inclined to accept DNA data as valid unless shown a reason to question it. The trial judge asked, “Would you be able and capable of questioning anything that was testified to in this ease if you were given a basis upon which to question it?” The juror answered “Yes.” The trial judge then pressed further: ‘You would put yourself in a position of questioning and holding whoever made a statement to the ultimate proof, wouldn’t you?” The juror again answered ‘Yes.” N.T. August 11, 1995, 160. Nonetheless, defense counsel moved to strike this juror, prompting the trial court to remark: “That will be denied because I can’t think of somebody that would make a better juror for this kind of case then a guy who does this on a daily basis. Tim [appellant’s counsel], I think, frankly, he’s the kind of guy you want.” Appellant’s counsel replied “Might be,” to which the trial court responded: “From the point of view of your expert that you are intending on bringing in here, he’s the kind of guy that’s going to listen to it intelligently and understand what’s being said and weigh both sides.” Appellant’s counsel agreed, saying, “That’s why I said I didn’t know what to do with him. I’m just protecting the record.” N.T., August 11, 1995,155-62. Juror No. 34 testified that he had read several articles regarding this crime and others like it. He admitted that from his reading of the newspapers, he had developed a bias that the person arrested for this crime, the defendant, might have been involved in the crime. The trial court then asked: “[W]hat was reported in the papers consisted of accusations and what is in the criminal information consists of accusations and as I instructed you previously, the presumption of innocence applies in this ease as it does in all eases. Would you be able to accept that concept, the presumption of innocence, and require the Commonwealth to prove this ease beyond a reasonable doubt before you would find Mr. Blasioli guilty of the offenses in this regard?” Juror No. 34 answered ‘Yes, I would.” Appellant’s counsel then asked the juror if he would do everything he could to set aside his feelings about this case, and the juror answered, “I would try to do my best to do so and I would promise Your Honor that I would make every effort to do just that. Now, obviously, I can’t absolutely say at this point that I would be successful. I’m not sure that I can say that, but I would try.” The court then asked the juror: “Let me ask you this [Juror No. 34], would you do everything that you were capable of doing to meet your oath as a juror.” Juror No. 34 responded “Absolutely.” When the defense moved to strike for cause, the trial court responded “I think he had indicated what’s necessary on the record here and that is he would do everything he is capable of doing of meeting his oath and I think that’s what we require of jurors. We don’t require perfection of jurors. Okay. So I’m going to deny the challenge for cause.” N.T., August 11, 1995, 176-82. Juror No. 48 testified that the prosecutor’s wife was her family doctor and that she worked at the same hospital as the prosecutor’s wife. Although she had seen the prosecutor on a few occasions in social settings at the hospital, such as fundraisers, they had not interacted. The court asked: “[D]o you promise that you will do your best to set aside that relationship and not let it affect the verdict in this case?” Juror No. 48 responded “Yes. I am a very honest person and would do my best.” When appellant’s counsel moved to strike Juror No. 48, the trial court responded, “First of all, based upon the responses of the juror and based upon my consideration of her testimony, I am convinced that she will be an impartial juror, that she will be objective and that she will not allow the fact that Mr. Fox’s [the prosecutor’s] wife is her family physician to intrude upon her responsibilities as a juror. I think she understands the distinction that has to be made and will make that distinction. So, the challenge for cause will be denied.” N.T., August 11,1995, 78-86. The burden of proving that a prospective juror should be excused for cause “is on the challenger who must demonstrate that [the prospective juror] possesses a fixed, unalterable opinion that would prevent him or her from rendering a verdict based solely on the evidence and the law.” Commonwealth v. Smith, supra, at 36, 540 A.2d at 256, citing Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In reviewing a trial court’s action regarding jury selection, great deference is afforded to the trial judge, who “is in the best position to assess the credibility of the jurors and their ability to be impartial.” Commonwealth v. Impellizzeri, supra, at 306, 661 A.2d at 427. His determination is based on the juror’s answers and demeanor, and will not be reversed absent a “palpable abuse of discretion.” Commonwealth v. Marshall, 534 Pa. 488, 497, 633 A.2d 1100, 1104 (1993). See also Commonwealth v. Perry, supra, at 412, 657 A.2d at 990. The mere fact that jurors may show some indicia of pretrial prejudice is not enough to require that they be stricken from the jury. “We do not expect jurors to be free from all prejudices ... rather, the law requires them to be able to put aside their prejudices and determine guilt or innocence on the facts presented.” Commonwealth v. Smith, 518 Pa. 15, 36, 540 A.2d 246, 256 (1988). In this case, none of the three jurors showed a “fixed, unalterable opinion.” Juror No. 25 stated he would question any evidence if given a reason to do so. Juror No. 34 stated that he would try to the best of his ability to be objective and not let what he read about the case in the newspapers affect his judgment. Juror No. 48 stated she would set aside her relationship with the prosecutor’s wife and not let it affect her decision, and her patient-physician relationship with the wife of the prosecutor did not rise to the level where the trial court could have presumed the likelihood of prejudice. Appellant’s next issue is whether his rights to a fair trial and effective assistance of counsel were violated by the trial court’s denial of his request to have the Commonwealth produce written summaries of its experts’ proposed testimony. During the discovery phase, the appellant requested all documents relating to the Commonwealth’s experts. The appellant does not allege that the Commonwealth failed to produce these documents; instead, he argues that the Commonwealth should have been required to produce summary reports explaining the experts’ findings. We find no support in the Pennsylvania Constitution, the Rules of Criminal Procedure or Pennsylvania case law for such a requirement. In criminal matters, the applicable discovery rule is contained in the Pennsylvania Rules of Criminal Procedure, which provides that the Commonwealth shall disclose to the defendant’s attorney results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth. Pa.R.Crim.P. 805(B)(1)(e). Rule 305 requires disclosure of only those reports within the possession or control of the Commonwealth. Commonwealth v. McElroy, 445 Pa.Super. 336, 347, 665 A.2d 813, 818 (1995), alloc. denied, 544 Pa. 610, 674 A.2d 1073 (1996). However, the rule is inapplicable here, as the reports in question never existed, and hence could not have been within the possession or control of the Commonwealth. Moreover, in Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987), alloc. denied, 517 Pa. 598, 535 A.2d 1057 (1987), a case involving a DUI conviction, this Court held that the prosecution was not required to have its expert prepare a written report relating to his interpretation of the defendant’s blood alcohol tests. Though there are significant differences between tests for blood alcohol and tests for DNA, neither the Constitution nor Rule 305 requires that the Commonwealth have its experts create written reports to summarize their testimony for the benefit of the defendant. Appellant next argues that the trial court erred in finding that the Commonwealth’s DNA statistical evidence was derived from methods which were generally accepted within the scientific community. The standard employed in Pennsylvania to determine whether new types of scientific evidence may be admitted comes from the test first laid down in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923): Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. Frye was adopted as the standard in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977), and is the standard we use today. Our analysis of the use of DNA evidence, and the methods that produce it, must begin with the Supreme Court’s decision in Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994). Crews held that DNA testing has gained general acceptance in the scientific community. Id. at 519-20, 640 A.2d at 400-01. What Crews left unanswered was whether statistical methodology using DNA test results have general acceptance and hence would be admissible under Frye. According to the Supreme Court: Statistical analysis of DNA evidence remains a major objective of forensic scientists. It may be that the standards for statistical analysis are now sufficiently accepted among experts to satisfy the Frye test, and some courts have so held. E.g., United States v. Jakobetz, 747 F.Supp. 250 (D.Vt.1990); Perry v. State, 586 So.2d 236 (Ala.Ct.Crim.App.1990); Andrews v. State, 533 So.2d 841 (Fla.Dist.CtApp.1988); State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (1989); Glover v. State, 787 S.W.2d 544 (Tex.App.1990); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990); State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989); Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); State v. Pennell, 584 A.2d 513 (Del.Super.Ct.1989). We hold merely that the record compiled in this case does not include evidence sufficient to satisfy Frye, though an exhaustive Frye hearing might reach a different result. Id. at 522, 640 A.2d at 402 n. 4. In this case, unlike in Crews, there was a significant amount of testimony regarding the methods of computing DNA statistical evidence. The trial court conducted a hearing at which the Commonwealth presented three experts on DNA testing and the appellant produced one expert. The trial court then determined that two statistical methods (known as the “product rule” and the “ceiling principle”) met the Frye test of general acceptance, and allowed testimony regarding the results derived from these methods. Appellant is now challenging the admissibility of evidence derived from the “product rule” method. At this point it is necessary to provide some background into DNA testing and the use of statistical evidence. The Court in Crews explained the purpose of DNA testing in criminal cases: The relevance of the DNA analysis, in criminal law generally, and in the context of this case, is to establish the identity of the source of a DNA sample discovered at a crime scene. If the DNA sample from the crime scene matches the DNA sample of the accused, it is at least evidence that the DNA discovered at the crime scene is that of the accused. If the DNA sample matches the DNA of the accused and no one else, then it, of course, conclusively establishes that the accused is the source of the DNA found at the scene of the crime. This distinction is expressed in terms of a statistical probability of the match occurring randomly in the population. A DNA expert might testify that a given DNA match will occur only once in a population of 10,000,000. Obviously, such a probability makes it highly likely that the DNA samples came from the same source. If the DNA expert’s testimony, however, is that a given match might occur coincidentally once in every one hundred samples, then it is far weaker in establishing the sources of the DNA samples as being one and the same individual. Thus, in terms of the inferential conclusion to be drawn from DNA evidence in a criminal trial — the accused as source of the DNA sample found at the crime scene— DNA analysis generally can provide only statistical probability; e.g., there is one chance in four hundred or one chance in four million that the DNA sample came from someone else. Conversely, a DNA mismatch constitutes conclusive and certain scientific proof that the DNA samples come from different sources. For proving identity, however, as opposed to disproving identity, DNA can never provide absolute, conclusive proof, even though extremely low probabilities of a coincidental match provide a basis for very strong inferences of identity. Commonwealth v. Crews, supra, at 520-21, 640 A.2d at 401. Human genetic information is encoded in deoxyribonucleic acid (DNA) and is contained in the 23 pairs of chromosomes found in all body cells that contain nuclei. The DNA molecule is shaped like a double helix and is comprised of 3 billion base pairs composed of four different chemicals (known as nucleotides): adenine (A), cytosine (C), thymine (T), and guanine (G). It is the particular combination of these nucleotides that determine an individual’s genetic code. A strand of DNA contains an estimated 50,000 to 100,-000 genes, and an individual genetic characteristic may be made up of tens of thousands of nucleotides. A gene is found at a specific site (known as locus) on a specific chromosome. For example, a gene for hair color is found at the same site on the same chromosome in every individual. For each genetic characteristic, there may be two or more variations or forms of the controlling gene, known as alleles. Each parent contributes one copy of each gene, so every individual has two copies or alleles of each gene. As 99% of DNA molecules are the same for all humans, DNA profiling focuses on those areas of the DNA molecule where there is significant differentiation in the length of the base pairings, and there are approximately three million differences in the DNA between two randomly selected individuals. These areas of variation are called “polymorphisms,” and the basic core sequence is called a Variable Number Tandem Repeat (VNTR). What is examined in DNA analysis is the length of the total DNA fragment, determined by the total number of base pairs of nucleotides, which is directly related to the number of times the particular DNA core sequence is repeated. A DNA sample must first be “prepared” prior to it being analyzed. The process used by the Pennsylvania State Police and generally used across the country to prepare a DNA sample for analysis is called the restriction fragment length polymorphism analysis (RFLP). According to one court, the steps taken in this analysis are: First, a whole DNA strand is cut into smaller pieces using restriction enzymes, which are essentially chemical “scissors” designed to cut the DNA chain wherever a particular sequence of nucleotides is found. The result is a mass of DNA fragments of various size. The second step is to separate these fragments according to their size. This is accomplished by passing a current through a gel medium containing the DNA. The fragments are negatively charged, so they will migrate toward a positive electrode. Their progress towards the electrodes will vary depending on their size, and the fragments will spread out across the gel. Using a process known as Southern Blotting, these fragments are transferred from the gel to paper and washed with a radioactive material that attaches itself to the DNA fragments. When the paper is placed against a sheet of film, the radioactive material exposes areas of the film, producing a discernible patterns of dark bands. This “picture” is known as an autoradiograph. Each band on the autoradiograph represents a fragment of DNA. Finally, these banding patterns can be used for identification by comparing the banding pattern in the suspect’s DNA with the pattern derived from the DNA extracted from crime scene evidence. Armstead v. State, 342 Md. 38, 673 A.2d 221, 228 (1996). See also United States v. Jakobetz, 747 F.Supp. 250 (D.Vt.1990), aff'd, 955 F.2d 786 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992). After the autoradiograph is created, a visual comparison is made between the sample taken and known samples. If there is no visible match on the autoradiograph, the suspect is eliminated as a contributor of further compared with the samples in the Pennsylvania database to see if particular genetic alleles match. The Pennsylvania lab focuses on six different areas on chromosomes to determine matches. A mechanical measurement is then taken at each locus to determine if the DNA sample from the suspect and the sample from the victim fall within a specified length, defined by the Pennsylvania lab as plus or minus 2.5% of the sample length. If both DNA samples fall within that length, they are considered a match. Once a match is found for all six loci, statistical analysis is then used to determine the likelihood that someone other than the suspect would possess DNA that would match the DNA found in the sample taken from the crime scene. There are two main statistical methods used to determine the probability of a genetic match. The first is the “product rule,” which was admitted in this case and is the subject of appellant’s challenge. This is the most straightforward method of computation. The separate estimated probabilities of the occurrence of each allele is calculated and then multiplied together. In essence, the product rule means that the probability of three events occurring together is equal to the probability that the first event will occur multiplied by the probability that the third event will occur. As an example, if three alleles are examined, and the first has a probability of 5%, the second of 10% and the third of 20%, the product rule would show that the chances that another individual would share this profile is 1 in 1,000 (1/20 * 1/10 * 1/5). The validity of the product rule depends on whether the alleles are statistically independent. If the three alleles in the example given above are dependant or linked, then the mathematical probability of 1 in 1,000 would be inaccurate, as there would be a significant probability that an individual who has one allele would have two or more of the alleles. For example, suppose that the three alleles described above relate to whether an individual has blond hair, blue eyes, and fair skin. If the probability of having all three traits is interrelated, so that a person who has blue eyes is more likely to be blond, then the genetic characteristics are interrelated. In such a case, the likelihood of a match would be more probable than 1 in 1,000. One factor that influences the possibility of interrelated genes is whether the database population intermarry or “mate” at random. If one subsection of the population tends to mate within that same subsection, then the likelihood that genetic characteristics are interrelated increases. Such selective mating causes population substructures, and it is unknown to what, if any, extent they exist. The product rule relies on an assumption that population groups mate randomly across different racial groups, i.e. that no population substructures exist. In an attempt to avoid the potential problem of population substructures, the Pennsylvania database, as do most databases, categorizes DNA samples according to three racial groups: Caucasian, African-American, and Hispanic. The PA database has approximately 1140 samples: 500 Caucasians, 330 African Americans and 310 Hispanics. This database was compiled largely from the three major metropolitan areas of the Commonwealth, and no samples were derived from Westmoreland County. The Pennsylvania State Police laboratory also tries to avoid the substructure problem by using a process known as “fixed binning” to categorize the alleles contained in its databases. The alleles in the databases are sorted into groups or “bins,” whereby each bin represents an observed range of allele lengths (one bin may contain samples where the measurement size is between 640 and 740 base pairs, then another bin would contain samples measuring between 740 and 840 base pairs, and so on). By counting how frequently alleles in the population sample fall within a specific bin, the likelihood that a match will be coincidental can be calculated. For example, in a database of 300 individuals, if thirty of these individuals fit into a particular bin for a particular allele, that bin is said to have a 10% occurrence within the population. This method is also used by the FBI and other laboratories. As one court noted, the fixed bin process results in a more conservative probability for two reasons: First, if a given bin contains fewer than five individuals, that bin is “collapsed” into an adjoining bin. As a result, the percentage of the population with an allele within this predetermined bin will be higher than it would be otherwise, and the ultimate statistical probability calculation will be more conservative. Second, if a suspect’s allele length for a particular probe falls in between two bins, it will be assigned to the bin with the greater frequency figure, ostensibly generating a conservative statistical probability. This conservatism is said to make up for any inaccuracies due to the presence of population substructures. State v. Streich, 658 A.2d 38,45 (Vt.1995). The second statistical methodology used is known as the “ceiling principle,” and was recommended in 1992 by the National Research Council [NRC], a subdivision of the National Academy of Sciences. Unlike the product rule, this method assumes that population substructures exist. In using the ceiling principle, the 95 percent upper confidence limit for the estimated allele frequencies is first computed for each of the existing population groups: i.e., for the three racial groups in the Pennsylvania database. Then, the largest of these estimates, or 10 percent, whichever is greater, is used to compute the joint probability of a coincidental match on the DNA profile of the crime sample. The resulting probabilities are then multiplied as in the product rule computations. The upper confidence limit in the ceiling principle is intended to account for population substructures by erring in a conservative direction During the Frye hearing in this case, the Commonwealth introduced the testimony of Christine Tomsey, the director of the DNA laboratories for the Pennsylvania State Police. She testified that the DNA evidence obtained from the appellant matched the DNA evidence obtained from the victim. She also testified that in doing the statistical analysis, the Pennsylvania laboratory used the product rule with the fixed bin process, which she stated was commonly used in this country. N.T., August 14, 1995, 19. Subsequently, at trial, she testified that the chances of finding another genetic match using the product rule were one in ten billion, N.T., August 16,1995, 448, and the probability under the 1995, 455. Also during the Frye hearing, the Commonwealth introduced the testimony of Dr. Robert Farrell, professor of human genetics at the University of Pittsburgh, and Dr. Bernard Devlin, professor of statistics at Came-gie-Mellon University. Both testified that the product rule method was generally accepted in the scientific community, and Dr. Farrell felt that the lab’s estimates in this case were in general conservative due to the fixed bin process they used. The appellant introduced the testimony of Dr. Lawrence Mueller, a professor of Ecology and Evolutionary Biology at the University of California at Irvine. He testified that there was a significant problem with the product rule because it assumes that the populations have been randomly mating for some time, which according to him is a dubious assumption that can skew the results dramatically. Nor could it be double-checked, as the probabilities produced by the product rule far exceed the number of people in a given database. N.T., August 14, 1995, 118-19. Dr. Mueller argued that the product rule was not generally accepted in the scientific community. N.T., August 14,1995,131-82. He testified that he used an analysis known as the “counting method,” and determined that the chances of another match were 1 in 2,220. N.T., August 14, 1995, 135. At the conclusion of the Frye hearing, the trial court found that both the product rule and the ceiling principle were generally accepted in the scientific community, and allowed evidence regarding both methods. N.T., August 15, 1995, 206-08. At trial, the jury heard statistical evidence that the chances of a match to someone other than the appellant were one in ten billion [using the product rule], one in thirty million [using the ceiling principle], and 1 in 2,220 [using the counting method]. Over the past six years, a major debate has been raging in the scientific community as to which statistical method to employ in the courtroom: the product rule or the ceiling principle. As seen, in 1992 the NRC recommended the use of the ceiling principle. However, since that time, it has been argued that the ceiling principle is too conservative by underestimating the frequency of a DNA profile, and that the problem of population substructures has been overstated and does not result in significant variations of allele frequencies across population subgroups. In fact, the NRC reexamined this issue earlier this year at the request of the FBI and concluded: The abundance of data in different ethnic groups within the major races and the genetically and statistically sound methods recommended in this report imply that both the ceiling principle and the interim ceiling principle are unnecessary. The Evaluation of Forensic DNA Evidence, at 5-35 (National Research Council 1996), quoted in State v. Morel, 676 A.2d 1347, 1353 (R.I.1996). Given this state of mind in the scientific community and the evidence produced at the Frye hearing, we do not think that the trial court erred in admitting the statistical evidence based on the product rule that the chances of another match were 1 in 10 billion. This comports with the acceptance of the product rule in many jurisdictions. United States v. Jakobetz, 955 F.2d 786 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); United States v. Davis, 40 F.3d 1069 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1806, 131 L.Ed.2d 732 (1995); United States v. Coronado-Cervantes, 912 F.Supp. 497 (D.N.M.1996); People v. Smith, 46 Cal.App.4th 1412, 49 Cal.Rptr.2d 608, review granted, 52 Cal.Rptr.2d 464, 914 P.2d 1239 (1996); Lindsey v. People, 892 P.2d 281 (Colo.1995); People v. Miller, 173 Ill.2d 167, 219 Ill.Dec. 43, 670 N.E.2d 721 (August 2, 1996); Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996); People v. Chandler, 211 Mich.App. 604, 536 N.W.2d 799 (1995); State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995); State v. Anderson, 118 N.M. 284, 881 P.2d 29 (1994); State v. Futrell, 112 N.C.App. 651, 436 S.E.2d 884 (1993); Taylor v. State, 889 P.2d 319 (Okla.Crim.App.1995); State v. Morel, 676 A.2d 1347 (R.I.1996); State v. Dinkins, 462 S.E.2d 59 (S.C.1995); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); State v. Copeland, 130 Wash.2d 244, 922 P.2d 1304 (1996). Appellant has not challenged the trial court’s decision admitting evidence of the ceiling principle statistics, and therefore our focus on this appeal is not on that particular method. However, we note that it was within the discretion of the trial court to admit both types of evidence, and allow the jury to hear the different probabilities and weigh the credibility of those numbers. Therefore, the trial court did not err in finding that the product rule was generally accepted in the scientific community, and this decision is not precluded by the Supreme Court’s decision in Commonwealth v. Crews, supra. Appellant’s next issue is that the trial court erred in refusing to admit at trial a report prepared by defense’s expert, Dr. Lawrence Mueller. The report in question was prepared by Dr. Mueller and demonstrated the results of his application of the NRC recommendations regarding the counting method and the ceiling principle. Dr. Mueller’s testimony at trial came in via a videotape made during the Frye hearing. During the Frye hearing, the report at issue was admitted by the trial court without objection by the Commonwealth. However, after the videotape testimony of Dr. Mueller was shown at trial, the Commonwealth objected to the report’s admission, arguing that an improper foundation was given. The trial court agreed, and ruled that the report was inadmissible. Evidentiary rulings “are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion.” Commonwealth v. Cohen, 529 Pa. 552, 563, 605 A.2d 1212, 1218 (1992). In addition, the admissibility of expert testimony is also within the sound discretion of the trial court. Commonwealth v. Petrovich, 538 Pa. 369, 372, 648 A.2d 771, 772 (1994). Appellant contends that any objection to this report was waived by the Commonwealth failing to object during the Frye hearing. However, this argument fails for two reasons. First, while it is true that the Commonwealth did not object to the introduction of the report during the Frye hearing, appellant’s counsel did not indicate at the time of the offer that this report was also to be offered for admission at trial. Second, it is the responsibility of the trial court to rule on the admissibility of evidence. These rulings occur at the time the evidence is being offered. The fact that the record was admitted for the limited purposes of the Frye hearing (i.e. to show that the Commonwealth’s product rule evidence was not generally accepted) has no bearing on the report’s admissibility for the trial, when clearly its purposes are not so limited. The trial court sustained the objection on the basis that Dr. Mueller did not testify to all of the facts and conclusions contained in the report. It is well established that an expert witness may not state a conclusion which is based on evidence not found in the record. Commonwealth v. Rounds, 518 Pa. 204, 209, 542 A.2d 997, 999 (1988). The purpose of this requirement is to enable the factfinder to “determine whether to accept or reject the opinion testimony, based upon, inter alia, whether it believes the facts upon which the opinion is based.” Commonwealth v. Brown, 408 Pa.Super. 246, 251-52, 596 A.2d 840, 842-43 (1991), alloc. denied, 532 Pa. 660, 616 A.2d 982 (1992). The Supreme Court noted: At the heart of any analysis [by the jury] is the veracity of the facts upon which the conclusion is based. Without the facts, a jury cannot make any determination as to validity of the expert’s opinion. To hold otherwise would result in a total and complete usurpation of the jury’s function in our system of justice. Commonwealth v. Rounds, supra, at 209, 542 A.2d at 999. The report consisted of the conclusions of Dr. Mueller regarding his DNA analysis. The trial court found that there was no testimony regarding how Dr. Mueller obtained these numbers from his DNA tests. As a result, the admission of the report would place Dr. Mueller’s conclusions before the jury without the jury also having before it the facts on which Dr. Mueller based these conclusions. In addition, the trial court thought that admission of the report would be “confusing and indecipherable to the jury.” Slip opinion, supra, at 12. It is well established that only expert testimony which assists the jury is admissible, Commonwealth v. Terry, 513 Pa. 381, 399, 521 A.2d 398, 407 (1987), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987), and the trial court has broad discretion in making this determination. Sprague v. Walter, 441 Pa.Super. 1, 39, 656 A.2d 890, 909 (1995), alloc. denied, 543 Pa. 695, 670 A.2d 142 (1996). Therefore, it was not an abuse of discretion by the trial court in refusing to admit Dr. Mueller’s report. Appellant’s final allegation of error is that he was denied the right to a fair trial due to an allegedly prejudicial remark by the trial judge. During the Frye hearing, after an examination of the qualifications of appellant’s expert witness, Dr. Lawrence Mueller, appellant moved to have Dr. Mueller qualified as an expert to testify about DNA statistical analysis. The trial court responded “Well, I’m going to permit him to testify, but just barely, so proceed.” N.T. April 14, 1995, 114-15. This remark was supposed to have been edited out before the videotape of Dr. Mueller’s testimony at the Frye hearing was played before the jury at trial, but due to an error by the video technician it was not, and so was heard by the jury. Prior to the playing of the videotape, the judge told the jury that Dr. Mueller was qualified as an expert, and that the jury could consider his opinions as well as his facts. Then, in giving his closing instructions to the jury, the judge instructed the jury to disregard his remark: This is a cautionary instruction. At the time that Dr. Lawrence Mueller was being qualified as an expert witness, I made what might be characterized as a gratuitous comment. I qualified Dr. Mueller as an expert, and then I spoke the word barely. Please disregard my statement. Dr. Mueller, along with Ms. Arrotti, Ms. Tomsey, Dr. Farrell, has been qualified to testify as an expert, and you should consider his testimony in that regard. N.T. April 18,1995, 828. A trial judge should act with absolute impartiality. Commonwealth v. Webster, 517 Pa. 578, 583, 539 A.2d 804, 806 (1988). However: Every unwise or irrelevant remark made in the course of a trial by a judge, does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Webster, supra, at 583, 539 A.2d at 806-07, quoting Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). The comment by the judge, though improper, did not rise to the level of depriving the appellant a fair trial in this case. The remark concerned the qualifications of Dr. Mueller as they related to his expert testimony, and did not impinge on the witness’ credibility. See Commonwealth v. Leonhard, 336 Pa.Super. 90. 95, 485 A.2d 444, 446 (1984). Finally, we note that the trial judge did give a cautionary instruction to the jury to disregard that remark. As the judge made it clear to the jury that the remark was not binding on the jury, and that they were to consider the testimony of Dr. Mueller as they would the testimony of the Commonwealth’s experts, any harm to the defense was cured. Commonwealth v. Jones, 539 Pa. 222, 233, 651 A.2d 1101, 1107 (1994), cert. denied, - U.S. -, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995). As a result, the trial judge’s remark did not deny defendant a fair trial. CONCLUSION: We conclude that (1) the taking of the appellant’s saliva was a search, but was a permissible one as the appellant voluntarily consented to provide the sample; (2) the trial court did not err in refusing to strike three prospective jurors for cause; (3) the Commonwealth was not required to have its DNA experts prepare written summary reports for use by appellant; (4) DNA statistical evidence derived from the product rule was properly admitted as the trial court could find that it is generally accepted in the scientific community; (5) the trial court properly excluded a report by appellant’s expert because the report contained material not testified to by the expert and hence contained opinions based on facts not on the record; and (6) the trial judge’s remark regarding the qualifications of appellant’s expert did not prejudice the appellant so as to deny him a fair trial. Consequently, the order of the Court of Common Pleas of Westmoreland County is affirmed. HUDOCK, J., concurs in the result. . 18 Pa.C.S. § 3121. . 18 Pa.C.S. § 3126. . 18 Pa.C.S. § 2701. . 18 Pa.C.S. § 2902. . The indecent assault conviction merged with the rape conviction. . The appellant's expert also testified about a third method, known as the counting rule. . The Fourth Amendment to the U.S. Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shaE issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. U.S. Const, amend. IV. . Article 1, § 8 of the Pennsylvania Constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Pa. Const. Art. 1, § 8. . But see Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990), where the Supreme Court upheld a search warrant issued for the blood, hair and saliva of the defendant. The Comí: held that the warrant was not overly broad and was justified by probable cause. See also Commonwealth v. Graves, 310 Pa.Super. 184, 456 A.2d 561 (1983) which upheld the taking of defendant’s hair and saliva samples despite the illegality of the arrest. It may have been assumed in these cases that the taking of saliva constituted a search. . We join the following courts outside of Pennsylvania in so holding. See United States v. Nicolosi, 885 F.Supp. 50 (E.D.N.Y.1995); Henry v. Ryan, 775 F.Supp. 247 (N.D.Ill.1991); State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986); State v. Reeves, 234 Kan. 250, 671 P.2d 553 (1983). But see State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1987) (taking of saliva is unintrusive and therefore not a search). . The officer testified that he was armed but at no time did he mention this to appellant nor show his firearm. There is also no evidence that appellant knew the officer was armed during their meeting. . Appellant testified that the meeting lasted two hours; the officer testified that it lasted fifty minutes. . As a result, this case can be distinguished from Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994), where the Supreme Court ruled that the consent to search was not voluntarily given when the police did not announce the reason for their appearance at the defendant's apartment. .As the search for the saliva sample satisfied the constitutional standards of the Fourth Amendment and Article I, § 8, we need not address appellant’s "fruit of the poisonous tree” argument concerning evidence later obtained by a search warrant that relied primarily on the results of the tests done on the saliva sample. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980). . This relationship is significantly different than the one in Commonwealth v. Perry, 441 Pa.Super. 409, 657 A.2d 989 (1995), where this Court held that the trial court should have excused a potential juror for cause when that juror testified that he was best friends with the arresting police officer and that he had no doubts regarding the officer's veracity. These facts created a likelihood of prejudice that could not be ignored despite the juror’s testimony that he could be impartial and assess the officer’s credibility on the same basis as the credibility of the other witnesses. . As the appellant stated "These DNA prosecutions should mandate that the defendant be provided with expert reports compiled by proposed Commonwealth experts even if this requires the actual preparation of a report for trial." Brief for Appellant at 35. . According to the Supreme Court, the purpose of Rule 305 is to avoid "trial by ambush” by allowing the parties to be prepared for trial. Commonwealth v. Shelton, 536 Pa. 559, 564-65, 640 A.2d 892, 895 (1994). We fail to see how appellant could have been ambushed by the Commonwealth when it failed to produce reports that never existed. . As appellant argues, "The providing of expert reports is especially critical in a DNA prosecution where complex scientific evidence is utilized by the Commonwealth in a case of this nature where the victim cannot I.D. the defendant as her perpetrator.” Brief for Appellant at 35. . In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that the Frye test was no longer the standard to be used in federal courts. The Court held that Frye was superseded by the Federal Rules of Evidence. Under the rule of Daubert, scientific evidence is admissible if it relates to "scientific knowledge,” i.e. the evidence must have a reliable foundation in science, and is relevant. Thus, the "general acceptance” standard of Frye is no longer the threshold required in federal cases. As the Pennsylvania Supreme Court noted in Commonwealth v. Crews, 536 Pa. 508, 518, 640 A.2d 395, 400 n.2 (1994), Daubert was an interpretation of the Federal Rules of Evidence and does not control determinations of Pennsylvania law. The Supreme Court stated, “[w]hether or not the rationale of Daubert will supersede or modify the Frye test in Pennsylvania is left to another day.” Id. The parties in this case do not argue that Daubert controls this case, and the trial court applied Frye in making its determination. We have found no case that has accepted the Daubert rule over the Frye rule. See McKenzie v. Westinghouse Elec. Corp., Pa.Cmwlth., 674 A.2d 1167, 1170 n. 4 (1996). Accordingly, we will continue to adhere to the Frye test. We do note, however, that if the Daubert standard controlled this case, we agree with the trial court that there would be little doubt that the DNA statistical evidence in this case would be admissible. N.T., August 15, 1995, 208. This evidence is derived from the use of scientific methods, and is clearly relevant and would assist the trier of fact in determining a fact in issue. .In addition to DNA, Pennsylvania courts have applied the Frye test of general acceptance to other types of scientific evidence. See e.g. Commonwealth v. Khamphouseane, 434 Pa.Super. 93, 642 A.2d 490, alloc. denied, 538 Pa. 666, 649 A.2d 669 (1994) (human leukocyte antigen blood tests); Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993) (blood electrophoresis tests); Commonwealth v. McCauley, 403 Pa.Super. 262, 588 A.2d 941 (1991), alloc. denied, 529 Pa. 656, 604 A.2d 248 (1992) (microscopic hair comparisons). . There was no evidence in Crews regarding any possible statistical probabilities. . The information about DNA and the statistical methods is derived from several sources, including the trial record and the following cases: Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996); State v. Morel, 676 A.2d 1347 (R.I.1996); State v. Streich, 658 A.2d 38 (Vt.1995). . Identical twins have exactly the same DNA. . Those areas are Chromosome 1, D1S7; Chromosome 2, D2S44; Chromosome 4, D4S139; Chromosome 5, D5S110; Chromosome 10, D10S28; and Chromosome 17, D17S29. The number after the "S" designates a particular area on that chromosome. N.T., August 14, 1995, 37-38. . According to Crews, "the scientific processes carried out in a laboratory to compare DNA samples are now routine and fully accepted in the scientific community.” Commonwealth v. Crews, supra, at 520, 640 A.2d at 400 — 01. See also Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228, alloc. denied, 532 Pa. 655, 615 A.2d 1311 (1992). .Though appellant does not specifically challenge the composition of the state police’s database, a database with an insufficient number of samples would certainly present difficulties in analysis. However, Dr. Robert Farrell, professor of human genetics at the University of Pittsburgh, examined the database employed by the state police laboratory and concluded that the Pennsylvania database is sufficiently large to give reasonable estimates of the occurrence of alleles in the population of Western Pennsylvania. N.T., August 14, 1995, 80. He detected no glaring differences between the Pennsylvania database and those used by several other states and the FBI. For example, the FBI has used samples from 225 FBI agents for its Caucasian database. United States v. Jakobetz, 955 F.2d 786 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); United States v. Bonds, 12 F.3d 540 (6th Cir.1993). It appears as though courts require a database of approximately 200-250 samples per racial group. See People v. Shi Fu Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920 (County Ct. 1989) (200 samples); Andrews v. State, 533 So.2d 841 (Fla.Dist.Ct.App.1988) (200-250 samples); State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994) (300 samples). There is no problem of an insufficient database here where the the Pennsylvania database has over 300 samples for each racial group. . Christine Tomsey, the director of the DNA laboratories for the Pennsylvania State Police, testified that the only way the fixed bin process used by the Pennsylvania laboratory differs from the way it is used by the FBI is that the laboratory uses its own database and not that of the FBI. N.T., August 14, 1995, 19. . In the context of a criminal investigation, the results derived under the “ceiling principle” would be considered more favorable to the defendant. See e.g. State v. Morel, 676 A.2d 1347, 1353 (R.I.1996). .Ms. Tomsey also testified that the Pennsylvania State Police lab had an error rate of zero: no errors had ever been detected. N.T., August 16, 1995, 410. This evidence was necessary in order for the jury to have an accurate representation of the true probabilities. Proper handling of the sample, in conformity with established procedures, is essential before the DNA evidence can be considered reliable. . For example, see Eric S. Lander & Bruce Budowle, DNA Fingerprinting Dispute Laid to Rest, 371 Nature 735 (Oct. 27, 1994). . We note several decisions that have allowed statistical evidence of similarly small probabilities. See e.g. Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990) (1:134 million); Andrews v. State, 533 So.2d 841 (Fla.Dist.Ct.App.1988) (1:800 million); State v. Dinkins, 462 S.E.2d 59 (S.C.1995) (1:2.9 billion); People v. Shi Fu Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920 (County Ct.1989) (1:20 billion); Trimboli v. State, 826 S.W.2d 953 (Tex.Crim.App.1992) (1:54 billion); Martinez v. State, 549 So.2d 694 (Fla.Dist.Ct.App.1989) (1:234 billion). . We recognize that several of these decisions allowing use of the product rule were decided under the less demanding relevance standard of Daubert and not the generally accepted standard of Frye. In addition, there are jurisdictions that have rejected the use of the product rule. See e.g. State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, - U.S. -, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); State v. Pennell, 584 A.2d 513 (Del.Super.Ct.1989); United States v. Porter, 618 A.2d 629 (D.C.App.1992); Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994); State v. Vandebogart, 139 N.H. 145, 652 A.2d 671 (1994); State v. Streich, 658 A.2d 38 (Vt.1995). . This was approved by the courts in Armstead v. State, 342 Md. 38, 673 A.2d 221, 243 (1996), and People v. Soto, 48 Cal.App.4th 924, 35 Cal. Rptr.2d 846, 858-59 (1994), as modified, 48 Cal. App.4th 924, 35 Cal.Rptr.2d 846 (1994), review granted, 39 Cal.Rptr.2d 406, 890 P.2d 1115 (Cal.1995). . Appellant’s counsel only said "I would offer Defense Exhibit G in into evidence at this time." The trial court then asked if there was any objection, and when the Commonwealth’s attorney answered no, the court admitted the document. N.T. August 14, 1995, 135. . Appellant's reliance on School Dist. of Philadelphia v. Friedman, 96 Pa.Cmwlth. 267, 276, 507 A.2d 882 (1986) is misplaced. In that case, there was an objection at trial to the videotaped deposition of a witness that was played before the jury. The objection was based on the lack of a proper foundation for the testimony to be considered expert testimony. The court ruled that the objection was untimely, and needed to have been made at the time of the deposition. Id., at 276, 507 A.2d at 886 n. 1. However, in this case, the objection goes to the admissibility of the report, which, unlike the qualifications of the expert in Friedman, could only be made at the trial and not at the Frye hearing. .In its post-trial opinion, the trial court explained: this Court sustained the Commonwealth’s objection to the admission of Dr. Mueller's report on the basis that Mueller failed to testify to all of the facts and conclusions contained in the report, and that the admission thereof would be confusing and indecipherable to the jury. Because the juiy did not have the benefit of expert testimony to explain the technical references and scientific data in the report, it would have been inappropriate for them to have the unintelligible report to consider. Accordingly, the expert report was properly excluded from evidence as unreliable hearsay evidence. Slip Opinion, Commonwealth of Pennsylvania v. Donald J. Blasioli, Court of Common Pleas of Westmoreland County, No 638 C 1994 at 12. . As a result, this case is different than Commonwealth v. Webster, 517 Pa. 578, 539 A.2d 804 (1988), where the Supreme Court held that the trial judge’s remark that there were other witnesses more qualified to testify about the defendant’s sanity than defendant’s expert deprived the defendant of a new trial.

ORDER PER CURIAM. AND NOW, this 19th day of June, 2002, the Order of the Commonwealth Court, dated October 23, 2001, is AFFIRMED.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT CASTILLE, Justice. Following a jury trial in the Allegheny County Court of Common Pleas, appellant was convicted of driving under the influence of alcohol. The trial court rejected appellant’s post-trial motions and sentenced appellant to a term of ninety days imprisonment and one year probation. The Superior Court affirmed the trial court’s judgment of sentence and this appeal followed. The relevant facts are that at approximately 1:00 p.m. on May 20, 1993, appellant’s girlfriend, Brenda Patton, drove appellant to a local fast food restaurant parking lot where appellant had arranged to meet friends who were planning to go horseback riding at appellant’s mother’s stables. Patton testified that she drove the vehicle because appellant had consumed a significant amount of alcohol between 10:00 a.m. and noon, and Patton believed that appellant was too intoxicated to drive. While waiting for appellant’s friends to arrive, appellant and Patton engaged in an argument and Patton left the vehicle to return to her place of employment, leaving appellant in the passenger seat of the truck, which was parked in the lot with the engine running. Approximately one hour later, a restaurant employee noticed the truck in the parking lot with its engine running and with appellant now in the driver’s seat and asleep at the wheel of the vehicle. According to the trial court opinion, there was a dispute as to whether the truck was in the same place where Patton had earlier parked it. The employee shut off the engine and called the police. Appellant failed several field sobriety tests administered by the police upon their arrival and he further refused to submit to a blood alcohol test. Appellant was then charged with driving under the influence, which provides, “a person shall not drive, operate or be in actual physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which renders him incapable of safe driving.” 75 Pa.C.S. § 3731(a)(1). The only issue raised on appeal is whether the trial court improperly instructed the jury on the definition of “in actual physical control” under the statute. A trial court has broad discretion in phrasing a jury charge to reflect the law, and reversible error only exists where the trial court has abused its discretion or given an inaccurate statement of the law. Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990). With respect to what constitutes “actual physical control” in this Commonwealth, the courts have held that whether a person is in actual physical control of a motor vehicle is determined based on the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police on the scene. Commonwealth v. Byers, 437 Pa.Super. 502, 506, 650 A.2d 468, 469 (1994). See also, Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d 1158 (1995) (actual physical control found where defendant’s car was on berm of the road fifty yards west of the store where he had purchased beer, the engine was running, the high beams were on and the car was protruding into traffic lanes); Commonwealth v. Trial, 438 Pa.Super. 209, 652 A.2d 338 (1994) (actual physical control found where defendant’s car was diagonally across a roadway, defendant was in the car with his seatbelt on, the parking lights were on and the keys were in the ignition in the “on” position, although the engine was not running); Commonwealth v. Wilson, 442 Pa.Super. 521, 660 A.2d 105 (1995) (actual physical control found where defendant’s car was down an embankment by the roadside, no keys were found, but the hood of the car was still warm on a winter night); Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922, alloc. denied, 528 Pa. 642, 600 A.2d 194 (1991) (actual physical control found where defendant was asleep in the ear in the middle of the road with the engine off); Commonwealth v. Bobotas, 403 Pa.Super. 136, 588 A.2d 518 (1991) (actual physical control found where defendant was parked in an alley on his way home with his engine running); Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987) (actual physical control found where defendant was sleeping in his car on the side of the road with the engine and headlights on); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974) (actual physical control found where defendant was asleep behind the wheel of a car parked along the side of the highway, protruding into a traffic lane with the engine and headlights on); Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v. Farner, 90 Pa. Commw. 201, 494 A.2d 513 (1985) (actual physical control found where defendant was behind the wheel in a traffic lane with the motor running and the brake lights activated); cf. Commonwealth v. Price, 416 Pa.Super. 23, 27, 610 A.2d 488, 490 (1992) (no actual physical control established where the defendant was sitting behind the wheel of a parked car; the engine was not running and the defendant had the keys in his hands). The trial court below initially instructed the jury regarding control of the vehicle as follows: Now, the crime of driving under nthe [sic] influence of alcohol can be committed by a person who either drives or who controls a motor vehicle. Now, a person may be in actual physical possession [sic] of the movement of a standing or parked motor vehicle. These are broad terms that we use in this section of the Motor Vehicle Code. They cover certain situations where a person who is under the influence is a distinct threat to public safety even though he is not actually driving at the time that the offense was charged. It is not dispositive that the defendant’s car was not moving or the defendant was not making an effort to move it at the time the police officers arrived. An individual may be in actual physical control of his vehicle, and, therefore, operating it whole it is parked or merely standing still so long as that individual is keeping that car in restraint or is in a position to regulate its movement. An intoxicated person sitting behind the wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less involved when the vehicle is parked and not actually moving. If the defendant had the ability to exercise any control over the movement of that vehicle, even though that exercise resulted in the vehicle not moving, then he may be found guilty of the offense of operating a motor vehicle while under the influence of alcohol. N.T. 12/14/93 at 7-8. During its deliberations, the jury asked the court to define “actual physical control,” to which the trial court responded: State of control would exist where an individual, whether conscious or not, would be in a position to in some way effectuate the operation of a motor vehicle. * * * * * * A driver has actual physical control of his car when he has real bodily restraining or directing influence or dominion or regulation over its movement or the movement of its machinery. It is not dispositive that the driver’s car was not moving and that the driver is not making an effort to move it when the officers arrived. A driver may be in actual physical control of his car and therefore operating it while it is parked or merely standing still so long as the driver is keeping the car in restraint or in a position to regulate its movement. Neither is it dispositive that the driver was asleep at the time that the officers arrived. An intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist. While at the precise moment the defendant was approached by the officers, he may have been exercising no conscious volition with regard to the vehicle, there is still a legitimate inference to be drawn that the defendant has his choice of placing himself behind the wheel and either starting the vehicle or permitting it to run. He, therefore, has the actual physical control of the vehicle even though the manner in which such control was exercised resulted in the vehicle remaining motionless. N.T. 12/14/93 at 13,16-17. Appellant does not challenge either the trial court’s initial charge set forth above regarding the definition of “actual physical control” or the trial court’s response to the jury’s first question after the initial charge. However, after further deliberation, the jury made a second request for a definition of “actual physical control.” It is the trial court’s response to the second inquiry of which appellant complains. In response to the jury’s second request for a definition, the court instructed: If somebody were in the back seat of a car, they would not be in physical control. If they were in the right front passenger seat, they would not be in a position to control. If they were in the middle, assuming we had a bench seat or a split seat where somebody can sit in the middle, there may be a question as to whether or not that individual would have the position where they could have access to the instruments that would control the vehicle. If they were seated in the driver’s seat, they would be in a position to control. (N.T. 12/14/93 at 18) (emphasis added). Appellant contends that this definition improperly instructed the jury that if it found that appellant was behind the wheel of the vehicle, it must find as a matter of law that he was in actual physical control of the vehicle. However, that argument miscon strues the challenged definition. The trial court instructed the jury only that a driver behind the wheel of a car would be in a position to have actual physical control of the ear, thereby leaving the ultimate determination of whether appellant had actual physical control of the car to the finder of fact. Because the trial court did not instruct the jury that a person behind the wheel of a vehicle is in actual physical control of that vehicle as a matter of law, the instruction was not improper. Therefore, the opinion of the Superior Court is affirmed. NIX, Former C.J., did not participate in the consideration or decision of this case. CAPPY and NIGRO, JJ., concur in the result. ZAPPALA, J., files a dissenting opinion. . 75 Pa.C.S. § 3731(a)(1). . The trial court stated that there was a difference in testimony as to the location of the track, since Patton testified that she parked the track in a parking space and the restaurant employee testified that the track was not blocking the exit but was impeding traffic. However, as the original record only includes notes of testimony from the jury instructions, it is not clear whether the conflicts in the testimony established that the vehicle had been moved. .Appellant testified at trial that he was under the influence of alcohol. . In Byers, in which the facts were very similar to those in the instant case, the defendant was asleep behind the wheel of a car in the parking lot of a bar with the engine and lights on. Although there was some dispute at trial as to whether the car had been moved within the parking lot, the defendant had not left the parking lot of the bar where he had been drinking. Under the circumstances of that case, the Superi- or Court held that there were insufficient facts to prove that the defendant posed a safely hazard to the public, and therefore the Commonwealth had failed to establish that he was in actual physical control of the vehicle. Id. at 506, 650 A.2d at 470. The Byers Court reasoned that penalizing a person for "sleeping it off” with the engine running for a purpose other than driving the vehicle (for example, to provide heat, operate the radio or power a car phone) would defeat this laudable purpose. Byers, supra at 508-09, 650 A.2d at 471. However, nowhere in the statute is there a requirement that the fact-finder should consider whether or not one in actual physical control of a vehicle and under the influence of alcohol or controlled substances poses a threat to public safety. The legislature has reasonably determined that one driving a motor vehicle on the public streets and highways of the Commonwealth while under the influence of alcohol or controlled substances constitutes a threat to public safety per se, even if there are no other members of the public immediately endangered. While it may be laudable that one who realizes that he is incapable of safe driving pulls over to "sleep it off,” the legislature has made no exception to the reach of the statute to such individuals. Accordingly, such a person’s threat to public safety is not a relevant consideration under the drunk driving statutes.

SALMON, S.J., The defendant was arrested on September 21, 1991, about 2:15 a.m., by a patrolman of the city of New Castle Police Department for violation of section 3731(a)(4) of the Motor Vehicle Code. Following a denial by this court for a motion to suppress the result of a test of defendant’s blood, the defendant was admitted to the ARD program by our order dated April 29, .1992. In October 1992, defendant presented his petition alleging he had complied with the conditions of his admission to the ARD program (except for about one-half of his period of probation) and moving the court for dismissal of the charges and expungement of the record. On October 16, 1992, we granted the motion to dismiss the charges and denied the motion to expunge the record. This memorandum is written to place of record our reasons for denying the motion to expunge. Pa. Rule of Criminal Procedure 186 does authorize the court to expunge the record after successful completion of the ARD program subject to certain conditions. Those conditions include subparagraph (b) of the Rule and also the comment thereto which, of course, is part of the Rule. The comment says, in part: “For processes and limitations with regard to expungement generally, see section 9122 of the Criminal History Record Information Act, 18 Pa.C.S. §9122 (1983). See also, Vehicle Code, §1534(b) and §3731(e)(2), added by Act of December 15, 1982, no. 289, P.L. 1268, §3 and §9, 75 Pa.C.S. § 1543(b) and §3731(e)(2) (Supp. 1989).” The comment also refers to section 1534(b) of the Motor Vehicle Code which is as follows: “(b) Exception — If a person is arrested for any offense enumerated in section 3731 (relating to driving under influence of alcohol or controlled substance) and is offered and accepts accelerated rehabilitative disposition under general rules, the court shall promptly notify the department. The department shall maintain a record of the acceptance of accelerated rehabilitative disposition for a period of seven years from the date of notification. This record shall not be expunged by order of court. (April 28, 1978, P.L. 202, no. 53, effective. 60 days; December 15, 1982, P.L. 1268, no. 289, effective 30 days.)” The comment also refers to section 3731(e)(2) which is as follows: “(2) Acceptance of accelerated rehabilitative disposition, an adjudication of delinquency or a consent decree under the Juvenile Act or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.” Also involved is section 3731(e)(1)(ii) which provides: “(ii) Not less than 30 days if the person has previously accepted accelerated rehabilitative disposition or any other form of preliminary disposition, been convicted of, adjudicated delinquent, or granted a consent decree under the Juvenile Act (42 Pa.C.S. §6301 et seq.) based on an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.” It is thus clear that to grant the motion to expunge in this case would be to thwart the clear intent of the Legislature that the record be preserved against the possibility that the defendant may subsequently commit another offense against the drunk driving provisions of the Motor Vehicle Code. We cannot construe Rule 186 as being intended to contravene the statute enacted by the Legislature. Expungement would destroy the record for all purposes, including the purposes of the sections of the Motor Vehicle Code above cited. It is interesting to note that expungement was originally a remedy devised to accomplish justice for a defendant who had been convicted of a crime and later was legally determined to have been innocent of that crime. The issue arose in a number of cases where a convicted defendant had been pardoned by the governor and then sought expungement of the record. The prevailing view is that expungement may only be granted if the reason for the pardon was the legally established innocence of the defendant. See the lengthy dissenting opinion by J. Sidney Hoffman, J., in Commonwealth v. Homison, 253 Pa. Super. 486, 488, 385 A.2d 443, 444 (1978) for a full discussion of the decided cases. The en banc opinion of the court by Van der Voort, J., affirmed the trial court’s denial of expungement for the reason that the record did not show that the pardon was granted on the ground of innocence. It should be noted that Judge Hoffman does not disagree with that principle, but dissented because he thought the case should go back for further hearing on that issue. While our case does not involve an executive pardon, the dissenting opinion is interesting for its full and scholarly discussion. We respectfully suggest that the district attorney should object to expungement in all such cases. For the foregoing reasons, expungement of the record was denied.

BLACKWELL, J., Mother in this case alleges that father sexually abused their daughters. She seeks to suspend, if not terminate, any unsupervised visits by father. Father denies all of the allegations. The court finds that the mother in this case has not met her burden of proof by clearly and convincingly showing that the father* sexually abused or acted in a sexually inappropriate manner with his daughters. A recital of the facts and witnesses is now necessary. On December 1, 1989, C.L.D. (father) filed an action seeking custody of L.M.D., date of birth, July 21, 1988. Prior to a February 22, 1990 hearing, N.L.D. was bom on January 6, 1990, to T.M.S., now T.M.F. (mother). Father acknowledges paternity of L. and N. At the February 22, 1990 hearing, father and mother agreed that mother would have majority physical custody of the two girls and that father would have L. alternate weekends, with a phased-in schedule as follows: (A) Alternate Saturdays, from 9 a.m. until 6 p.m., for three months, commencing March 2, 1990; (B) Alternate Sundays, from 9 a.m. until 6 p.m., for three months, commencing March 9, 1990; (C) Then for three months alternate Saturdays, from 9 a.m. until Sunday at 6 p.m.; and then, (D) Alternate weekends from Friday at 6 p.m. until Sunday at 6 p.m. Father also had alternate holidays, one week in the summer for 1990 and 1991, and then in 1992 for two weeks. Christmas holidays were set forth for the father as being December 24 at noon, until December 25 at noon, in even-numbered years, and in odd-numbered years from December 25 at noon, until December 26 at noon. As for N., father was awarded the right to visit N. at mother’s house with the parties to agree upon the expansion of custodial rights for father with N. No pleadings were filed to indicate any problems with the above arrangement until February 21, 1992. At that time, father sought to expand his rights of minority physical custody to include an earlier pick-up time, alternate Halloweens, Father’s Day, three weeks in the summer, two nights each week from 4 p.m. until 8 p.m., father’s birthday, and alternate birthdays of the children. The conciliation conference was set for March 4, 1992. It is noted that, from the pleadings, no conference was held. On March 6,1992, allegations of sexual abuse were raised alleging that father had sexually abused L. During the investigation, father, although contending the children had been brainwashed and that he had not done anything, agreed not to see the children until the investigation was completed. At this point in time, there was no allegation that N. had been abused. The court, on May 18, 1992, issued an order that suspended father’s rights of custody with L., and ordered supervised contact with N. Psychological evaluations of the parties were ordered. The order was based upon allegations of sexual abuse of L. by father and upon the investigation by York County Children and Youth Services Agency. A trial was conducted commencing October 7, 1992. Cathy Utz, a caseworker for the agency, testified that, pursuant to her investigation, father was an indicated sexual abuser of L. and N. On March 6, 1992, the agency received a referral of sexual abuse of L. by father, and L. was interviewed on March 10, 1992, at the agency. L. stated to Ms. Utz that she saw her dad’s “wee-wee” and that she had been in bed awake and naked when her dad was in bed asleep and naked. She also told the caseworker about putting ice on her dad’s wee-wee. On March 27, 1992, L. met with Ms. Utz and Officer Zumbrum of the Hanover Police Department. When L. would not talk to Office Zumbrum, he left the room. L. then told Ms. Utz that the ice had made “wiggles” stick up. A supervised visit did occur between father and the children. L. stated that she did not want to see father and that she thought father would steal her. Ms. Utz observed that N. was happy to see father, but that L. ran crying to mother. On April 2, 1992, the agency filed an indicated report of sexual abuse of L. and listed father as the perpetrator. Play therapy and art therapy were recommended as possible counseling for L. Allegations concerning sexual abuse of N. were raised in June 1992 and investigated by Ms. Utz and Officer Zumbrum. When N. was interviewed on August 5,1992, she stated that dad had poked her wee-wee with his finger and made it hurt. On August 8,1992, the agency indicated a finding of sexual abuse of N. with father listed as the perpetrator. Ms. Utz’s findings of abuse were based on (1) the children’s statements to her; (2) Ms. Utz’s beliefs that children of this age tend not to make up stories like those reported; and (3) that there was no indication mother, or anyone, was telling or coaching the children as to what to say. Ms. Utz’s findings were not based on physical evidence, but on her experience as a caseworker in handling these cases and the children’s stories. Ms. Utz’s training and manner of conducting the interviews of the children establish her as a credible witness to the degree that she is and was involved with this case. Sue Allen, who was qualified as a family and play therapist, testified as to her counseling of L. and N. She testified that she saw approximately 100 children in 1992, 15 of whom were sexually abused and the remainder were emotionally or physically abused. Ms. Allen then referred the children to Ms. Karen Stabley, an art therapist within the same group as Ms. Allen. Ms. Allen said she would not (and did not) push the children for information. She saw the children eight times and engaged the children in play therapy. Despite Ms. Allen’s recommendation for continued counseling, mother ceased taking the children to therapy. Of further interest to this court is Ms. Allen’s testimony regarding the intake interview conducted with mother on June 3,1992. According to Ms. Allen’s testimony, mother was determined to insure that no visitation occurred between father and their daughters, would do anything she had to do to get her daughters away from father, was certain father had sexually abused L., and was searching for proof of abuse that would “hold up in court.” L. appeared to Ms. Allen to be an aggressive child who was very protective of her sister, N. Ms. Allen testified that L.’s protective attitude, aggressive behavior, description of interactions with father, and the need to protect herself (such as surrounding herself with stuffed animals whom she designated mom, step-father, and protectors, or using a make believe gun to kill the “mean-man”) are indicative of sexual abuse. Ms. Allen concluded that L. was sexually abused by father. Ms. Allen concluded also that there is a “high likelihood” that N. has been abused and concludes that she is at high risk of abuse if she is in the presence of father. Certain therapeutic recommendations were made, as well as the recommendation that father not be allowed unsupervised contact with his daughters. Art therapy was used with L. by Karen Stabley at the Lehman Center. Ms. Stabley, an art therapist for seven years, testified that her evaluation of L. and her drawings led her to conclude that L. had been sexually victimized by father. Ms. Stabley stated that 50 percent of the children she sees have been sexually or physically abused. When the court met with the children, L. was initially very reticent in talking. The court, the court reporter, and two attorneys were present. N. spent her time drawing and was preoccupied with the chore (it is noted that the court’s calendar pad was used as the drawing pad). N. was friendly to people and L. did start to talk. She did talk about seeing broken windows, but her grandfather who brought her to court explained that they had seen broken windows. At times, the verbalizations made by both L. and N. were difficult to put into context with testimony of other witnesses (such as N.’s stories of bleeding) and, overall, the court finds that the girls’ statements and behavior were inconsistent. Mother and Mr. F. married on February 29, 1992, and left for a honeymoon in the Bahamas and came back on March 8, 1992. Upon arrival at home, they were informed of the allegations. Mr. F. testified that after the report was filed, L. told him that “Daddy jugged me in the wee-wee.” He has also heard L. say “smell my butt,” and also testified that, after the report was filed, he saw L. and N. playing. L. asked N. what they should talk about today and then told N., “Daddy hurt my wee-wee.” N. responded to L., saying “I know, he hurt my wee-wee also.” Mr. F., by his testimony and demeanor, established that he does not like Mr. D. He also stated that the girls call Mr. D. “Daddy,” which, given his testimony, he does not like. Mother testified that L. had, after visiting with father in 1991, periodically grabbed people’s crotches. Mother said she told L. not to do this. No disclosures occurred, however, in 1991; the first disclosure occurred when the children were left with the maternal grandparents while the mother went on her honeymoon. Mr. D.S. (the maternal grandfather) testified that L. told him that daddy rubs her wee-wee. The next day L. told the grandparents that her father walked around the house without any clothes on. The agency was then contacted and informed of these disclosures by the grandparents. Given the disclosures, the grandparents and the mother testified that, upon reflection, L. had acted inappropriately at times upon return from father’s house in 1991. They recalled L. saying, “smell my wee-wee,” “smell me here” (her genital area), and grabbing people’s crotches. Mother did testify that when she changed the children’s diapers, she did smell in that area of the children. The maternal grandparents stated that N. had told her that father had hurt her wee-wee and, on occasion, N. held herself tight and yelled, “No cream, no cream.” A.S. and D.T. testified that each has heard each child individually say that daddy hurt her and/or “smell my wee-wee.” Ms. S. heard N. say that father had poked her real hard and hurt her. M.D., father’s sister-in-law, supervised visits by father with his daughters. She testified that the girls were happy and glad to see father and that she, at no time, saw any untoward act by father, nor anything unusual from the girls. Mr. L.D. (the paternal grandfather) was a witness for father. He never saw the girls exhibit fear of father. The girls would visit the grandfather at his store and he did indicate he saw L. in December of 1990 grab an elderly lady in the crotch and that L. was a little backward with all men. D.W., a girlfriend of father, had dated father for 10 months, until October 1992. She did not see the girls as fearful of father and she thought the girls were good kids. She did have L. grab her in the crotch area and Ms. W. told her not to do that. Father adamantly denies all of the allegations against him that he has abused or acted inappropriately with his daughters. Father contends that mother has fabricated these allegations to try and get him out of the picture. Although father indicated he did state that mother and Mr. F. could adopt the children, he only made the offer thinking he would get an answer to why these allegations were being made. March 6, 1992, was the last time father saw his daughters unsupervised. The court finds father credible in his denial of these allegations. Michael Ditsky, a licensed psychologist, evaluated the parents, the girls, and Mr. F. MMPIs, Bender-Gestalt, and Rorschach tests were conducted on the parents and Mr. F. Clinical interviews were also conducted. Mr. Ditsky concluded from his testing of father that there were no indicators present to show father was a perpetrator. Father’s profile was that he had good ego strength and was basically within normal limits as to his psychological profile. He did have an indication of over-controlled hostility, but Mr. Ditsky stated that father accepted responsibility for that. As to mother’s psychological profile, she came out extremely high for over-controlled hostility and repression. Mr. F. was given the same tests and his profile showed a problem with authority figures and that he was impulsive and has mood swings. Mr. Ditsky also recommended supervised visits with father and his girls. Mr. Ditsky, based on his review of the tests, and his observation of father, mother, the girls and Mr. F., concluded with reasonable degree of psychological certainty that (1) the girls have not been sexually abused, and (2) father did not sexually abuse either, or both, of his daughters. Father and Mr. Ditsky indicated that L. heard things from mommy, G., or everybody. Mr. Ditsky testified that the children did not present any signs that typically classify a child as being sexually abused. He also documented the interaction of the children with father as being comfortable and happy. The children involved father in their play and, on one occasion, L. returned to the playroom for the purpose of drawing a heart for father. No physical evidence has been presented to substantiate those allegations, particularly with respect to N. Testimony alleged that she had been harmed to the point that she bled, yet no physicians were offered to show that any such physical harm had occurred. The court adopts the reasoning of Judge Wettick in the case of Donna S. v. Bernard S., 137 Pitt. Leg. J. 173 (1989). Judge Wettick carefully and concisely delineated the burdens of proof in “normal” custody cases, custody cases in which sexual abuse allegations are raised, and cases in which the sexual abuse allegations are the subject of criminal proceedings. The preponderance of the evidence test is applicable to determine the best interest and welfare of a child in regular custody cases. For cases involving criminal charges arising from alleged sexual abuse by a parent of a child, the burden of proof becomes beyond a reasonable doubt. Judge Wettick, in a case where the mother sought only supervised contact by the father with his daughters because of alleged sexual abuse by the father of the daughters, construed the case as if it was a dependency proceeding and required the mother to show “clear and convincing evidence that the father had committed sexual abuse upon his daughter.” This reasoning arose from Judge Wettick’s balancing of a parent’s right to have “regular and meaningful” contact with his or her child with that of a child living in a “safe and wholesome environment.” Id. at 175. This court, by this ruling, adopts the clear and convincing burden of proof for a parent attempting to substantiate that the other parent has committed sexual abuse against a child who is the subject of a custody proceeding. This burden must be met in order for this court to impede, restrict or suspend a parent’s right of custody. The overriding best interest and welfare test will constantly be applicable in any custody proceeding, but where the issue of sexual abuse is inteijected by a parent as rationale to limit or suspend the other parent’s custodial rights, the threshold issue which must be established by clear and convincing evidence is, did the parent sexually abuse his or her child? The resolution of that issue will affect the application of the best interest and welfare test for custodial arrangements. The dilemma for the court, when witnesses are generally credible, is how to recognize two opposite contentions. Ms. Utz is credible in how she handled the interviews, yet she did not do any testing, nor have extended contact with mother and father. Ms. Allen and Ms. Stabley are credible in that they appropriately handled the interviewing of the children. However, at no point did they interview father to factor in his version of the facts. Sue Allen, Karen Stabley, and Cathy Utz were more reactive then active in interviewing techniques. Of note to the court is the time that each child felt safe during the interviews because of mother’s presence. The children would go back and forth to mother during interviews with the various professionals involved in this case. This type of check-in is consistent with a false allegation of abuse as noted by Dr. Arthur H. Green in his “True and False Allegations of Sexual Abuse in Child Custody Disputes.” The one witness who has had contact and evaluated all of the parties and the children is Mr. Ditsky. The court also notes that he is the one person trained in interviewing and evaluating individuals as to their psychological profiles. His findings are what ultimately defeat mother’s attempt to establish by clear and convincing evidence that L. and N. have been sexually abused by father. Given that the court rejects that father has perpetrated sexual abuse upon either of his daughters, the court then, ironically, finds consistency among the witnesses that L. and N. have suffered from emotional trauma from whatever source. Mr. Ditsky, Sue Allen, Karen Stabley, and Cathy Utz all agreed that for a period of time, father should have a supervised contact with his daughters. These witnesses are clear and convincing to the court that this contact will aid in father and his daughters resuming a normal relationship. As such, father will have supervised contact with L. and N. at his sister-in-law’s house, with the first Saturday from noon to 6 p.m. The visits shall then progress from Saturday, from noon until 6 p.m. and Sunday, from noon until 6 p.m. During this time, father and the daughters shall undergo counseling through Rost and Associates, Dr. Brian Stevens, or Nancy Pendergast. Father, through his counsel, shall identify the counselor, and shall provide the name of the counselor to the court and attorney DeArment. At all times, the mother shall cooperate in making the children available for counseling and shall transport the children to the sessions. The counselor is directed that as soon as the counselor deems it appropriate, father shall resume normal, unsupervised custody rights with his daughters. Those rights shall include every other weekend, three weeks in the summer, alternate holidays, and Father’s Day. The court, in its ruling today, does not denigrate the investigation performed by the caseworker as to alleged abuse, nor does the court adopt a finding that the recommendation of an evaluator (such as a psychologist) will be given greater weight than that of a caseworker. In weighing the evidence in this particular case, the court is finding that mother has not clearly and convincingly established that father sexually abused his daughters. Father did request full custody, but the court will deny that request, because the court finds that L. and N. are bonded with mother and to change that would, in all likelihood, cause adverse impact upon the children. The following order will be entered. ORDER Mother, T.M.S.F., and father, C.L.D., are the parents of L.M.D., date of birth July 21, 1988, and N.L.D., date of birth January 6, 1990. Mother and father shall share legal custody of the children. Majority physical custody shall be awarded to mother. Father shall have the following rights of visitation and then rights of minority physical custody: (1) Commencing February 27, 1993, from noon until 6 p.m., and then, February 28, 1993, from noon until 6 p.m., and alternating, thereafter, on a weekend basis. Said visits shall be supervised by the sister-in-law, or another appropriate adult, at the home of the sister-in-law. Father shall not be left unsupervised with either L. or N. Father’s rights shall then be on an alternative weekend basis. (2) Father shall immediately commence counseling with Rost and Associates, or with Dr. Brian March. He shall advise his counsel of the name of the counselor within 14 days of the date of this order. Counsel shall then notify the court and other counsel of the name and address of the counselor. The children shall participate in counseling as the counselor deems appropriate. Father and mother shall be equally responsible for the costs of the counseling sessions involving the children and shall immediately pay said invoices upon presentation. (3) The counselor shall receive a copy of this order. (4) Expansion of father’s rights of both supervised and unsupervised custody shall occur as the counselor recommends. The intent is to have father’s rights of custody expand to be reflective of a standard order of every other weekend, from Friday at 6 p.m. to Sunday at 6 p.m., Father’s Day from 9 a.m. to 6 p.m., three weeks in the summer, Christmas Eve or Christmas Day and alternate holidays, with said holidays being Easter, Memorial Day, July 4th, Labor Day, Halloween, Thanksgiving and New Year’s Day. Father’s first holiday shall be Easter. (5) Should the counselor deem it appropriate, the art and play therapists may be consulted and, if deemed appropriate, the children referred to them for counseling. Mother shall be totally responsible for the costs of these therapists and shall cooperate in making the children available. (6) Mother shall transport the children to and from visits with father and to the counselor’s office. Furthermore, she shall make the children available for sessions at the counselor’s office, but shall be present during these sessions. The sessions are to occur at times other than father’s scheduled time of custody. (7) Should the counselor deem it appropriate, mother shall meet with the counselor at her expense. (8) Mother shall cooperate with the counselor and, at all times, shall not make any disparaging comments to the children concerning father and this matter. The mother’s family is also ordered to comply with this provision. Copies of this order are to be sent to counsel of record, who shall provide a copy to his or her respective client, Sue Allen, Michael Ditsky, and Cathy Utz. A copy shall also be provided by father’s counsel to either Rost and Associates or Dr. Brian March.

SOKOLOVE, /., This matter came before us on the petition of K.D.M., natural mother of the subject child K.D.M.A., and the natural mother’s brother and, therefore, the child’s uncle, for the involuntary termination of the parental rights of the child’s natural father, J.T.A. At a brief, uncontested hearing before us, the petitioners presented the natural father’s consent to the termination of his parental rights and the proposed, underlying adoption, thereby converting the action into a confirmation of consent, the alternative relinquishment procedure set forth at 23 Pa.C.S. §2504. After the hearing, we allowed petitioners’ counsel to submit legal authority for the requested relief. We have reviewed petitioners ’ memorandum of law and must deny their petition. The relevant facts are few and simple. The petitioners seek the termination of the natural father’s parental rights by way of the confirmation of his consent to the proposed adoption of the child by the maternal uncle, without the termination of the natural mother’s parental rights. The proposed adoption, thus, would make a brother and sister the legal parents of the child. The child was bom on August 3, 1984. The natural parents were never married to each other. The child has always been in the physical custody of the natural mother and, at times, was in the natural father’s physical custody as well. The natural father has been separated from the child and her mother since 1987 and is now married to someone else. The natural mother remains unmarried and has no plans to marry. The uncle, the proposed adopting father, has never had physical custody of the child. He is married and has one child with his wife. His wife would consent to his adoption of his sister’s child. The petitioners’ memorandum alludes to many other facts which are not of record and are largely irrelevant. Since the natural father has signed a consent, we need not explore allegations supporting the grounds for the involuntary termination of his parental rights. Moreover, our decision must be based on our interpretation of the law concerning this irregular adoption and is independent of the many extraneous facts used to play upon our sympathies. The sole issue presented is whether we may terminate the parental rights of the child’s natural father, while the natural mother retains her parental rights, so that the maternal uncle may adopt the child. We find that the suggested termination is precluded by the Adoption Act. The termination of parental rights, whether voluntary or involuntary, is but a preliminary step in the adoption process. In re B.E., 474 Pa. 139, 377 A.2d 153 (1977). Unless an agency will be assuming custody of the affected child, a parent’s rights may only be terminated when an adoption is contemplated. Id., 23 Pa.C.S. §2512(b). Adoption is a purely statutory right, unknown at the common law. In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979), appeal dismissed, 449 U.S. 802. Strict compliance with the legislative provisions of the Adoption Act is required to effect an adoption. Id. Exceptions to the Adoption Act may not be judicially created where the legislature did not see fit to create them. Id. For the adoption of a minor child, the Adoption Act mandates either the termination of the existing parents’ rights or the consensual relinquishment of the parents’ rights. 23 Pa.C.S. §§2711(a), 2714. The Adoption Act specifies only one exception to these requirements: “§2903. Retention of parental status— “Whenever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child shall remain whether or not he is one of the petitioners in the adoption proceeding.” 23 Pa.C.S. §2903. In reliance upon this language, as stated in section 503 of the Adoption Act of 1970 and recodified in the current Adoption Act, the Supreme Court in In re Adoption of E.M.A., supra, held that a woman, who was not the spouse of the natural father, could not adopt the father’s child when the father consented to the adoption but did not relinquish his parental rights. The court held that the so-called “qualified consent” executed by the father in that case was statutorily defective and that the savings clause of section 503, now 23 Pa.C.S. §2903, could not be applied to adoption by a non-spouse. In following this holding, the Superior Court, pursuant to the current Adoption Act, has more recently stated that “a parent may not petition to terminate the parental rights of the other parent unless it is established that there is an adoption contemplated by the spouse of the petitioner.” In re Adoption of J.F., 392 Pa. Super. 39, 44, 572 A.2d 223, 225 (1990). (emphasis added) In re Adoption of E.M.A., supra, and In re Adoption ofJ.F., supra, control the outcome of this case. Petitioners attempt to distinguish E.M.A. by arguing that the consents in this case are not defective because the natural father’s consent is “unqualified” and the natural mother is a petitioning party. This argument is obviously specious and promotes form over substance. The effect is exactly the same, whether the mother executes a “qualified consent” or joins in the adoption petition. In either event, she is asking to retain her parental rights while having her child adopted by someone who is not her spouse. She cannot truly adopt her own child, as she has no need to take legal action to establish or maintain her parental relationship with her child. In re B.E., supra. Her efforts are prohibited by a plain reading of the Adoption Act, in particular 23 Pa.C.S. §2905. Petitioners contend that the uncle should be able to adopt the child as proposed because the Adoption Act states that “[a]ny individual may become an adopting parent,” regardless of relationship. 23 Pa.C.S. §2312. Petitioners also allege that we indicated in an off-the-record conference before the hearing that we would not approve an adoption by an unmarried person. The first contention is fallacious, and the latter is patently untrue. The Adoption Act does indeed permit adoption by any individual, including an unmarried person, so long as the prerequisites of the Act are met. In re Adoption of E.M.A., supra. See In re B.E., supra. We have approved single-parent adoptions many times in appropriate cases. In this case, however, we must deny the application, not necessarily because the mother is single or the uncle is married to someone else, but because the other provisions of the Adoption Act prohibit the mother’s maintenance of her parental status in conjunction with adoption by one who is not her spouse. Petitioners refer us to cases in other jurisdictions where the homosexual partner of a natural parent has been permitted to adopt the natural parent’s child. Although petitioners suggest that other courts in this Commonwealth have granted such adoptions, we have found no published opinion from Pennsylvania on this subject. The Adoption Act, as considered above, would not appear to allow it. Nonetheless, we believe that these cases are distinguishable from the matter at hand. The cases involving adoption of children by homosexual partners, such as Matter of Adoption of Evan, 583 N.Y.S.2d 977 (Sur. 1992) and the cases cited therein, concerned long-term partners functioning in an intact, family unit just as a married couple would. Indeed, the court in Matter of Adoption of Evan, supra, emphasized the stability and supportive relationship of the partners in finding the adoption to be in the child’s best interest. The purpose of adoption is to establish a new parent-child relationship within a family. In re B.E., supra. There is no such pretense of the creation of a family here. The proposed adopting father can never marry his sister, the natural mother. 23 Pa.C.S. § 1304(e). Furthermore, he has never resided with the child and her mother and has no intention of doing so. He already has his own separate family. Under these circumstances, he cannot be this child’s father. Even were we to interpret the language of the Adoption Act more liberally, which we cannot, we would not countenance the adoption proposed here. Ultimately, termination of parental rights and adoption depend upon the court’s discretion in assessing the needs and welfare of the child. 23 Pa.C.S. §§2511(b), 2902; Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978). See official comment — 1970 to 23 Pa.C.S. §2312. (“The increased flexibility is considered appropriate in view of the court’s ultimate power to refuse an adoption petition if the circumstances ... so warrant.”) The adoption proposed here would not promote the child’s needs and welfare. As we have noted, the proposed adoption will not create a new family for the child. It will not really give her a new father to replace the one whose rights would be terminated. In fact, the petitioners’ primary aim appears to be the termination of the natural father’s parental rights, not the adoption. The proposed adoption is not a true adoption as envisioned by our law. It is a subterfuge, designed not to establish a vital parent-child relationship but, rather, to superficially satisfy the legal necessity of an adoption to enable a termination. The petitioners are placing the cart before the horse. The termination of parental rights is meant only to facilitate an adoption. A sham adoption is not a means by which to achieve a termination, and it violates the concepts of 23 Pa.C.S. §2512(b) and In re B.E., supra. The Supreme Court of Virginia in Watson v. Shepard, 229 S.E.2d 897 (1976) denied an adoption by parents who were separated and planning to divorce because it was not in the child’s best interests. The court was concerned about the possibility of future discord and remarriages which would be confusing and disruptive to the child. We agree with the reasoning of the Virginia court. The adoption sought here would not enhance stability for the child and would lead to inherent difficulties were the natural mother to marry. We cannot grant the termination of the natural father’s parental rights in light of the improper and inappropriate adoption contemplated. We enter the following CONCLUSIONS OF LAW (1) This court has jurisdiction over the parties to and the subject matter of this adoption. (2) The proposed termination of the natural father’s parental rights is ,not permitted by the Adoption Act. (3) The proposed termination of the natural father’s parental rights would not promote the child’s needs and welfare. DECREE NISI And now, March 1, 1993, upon consideration of the petition of K.D.M. and J.M.M. for the termination of parental rights of J.T.A. concerning K.D.M.A. and after hearing and review of the petitioner’s memorandum of law, it is hereby ordered and decreed that the petition is denied and dismissed. If no exceptions are filed within 10 days of this decree nisi, the decree nisi shall become the final decree of the court.

Hearing Committee, STATEMENT OF THE CASE The Office of Disciplinary Counsel (petitioner) has charged [ ], Esq. (respondent) with violation of Rule of Professional Conduct 1.15(b). On October 7, 1991 the petition was filed; on November 27, 1991 the respondent accepted service of the petition. The respondent did not file an answer to the petition. On December 26, 1991 the petition was referred to Hearing Committee [ ]. On March 24, 1992 a hearing was held in the District [ ] Office of the Disciplinary Board of the Supreme Court of Pennsylvania. At the hearing, the petitioner and the respondent entered into and submitted to the committee a stipulation of fact consisting of 14 points. The hearing proceeded. The petitioner’s case consisted of the stipulation, the testimony of three wit nesses and Exhibits P-1 through P-16, inclusive. The respondent’s case consisted of the respondent’s testimony and Exhibits D-l through D-3, inclusive. Following testimony and argument, the committee found that the respondent violated R.P.C. 1.15(b), one member dissenting. The committee deemed an informal admonition to be an appropriate sanction and entered this finding. Both the petitioner and the respondent accepted the committee’s recommendation. In accordance with Disciplinary Board Rule 89.181 the committee proceeded by abbreviated procedure. By order dated June 30, 1992 the Disciplinary Board remanded the matter to the committee, directing the submission of briefs, the preparation of a transcript and the preparation and submission of a Hearing Committee report to include findings, legal conclusions and recommendation. FINDINGS OF FACT (1) The respondent is an attorney, having been admitted to practice law in the Commonwealth of Pennsylvania on or about October 14, 1977. (2) The respondent maintains professional offices located at [ ]. (3) On or about May 22, 1990, [ ] (decedent) died testate; the decedent was a resident of [ ] County. (4) On or about June 13, 1990 [A], the decedent’s son, was appointed by the Register of Wills of [ ] County to be the executor of his mother’s estate. (5) At the time of the decedent’s death, [A] was separated from his wife, [B]. (6) [A] and [B] had been living apart since 1986. (7) [B] resided in what was her and [A’s] marital home prior to the date of their separation in 1986. (8) [A] resided in his mother’s home. (9) The respondent represents, and has represented since 1986, [B] in divorce and other domestic proceedings in the Court of Common Pleas of [ ] County. (10) During the course of the respondent’s representation of [B], [B] delivered to the respondent the decedent’s will, stock certificates in the decedent’s name, a deed to real estate owned by the decedent during her lifetime and a key to the safety deposit box in the decedent’s name. (11) All of the property that [B] delivered to the respondent was owned by the decedent in her own name during her lifetime. (12) As a matter of law, after the decedent’s death, the ownership and/or the right of possession to the said property was in the decedent’s estate. (20 Pa.C.S. §301.) (13) [C], Esq., a member of the [ ] County Bar, represented [A’s] capacity as executor of the decedent’s estate. (14) From on or about late May 1990 to on or about late November 1990, both [C] and [A] made numerous requests and demands on the respondent for the release of the decedent’s property so that the decedent’s property would be available to settle the decedent’s estate. (15) On one occasion after the decedent’s death; namely, in May 1990, the respondent acknowledged to [C’s] office that the respondent had the property and that it could be released to [C]. [C] confirmed this conversation by letter dated May 31, 1990. (16) When [A] went to the respondent’s office to retrieve the property, the respondent refused to release the property to him. (17) After the respondent refused to release the property to [A], [C] made a written request dated June 5, 1990 to the respondent for the release of the property belonging to the decedent’s estate. (18) The respondent failed and/or refused to reply to [C’s] letter dated June 5, 1990. (19) The respondent did release the decedent’s will. (20) After the respondent had released the decedent’s will, and no other property, and failed and/or refused to respond to [C’s] letter dated June 5, 1990, [C] made another written request dated June 26,1990 for the release of the property belonging to the decedent’s estate. (21) The respondent failed and/or refused to reply to [C’s] letter dated June 26, 1990. (22) The respondent did not release any further property belonging to the decedent’s estate following his receipt of the letter dated June 26, 1990. (23) As a result of the respondent’s failure and/or refusal to reply to her letter dated June 26, 1990, and refusal to release the property in question, [C] made a written request dated July 27, 1990 for the release of the property belonging to the decedent’s estate. (24) On or about July 30, 1990 [C’s] office received a telephone message from the respondent’s office. (25) The telephone message from the respondent’s office indicated that the respondent would release the property remaining in his possession, but belonging to the decedent’s estate. (26) As a result of the respondent’s message to [C], [A] went to the respondent’s office to retrieve the property belonging to the decedent’s estate. (27) When [A] went to the respondent’s office to retrieve the property, the respondent refused to release the property to him. (28) As a result of the respondent’s continuing failure to respond to her written requests and the respondent’s refusal to release the property in question, [C] filed a petition in the Orphans’ Court of [ ] County on or about September 14, 1990. (29) The petition filed by [C] on or about September 14, 1990 requested that the court direct the respondent to release the property belonging to the decedent’s estate. (30) After [C] filed her petition in the Orphans’ Court of [ ] County, the court entered both a preliminary decree and a citation directing the respondent to show cause why he should not release the property in question. (31) By letter dated September 17, 1990, [C] provided the respondent with copies of the petition, the preliminary decree and the citation. (32) The respondent did not file an answer to the petition filed by [C]. (33) On or about October 24, 1990 [C] caused the said petition to be listed for a hearing in the Orphans’ Court of [ ] County. (34) On or about November 24, 1990, at a hearing held in the [A and B] domestic matters, the respondent delivered to [C] the stock certificates belonging to the decedent’s estate. (35) The respondent admitted that he did not contest the allegations in the petition filed by [C] in the Orphans’ Court of [ ] County. (36) The respondent admitted that he never considered the property in question to be marital property and knew that the property in question was owned by the decedent; however, he believed that he could obtain a tactical advantage in the domestic relations litigation if he could retain the property pending the master’s hearing on the issue of equitable distribution between [A] and [B]. (37) In a letter dated January 8, 1991 addressed to the petitioner, the respondent asserted that [A] had engaged in fraudulent behavior with regard to the domestic relations litigation. (38) In a letter dated January 8,1991 to the petitioner, the respondent asserted that [C] had engaged in fraudulent conduct concerning [A’s] representations with regard to the inventory and appraisement forms filed for purposes of determining the issue of equitable distribution. (39) The respondent admitted at the committee hearing that both inventory and appraisement forms filed by [A] had been filed prior to the death of [A’s] mother and because of this chronology, the property would not have had to have been listed in the inventory and appraisement forms. (40) The respondent was experienced in domestic relations litigation. (41) The respondent knew that the property in question was not marital property and that to assert to the contrary was error. (23 Pa.C.S. §3501; Diamond v. Diamond, 360 Pa. Super 101, 519 A.2d 1012 (1987).) (42) The respondent admitted that he never attempted to enter the decedent’s safety deposit box; the respondent admitted that he never attempted to determine the contents of the decedent’s safety deposit box. (43) The respondent admitted that he could have photocopied the documents in his possession, thereby releasing the original to the decedent’s estate at the time that [C] had made her first written demand upon him. (44) The respondent admitted that he told [B] that he would keep the property in question and that he would take the necessary steps to protect the property to which she was entitled. (45) Since his admission to the bar in 1982 the respondent has been a hard-working and reputable member of the bar. (46) The respondent has never been arrested or convicted of a criminal offense. (47) Other than the action presently under consideration, the respondent has not been the subject of any action brought by the Office of Disciplinary Counsel. DISCUSSION This matter arises out of two distinct, but related, legal proceedings in which the respondent was involved. The proceedings, commenced in the Court of Common Pleas of [ ] County, were [A] v. [B] (no. [ ]) and the Estate of [Decedent] (no. [ ]). The [A and B] case was a bitterly contested domestic relations dispute in which the respondent represented [B]. The [decedent] case was an estate in which [A], the husband of [B], was named executor. The respondent was an attorney, highly experienced in domestic relations litigation. This litigation constituted the bulk of the respondent’s active practice. As the so-called “scorned woman,” [B] was angry and extremely anxious to secure her legitimate interests and entitlements in the marital property and to secure for herself and her children adequate support and maintenance. The respondent, suspicious of the chicanery which he found to be common in domestic relations litigation, perceived [A] as a duplicitous person not to be trusted and whose every action should be strictly scrutinized. In representing [B], the respondent was extremely effective and his able advocacy resulted in a decision very favorable to his client. His vigilant and aggressive representation of [B] was entirely consistent with his duties and responsibilities as an attorney. It was this same zeal, exercised to an inappropriate degree by the respondent, however, that resulted in the charged violations. R.P.C. 1.15 provides: “Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” In order to establish a violation of R.P.C. 1.15(b) three elements must coalesce: (1) that the attorney has possession of property belonging to his client or a third person; (2) that the attorney refuses to promptly deliver the property to his client or a third person; and (3) that there is neither authority nor an agreement permitting the attorney to retain the property. While arguments based on the facts and inferences drawn from the facts may differ, the facts themselves are not in material dispute and indicate a violation of R.P.C. 1.15(b). On May 22, 1990 [decedent], [A’s] mother, died testate. [A] was named executor of the estate. In late May 1990 the respondent received from [B] various items of property belonging to the [decedent] estate; namely, [decedent’s] last will and testament, [decedent’s] stock certificates, the original deed to [decedent’s] real estate and the key to [decedent’s] safe deposit box. These items, clearly and unequivocally the property of the [decedent] estate, were necessary to complete probate. From May 1990 to November 1990 [C], representing [A] as executor of the [decedent] estate, made repeated requests of the respondent to release control over those items which belonged to the [decedent] estate. The respondent repeatedly refused [C’s] request as a result of which [C] was compelled to file a petition in the Orphans’ Court of [ ] County, seeking to compel the respondent to release the property. The respondent did not answer the petition; however, on or about November 28, 1990, the respondent did turn over these items to [C]. In applying the facts to R.P.C. 1.15(b) we find that the petitioner has more than satisfied its burden of proof. First, the respondent came into possession of the property belonging to the [decedent] estate. Second, despite repeated and entirely legitimate demands to do so, the respondent, over a period of six months, refused to release the property belonging to the [decedent] estate. Third, there was no authority entitling or permitting the respondent to retain the property belonging to the estate. The case In re Anonymous No. 3 D.B. 86, 50 D.&C.3d 360 (1987), is instructive both in considering the violation and the penalty which would be appropriate under the circumstances. In No. 3 D.B. 86, the respondent refused to release savings certificates after having been advised by both interested parties that all of the conditions for such release had been met. The respondent refused to release the certificates with neither justification or excuse. The committee found such conduct to be violative of an attorney’s duty not to withhold property of another. The respondent has advanced arguments in justification of his conduct. We do not find the arguments persuasive. The respondent’s first argument is that the property was marital property and, as such, was subject to the then-pending action for equitable distribution as between [A] and [B]. The property, however, was clearly not marital property under the Pennsylvania Divorce Code. The respondent, knowledgeable and experienced in the law of domestic relations, was obviously aware that such a position vis-a-vis the property had no basis in law. The respondent admitted this at the hearing. The respondent’s second argument is that he was justified in retaining the property because [B] had instructed him to keep the property. This argument is belied by the respondent’s responses to the committee’s interrogation wherein the respondent admitted telling [B] that he would protect any and all rights and interests that she might arguably have in the property. Even if [B] had directed the respondent to retain the property, this, without more, would not have justified the respondent’s refusal to release the property. Obedience to a client’s instructions does not insulate an attorney from disciplinary action, especially, if by acquiescing in the client’s instructions, the attorney violates either the law or a Rule of Professional Conduct. In such circumstances the attorney is bound by the law and the rules of his profession and not by the client’s directives. The respondent’s third argument is that, as stated in his letter dated January 8, 1991, he was compelled to retain the property because both [C] and [A] had knowingly filed false and inaccurate inventories and appraisements in the domestic relations litigation. This argument collapses under the weight of the record. It is true that the inventories and appraisements filed by [C] and [A] did not list property belonging to the [decedent] estate in which [A] might have had an interest. The reason for this omission, however, is crystal clear: The inventories and appraisements were filed prior to [decedent’s] death at a point in time when [A] had neither right, title nor interest in the property and, therefore, had no obligation whatsoever to include the property in the inventory and appraisements. The respondent’s fourth argument is that his conduct should be excused because it was the result of “poor judgment.” The respondent’s reliance on such an excuse is entirely misplaced and is contradicted by his own pro fessional abilities and experience. We are not dealing with an inexperienced or incompetent attorney; rather, we are dealing with a skilled advocate with extensive domestic relations experience and obvious familiarity with the intricacies of the Pennsylvania Divorce Code. The committee is aware that this is the first petition brought against the petitioner by the Office of Disciplinary Counsel and that, since his admission to the bar, the respondent has conducted himself in a manner entirely consistent with the rules and regulations of his profession. Further, the committee is mindful of the personal tragedy suffered by the respondent in the untimely death of his wife, a tragedy that might well have clouded his judgment. Further, the committee recognizes that the respondent’s conduct was, in no way, motivated by malice or a malign intent. Nevertheless, the committee cannot ignore the facts which were clearly established by the petitioner that the respondent, with neither justification of excuse, retained property belonging to another for a period of six months in violation of R.P.C. 1.15(b). In No. 3 D.B. 86, while the committee recommended the sanction of an informal admonition, the Disciplinary Board rejected the recommendation and imposed the more severe sanction of a private reprimand. The Disciplinary Board cited the respondent’s resentful attitude and inappropriate behavior as the reasons for the imposition of the more severe penalty. In the matter sub judice, however, this was not the case as the respondent conducted himself with dignity, courtesy and professionalism throughout the proceedings. To conclude, there being no legitimate justification or excuse for his conduct, the respondent’s conduct constituted a violation of R.RC. 1.15(b) and that the sanction imposed hereinafter is appropriate under the circumstances. CONCLUSION OF LAW (1) The respondent has violated R.P.C. 1.15(b). (2) The disciplinary sanction as recommended hereinafter is appropriate under the circumstances. RECOMMENDATION (1) It is the recommendation of the committee that the respondent receive an informal admonition. OPINION OF DISSENTING MEMBER [ ], Chairman Designate, December 21, 1992 — On March 24, 1992 a disciplinary proceeding against [respondent], Esq., commenced before the undersigned together with recently retired Chairman, [ ], Esq. and [ ], Esq., Associate Member. In his opening statement, prosecuting counsel, [ ], Esq., Disciplinary Counsel in charge of District [ ], told the panel that the proceedings we were about to hear were not a “license-threatening case” and that it may be a situation where an attorney was playing “hardball,” not necessarily engaging in unethical conduct. With this opening statement in mind, we were apprised of the following situation. The chief complaining witness, [A], was the subject matter of a bitter marital dispute between himself and [respondent’s] client. The aspects of the marital “battle royale” that were presented before the board wherein it was alleged that the respondent was guilty of unethical conduct concerning the release of certain property of [A’s] mother’s estate, including a deed to his mother’s home as well as several stock certificates and certain keys. We learned that in December 1986 [A] had walked out on his wife and two children for another woman; had refused to support his wife and children, abandoning them both physically and financially. As the result, he was the subject matter of a series of support actions brought on behalf of [B] and her minor children by the respondent. [A] attempted to obtain a divorce on the grounds of indignities and the Court of Common Pleas sustained a recommendation of the master denying the divorce. There was also a question of a substantial inheritance due [A] and its failure to be included in the inventory submitted to the equitable distribution master which ultimately at trial of the equitable distribution matter proved to be a substantial factor in division of the marital assets in which [A] proceeded to receive substantially less than his estranged wife. In fact, the equitable distribution master commented upon [A’s] lack of candor in failing to make these disclosures. During the course of the marital litigation, [A] was represented by [C], Esq. who, at the same time that she was in private practice also served as an assistant district attorney for the county in which the litigation proceeded. I find this to be an interesting fact since [respondent’s] client was prosecuted, tried and ultimately acquitted for allegedly assaulting her husband by the same district attorney’s office with which [C] served. In addition, there were other quasi-criminal proceedings involving the parties. There was extensive testimony concerning the effect of the failure to properly release certain information, including the items listed hereinabove, but I recall no testimony that any harm was done as a result of the failure to release these documents, nor was there any testimony that alternate measures were not available in order to offset any potential damage which might have been done. Finally, I note with much chagrin that evidently no consideration was given to the fact that the respondent had suffered a tragic personal loss during the intervening period of time when his complained-about conduct took place by reason of the tragic death of his wife in a boating accident. Unfortunately, at the time of the writing of this dissent, I do not have available to me the verbatim stenographic notes of testimony, and have relied on my handwritten notes. I would direct the Disciplinary Board to the six-page letter that was received by Disciplinary Counsel on or about January 8,1991 and admitted into evidence as P-12, which fairly summarizes the respondent’s view of the entire proceedings, which closely mirror my own. Under the circumstances, I must respectfully dissent from a finding of any unethical conduct and if the board is to conclude that some unethical conduct did take place, I believe it is excused by reason of the serious and tragic circumstances under which the respondent was practicing at the time of the complained-of offense. It is curious to me that the chief complaining witness sought redress through the disciplinary network only after successful litigation wherein it was clearly revealed that he was less than candid with the courts and quasi-judicial officers of this Commonwealth, and received a substantially smaller portion of the marital estate. I would find no violations of R.P.C. 1.15(b) and 8.4(d) and would recommend if the board would conclude otherwise that the least of disciplinary penalties be imposed, that of informal admonition. ORDER And now, May 10, 1993, upon consideration of the supplemental report of Hearing Committee [ ] and opinion of dissenting member filed December 21, 1992, it is hereby ordered that the charges filed against [respondent], docketed at no. 130 D.B. 91, be dismissed.

OPINION BY Judge SIMPSON. T.S. (Student) and L.S. (Father) (collectively Appellants) appeal from the July 20, 2001 order of the Court of Common Pleas of Lancaster County (trial court) that affirmed the decision of the Penn Manor School District (School District) to expel Student for the remainder of the 2001-2002 school year. We affirm. On November 20, 2000, Student, a ninth grade student at Penn Manor High School, arranged to purchase marijuana in the school cafeteria. He paid the seller five dollars and received a packet of what he believed to be marijuana. After hearing from another student that the substance he received was not marijuana, Student threw it away. Questioned about the incident by school authorities the next day, Student acknowledged being in the presence of students who had been involved in a marijuana transaction, but stated that he did not “see anything.” Reproduced Record (R.R.) at 34a. After being questioned again on November 30, Student admitted he purchased what he believed to be marijuana. The School District charged Student with violating the School District’s drug and alcohol policy, specifically the use, transfer or disposition of “drug look-a-likes.” The School District notified Father that Student was subject to a 10 day out-of-school suspension pending a hearing of the School District’s judicial review committee. Father and Student appeared at the judicial review committee’s hearing on December 4, 2000. By a letter dated January 9, 2001, the school board advised Appellants that it accepted the recommendation of the judicial review committee that Student be expelled from school for the remainder of the 2001-2002 school year. He could be readmitted prior to the beginning of the 2002-2003 school year if he successfully met several conditions. After Appellants filed an appeal with the trial court, they filed interrogatories and requests for production of documents. The School District answered those interrogatories and requests, but objected to document requests that sought pupil records. The School District observed that some of the requested documents were covered under the United States Family Educational and Privacy Rights Act, 20 U.S.C. § 1232(a), the regulations of the United States Dept. of Education, 34 C.F.R. § 99.1, and the Guidelines of the State Board of Education relating to due process procedures found in 22 Pa.Code § 13.33. The trial court sustained the School District’s objection and denied Appellants’ request for production of documents. At the trial court hearing, Student acknowledged that he purchased what he thought was marijuana from one student, though he was intending to buy it from another student. He testified that he knew he was not supposed to buy or have drugs or a substance that looked like drugs in school. R.R. 87a. Appellants argued that they had not received adequate notice that purchasing “drug look-a-likes” was inappropriate at the school, despite the evidence that the student handbook contained the school’s drug policy and that Student signed that he had received and read that handbook. R.R. 96a, 102a, 104a. The trial court, without a written opinion, affirmed the School District’s expulsion of Student. Appellants appealed to this Court. Appellants assert that the trial court erred by not allowing them to make any inquiry, either through discovery or at trial, of the possible inequitable treatment of Student as compared to others involved in the same incident. Appellants cite Gonzalez v. School District of Philadelphia, 8 Pa.Cmwlth. 130, 301 A.2d 99 (1973), a case involving allegations of racial discrimination and the arbitrary application of school sanctions, where this Court remanded that matter to the trial court with the direction that the students be permitted the aid of discovery procedures in the preparation of their pleadings. Appellants also discuss Flynn-Scarcella v. Pocono Mountain School Dist., 745 A.2d 117 (Pa.Cmwlth.2000) where we made clear we would not interfere in school disciplinary actions unless it was apparent that that school’s actions were arbitrary, capricious or prejudicial. These cases, however, do not address the issue now before us: whether the trial court properly denied Appellants’ request that the School District produce confidential information about students who are not parties to this action. Here, Appellants point us to no justifiable rationale for concluding that the trial court’s decision was an abuse of discretion or manifestly unreasonable. The expectation of privacy for each pupil in a public school is established in both state and federal law. The discipline of any student depends not only on the alleged offense, but also upon the discipline record of that student and whether he or she is covered under the Individuals with Disabilities Education Act (IDEA). IDEA has established different due process procedures governing the placement of students with recognized disabilities. 20 U.S.C. § 1415(k). Next, Appellants repeat the charge that they were not properly notified of the School District’s policy proscribing the use of “drug look-a-likes.” They point out that the School District has several written drug and alcohol policies in various School District publications. While Student was charged with violating policy 227, the trial court found Student violated a handbook version of that policy. Appellants observe that the handbook makes no reference to policy 227. R.R. 104a. Appellants also note that another copy of a drug and alcohol policy is set forth in the School District’s calendar. R.R. 144a. The School District counters that it properly adopted policy 227 and that Appellants did not provide any evidence that the drug and alcohol policy of the School District was not generally available to the public in each school library. Moreover, as discussed above, Student acknowledged that he had seen the policy contained in the student handbook and admitted that he knew he was not supposed to buy and possess drug look-a-likes in school. There is substantial evidence supporting the conclusion that Appellants were notified of the School District’s drug and alcohol policies. Accordingly, the order of the trial court is affirmed. ORDER AND NOW, this 21st day of May, 2002, the order of the Court of Common Pleas of Lancaster County in the above-captioned matter is affirmed. . The high school handbook defines those as non-drag, non-alcohol or mood-altering substances from ordinary daily use that may be used to feign or mimic the appearance, actual use or effects of the substance. Examples include, but are not limited to, table sugar for cocaine, oregano for marijuana or a vitamin for speed. R.R. 139a. . Those conditions were that Student complete the recommendations of the student assistance consultant, participate in urine/blood screening prior to being readmitted and after every marking period for one school year, and successfully complete 25 hours of community service. R.R. 21a. . This Court’s review of the School District's determination is limited to determining whether constitutional rights were violated, whether an error of law or violation of agency procedure was committed, or whether necessary findings of facts are supported by substantial evidence. J.S. v. Bethlehem Area School Dist., 757 A.2d 412 (Pa.Cmwlth.2000), appeal granted, 565 Pa. 655, 771 A.2d 1290 (2001). .This Court’s review of a trial court’s discovery decisions is limited. The trial court has broad discretion in deciding discovery issues. Uhl v. C.H. Shoemaker & Son, Inc., 432 Pa.Super. 230, 637 A.2d 1358 (1994). A reviewing court will not reverse a trial court on discovery matters absent an abuse of discretion and will substitute its judgment for that of the lower court only if it determines the lower court decision was manifestly unreasonable. Id.; Smith v. Philadelphia Gas Works, 740 A.2d 1200 (Pa.Cmwlth.1999). . A State Board of Education regulation requires each school board to adopt a code of student conduct and distribute it to all students and parents as well as to place that code in each school building’s library. 22 Pa.Code § 12.3.

ORDER PER CURIAM: AND NOW, this 13th day of November, 1996. The Report and Recommendations of The Disciplinary Board of the Supreme Court of Pennsylvania dated October 7,1996, are approved and IT IS ORDERED that KENDRA LEIGH MORRIS, who has been on inactive status, has never been suspended or disbarred, and has demonstrated that she has the moral qualifications, competency and learning in law required for admission to practice in the Commonwealth, shall be and is, hereby reinstated to active status as a member of the Bar of this Commonwealth. The expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement shall be paid by the Petitioner.

O’BRIEN, FINDINGS OF FACT (1) On January 4,1993, shortly past midnight, a Tobyhanna Township police officer observed the petitioner operating his motor vehicle in an erratic manner on Pennsylvania Route 940 in Tobyhanna Township, Monroe County, Pa. (2) When the officer stopped the petitioner’s vehicle, he detected a strong odor of alcohol on petitioner’s breath and observed that the petitioner’s eyes were glassy and his speech slurred. When the petitioner failed in attempting to perform three field sobriety tests, the officer placed him under arrest and drove him to Pocono Medical Center for a blood test. (3) After the officer advised the petitioner of the provisions of the Implied Consent Law, the petitioner agreed to submit to a blood test. A blood technician was summoned who made several invasive attempts of petitioner’s arm to secure a blood sample. The blood technician advised the officer and petitioner that he was unable to obtain a blood sample and left the scene. (4) The officer then asked the petitioner to supply a urine sample. The petitioner responded that he was unable to do so at that time. The officer advised petitioner that he could not wait any further with respect to the urine sample and would report a refusal by the petitioner. DISCUSSION The Pennsylvania Motor Vehicle Code provides in pertinent part as follows: “(a) General rule — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: “(1) while under the influence of alcohol or a controlled substance or both; or “(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. “(b) Suspension for refusal — “(1) If any person placed under arrest for a violation of section 3731 (relating to driving under 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. “(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing. “(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.” 75 Pa.C.S. §1547. In PennDOT v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), our Supreme Court held that obtaining a blood, urine or breath sample for purposes of determining whether an individual is driving under the influence of alcohol is a search and seizure within the meaning of our state and federal constitutions. The court further held that if more than one of the foregoing enumerated tests is requested, the police officer must offer sufficient evidence to establish the reasonableness of such a request or the request will be held to be unreasonable in violation of Article 1, section 8 of the Pennsylvania Constitution. In the case at bar, it is undisputed that the petitioner submitted to the invasive attempt to secure a blood sample. Although both the police officer and the petitioner speculated as to the reasons such attempts were unsuccessful, the Commonwealth did not produce the blood technician to provide any reasonable explanation for this failure. The officer’s contention that the petitioner’s arms did not have available veins because of prior drug use, fails to explain why blood was not extracted from some other part of the petitioner’s body. Indeed it is common knowledge that a pinprick of a finger can produce blood for various medical purposes. Therefore, we conclude that the Commonwealth has failed to establish the criteria set forth by our Supreme Court for requesting a second test. Finally we find credible petitioner’s testimony that he was unable to provide a urine sample at the time requested by the officer. Further we conclude that the officer did not wait a sufficiently reasonable period of time to afford the petitioner the opportunity to provide such a urine sample. CONCLUSIONS OF LAW (1) The officer had reasonable grounds to believe that the petitioner was operating a motor vehicle while under the influence of alcohol. (2) When the officer placed the petitioner under arrest, he properly advised him of the Implied Consent Law including the provision that his operating privileges would be suspended for a period of one year if he refused to submit to a chemical test. (3) The petitioner did submit to an invasive procedure to provide a blood sample for a chemical test and the failure of such procedure was not due to any fault on the part of the petitioner. The Commonwealth has failed to provide competent evidence as to the reason this invasive procedure failed. (4) The Commonwealth has failed to present sufficient evidence to establish reasonableness of the subsequent request for urine test and, therefore, such request would be in violation of our state constitution. ORDER And now, May 17, 1993, the order of the Department of Transportation dated January 22,1993, suspending driving privileges of Thomas W. Dembinski for a period of one year for refusal to submit to a chemical test is reversed.

ALLISON, J., This case is before us to dispose of preliminary objections of defendant, State Farm Mutual Automobile Insurance Co. and Julie Dickson, trading and doing business as Julie Dickson Insurance to a complaint filed by Ross G. Fair, individually and as administrator of the estate of his wife, Susanne M. Fair. In January of 1991, the plaintiffs visited the office of State Farm agent Julie Dickson, to apply for a health insurance policy. At this time, however, agent Dickson was not available and the Fairs’ application was filled out by an office person, Peggy L. Enck. Once the application was filled out the Fairs signed a “conditional receipt” and paid State Farm a check for $323.12. The check covered the membership fees and the initial premium for both Ross and Susanne Fair for two months. State Farm cashed this check on January 24, 1991. On January 31, 1991, Susanne Fair was diagnosed as having acute leukemia. On or about February 22, 1991, State Farm received from the Fairs an additional premium check in the amount of $123.06. State Farm cashed this check on February 25, 1991. On March 13, 1991, an underwriting supervisor for State Farm notified agent Dickson that Susanne Fair would be denied medical coverage due to her medical history of “headaches, back and neck disorder, knee disorder, sore throat, fever and myalgia.” The Fairs were subsequently notified that they were denied coverage on March 15,1991. On August 2,1991, Susanne Fair died of acute lymphocytic leukemia. Plaintiff filed a complaint on December 5, 1991, containing the following counts: Count 1 — Breach of Contract; Count II — Violation of the Unfair Trade Practices Act and the Consumer Protection Law; Count III — Negligent and/or Intentional Misrepresentation; Count IV— Bad Faith; Count V — Intentional Infliction of Emotional Distress; and Count VI — Negligence. Defendant timely filed preliminary objections requesting the court to dismiss plaintiff’s claims arising out of State Farm’s alleged violation of the Unfair Insurance Practices Act, dismiss plaintiff’s claim for intentional infliction of emotional distress, dismiss plaintiff’s claim for punitive damages generally and under 42 Pa.C.S. §8371, strike plaintiff’s claim for an amount in excess of $100,000 and order plaintiff to file an amended complaint pleading special damages specifically. We first address defendant’s claim that plaintiff may not base a claim for “bad faith” or punitive damages against an insurance company upon an alleged violation of the Unfair Insurance Practices Act. The Unfair Insurance Practices Act was intended by our state legislatures to serve the public and handle complaints from insureds as to unfair and deceptive insurance practices conducted on a regular basis. The statutory prohibitions within the Act are enforced by the Insurance Commissioner of Pennsylvania, who is empowered to examine and investigate the affairs of every person engaged in the business of insurance in this state to determine whether the Act has been violated. D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), 40 P.S. §1171.7. In essence, the intent of our state Legislature in passing the Act was to regulate and enforce provisions of the Act with the insurance departments of Pennsylvania and not through a court of law. Our appellate courts have acknowledged as such in recent decisions. See Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600 (1988), and Moy v. Schreiber Deed Security Co., 392 Pa. Super. 195, 572 A.2d 758 (1990), (specifically acknowledging that a cause of action under the Unfair Insurance Practices Act was not an action within the court’s jurisdiction). After reading plaintiff’s complaint we conclude that he is asserting specific claims based on the violation of the Unfair Insurance Practices Act (UIPA) and therefore we grant defendants’ request to strike from the complaint any allegations of bad faith based upon the UIPA. We also reject plaintiff’s argument that his references to a violation of the UIPA were only put forth to establish a cause of action under the Consumer Protection Law. The law is quite clear that whether the alleged violations of the UIPA are raised as a primary claim or a secondary claim it will not be entertained by the court. In this case, in order to determine whether defendants violated the CPL it must first be determined whether they violated the Unfair Insurance Practices Act. Since that initial determination is not within the authority of the court to decide, it is also not within the authority of the court to entertain the primary claim under the CPL. See Moy v. Schreiber Deed Security Co., supra, at 200, 572 A.2d at 760-761. Next this court considers defendant’s request for a demurrer to Count V of the complaint which is the allegation of intentional infliction of emotional distress. When confronted with preliminary objections in the nature of a demurrer the court will accept as true all properly pleaded allegations and material facts in the pleadings which give rise to the objections. Pennsylvania Medical Providers Assn. v. Foster, 136 Pa. Commw. 232, 582 A.2d 888 (1990). The court will also accept as true every inference deducible from those facts as well as facts from which the court can take judicial notice. Babjack v. Mt. Lebanon Parking Authority, 102 Pa. Commw. 499, 518 A.2d 1311 (1986). The question presented by demurrer is whether on the facts averred the law says with certainty that no recovery is possible. A demurrer cannot be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Snyder v. City of Philadelphia, 129 Pa. Commw. 89, 564 A.2d 1036 (1989). Plaintiff alleges that this claim is an independent cause of action and should not be considered as a damage element to plaintiff’s claim for breach of contract contained in Count I of the complaint. However, after reviewing the complaint ourselves we find that the claim for intentional infliction of emotional distress arises directly from the alleged breach of the health contract. In other words, if not for the alleged breach there would not be an intentional infliction of emotional distress count. Therefore we are treating Count V as a damage element to the breach of contract action. Ordinarily, emotional distress damages are not recoverable under a breach of contract action but there are two exceptions. The first is when the emotional distress is accompanied by bodily harm. The second is when the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Rodgers v. Nationwide Mutual Insurance Co. 344 Pa. Super. 311, 496 A.2d 811 (1985). Restatement (Second) of Contract §353. We note that this restatement section has not been adopted in Pennsylvania. Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982). Furthermore, the perpetrator of this tort must display extreme and outrageous conduct. Liability has been found only where the conduct has been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Rittenhouse Regency Affiliates v. Passen, 333 Pa. Super. 613, 482 A.2d 1042 (1984). We find the conduct alleged by the plaintiff in this case not to meet this high standard. We therefore grant the defendant’s demurrer to the count of intentional infliction of emotional distress. We next consider defendant’s demurrer to plaintiff’s punitive damages claim. In Count IV of the complaint, plaintiff states a claim for punitive damages under 42 Pa.C.S. §8371 which in pertinent part reads as follows: “In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: “(2) Award punitive damages against the insurer.” Defendant argues that plaintiff should not be able to pursue this claim because technically there was never any formal policy issued to the Fairs. Plaintiff counterargues by stating that the policy was in fact issued but that no copy of the policy was ever provided to the Fairs. After reviewing the complaint and attached exhibits it appears that a contract may have been formed between the two parties for the coverage of health insurance. The Fairs verbally conveyed demographic and medical information to a State Farm representative and they also gave State Farm two premium checks over a period of 30 days which were sufficient to pay for a three month coverage for both Ross G. Fair and Susanne M. Fair with such checks being cashed by State Farm. Given the foregoing a jury could find that a policy was in effect and we will not bar plaintiff’s claim for statutory punitive damages pursuant to 42 Pa.C.S. §8371 We will, however, grant defendant’s demurrer to plaintiff’s general claims for punitive damages contained in Counts II, V and VI. Punitive damages may be given when the act is done with reckless indifference as well as bad motive. Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 464 A.2d 1243 (1983). Punitive damages must be based on conduct which is malicious, wanton and reckless, willful or oppressive conduct. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Furthermore, the state of the mind of the actor is vital. The act or the failure to act must be intentional, reckless or malicious. Rizzo v. Haines, 521 Pa. 484, 555 A.2d 58 (1989). Instantly, plaintiff asks us to sustain his punitive damages based upon such allegations as “the agent intentionally authorizing an individual to explain the terms and conditions of the insurance policy in direct contradiction to State Farm’s own policy of insurance” and that defendants “intentionally misrepresented the nature, extent, terms and conditions and duration of the coverage which plaintiff was paying premiums.” We find these allegations insufficient to support the claims for punitive damages. Most notably it fails to show the state of mind of the defendants. In plaintiff’s complaint there are no allegations of malice, vindictiveness or wantonness. We find the evidence presented as insufficient to support a finding that the defendants acted with a state of mind necessary to impose punitive damages. With regard to defendants’ other preliminary objections we rule that plaintiff does not have to file a more specific pleading for unpaid medical bills, as this information is a matter for discovery and we also will not strike the plaintiff’s claim for damages in excess of $100,000. If need be, plaintiff can replead the complaint so the amount of damages requested is in compliance with Pa.R.C.P. 1021(b). Pursuant to the foregoing, we enter the following ORDER And now, October 22, 1992, the court hereby sustains defendants’ preliminary objections to Count II, (claim for damages arising out of defendants’ alleged violation of the Unfair Trade Practices Act), Count V (intentional infliction of emotional distress) and to plaintiff’s general claims for punitive damages contained in Counts II, V and VI. Court denies defendants’ prehminary objection to statutory punitive damages contained in Count IV and also to defendants’ request for a more specific pleading for unpaid medical bills and to strike plaintiff’s claim for damages in excess of $100,000. . Plaintiff’s complaint, paragraph 14. . 40 P.S. §1171.1. et seq. . Plaintiff’s brief at p. 14. . Id. . Pa.R.C.P. 1021(b) states in relevant part: “(b) Any pleading demanding relief for unliquidated damages shall without claiming any specific sum set forth only whether the amount is or is not in excess of $10,000.”

HOFFMAN, Judge: This is an appeal from a judgment entered on February 22, 1996, in favor of appellee, llene Lombardo, and against appellant Mel- Ion Bank. Appellant now presents the following issues for our review: 1. WHETHER THE LOWER COURT COMMITTED AN ERROR OF LAW IN NOT FINDING THAT APPELLEE’S CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS. 2. WHETHER THE LOWER COURT COMMITTED AN ERROR OF LAW IN APPLYING 13 PA.C.SA. § 4302 TO THIS CASE. 3. WHETHER THE LOWER COURT COMMITTED AN ERROR OF LAW IN CONCLUDING THAT APPELLANT’S DEFENSES TO APPELLEE’S CLAIMS. ARE PRECLUDED UNDER 13 PA C.S.A § 4302 OR OTHERWISE. 4. WHETHER APPELLANT ESTABLISHED COMMON LAW DEFENSES TO DEFEAT APPELLEE’S CLAIMS, INCLUDING THE DEFENSES (i) OF MISTAKE, (ii) OF UNJUST ENRICHMENT AND (iii) ARISING UNDER PRINCIPLES OF AGENCY LAW. 5. WHETHER THE LOWER COURT ERRED IN FAILING TO APPLY 13 PA C.S.A § 3418 TO FIND IN FAVOR OF APPELLANT BECAUSE APPELLEE WAS NOT A HOLDER IN DUE COURSE AND DID NOT DETRIMENTALLY RELY ON THE PAYMENT OF THE ITEM. Appellant’s Brief at 4. For the reasons stated below, we affirm. On January 31, 1986, Stanford Barsh wrote two checks payable to “Bernice S. Barsh Interiors” totalling $101,247.58 (the “Provident checks”) on an account he and his wife, Bernice Barsh, maintained at Provident National Bank. At the time Mr. Barsh wrote the checks, the Barshes’ Provident account had a balance of $504.68, which the Barshes were aware was insufficient to cover the two checks. Mr. Barsh deposited the checks into his wife’s Bernice S. Barsh Interiors business account at Mellon Bank. That same day, Bernice Barsh wrote a check in the amount of $97,247.58 on the Bernice S. Barsh Interiors account (the “Mellon cheek”) payable to Dorothy Barsh, Mr. Barsh’s now deceased aunt, even though she knew that there were insufficient funds in her Mellon account. At Dorothy Barsh’s direction, Stanford Barsh endorsed the Mellon check by signing Dorothy Barsh’s name on the back and, using a deposit slip that Dorothy Barsh had given him, deposited the check into a Provident account jointly titled in the names of appellee and Dorothy Barsh. Neither appellee nor Dorothy Barsh ever had physical possession of the Mellon check. On January 31, 1986, Provident bank presented the $97,247.58 Mellon check to appellant for payment. Because Mr. Barsh had deposited the two Provident checks totalling $101,247.58 into the Bernice S. Barsh Interiors account earlier that day, the account appeared to have sufficient funds and appellant paid the check. On the next banking day, Monday, February 3, 1986, Provident received the Provident checks totalling $101,-247.58 from appellant for payment. Provident posted the checks to the Barsh account, the account became overdrawn, and the checks were returned to appellant for insufficient funds. Mellon subsequently deducted $101,247.58 from the Bernice S. Barsh Interiors account and generated an overdraft report, which it sent to its branch of assignment in Wynnewood. The overdraft report arrived at the Wynnewood branch at the earliest on Wednesday, February 5, 1986. The Wynnewood branch manager contacted Mrs. Barsh and demanded that she deposit funds to correct the overdraft, but neither Stanford nor Bernice Barsh took any corrective action. Appellant, after several days, traced the $97,247.58 Mellon check to the joint Provident account of appellee and Dorothy Barsh and requested that Provident freeze the funds that had been transferred to the Provident account by virtue of Bernice Barsh’s Mellon check. Provident complied and subsequently transferred the Mellon check funds back to Mellon. As a result, the overdraft in the Bernice S. Barsh Interiors Mellon account was rectified. Several days after Provident returned the funds to appellant, appellee and Dorothy Barsh learned that the credit from the Mellon cheek had been deducted from their account. In 1988, appellee instituted this action for breach of contract, intentional interference with contract, and conversion, individually and as executor of Dorothy Barsh’s estate, against appellant and Provident Bank to recover the funds deducted from the joint account at Provident. The trial court conducted a waiver trial and, on March 29, 1994, issued a verdict in favor of appellee and against Mellon Bank in the amount of $143,926.41; in favor of Mellon Bank against Stanford and Bernice Barsh in the same amount; and in favor of Provident Bank and against appellee in no amount. This timely appeal followed. We first address appellant’s assertion that the trial court committed an error of law in failing to find that appellee’s claims were barred by the statute of limitations. Specifically, appellant claims that, since appellee did not become executor until after the statute of limitations had run, appellee’s claim as executor of Dorothy Barsh’s estate was barred, even though appellee’s suit was timely filed. Preliminarily, we note that as appellant’s claims on appeal challenge the trial court’s conclusions of law, we will overturn the trial court only for a legal error or an erroneous application to the facts as found at trial. PNC Bank, Nat. Ass’n v. Bálsamo, 430 Pa.Super. 360, 370, 634 A.2d 645, 650 (1993). When a plaintiff commences suit on behalf of an estate within the statutory period of limitations, but is not made the representative of the estate until after the expiration of the limitations period, the doctrine of relation back applies so that the timely initiation of the suit is validated by the plaintiffs subsequent appointment as estate representative. D’Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, 127-128, 406 A.2d 550, 552 (1979). Here, Dorothy Barsh’s will named appellee executor of her estate and appellee filed suit against appellant and Provident Bank on January 29, 1988, well within the four year limitations period. Appellee probated Dorothy Barsh’s will and applied for letters testamentary in 1993. N.T. 11/16/93 at 83. Although not formally appointed executor until the trial began, appellee’s timely initiation of the suit and subsequent appointment as executor satisfies the statute of limitations for bringing this action. D’Orazio, supra. Accordingly, we dismiss this claim. PNC Bank, Nat. Ass’n., supra. We next turn to appellant’s claims that the trial court erred in applying § 4302 of the Pennsylvania Commercial Code to this case, and that, even if properly applied, the trial court erred in concluding that § 4302 precludes any common law defenses. Under the Commercial Code, a payor bank must pay the amount of a demand item it receives, whether properly payable or not, when it retains the item beyond midnight of the banking day of receipt without settling for it, paying or returning the item, or sending notice of dishonor before its midnight deadline. 13 Pa.C.S. § 4302 (main volume) (amended and recodified July 9, 1992). The midnight deadline is midnight on the payor bank’s next banking day following the banking day on which it receives the relevant item or notice. Id. § 4104. The payor bank is liable under § 4302 unless it has a valid defense, “such as breach of a presentment warranty ... settlement effected or the like.” Id. § 4302. Once a payor bank has paid the item presented for payment, it can revoke the payment only if it has not made final payment and, before the midnight deadline, returns the item or sends written notice of dishonor or nonpayment. Id. § 4301. See Chew-Bittel Assoc, v. Crusader Sav. Bank, 430 Pa.Super. 631, 635 A.2d 653 (1993) (appellant stated a viable cause of action under pre-amendment § 4302 where several weeks passed between drawee bank’s payment of check and its revocation of payment). Here, Provident Bank presented the Mellon check to appellant for payment on Friday, January 31, 1986, making appellant’s deadline for dishonoring the check midnight on Monday, February 3, 1986. 13 Pa.C.S. § 4104. Appellant paid the check on January 31, 1986, the same day it received it. However, appellant revoked payment of the check on February 13, 1986, ten days after its midnight deadline date. N.T. 11/16/93 at 167. Therefore, as appellant failed to timely return the check or send written notice of dishonor, the trial court correctly concluded that appellant was responsible to appellee under § 4302 for the amount of the Mellon cheek. Accordingly, we dismiss this claim. PNC Bank, Nat Ass’n, supra. Appellant next claims that the trial court erred in concluding that § 4302 prevents payor banks from asserting common law defenses to avoid liability under that section. Specifically, appellant attempted at trial to establish the defenses of mistake of fact, unjust enrichment, and principal-agent liability on the part of Dorothy Barsh. Particular provisions of the Commercial Code may displace common law principles of law that would otherwise apply. 13 Pa.C.S. § 1103. However, we do not believe § 4302 displaces common law principles given its broad statutory language. See, e.g., Keystone Bank v. Flooring Specialists, Inc., 513 Pa. 103, 112-114, 518 A.2d 1179, 1184 (1986) (language and structure of § 3606 indicate that common law suretyship principles apply to guarantors of negotiable promissory note under the Commercial Code) (citing 13 Pa.C.S. § 1103). Accordingly, we reverse the trial court’s ruling that common law defenses were unavailable to appellant under § 4302 and remand for findings as to appellant’s fourth issue on appeal regarding whether appellant established mistake of fact, unjust enrichment, or principal-agent liability. Finally, appellant claims that the trial court erred in falling to apply 13 Pa.C.S. § 3418 to the instant ease, because the trial court misconstrued the preamble to § 3418 and mistakenly reasoned that, since this ease involved the recovery of a bank payment, § 3418 did not apply. Under the version of the Code in effect in 1986, § 3418 provided as follows: Except for recovery of bank payments as provided in Division 4 (relating to bank deposits and collections) and except for liability for breach of warranty on present ment under section 3417 (relating to warranties on presentment and transfer), payment or acceptance of any instrument is final in favor of a holder in due course, or a person who has in good faith changed his position in reliance on the payment. 13 Pa.C.S. § 3418 (main volume) (replaced July 9, 1992). Official comment 5 to § 3418 indicates that § 3418, when read with § 4301, permits a payor bank to “recover a payment improperly paid if it returns the item or sends notice of dishonor within the limited time provided in [§ 4301].” The statutory language “[e]xeept for the recovery of bank payments as provided in Division 4” provides an exception as to when payment is final in favor of a holder in due course. See 13 Pa.C.S. § 3418, cmt. 5 (main volume) (replaced July 9, 1992). This provision allows a payor bank to recover a payment improperly paid if it returns the item or sends notice of dishonor within the time provided in § 4301. While the trial court incorrectly reasoned that § 3418 did not apply, we find that § 3418 allows a payor bank to recover an improperly paid item only if it timely gives notice of dishonor or returns the check. Therefore, § 3418 affords appellant no relief because appellant failed to meet the midnight deadline for giving notice of dishonor. Accordingly, we dismiss this claim. PNC Bank, Nat. Ass’n, swpra Based on the foregoing, the judgment of the trial court is affirmed in part, reversed in part, and remanded for factual findings regarding whether appellant established defenses relating to mistake of fact, unjust enrichment, or principal-agent liability. Affirmed in part, reversed in part, and remanded. Jurisdiction relinquished. CAVANAUGH, J., concurs in the result. . We have renumbered appellant’s issues for purposes of this appeal. . Provident National Bank, now known as PNC Bank, N.A., was a named defendant at trial but is not a parly to this appeal. . Stanford and Bernice Barsh were subsequently joined as additional defendants. . 42 Pa.C.S. § 5525(7). . Because the events underlying this action took place in 1986, the 1979 version of the Commercial Code, which was in effect prior to the 1992 amendments, controls here. .The official comment to § 4302 indicates that § 4302 defines the rights of customers when a payor bank fails to take action within the time limits prescribed in § 4301. . § 4302 provides in pertinent part as follows: In the absence of a valid defense such as breach of a presentment warranty (section 4207(a)), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable.... 13 Pa.C.S. § 4302 (main volume) (amended July 9, 1992) (emphasis supplied). . Further, we note that the 1992 amendment to § 4302 was designed to eliminate the ambiguity that exists with respect to defenses under this section. New § 4302(b) “elaborate[d]” on the introductory language of former § 4302 by eliminating the ambiguous "or the like” language and providing that, in addition to breach of the presentment warranty, the payor bank may also raise a defense of fraud on the part of the person seeking enforcement of § 4302 liability. 13 Pa. C.S. § 4302(b) and comment 3. Also, the "settlement effected” language was eliminated in 1992 as "unnecessary.” Id. at comment 3.

LEVIN, J., The action before the court involves an appeal from the tax sale of the petitioner’s property. The petitioner, Barbara Ganzer, was the owner of a parcel of real estate situated at 4510 Highview Boulevard, Erie County, Pa. Petitioner did not pay her real estate taxes on the property for the years 1990 and prior. Thus, the property was scheduled to be sold by the Erie County Tax Claim Bureau pursuant to the Real Estate Tax Sale Law of 1947, 42 P.S. §5860.101 et seq. The public sale was conducted by the bureau on or about September 28, 1992. Although the subject property had an estimated value of $80,000, the upset price established by the bureau for the property was $10,573.81. The subject property was purchased by Eastlake Development Co. for said upset price. Ganzer filed a timely objection to the sale in which she alleged that the bureau failed to properly post notice of the sale of the property at least 10 days prior to the sale as required by 72 PS. §5860.602. The parties entered into the following stipulation: “And now, come the undersigned counsel and stipulate and agree as follows regarding the above-captioned matter: The only alleged defect regarding the tax sale of September 28,1992 regarding the premises at 4510 Highview Boule vard, Erie County, Pa., (18)5318-101 (the premises), is whether the notice of sale required by 72 P.S. §5860.602, which was posted conspicuously on the premises on September 15,1992 in compliance with the statute, remained posted on the premises for the 10-day period prior to the said tax sale.” There is no question that the property was posted by an employee of the bureau on September 15,1992, which was more than 10 days prior to the tax sale. The notice was posted with scotch tape. Further, there is no doubt in the court’s mind, based on uncontested testimony, that the aforementioned notice did not remain posted for a long period of time or for the full 10 days. There was no evidence that Eastlake, the ultimate purchaser of the property, interfered with the notice requirement. Admittedly, the bureau concedes that it did not monitor the premises to see if the posted notice remained at the premises from the time of posting until the time of sale. Ganzer agrees that she had notice of the impending sale in that she signed for the notice of sale prior to the sale. Her exact quote on this admission appears in the transcript as follows: “Mrs. Ganzer: I signed for it, and when I read it, we read it — the first paragraph is what the sale of the — but when the second sale — the second paragraph, which is what hits you you look at the — at the piece of paper. When — apparently, when I went back and reread it, if it’s not sold on the first date, the second date is — and that date was October 12th, and that — ” (Transcript, p. 21) The bureau contends that the second date is placed on the notice so that the notice is not duplicated. If the original date on which the sale is set is not consummated, the sale is continued. The sole issue in this case is whether the Erie County Tax Claim Bureau properly posted the notice of sale required by 72 P.S. §5860.602 on the property at least 10 days prior to the tax sale, as well as whether the bureau has an affirmative duty to continue to check the posting on the premises from the time of posting until the time of sale. Section 602 of the Tax Law, 72 P.S. §5860.602, states as follows: “(a) At least 30 days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notices shall set forth: (1) the purpose of such sale; (2) the time of such sale; (3) the place of such sale; (4) the terms of the sale including the approximate upset price; (5) the descriptions of the properties to be sold as stated in the claims entered and the name of the owner. “(e) In addition to such publications, similar notice of the sale shall also be given by the bureau as follows: “(1) At least 30 days before the date of the sale, by U.S. certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this Act. “(2) If return receipt is not received from each owner pursuant to the provisions of clause (1), then, at least 10 days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau, by the tax collector for the taxing district making the return and by the county office responsible for assessments and revisions of taxes. It shall be the duty of the bureau to determine the last post office address known to said collector and county assessment office. “(3) Each property scheduled for sale shall be posted at least 10 days prior to the sale.” It is well settled in Pennsylvania that the notice provisions of a tax sale statute must be strictly construed as well as strictly complied with. In re Molchan, 94 Pa. Commw. 423, 503 A.2d 105 (1986); See also, In re Upset Price Tax Sale of September 25, 1989, 150 Pa. Commw. 191, 615 A.2d 870 (1992), to prevent the deprivation of property without due process of law. However, where a Tax Claim Bureau has done all that is required by the law, the sale of real estate for delinquent taxes must be confirmed. Kleinberger v. Tax Claim Bureau of Lehigh County, 64 Pa. Commw. 30, 438 A.2d 1045 (1982); Grace Building Co. v. Clouser, 5 Pa. Commw. 110, 289 A.2d 525 (1972). There is no question in this case that the property was properly advertised and that the tax sale notice was sent in conformity with the law and was received by the petitioner. Likewise, the actual posting of the premises by the bureau’s employee was in compliance with the minimum requirements of the law. See Lapp v. County of Chester, 67 Pa. Commw. 86, 90, 445 A.2d 1356, 1358 (1982). Therefore, the minimum requirements were met. Ganzer relies heavily on Little Appeal, 18 D.&C.3d 19 (1981). This reliance is misplaced. In Little, supra, there was no stipulation that the subject property was posted in compliance with the statute and notice was also faded and possibly misleading. Id. at 21-22. The former owners claimed that they were misled by that faded notice. Id. at 21. Another cogent fact appearing in the case at bar, as opposed to Little, is the fact that the former owner admits that she received a formal notice of sale. These facts clearly make the instant case distinguishable from Little. Further, the Pennsylvania Commonwealth Court in Matter of Erie County Tax Claim Bureau, 102 Pa. Commw. 32, 35-36, 517 A.2d 221, 222-23 (1986), specifically held that the Tax Claim Bureau does not have an affirmative duty to make sure the notices remain posted. In the case of York v. Roach, no. 4713-A-1991, the court had this to say about the unfairness of a tax sale: “To state that the court is most upset with this opinion and order would be a gross understatement. The court abhors with passion forfeiture of a property interest and certainly does not wish to place its seal of approval on same. Yet the court is constrained to follow the law that it determines is applicable to the factual scenario before it. It must do so even if the court on a moral and personal basis disagrees with the ultimate result caused by the court’s opinion. If the court felt that it possessed the latitude to set aside the tax sale by holding that the bureau did not follow its mandate in informing the delinquent taxpayer of its option to enter into an installment agreement, it would set aside the sale. “Hopefully, on appeal, an appellate court will disagree with this court and find the court had the power to set aside the sale for the reason the bureau did not carry out its affirmative duty to give personal notice to the property owner of its options even though the property owner had actual knowledge. Maybe if the appellate court does not agree with this court, perhaps the state Legislature will make appropriate changes in the law to protect property owners. If the appellate court or the Legislature were to act in this regard, the court would have no misgivings in supporting said decision. In fact, knowing that other delinquent taxpayers would be protected from the forfeiture of their home in these types of circumstances would give the court great peace of mind.” However, this case is far more egregious than York, supra. Here, the property is worth approximately $80,000. It was purchased for approximately $10,000. To allow such a forfeiture, and for the court to put its seal of approval on same, is to place a perceived black mark on our system of justice. It is cases like this that make the general public look with disfavor upon the courts and our system of justice. Yet the court must follow the law of this Commonwealth since the sale unfortunately met the minimum requirements of law necessary to uphold a sale. In this case, Eastlake may well have complied with the law but in doing so made an exorbitant profit. Even assuming that Eastlake cannot realize the full $80,000 but only $70,000 on the sale of the property, they will be realizing a profit of 600 percent on an investment of $10,000 in less than a year. This exorbitant income is being obtained on the back of the unfortunate property owner. An entity, be it Eastlake or another, waiting to make a purchase of a tax sale property is analogous to a vulture waiting to land on an unsuspecting prey. A purchaser, now or in the future, is not using the court to obtain justice but merely to satisfy its own needs. Unfortunately, the courts are not the proper forum to change the laws in this matter. It is up to the legislators to determine that a windfall should not be bestowed upon third parties at the expense of property owners in these situations. In York, supra, the court hoped that the appellate court would reverse it on appeal. In the instant case, this court would not only hope so, but would be most appreciative if the appellate court would either inform this court that it does have the power to set aside the sale under the existing law or change their interpretation of the law, either of which would prevent this unfortunate event from taking place. Nevertheless, considering all of the above and particularly that there is no statutory requirement that the notice be affixed to the premises in a certain fashion and no court decision requiring the bureau to continue to inspect the premises to see if the notice is posted, the court must, with great reluctance, uphold the tax sale. ORDER And now, April 2, 1993, it is hereby ordered, adjudged and decreed that the objections to the tax sale filed by the plaintiff are dismissed and the tax sale is upheld. . These facts refer to the appeal of Sheely which is a part of the Little appeal. . It is unclear in the Little case whether such notice was received.

MORGAN, RJ., This matter is before us on a motion to add a claim for punitive damages to objections to a first and final account seeking surcharge for mismanagement of trust assets. The trustee argues that punitive damages are not recoverable as a matter of law in an Orphans’ Court proceeding involving such objections to an account. It may be, as the trustee argues, that there is no direct precedent for punitive damages in a surcharge action. However, we see no good reason why a claim for such damages should be less appropriate against a fiduciary in a proper case in an Orphans’ Court proceeding than in any other. We are not persuaded by the view to the contrary for which Freedman Estate, 1 Pa. Fiduc. Rep.2d 60 (Allegheny 1980), aff’d 307 Pa. Super. 413, 453 A.2d 651 (1982), is cited. Although not entirely clear, Freedman seems to rest on a principle that an Orphans’ Court proceeding is equitable in nature and the award of punitive damages in equitable actions is improper. We would note, however, that the relief requested here includes compensatory damages and we fully agree with the proposition, well expounded by Judge Takiff in Korman Corp. v. Franklin Town Corp., 34 D.&C.3d 495 (1984) that “a rule prohibiting the recovery of punitive damages in equity no longer has a rational basis in Pennsylvania jurisprudence” and, therefore, an award of punitive damages is a proper exercise of equitable power where the facts warrant such recovery. For the foregoing reasons we enter the following ORDER And now, April 6, 1993, Frederick P. Lemke’s motion for leave to file amended objections is hereby granted.

WOELFEL, J., The defendant’s motion to strike alleges that the plaintiffs failed to file their pleading on or before July 29,1992, and that the plaintiff’s first amended complaint was verified by the plaintiffs’ attorney, “without explanation as to why neither party verified said pleading, nor without source of [the attorney’s] knowledge.” Those averments were admitted in the plaintiffs’ answer to motion to strike, although the court will note that the answer to motion to strike pleading was again “verified” by plaintiffs’ counsel, and that verification also was made without explanation as to why neither party verified the said pleading, and did not specify Mr. Mitchell’s source of knowledge. Thus, there is some question as to whether the said motion to strike pleading was even answered, in accordance with this court’s order of September 16, 1992. Pa.R.C.P. 1024(c) provides as follows: “(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated Upon his own knowledge and the reason why the verification is not made by a party.” This matter is resolved by Monroe Contract Corp. v. Harris Square Inc., 266 Pa. Super. 549, 405 A.2d 954 (1979). In that case the Superior Court held that: “In suitable circumstances, therefore, ‘any person having sufficient knowledge or information and belief’ may verify a petition. It seems clear to this court that an attorney qualifies as ‘any person.’ Pa.R.C.P. no. 1002 does not demand a contrary result. That rule states: ‘any act other than verification required ... to be done by a party may be done by his attorney.’ (emphasis added) This only forbids an attorney from doing what a party must do; it does not prohibit him from doing what any person may do under the Rules. See 1 Goodrich-Amram 2d §1002:1 (1976). Because any person may verify a pleading, and by extension a petition, an attorney has the power to do so in suitable circumstances. We must emphasize, however, that counsel may verify only in those cases which the conditions delineated in Rule 1024 are present.” (emphasis in the original) The verification attached to plaintiffs’ first amended complaint is devoid of any of those conditions set forth in Pa.R.C.P. 1024(c). The court would also note that the “signature” of the plaintiffs’ attorney, as it appears on the verification of the first amended complaint and on the attached certificate of service, appears to this court to be a stamp facsimile of Mr. Mitchell’s signature, as opposed to a signature itself. Thus, this court has grave concerns about whether the verification, even if the information required in Rule 1024(c) was set forth in the verification, would qualify as having been verified by an attorney, as opposed to someone affixing a stamp facsimile of his signature. In their brief in opposition to defendant’s motion to strike, counsel for the plaintiffs asserts that: “The first amended complaint contained the same facts as the original complaint. Only issues of law are raised that differ from those raised in the original complaint, namely, the elements needed to prove fraud differ from those needed to prove breach of contract. As such, there is no need to have a verification.” (Page 2 of plaintiffs’ brief.) For that proposition counsel for the plaintiffs cites Milford Traumbauersville v. 0.753 Acres of Land, 25 Pa. Commw. 13, 358 A.2d 450 (1976). Unfortunately for the plaintiff, this court, upon reading Milford, finds that it does not stand for the proposition for which plaintiffs’ counsel cites it. In point of fact, Milford, citing Peter (Peters) v. Department of Forest and Waters, 12 Pa. Commw. 330, 314 A.2d 584 (1974), holds that “pleadings which Rule 1023 requires to be verified are limited to those ‘containing averments of fact not appearing of record in the action.’ ” As will be noted below, the first amended complaint contains averments of fact not appearing of the record, in addition to those facts averred in the original complaint. Further, the assertion that the only new material in the first amended complaint are issues of law and that facts set forth in the first amended complaint are the same facts plead in the original complaint are also erroneous assertions. Paragraphs 11, 12, 13, 28(f), 28(k), 30(f) and 32 of the first amended complaint contain factual allegations that do not appear in the original complaint. Thus, the first amended complaint must be verified in accordance with the provisions of Rule 1024. It was not, and therefore, it will be stricken. The court would also note that counsel for the plaintiff failed to appear at the hearing and argument scheduled on the motion. Counsel asserts that the hearing and argument were not on his calendar, despite the fact that the said hearing and argument were scheduled in the same order which established the answer date and the briefing schedule. ORDER And now, October 29, 1992, it is hereby ordered that: (1) The motion to strike pleading and enter judgment of defendant Snyder County Sewage Code Enforcement Committee is hereby granted. (2) The prothonotary is directed to enter judgment in favor of defendant Snyder County Sewage Code Enforcement Committee and against the plaintiffs in this action.

ORDER PER CURIAM: AND NOW, this 13th day of November, 1996, respondent’s motion for an extension of time is denied. A Rule having been entered by this Court on September 26, 1996, pursuant to Rule 214(d)(1), Pa.R.D.E., directing Sandra Couch Collins to show cause why she should not be placed on temporary suspension and no response thereto having been filed, it is hereby ORDERED that the Rule is made absolute; Sandra Couch Collins is placed on tern- porary suspension and she shall comply with all the provisions of Rule 217, Pa.R.D.E.; and the matter is referred to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E. CAPPY and NIGRO, JJ., dissent and would grant respondent’s motion for an extension of time.

OPINION BY Judge SIMPSON. These civil actions were brought on behalf of Erin Jacobs, a minor, by her parents Richard and Patricia Jacobs (the Jacobs), and Alexis McGoldrick, a minor, by her parents Mark and Theresa McGoldrick (the McGoldricks) against Merrymead Farm and the Montgomery County Health Department (the Health Department) for injuries suffered due to alleged exposure to E-coli bacteria. The McGoldricks, the Jacobs and Merrymead Farm challenge the orders of the Court of Common Pleas of Montgomery County (trial court) that sustained the preliminary objections of the Health Department and dismissed it as a defendant in these cases. Among the issues raised by the parties, we are asked to consider whether the trial court erred by sustaining the Health Department’s preliminary objections based upon the defense of immunity. For the reasons set forth below, we reverse the trial court’s orders sustaining the preliminary objections. Merrymead Farm is a family owned and operated dairy farm, store and petting zoo located in Lansdale, Montgomery County, Pennsylvania. Minors Jacobs and McGol-drick visited the farm as paying visitors on October 15 and October 22, 2000, respectively, during the farm’s Fall Festival. The children came in contact with farm animals, specifically cows and calves, and were exposed to E-coli. The Jacobs and the McGoldricks separately filed civil actions against both Mer-rymead Farm and the Health Department. They alleged that E-coli was present at Merrymead Farm, that the Health Department knew E-coli was present, and that others had been infected prior to the minors’ visits there. They also alleged that the Health Department failed to warn them that E-coli was present at Merry-mead Farm and that the Health Department failed to isolate, quarantine or take other control measures concerning the animals at Merrymead Farm. They further averred that the Health Department exercised and had requisite care, custody or control of Merrymead Farm’s animals and real property. The Health Department filed preliminary objections in the nature of a demurrer to the amended complaints alleging that it was immune from liability under the doctrine of governmental immunity pursuant to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8542 . Merry-mead Farm joined the Jacobs and the McGoldricks in filing preliminary objections to the Health Department’s immunity defense. By separate orders dated July 12, 2001, the trial court dismissed the Health Department in both cases. Our review of a trial court’s order sustaining preliminary objections in the nature of a demurrer is to determine whether the trial court abused its discretion or committed an error of law. Altoona, Housing Authority v. City of Altoona, 785 A.2d 1047 (Pa.Cmwlth.2001). Preliminary objections in the nature of a demurrer should be sustained only where the pleadings are clearly insufficient to establish a right to relief. Any doubt must be resolved in favor of overruling the demurrer. Gaster v. Township of Nether Providence, 124 Pa.Cmwlth. 595, 556 A.2d 947 (1989). Immunity from suit is an affirmative defense that, under the Pennsylvania Rules of Civil Procedure, must be pled in a responsive pleading under the heading new matter, not as a preliminary objection. In pertinent part, Rule 1030 provides as follows: (a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of ... immunity from suit ... shall be pleaded in a responsive pleading under the heading “New Matter”. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. An affirmative defense, by definition, raises new facts and arguments that, if true, will defeat a plaintiffs claim, even if all allegations contained in the complaint are true. Black’s Law Dictionary 430 (7th ed.1999). By providing that affirmative defenses be pled under the heading “new matter” in a responsive pleading, the rules have provided predictability and have promoted the orderly practice of pleading. Plaintiffs are provided an opportunity to respond to the new facts raised by the new matter. We recognize that courts have permitted limited exception to this rule and have allowed parties to plead the affirmative defense of immunity as a preliminary objection. Tiedeman v. Philadelphia, 732 A.2d 696 (Pa.Cmwlth.1999); Chester Upland School District v. Yesavage, 653 A.2d 1319 (Pa.Cmwlth.1994). The affirmative defense, however, must be clearly applicable on the face of the complaint. Where the plaintiff does not object to the improper procedure, lower courts have ruled on the affirmative defense of immunity raised by preliminary objections. Here, the Jacobs, the McGoldricks and Merrymead Farm filed preliminary objections to the Health Department’s preliminary objection raising immunity. Therefore, they did not waive the Health Department’s procedural defect. Pa. R.C.P. No. 1032. Further, the Health Department’s preliminary objection in the nature of a demurrer rises to the level of an improper speaking demurrer which must be rejected. Martin v. Department of Transportation, 124 Pa.Cmwlth. 625, 556 A.2d 969 (1989). The objection assumes facts not appearing in the pleading to which it responds. The trial court erred in considering and ruling upon the merits of the Health Department’s preliminary objections. Permitting affirmative defenses to be raised by preliminary objections occasionally permits expeditious resolution of a dispositive issue; however, it carries broad unsettling potential. The lack of predictability arising from sporadic affirmative defense demurrers falls primarily on plaintiffs. Plaintiffs are uncertain whether they must anticipate affirmative defenses in the complaint or whether they may rely on existing procedural rules in crafting their pleadings. Therefore, it is prudent to respect plaintiffs’ objections to a departure from existing rules for raising affirmative defenses. The orders of the trial are reversed and the matters are remanded with directions. ORDER AND NOW, this 7th day of June, 2002, the orders of the Court of Common Pleas of Montgomery County (trial court) sustaining the preliminary objections of the Montgomery County Health Department are reversed. The matters are remanded to the trial court and the Montgomery County Health Department is directed to file answers within 20 days of the date of this order in accordance with the Pennsylvania Rules of Civil Procedure. Jurisdiction relinquished. .Docket Nos. 2008 C.D. 2001, 2009 C.D. 2001, 2069 C.D. 2001 and 2070 C.D. 2001 were consolidated by order of this Court dated September 19, 2001. Docket No. 2440 C.D. 2001 was transferred from Superior Court by order of that court dated September 13, 2001 and consolidated with the previously consolidated four by order dated November 20, 2001. Docket No. 101 C.D. 2002 was consolidated with the other appeals by order of this Court dated January 22, 2002. All six cases were argued together on March 12, 2002. . It is noted that the parties refer to these sections as the Political Subdivision Tort Claims Act (PSTCA), a title that is still somewhat used, although the Act itself has been repealed. It is assumed, therefore, that the references are to those sections of the Judicial Code. . On July 23, 2001, Merrymead Farm filed in both cases a motion for reconsideration and a petition for determination of finality pursuant to Pa. R.A.P. 341(c). The basis for the motions for reconsideration was new evidence that was obtained on July 19, 2001, which consisted of two memoranda prepared by the Health Department medical doctors on September 27, 2000 and September 28, 2000 directing certain action be taken by the Health Department. As part of its motion for reconsideration, Merrymead Farm requested the opportunity to take discovery of Health Department personnel to develop additional facts concerning the Health Department’s knowledge of the E-coli outbreak and the actions it took concerning the outbreak. On August 6, 2001, the trial court denied the motions for reconsideration and granted the petitions for finality.

Opinion By President Judge COLINS. Snisky filed a petition for review of the of a decision of the Background Investigation Appeal Panel (Appeal Panel) of the Pennsylvania State Police disqualifying him as a candidate for appointment as a Pennsylvania State Police Cadet because of an alleged altercation with his wife and immature conduct. The issue on appeal is whether a candidate for appointment as a Pennsylvania State Police Cadet has a sufficient personal property right in employment, which would require a hearing before disqualification and would further allow an appeal from a decision by the Pennsylvania State Police to the Commonwealth Court. On August 7, 2000, Snisky was notified that he had successfully completed the background investigation phase in his processing for the position of Pennsylvania Police Cadet. He was informed that in order to receive an offer of employment, he would have to successfully complete medical and psychological evaluations. By letter dated January 9, 2001, he was informed that he was selected for appointment to the position of State Police Cadet with a starting date on March 12, 2001. On January 14, 2001, a domestic disturbance was reported at the Snisky residence. In the police report, the police officer noted that Mrs. Snisky was bleeding from the nose. According to the officer, Mrs. Snisky stated that her husband threw a telephone at her, but she did not want to press any charges. Mrs. Snisky later submitted an affidavit describing the phone incident as an accident. On January 29, 2001, Snisky received a letter stating that his appointment was rescinded as a result of a domestic violence incident involving Snisky and his wife. The letter stated that a supplemental background investigation would be initiated to review the incident. On March 23, 2001, the Pennsylvania State Police Director, Bureau of Personnel notified Sni-sky that a Background Investigation Screening Panel (Screening Panel) disqualified him as a Cadet. The reasons given for disqualification included Snisky’s altercation with his wife and an incident in which he allegedly threw his children’s ice cream cones out the window of his vehicle. In concluding, the Screening Panel stated, “It would not be prudent to hire him knowing that the potential for this type of behavior exists.” (Pennsylvania State Police letter dated March 23, 2001). The letter also informed Snisky that he could submit a written rebuttal/appeal. Snisky requested a hearing and submitted a written rebuttal in a letter dated March 30, 2001. According to Snisky, he and his wife got into an argument upon leaving church. After a few hours, this argument was rekindled. He stated that when he went to make a phone call, his wife grabbed the telephone from him, which caused the telephone to hit her nose. Mrs. Snisky then called her parents, who heard the argument and informed the police. In response to Snisky’s written rebuttal, on June 29, 2001 the Pennsylvania State Police Director, Bureau of Personnel informed Snisky that the Appeal Panel reviewed his background investigation report, the disqualification factors, and his written rebuttal. The Appeal Panel found that there was no new evidence that would reverse the decision of the Screening Panel. Snisky argues that prior to disqualification, the Pennsylvania State Police must allow him to be heard and present evidence. He cites Bloomfield v. Pennsylvania State Police, 154 Pa.Cmwlth. 626, 624 A.2d 683 (1993), wherein this Court stated that the consent decree entered into in Bolden v. Pennsylvania State Police, Civ.A. No. 73-2604, 1999 WL 80289 (E.D. Pa., June 20, 1974), modified, 73 F.R.D. 370 (1976), established that an applicant for a State Police position has a right to a hearing before his interest can be terminated by agency adjudication. Snisky argues that he was never afforded this right. He maintains that the Appeal Panel neglected to interview him and his wife, and no investigation actually occurred. In opposition, the Pennsylvania State Police argues that Snisky cannot appeal his disqualification because the removal of his candidacy is not an adjudication, and therefore, not reviewable by this Court. The Pennsylvania State Police argues that Snisky was not entitled to appeal his disqualification to the Commonwealth Court because the decision to disqualify a probationary Cadet did not constitute an “adjudication” as defined in the Administrative Law. An adjudication is defined in relevant part as: [A]ny final order, decree, decision, determination of ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceedings in which the adjudication is made. 2 Pa.C.S. § 101. Accordingly, Snisky’s disqualification must have been an “adjudication” in order to entitle him to appeal to this Court signifying that his disqualification affected a personal or property right, privilege, or immunity. Pipkin v. Pennsylvania State Police, 548 Pa. 1, 693 A.2d 190 (1997). The Pennsylvania State Police maintains that the Appeal Panel’s ruling was not an adjudication because it did not affect any “personal or property rights, privileges, [or] immunities” enjoyed by Snisky. The Pennsylvania State Police also notes that while this Court previously held that a Pennsylvania State Police Screening Board’s notification of disqualification was an adjudication in Bloomfield, this decision was based on the selection procedure outlined in the Bolden Consent Decree, which is now dissolved and inapplicable. Upon review of the relevant case law, we agree with the Pennsylvania State Police. In Marino v. Pennsylvania State Police, 87 Pa.Cmwlth. 40, 486 A.2d 1033 (1985), this Court declined to find that cadets had a property right to continued employment with the Pennsylvania State Police so that their discharge without a hearing did not violate due process rights. In Marino, two cadets were dismissed after being accused of cheating on examinations. For the cadets to show that their due process rights were violated by not getting a hearing before being dismissed, they had to show that they had a property interest in continued employment with the Pennsylvania State Police. The court held that a cadet, while having “some interest” in continued employment, was not entitled to a similar hearing given to a non-probationary officer because a cadet’s interest was not “substantial.” Marino, 486 A.2d at 1084. Similarly, in Graham v. Pennsylvania State Police, 160 Pa.Cmwlth. 377, 634 A.2d 849 (1993), petition for allowance of appeal denied, 538 Pa. 660, 648 A.2d 791 (1994), Graham, a former cadet in training to bet-come a Trooper was expelled for disciplinary infractions. Hearings were held before a hearing officer who recommended that Graham not be dismissed. The Commissioner rejected these recommendations and sustained Graham’s dismissal from the Police Academy. She appealed her dismissal to Commonwealth Court. The Court, citing Marino, found that it lacked jurisdiction to hear Graham’s appeal because she did not have a property right in her employment as a Pennsylvania State Police Cadet. See also Pipkin (dismissal of a probationary state trooper was not an adjudication and the trooper was not entitled to due process protections or the right to appeal the dismissal to the Commonwealth Court.) Snisky distinguishes Graham and Pip-kin, arguing that in each of these cases, the plaintiffs were provided with a hearing. Although in the case before us, unlike the Graham and Pipkin cases, no hearing was held, we agree with the Pennsylvania State Police that Snisky had no property rights as a candidate for a Pennsylvania Police Cadet. We have consistently rejected the idea that a probationary state trooper has a property interest in continued employment with Pennsylvania State Police. If a probationary trooper has no property interest in continued employment, it must follow that an applicant, who has made the eligibility list but who has not yet commenced his service at either the Academy or as a probationary trooper, has no vested property rights. Without such a right, Snisk/s disqualification does not constitute an adjudication renewable by this Court. Accordingly, we dismiss Snisky’s appeal for lack of jurisdiction. ORDER AND NOW, this 5th day of June 2002, we dismiss Petitioner’s petition for review for lack of jurisdiction. . Snisky received letters from the Pennsylvania State Police dated March 23, 2001 and June 29, 2001, informing him that he had been removed from the 2000 Cadet Eligibility List and disqualified as a candidate.

BECK, J. ¶ 1 In this appeal, we are asked whether the collateral order doctrine permits us to review an order of the Common Pleas Court that reversed a Municipal Court order setting out specific instructions for a pretrial line-up. We conclude that the collateral order doctrine is not implicated under these circumstances and so quash the appeal as interlocutory. ¶ 2 The apparent trigger for the controversy in this pretrial appeal is a research report published by the United States Department of Justice in October 1999 and entitled “Eyewitness Evidence, A Guide for Law Enforcement” (hereinafter “Report”). The Report, as generated by the National Institute of Justice (NIJ), has the “primary purpose of recommending [the] best practices and procedures for the criminal justice community to employ in investigations involving eyewitnesses.” Report at 3. ¶ 3 In an introductory section, the impetus for the Report was identified: After reviewing the National Institute of Justice Research Report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, Attorney General Janet Reno directed NIJ to address the pitfalls in those investigations that have contributed to wrongful convictions. The most compelling evidence in the majority of those 28 cases was the eyewitness testimony presented at trial. NIJ initiated this study in May 1998 with the primary purpose of recommending best practices and procedures for the criminal justice community to employ in its investigations involving eyewitnesses. Using its “Template for Technical Working Groups,” NIJ established the Technical Working Group for Eyewitness Evidence [TWGEYEE] to identify, define, and assemble a set of investigative tasks that should be performed in every investigation involving eyewitness evidence to best ensure the accuracy and reliability of this evidence. The initial members of this group were the Planning Panel, a multidisciplinary group of nine professionals brought together to identify the needs of the criminal justice system in the area of eyewitness evidence, define goals and objectives for TWGEYEE, and develop the initial strategy for achieving TWGEYEE’s mission. Report at 3. ¶ 4 At section V of the Report, “Procedures for Eyewitness Identification of Suspects,” there are a series of recommendations regarding line-up procedure, which provide as follows: Prior to presenting a live line-up, the investigator should: 1. Instruct the witness that he/she will be asked to view a group of individuals. 2. Instruct the witness that it is just as important to clear innocent persons from suspicion as to identify guilty parties. 3. Instruct the witness that individuals present in the line-up may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. 4. Instruct the witness that regardless of whether an identification is made, the police will continue to investigate the incident. 5. Assure the witness that regardless of whether an identification is made, the police will continue to investigate the incident. 6. Instruct the witness that the procedure requires the investigator to ask the witness to state, in his/her own words, how certain he/she is of any identification. Report at 32. ¶ 5 In May 2001, prior to his preliminary hearing on charges of robbery and related offenses, appellant sought and was granted a pretrial line-up. See Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178, 1182-88 (1996) (criminal defendant may request a pretrial line-up and decision is within the discretion of the court). Counsel for appellant, The Defender Association of Philadelphia, asked the Municipal Court to impose specific terms in connection with the line-up procedure. The proposed terms mirrored several of the recommendations contained in the Report. The Municipal Court granted counsel’s request and entered an order granting a line-up with the following directives: 1. [The law enforcement official conducting the line-up must] instruct the witness(es) viewing the line-up, prior to the line-up and in the presence of defense counsel, as follows: a. “Let me advise you that whether you make an identification or not, the Philadelphia Police Department will continue to. investigate the incident,” and ' b. “Let me also advise you that after you view the line-up I shall ask you whether you can make an identification of any participant of the line-up as being a perpetrator in your case. If you do make an identification, I •will ask how certain you are of that identification. 2. After the line-up is conducted, ask the witness, in the presence of defense counsel, how. certain the witness is of any identification that was made. The response of the witness shall be recorded verbatim. Philadelphia Municipal Court' Order, 5/2/01. ¶ 6 Asserting that the Municipal Court judge had no authority to issue the. instructions that accompanied the order for the line-up, the Commonwealth appealed the order to the Court of Common Pleas. That court granted the Commonwealth the relief it sought and reversed the portion of the Municipal Court’s order setting out specific instructions/questions that the law enforcement supervisor was required to recite to the witness. Appellant filed an appeal of the Common Pleas Court’s order and this court ordered appellant to show cause why the appeal should not be quashed as interlocutory. Appellant filed a response, as did the Commonwealth, which claimed that the appeal should be quashed. The matter is now before us. ¶ 7 Appellant claims the order on appeal is properly before this court as a collateral order under the rules of appellate procedure. The Rules permit an appeal as of right where the order in question: 1) is separable from and collateral to the main cause of action; 2) involves a right too important to be denied review; and 3) is such that if review is postponed until final judgment, the claim will be irreparably lost. Pa.R.A.P. 313(a); (b). See also Keefer v. Keefer, 741 A.2d 808, 812 (Pa.Super.1999). ¶ 8 Even if we assume that this case involves a right that is separable from the main cause of action and one that is too important to be denied review, we cannot conclude that the third prong of the collateral order rulé has been satisfied. ¶ 9 There are few instances in which a criminal defendant may pursue an appeal prior to final judgment, ie., conviction and sentence. Only in exceptional circumstances do we permit departure from “the basic rule limiting an appeal to the review of a final judgment.” Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286, 288 (1986) (defendant may appeal from order denying dismissal on double jeopardy grounds only where claim is not frivolous). Thus, the third prong of the collateral order rule maintains the orderly flow of appeals from the trial courts by limiting them only to those in which relief would otherwise be “irreparably lost.” See Keefer, supra, at 812 (in order to satisfy the collateral order rule, an “interest or issue must actually disappear due to the processes of trial”). ¶ 10 In this case appellant retains his opportunity to present this issue to the appellate courts. If he is identified in the line-up and believes the line-up procedures were improper, he is entitled to file with the trial court a motion to suppress the identification. If he is unsuccessful on that motion, and ultimately is convicted, he may raise the issue on direct appeal. See, e.g., Commonwealth v. Bruce, 717 A.2d 1033 (Pa.Super.1998); Commonwealth v. Scaine, 337 Pa.Super. 72, 486 A.2d 486 (1984). ¶ 11 Appellant argues that unless the propriety of the Municipal Court’s order is decided now, his claim will be irreparably lost because “one can never establish what would have happened had the line-up been conducted more fairly.” Appellant’s Brief at 7. We note however that appellant has never claimed that the line-up procedures currently in place were unfair, suggestive or in any manner violated his constitutional rights. Instead, appellant’s counsel conceded that the line-up methods presently in operation satisfy the constitutional mandate and further admitted that what he was seeking was a line-up procedure that was “just a little more fair.” Transcript, 5/17/01, at 33. ¶ 12 In essence, what appellant is requesting here is a comprehensive change in the policy and procedure governing court-ordered line-ups. - He has not asked for terms specific to his case, but rather has requested that the court adopt some of the recommendations in the NIJ Report. The policy-based nature of appellant’s request, and the fact that it therefore does not involve a right that will be irreparably lost, is best understood from a reading of the NIJ Report. ¶ 13 The Report explains that its recommendations are novel because “in the past, [state and local law enforcement agency] procedures have not integrated the growing body of psychological knowledge regarding eyewitness evidence with the practical demands of day-to-day law enforcement.” Report at 1. The NIJ recommendations, however, are “supported by social science research”: During the past 20 years, research psychologists have produced a substantial body of findings regarding eyewitness evidence. These findings offer the legal system a valuable body of empirical knowledge in the area of eyewitness evidence. Id. ¶ 14 Appellant raises a provocative issue and makes compelling arguments in his favor. The relevant questions underlying this issue are: 1) whether a municipal or common pleas court judge has the authority to impose such changes; and 2) if he or she does have such power, whether the changes proposed in this case were proper. But the very nature of these issues precludes pretrial review under the collateral order doctrine. The fact that this case involves the modification of procedures already deemed to be proper under the law by the courts (and conceded to be proper under the law by counsel) establishes that the issue raised here simply does not constitute a “right that will be irreparably lost” if not addressed immediately. ¶ 15 Further, the proper forum for approving of such changes, should they be adopted, also is uncertain, militating in favor of awaiting final judgment in this case. Appellant argues that a municipal court judge has the inherent power to dictate the changes sought here. The Commonwealth offers alternative arguments in opposition. First, it claims that the courts cannot mandate the methods by which law enforcement personnel conduct line-ups and instead is limited to ruling on the admissibility of line-up identifications in a specific case. Second, it insists that in the absence of a constitutional mandate, the changes cannot occur in the context of a particular case or controversy, but may be accomplished only by the Supreme Court under its rulemaking power. Yet another avenue of potential change is an act of the legislature. ¶ 16 In any event, regardless of what entity may act and under what authority, the question cannot be decided pretrial because it simply does not involve a right that will be lost if review is postponed. ¶ 17 Counsel for appellant commendably seeks to effectuate changes in the criminal justice system by requesting that line-up procedures be modified to reflect the NIJ’s recent findings regarding eyewitness identification. However, those changes, if in fact they may be imposed by a court in a particular case, do not satisfy the strict requirements set out in the collateral order rule. Appellant must await a final judgment before seeking relief on this claim. ¶ 18 Appeal quashed. Matter remanded. Jurisdiction relinquished. . The language of the Municipal Court’s order was identical to that of a previous order by another Philadelphia Municipal Court judge in the case of Commonwealth v. Whitfield. Originally, Whitfield too was on appeal to this court and the Defender Association served as counsel. The Whitfield matter was consolidated with this case because the cases raised identical issues. The Defender Association filed a single brief on behalf of both defendants. However, after oral argument, we granted Whitfield's petition to discontinue his appeal. Only Montgomery remains as an appellant in this case. . The same court already granted the Commonwealth identical relief in the Whitfield matter. In response, Whitfield filed a Petition for Assumption of Extraordinary/Plenary Jurisdiction in the Pennsylvania Supreme Court, which was denied. The appeals by Whitfield and Montgomery to this court, and their consolidation, followed. . This statement by counsel was actually made in the Whitfield matter. However, it was made before the same judge who decided this case and in connection with the very same issue on appeal. . The Defender Association’s decision to request these changes is not limited to appellant’s case, as the initial consolidation of the Whitfield matter and the record in that case make clear. . Appellant responds by drawing a distinction between police initiated investigative line-ups (not at issue here) and court-ordered line-ups requested by the defendant. In the latter, argues appellant, the police act at the behest of the court and so should be subject to its instructions. . In support of his claim that the order here satisfies the collateral order rule, appellant argues that the Commonwealth was permitted to appeal the Municipal Court order to the Common Pleas Court as a collateral order and, therefore, the collateral nature of the order has been established and cannot be questioned. Appellant further claims that the Commonwealth is estopped from arguing that the order on appeal is not a collateral-one, due to its own prior appeal on that very basis. The collateral order inquiry is necessarily dependent upon the party raising its application, as the questions asked relate directly to the party seeking an appeal. See Pa.R.A.P. 313(b). Here, the Commonwealth asserted that the Municipal Court’s order was erroneous, without authority and detrimental to a fair proceeding. Because the Commonwealth cannot appeal an acquittal, its only opportunity to challenge the order came when the order was entered — before trial. If the Commonwealth had been unable to appeal the order at that time, its opportunity to do so would have been "irreparably lost.” Appellant has no similar restriction. If he is unsuccessful at trial, he is entitled to file an appeal and seek relief in this court. An order of the trial court that may be appealed by the Commonwealth is not automatically appealable by the defendant; rather, appealability at times depends upon the status of the party seeking relief and its opportunity for redress of an allegedly erroneous order. See Commonwealth v. Rosario, 419 Pa.Super. 481, 615 A.2d 740 (1992), affirmed, 538 Pa. 400, 648 A.2d 1172 (1994).

OLSZEWSKI, Judge. On April 5, 1990, a complaint in divorce was filed by appellee Brenda Lee Fielding against appellant Gary R. Fielding. The parties had been married for eleven years and had two children from the marriage. The complaint sought a decree of divorce and the equitable distribution of marital property- After several hearings, a master filed a report recommending that the divorce be granted and that the marital property be divided 55/45 in favor of appellee. Following the disposition of the parties’ exceptions to these recommendations, the Honorable Robert J. Conway issued a decree on July 24, 1995, ordering the parties’ divorce and incorporating the master’s report and recommendation. From this decree, appellant filed a timely appeal challenging the distribution of the marital property. Our scope of review in matters of equitable distribution is limited in that we will reverse the trial court’s determinations only upon the finding of an abuse of discretion. See, e.g., Fonzi v. Fonzi, 430 Pa.Super. 95, 633 A.2d 634, 636-37 (1993) (quoting Viles v. Viles, 416 Pa.Super. 95, 98, 610 A.2d 988, 990 (1992)). “When reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate justice and we will find an abuse of discretion only if the trial court has misapplied the law or failed to follow proper legal procedures.” Id. Appellant first asserts that the trial court erred in determining the size and value of the parties’ cow herd because the court based its determination on testimony by the parties themselves, as opposed to testimony by a disinterested witness. See appellant’s brief at 11-12. This argument concedes that there is record evidence to support the trial court’s determination of the cow herd’s size and value, but asserts that the existing record evidence is not credible. Since the fact-finder is entitled to believe all, part, or none of the evidence, and since this Court will not disturb a fact finder’s credibility determinations, appellant’s first claim must fail. See Fonzi, 430 Pa.Super. at 100-01, 633 A.2d at 637 (quoting Viles v. Viles, 416 Pa.Super. 95, 98, 610 A.2d 988, 990 (1992)). Appellant’s second claim, as set forth in his statement of questions presented, reads as follows: 2. Did the Lower Court err in finding that the cow herd and farm equipment repossessed by Robert Fielding on April 4, 1990, was marital property under 23 Pa. C.S. § 3501(a)(7)? Appellant’s brief at 3. In the vague and undeveloped one-page “argument” that purportedly addresses this question, however, appellant makes no further mention of the Divorce Code, cites no case law, and fails to explain and develop the basis of, or theory behind, his second question presented. Under these circumstances, we decline to consider the merits of appellant’s second claim. See Smathers v. Smathers, 448 Pa.Super. 162, 670 A.2d 1159, 1160 (1996) (noting that we will not consider the merits of issues that are not properly raised and developed in appellant’s brief). Appellant next asserts that the trial court erred in considering the possibility of his future inheritance as a significant factor in distributing the marital estate. In Gruver v. Gruver, this Court expressed its concern about the tenuous nature of the possibility of a future inheritance. 372 Pa.Super. 194, 197, 539 A.2d 395, 397, appeal denied, 520 Pa. 605, 553 A.2d 968 (1988). In light of these concerns, the Gruver panel concluded that “[t]he possibility of an inheritance ... should not be a factor in making equitable distribution.” Id. In the instant case, the master’s report, which was subsequently adopted by the trial court, did rely on the possibility of an inheritance in distributing the marital estate. The master wrote as follows: Master’s report and recommendation at 8. Since this passage reveals the lower court’s reliance, in part, on the possibility that appellant would receive an inheritance, we must conclude that the trial court abused its discretion by relying on an improper factor in distributing the marital property. See Graver, supra. Accordingly, we must remand this matter to the trial court for equitable distribution of the marital property without consideration of the possibility of an inheritance. The Master considers the relatively equal efforts of the parties to contribute to the marital estate and believes that they are essentially equal in earning power at the present time. The two significant differences between the parties are the expectancy or inheritance which Gary R. Fielding may obtain in the future and the added responsibility which Brenda Lee Fielding has for the day to day care of the minor children of the parties. (N.T., 11/12/92, p. 12). Because' of these two considerations the Master believes that a distribution of 55% of the marital estate to Brenda Lee Fielding is appropriate in this case. Appellant’s final argument is a bare, undeveloped assertion that the assets here should have been divided evenly. As we have already noted, this Court will not develop arguments on appellant’s behalf. See Smothers, supra. Given the absence of a clear, developed argument, we decline to address the merits of appellant’s final claim. See id. Based upon the foregoing, we affirm the trial court’s order as it relates to the granting of the divorce. We reverse the order insofar as it sets the distribution of marital property, and we remand for equitable distribution without consideration of appellant’s possible inheritance. Affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. . Appellee’s cross-appeal from the July 24, 1995, decree was dismissed on July 10, 1996.

POWELL, Member, Pursuant to Rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations regarding the above-captioned petition for discipline. HISTORY OF PROCEEDINGS Respondent was suspended from the practice of law in the Commonwealth of Pennsylvania by Supreme Court order dated August 15, 1988. The order was issued pursuant to Rule 214(d), Pa.R.D.E. and referred to the Disciplinary Board in accord with Rule 214(f), Pa.R.D.E. Respondent’s suspension stemmed from his January 14, 1988, conviction in the U.S. District Court for the Territory of Guam of the offense of misprision of a felony, in violation of 18 U.S.C. §4. On August 18,1989, respondent was sentenced to pay a fine of $10,000 and perform 200 hours of community service over a period of one year through the [ ] Bar Association. On September 20, 1989, the Office of Disciplinary Counsel filed a petition for discipline of respondent based on his conviction. On October 23, 1989, respondent filed an answer to the petition for discipline. On February 15, 1990, the parties entered into a stipulation of the facts which led to respondent’s misprision of felony conviction. Hearings on the matter were held on February 15,1990, and March 19, 1990, before Hearing Committee [ ]. The Hearing Committee filed its report on July 25, 1990, and recommended that respondent receive a public censure for his misconduct. On August 14, 1990, petitioner filed a brief on exceptions to the Hearing Committee report, and requested that respondent be suspended from the practice of law for a period of at least two years. The matter was adjudicated at the September 1990 meeting of the Disciplinary Board. FINDINGS OF FACT We adopt the following findings of fact which were stipulated by the parties: (1) Petitioner, whose principal office is located at 300 North Second Street, Harrisburg, Pa., is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules. (2) Respondent, [ ], was bom in 1944, and admitted to practice law in the Commonwealth of Pennsylvania in 1974. He resides at [ ] with his wife and two minor children. At all times relevant herein, respondent was a partner in the firm of [A] and his practice was concentrated in municipal bond financing. Except for this proceeding, he has never been subject to discipline. (3) On January 14, 1988, respondent pled guilty in the U.S. District Court for the Territory of Guam to the offense of misprision of a felony (18 U.S.C. §4). By order dated August 15,1988, the Supreme Court of Pennsylvania suspended respondent from the practice of law because of his conviction, and directed that the matter be referred to the Disciplinary Board pursuant to Rule 214(f), Pa.R.D.E., for a hearing in which the sole issue to be determined is the extent of final discipline to be imposed. The factual basis for respondent’s plea of guilty has been fully set forth in a stipulation and allocution (the “Guam allocution”) filed jointly by the United States and respondent at the time of the plea. FACTUAL BACKGROUND (4) Beginning in 1985, [B], executive vice-president of [C], an investment banking firm in New York City, asked respondent to have his law firm act as underwriter’s counsel to [C], bond counsel, and/or tax counsel with regard to certain municipal bond issues. (a) Respondent’s law firm was retained, inter alia, to render opinions regarding the tax-exempt status of a number of bond issues for certain governmental entities within the United States, its territories and trust territories, for which [C] was contemplating acting as underwriter. (b) One of these issues for which respondent’s firm acted as underwriter’s counsel/bond counsel was the [D] bond issue of October 31, 1985, in the principal amount of $300 million, issued by the [E]. The [F] Fund (5) A $4.5 million portion of the proceeds of the [D] bonds was placed in an [F] Fund at [G] Bank. [G] acted as trustee of the [F] and also acted as trustee for the [D] bonds. (a) The [F] was under the control of [C] and was to be used to advance the development of the projects which were to be financed with the proceeds of the [D] bonds. (b) To the extent the funds were not expended on the projects, they were to be made available to Guam for public infrastructure costs related to such projects. (6) During 1985 and 1986, [B] submitted and caused to be submitted to [G] various invoices and requisitions requesting payment, from monies in the [F], for services rendered in connection with the projects to be funded by the [D] bonds. At least two of the invoices and requisitions submitted by [B] to [G] were false and fraudulent, as follows: (a) An [¶] invoice dated January 1,1986, in the amount of $27,500; and, (b) An [I] invoice dated March 31, 1986, in the amount of $30,000. (7) Pursuant to the above false and fraudulent invoices, on or about February 28, 1986, (as to [H]) and May 9, 1986, (as to [I]), [G] paid the amount of the invoices from the [F] as requested by [B]. At the time the invoices were submitted to and paid by [G], however, neither respondent nor his law firm had been asked or were otherwise obligated to review the invoices and/or approve their payment. (8) [B] caused mailings to be delivered in Guam for the purpose of executing this scheme. At the time, however, [B] had not revealed to respondent, and respondent had no reason to believe and was not otherwise aware of, [B’s] fraudulent activities. (9) On or about November 15, 1986, respondent first discovered or had reason to believe that the [¶] and [I] invoices were false and fraudulent. (a) Respondent immediately notified both [J], the chairman and chief executive officer of [C], and [K], Esq., outside counsel to [C], of his concerns about the invoices, and sent copies of the relevant documents to [K] by telecopier on November 19, 1986. (b) Respondent failed, however, to report [B’s] actions to the appropriate authorities under the law of the United States. (10) In addition, in two letters to [E] dated November 15 and 30,1986, discussing other aspects of the [B] Bonds, respondent did not advise [E] of his discovery of or suspicion about [B’s] activities. [L] & [M] Credit Union Shortly before the closings in December 1985 of additional bond issues for which respondent’s law firm had been retained to act as counsel, as indicated in paragraph 4 above, [B] told respondent that proceeds from the sale of the bonds would be invested with [L]. (a) [L] was represented to respondent by [B] (who is also an attorney) to be an offshore bank duly licensed in the Commonwealth of the Northern Mariana Islands, sufficiently capitalized under applicable law, and authorized to undertake such transactions. (b) [N], a “municipal finance consultant” associated with [C] and operating in concert with [C] and [B], represented himself as chairman of [L]. (c) At that time in 1985, neither [B] nor [N] revealed to respondent, and respondent had no reason to believe and was not otherwise aware, that, in fact, [L] had no assets and was not a duly licensed banking corporation. (12) The new Tax Reform Act of 1986, then under consideration by Congress (but not yet passed) provided that certain municipal bonds would be required to have been issued before December 31, 1985, in order to avoid application of certain new restrictive provisions of the act. (13) The December 31, 1985, effective date for certain restrictive provisions of the act was to apply to some of the bond issues for which [B] in December 1985 requested that respondent’s law firm act as bond counsel and/or underwriter’s counsel, and for which [C] was the underwriter. (14) [C] purchased the entire amount of those bonds using checks which appeared on their face to have been drawn on a [C] account at [M] Credit Union (of which [B] was the chairman). These December 31, 1985, bond transactions involved seven issues totaling over $600 million. However, [B] did not reveal to respondent at the time, and respondent had no reason to believe and was not otherwise aware, that the [C] checks issued to purchase the bonds would neither be negotiated by presentation and deposit, nor covered by adequate funds in [C’s] account at [M]. (15) In the spring and summer of 1986, [B] and others at [C] asked respondent’s law firm to act as bond counsel and/or underwriter’s counsel for other bond issues for which [C] was the underwriter. (16) The deadline by which certain municipal bonds had to be issued in order to avoid application of certain restrictive provisions of the Act (which was still under consideration by Congress), by joint statements by both houses of Congress, had been extended to August 31, 1986. (17) The August 31, 1986, effective date for certain restrictive provisions of the Act applied to certain of the bond issues for which [B] in the spring and summer of 1986 had requested that respondent’s law firm act as bond counsel and/or underwriter’s counsel. (18) [C] purchased the entire amount of those bonds using checks which appeared on their face to have been drawn on the [C] account at [M]. The proceeds were then purportedly invested with [L]. These 1986 bond transactions involved six issues totaling over $1.4 billion. At such times in 1986, neither [B] nor [N] revealed to respondent, and respondent had no reason to believe and was not otherwise aware, that [L] had no assets and was not a duly licensed banking corporation. [B] also did not reveal to respondent (nor did anyone else reveal to respondent), and respondent had no reason to believe and was not otherwise aware that the [C] checks issued to purchase the bonds would neither be negotiated by pres entation and deposit nor covered by adequate funds in [C’s] account in [M]. (19) The government has alleged that the “size” of the bond issues mentioned in paragraphs 14 and 18 had been inflated by the obtaining by [B] and [N] of false and fraudulent feasibility studies, which falsely stated the need for such large issues, when [B] and [N] knew that the objectives and projects to be financed by these issues would not be accomplished. The government has acknowledged, however, that in rendering opinions and advice at various times concerning bond issues underwritten by [C], respondent reasonably relied on feasibility studies and reports obtained by [B] and others which clearly made it appear that the proposed projects were feasible and likely of success. Respondent did not know at any time, and did not have reason to suspect until the return of indictments against [B] and [N] in January 1988, that such feasibility studies and reports contained false and misleading statements and may have been obtained by [B] and others through fraud, collusion, and other improper conduct. (20) The government has further alleged that [B] and other officials at [C] engaged in these deceptions, which they advanced by use of the U.S. mail and various wire communications, in order to: (a) Create the appearance that these bonds had been issued on or before December 31, 1985 or August 31, 1986, and were therefore not subject to certain restrictive provisions of the act that took effect on those dates; (b) Fraudulently persuade investment therein with [C], the apparent owners, by members of the public based on the purported tax-exempt status of the bonds; and, (c) Obtain for [C] the proceeds from their remarketing of these bonds for investment in higher yield securities. The government has further acknowledged, however, that the professional legal assistance provided by respondent and his law firm in unwitting furtherance of the schemes of [B] and [N], by the performance by respondent and his firm of services as bond counsel, underwriter’s counsel, tax counsel or otherwise concerning the issuance and remarketing of the bond issues underwritten by [C], was without any criminal knowledge or intent on the part of respondent. (21) After the closing and remarketing of all of the bonds underwritten by [C] for which respondent’s law firm had acted as bond counsel and/or underwriter’s counsel, respondent discovered or had reason to suspect: (a) That [L] was not and had not been a duly licensed and legitimate banking corporation and sufficiently capitalized at the relevant times: (b) That [C] did not have and had not had adequate funds in its account at [M] to pay the checks drawn on its account to purchase the bonds; (c) That the checks had not been negotiated by presentation and deposit. (22) The facts set forth in paragraphs 11 through 20, above, of which respondent was unaware at the time they occurred, raised questions concerning the tax-exempt status of the bonds. (23) After the issuance and remarketing of the bonds underwritten by [C] discussed herein, and upon learning of or reasonably suspecting the facts set forth above, respondent was on notice and had reasonable knowledge that [N], [B], and possibly others had devised a scheme to defraud in connection with said bonds. Respondent, however, failed to report such facts to the appropriate authorities under the law of the United States and concealed such facts. The Guilty Plea and Sentence (24) On January 14,1988, pursuant to a plea agreement with the U.S. attorney, respondent pled guilty in the U.S. District Court for the Territory of Guam to one count of misprision of a felony (18 U.S.C. §4) concerning the above-related matters. (25) On August 18, 1989, respondent was sentenced pursuant to his plea of guilty to pay a fine of $10,000, and to perform 200 hours of community service over a period of one year through the [ ] Bar Association. (26) Respondent has taken no appeal from the conviction and sentence. He has paid the fine in full and is presently working on several research projects in fulfillment of his community service obligation, including projects for Neighborhood Legal Services and directly for the [ ] Bar Association. CONCLUSIONS OF LAW (1) Respondent’s conviction for misprision of a felony, in violation of 18 U.S.C. §4, is a conviction under Rule 214(d), Pa.R.D.E. (2) Respondent’s conviction constitutes a per se independent basis for discipline under Rule 203, Pa.R.D.E. DISCUSSION Respondent’s criminal conviction resulted in his August 1988 suspension from the practice of law, and is grounds for discipline under Pennsylvania Rules of Disciplinary Enforcement. The instant matter is therefore properly before the Disciplinary Board on the issue of the appropriate disciplinary sanction to be imposed upon respondent in light of his conviction. Petitioner has requested that the Disciplinary Board additionally find respondent in violation of four Disciplinary Rules. It is respondent’s contention, however, that because Rule 203, Pa.R.D.E. provides a basis for the imposition of discipline, we are precluded from further inquiry into possible Disciplinary Rule violations. Because this particular issue has not yet been raised in the Pennsylvania disciplinary system, we will address respondent’s objections and the additional Disciplinary Rule violations alleged by petitioner. Respondent raises a novel point which defies a “plain language” interpretation of Rule 203, Pa.R.D.E. Because Rule 203, Pa.R.D.E. states on its face that a respondent’s criminal conviction constitutes an “independent basis” for the imposition of discipline, one may infer that the word “independent” means separate, and therefore, provides the Disciplinary Board with an additional ground for sanctioning the attorney. We therefore conclude that merely because Rule 203, Pa.R.D.E. provides an independent basis for the imposition of discipline, the Disciplinary Board is not precluded from further inquiry into additional Disciplinary Rule violations. This conclusion is supported by the fact that disciplinary matters are heard de novo at every stage of adjudication. See Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Although respondent’s argument defies a plain language interpretation of Rule 203, Pa.R.D.E., it is buttressed by the fact that the matter was referred to the Disciplinary Board pursuant to Rule 214(f), Pa.R.D.E., which requests the board to determine the appropriate disciplinary sanction, not Rule 214(d), Pa.R.D.E., which enables the Supreme Court to issue a temporary suspension until final disposition of the disciplinary aspects of the case. Lacking a clear mandate because of the apparent conflict between Rules 203, Pa.R.D.E. and 214(f), Pa.R.D.E., we will proceed to address the additional violations alleged by petitioner. The Office of Disciplinary Counsel averred in the petition for discipline that respondent engaged in “illegal conduct involving moral turpitude” in violation of D.R. 1-102(A)(3). The Pennsylvania Supreme Court has characterized moral turpitude as “anything done knowingly contrary to justice, honesty, principle, or good morals.” Office of Disciplinary Counsel v. Simon, 510 Pa. 312, 507 A.2d 1215 (1986). Petitioner offered respondent’s plea agreement in support of its contention respondent engaged in illegal conduct involving moral turpitude. However, the plea agreement includes a stipulation of facts which states that respondent had no reason to believe he was not dealing with a duly licensed banking corporation at the time the organization engaged in its fraudulent schemes, and that respondent’s legal assistance was rendered “without any criminal knowledge or consent.” Because respondent and the U.S. attorney agreed that respondent lacked the requisite knowledge mentioned in Simon, he was unable to engage in illegal conduct involving moral turpitude. Accordingly, respondent did not violate D.R. 1-102(A)(3). Additionally, the United States’ agreement that respondent rendered legal assistance without criminal knowledge or consent would also preclude a finding of a D.R. 1-102(A)(4) violation, as alleged by petitioner, because one would need to realize he was engaging in dishonest, fraudulent, deceitful, or misrepresentative conduct in order to knowingly participate in such deception. We therefore conclude D.R. 1-102(A)(4) was not violated by respondent. Petitioner further alleged that respondent’s conduct was prejudicial to the administration of justice. D.R. 1-102(A)(5) is violated when an attorney is convicted of a serious crime. Office of Disciplinary Counsel v. Simon, supra. However, in the instant matter, respondent was convicted for actions which do not constitute a crime under Pennsylvania law. In no way does a recognition that respondent’s conduct was not criminal in Pennsylvania diminish the fact he pled guilty to a crime against the United States. Rather, it is merely an acknowledgment that respondent’s conviction of a less egregious criminal offense is distinguishable from the conduct referred to in Simon. We therefore conclude that although respondent committed a crime against the United States, his conviction does not warrant a finding that D.R. 1-102(A)(5) was violated. Petitioner’s final contention is that respondent’s conduct violated D.R. 1-102(A)(6) because it adversely reflected upon his fitness to practice law. Although any criminal conviction is certainly not a testament to the respondent’s fitness to practice law, we conclude that in rare instances the nature of the conviction and surrounding circumstances may indicate respondent’s continued fitness to practice. Respondent’s conduct in the instant matter was not laudable, but it was also not the intentional, knowing participation in illegal acts; cf. Simon at 1220. Because respondent did not knowingly engage in criminal conduct, and there is no allegation whatsoever that he participated in the underlying felony which gave rise to his misprision conviction, we conclude that he did not violate D.R. 1-102(A)(6). Having determined that respondent did not violate the four Disciplinary Rules charged in the petition for discipline, it is now incumbent upon the Disciplinary Board to ascertain the appropriate disciplinary sanction since his conviction provides a basis for discipline under Rule 203, Pa.R.D.E. In deciding the disposition of the instant matter the Disciplinary Board must “consider the events which surrounded the criminal charge in order ‘to weigh the impact of the conviction upon the measure of discipline.’” Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982), quoting Office of Disciplinary Counsel v. Troback, 477 Pa. 318, 383 A.2d 952 (1978). As aforementioned, the critical facts surrounding respondent’s conviction are his lack of knowledge of or participation in the underlying felony which gave rise to the misprision conviction, and his lack of knowledge of his client’s illegal conduct at the time he was furnishing legal services. These crucial factors and the unique nature of the misprision offense lead us to the conclusion that, although respondent engaged in conduct which led to his 1988 suspension from the practice of law, his conduct was not so egregious as to warrant disbarment. In light of these facts, the nature of respondent’s offense, respondent’s previously unblemished disciplinary history, and the extensive testimony attesting to his excellent reputation for veracity and integrity, we conclude that a three-month suspension from the practice of law will protect the interests of the public and maintain the integrity of the bar. See Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987). RECOMMENDATION The Disciplinary Board of the Supreme Court recommends that respondent be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of three months, retroactive to the August 15, 1988, Supreme Court order suspending him from practice. The board recommends further that respondent be directed to pay the necessary expenses incurred in the investigation and prosecution of this proceeding. Ms. Lieber recused herself. Ms. Heh did not participate in the adjudication. ORDER Rule to show cause entered by this court on March 13, 1991, is discharged. It is hereby ordered that respondent be and he is suspended from the bar of this Commonwealth for a period of three years, retroactive to August 15, 1988, 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. Mr. Justice Zappala and Mr. Justice Papadakos did not participate in the consideration or decision of this case. Mr. Chief Justice Nix dissents and would enter an order of disbarment. Misprision is defined as: “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.”

CARSON, Member, HISTORY OF PROCEEDINGS On April 22, 1991, the Office of Disciplinary Counsel filed a petition for discipline of respondent, charging her with mishandling two separate client matters. The matter was referred to Hearing Committee [ ], which was chaired by [ ], Esq., and included [ ], Esq. and [ ], Esq. On November 19,1991, the parties entered into detailed stipulations and agreed that respondent’s misconduct had occurred as alleged. That same day, a hearing on the matter was held before Hearing Committee [ ], at which time respondent admitted violating Rules of Professional Conduct 1.3, 1.4(a), and 1.16(d). Both petitioner and respondent filed briefs to the Hearing Committee which requested the imposition of a public censure. Hearing Committee [ ] filed its report on August 5,1992, and recommended that respondent receive a public censure for her misconduct. The matter was adjudicated at the October 23, 1992 meeting of the Disciplinary Board of the Supreme Court of Pennsylvania. FINDINGS OF FACT The following findings of fact are based upon the stipulation of the parties and documentary and testamentary evidence presented to the Hearing Committee. (1) Petitioner, whose principal office is now located at Suite 400, Union Trust Building, 501 Grant Street, Pittsburgh, Pa., is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereafter Pa.R.D.E.), with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules. (2) Respondent, [ ], was admitted to practice law in the Commonwealth of Pennsylvania on or about October 20, 1982. (3) Respondent’s office is located at [ ]. (4) In November 1987, [A] retained respondent to represent her in divorce and related matters against her husband, [B]. (5) After [A] retained respondent, [A] paid respondent a fee of $750 to commence the representation. (6) At the time [A] retained respondent, [A] advised respondent that: (a) the parties had been separated; (b) the parties agreed that the divorce would be consensual; (c) the parties had agreed that [A] was to be the primary custodian of the children; (d) that [B] was making voluntary support payments to [A]; and (e) the parties needed to resolve other equitable distribution issues prior to obtaining the divorce. (7) On November 6,1987, respondent timely instituted divorce proceedings in the Court of Common Pleas of [ ] County captioned [A] v. [B], November Term, 1987, no. [ ]. (8) Subsequently, [C], Esq., entered his appearance on behalf of [B] in this divorce matter. (9) After [C] entered his appearance, each attorney served interrogatories upon the other. (10) By letter dated June 13, 1988, [C] wrote to respondent. (11) A copy of the letter of June 13, 1988 is attached to these stipulations and incorporated as Joint Exhibit 1. [The exhibits have not been reprinted in this volume.] (12) Respondent received the original letter of June 13, 1988 prior to June 20, 1988. (13) After receiving the letter of June 13, 1988, respondent forwarded a copy of that letter to [A]. (14) [A] received this letter on June 20, 1988. (15) Subsequent to [C’s] letter of June 13, 1988, [B], in June 1988, ceased making support payments to [A]. (16) By letter dated June 27, 1988, respondent wrote to [C]. (17) [C] received respondent’s letter. (18) A copy of respondent’s June 27, 1988 letter is attached as Joint Exhibit 2. (19) After sending Joint Exhibit 2, respondent, during the period from June 1988 through March 1989, had various telephone conversations with [A] and scheduled meetings with [A] to discuss the divorce case. (20) Those proposed meetings never took place. (21) [A] would state that respondent never met with the client to formulate a proposal to settle the matter. (22) During the time period mentioned above, respondent became ill, as a result of a pregnancy which had occurred during this time period. (23) Respondent was hospitalized in September 1988 and October 1988. The latter hospitalization occurred as a result of her pregnancy, which ended in a miscarriage. (24) During the time period mentioned above, no progress took place concerning the [A] divorce matter. (25) During the time period mentioned above, [A] repeatedly telephoned respondent’s office to learn the reasons for the delay in her divorce proceedings. (26) On most of these occasions, respondent was unable to speak with [A]. (27) On the occasions when respondent was able to speak with [A], respondent explained that the reasons for the delay was respondent’s illness, the difficulties with her pregnancy, the lack of secretarial help, and the illness of respondent’s mother. (28) Subsequently, in March 1989, respondent did prepare a draft of the property settlement and, by cover letter dated March 24, 1989, respondent forwarded it to the complainant for her review. A copy of the proposed property settlement and cover letter are attached to these stipulations and are incorporated as Joint Exhibits 3 and 4, respectively. (29) On approximately April 27, 1989, respondent and [A] spoke on the telephone, at which time [A] voiced her approval of the proposed property settlement and respondent stated that she would immediately contact [C] concerning the proposed property settlement. (30) As a result of that telephone conversation, complainant alerted her estranged husband to expect receipt of the proposed property settlement. (31) Subsequently, [B] advised [C] that respondent would forward to him the proposed property settlement. (32) By letter dated May 1, 1989, [C] wrote to respondent advising her that he had not received a copy of the proposed property settlement and requested that the proposed property settlement be forwarded to him. A copy of [C’s] May 1, 1989 letter is attached to the stipulations and incorporated as Joint Exhibit 5. (33) [C] would testify that he received no response from respondent. (34) Between May 3, 1989 and June 5, 1989, [A] repeatedly called respondent’s office to inquire into the status of her case. (35) During these telephone calls, respondent was never available to accept these calls and complainant left messages for respondent to return the calls. (36) Respondent did not return any of these telephone calls. (37) By certified letter dated June 6,1989, [A] advised respondent of her dissatisfaction with respondent’s handling of her case and demanded an immediate response from her. A copy of [A’s] June 6, 1989 certified letter is attached as Joint Exhibit 6. (38) Respondent received [A’s] letter of June 6, 1989. (39) Respondent did not reply, in writing, to [A’s] letter of June 6, 1989. (40) In July 1989, respondent was advised by [D], Esq., that [A] had retained him to assume representation of her in the divorce matter. (41) [D] then requested that respondent provide him with her file. (42) Respondent did timely forward [A’s] file to [D]. (43) On April 27, 1989, respondent received an informal admonition administered by Chief Disciplinary Counsel regarding a complaint made against her by [E], concerning her representation of him in a child custody and support matter. (44) The basis for receiving the informal admonition was that respondent, following termination of the representation of [E], failed to return to [E] personal documents which he had deposited with her at the time of her representation and also that she failed to provide him with an accounting and/or a refund of the unearned portion of the prepaid fee. (45) By letter dated June 15, 1989, [E] again wrote to respondent and again demanded the return of the papers and the accounting and/or refund of the unearned portion of the fee. A copy of [E’s] letter of June 15, 1989 is attached as Joint Exhibit 7. (46) Respondent received [E’s] letter of June 15,1989. (47) Respondent failed to respond to [E’s] June 15 letter. (48) On a date between June 15, 1989 and July 6, 1989, [E] contacted the Office of Disciplinary Counsel to advise it of respondent’s continued failure to comply with his requests. (49) By letter dated July 6, 1989, [F], Esq., counsel-in-charge of the District [ ] Office of the Office of Disciplinary Counsel wrote to respondent to advise her of [E’s] complaint; to remind her of her responsibilities under R.RC. 1.16(d); and to request that she immediately send to [E] the documents requested and an accounting for her services and/or refund of any unearned portion of the fee. A copy of [F’s] letter of July 6, 1989 is attached and incorporated as Joint Exhibit 8. (50) Respondent received [F’s] letter of July 6, 1989. (51) Respondent failed to specifically respond to [F’s] letter of July 6, 1989. (52) By request for statement of respondent’s position (Form D.B.-7) dated August 25, 1989, respondent was placed on notice that her continued failure to provide this information constituted allegations of possible disciplinary violations. A copy of this DB-7 letter of August 25, 1989 is attached as Joint Exhibit 9. (53) By letter dated August 31, 1989, addressed to [E], respondent returned to [E] all of his documents and refunded the entire retainer. A copy of respondent’s letter of August 31, 1989 is attached as Joint Exhibit 10. (54) Respondent’s prior disciplinary history includes the receipt of two private reprimands and one informal admonition (which led to Charge II of the instant petition for discipline), two of which were based on conduct which occurred when respondent was incapacitated due to a difficult pregnancy and a miscarriage. Respondent has testified that these experiences have shown her the need for a support system in the event she is unable to handle her obligations for some reason. Attorney [G], whose office is located in the same suite as respondent’s, testified to his willingness to act as backup counsel for respondent should the need arise. (55) Several members of the bar appeared before Hearing Committee [ ] and attested to respondent’s excellent reputation for truthfulness and competence in the law. (56) Two of respondent’s clients also testified, stating that they had been very satisfied with respondent’s handling of their legal matters. (57) In addition to practicing law, respondent is very active in the bar association and community affairs, having served on several bar committees; the [ ] Association of Family Mediators; the Committee of [ ], which insures fair and honest elections in the [ ] area; the [ ] Center, which she has served as president; and the Institute for [ ]. (58) Respondent has also done pro bono work, especially in the area of domestic relations. CONCLUSIONS OF LAW Respondent’s conduct has violated the following Rules of Professional Conduct: (1) R.P.C. 1.3, which requires a lawyer to act with reasonable diligence and promptness when representing a client; (2) R.P.C. 1.4(a), which mandates that a lawyer keep a client informed about the status of a matter and promptly comply with reasonable requests for information; (3) R.P.C. 1.16(d), which requires a lawyer to take reasonable steps to protect the interest of a client upon termination of representation. DISCUSSION Petitioner, respondent, Hearing Committee [ ], and this board are all convinced that respondent acted unprofessionally in her handling of the [A] divorce matter and her failure to fulfill her duties upon termination of representation of [E], The evidence clearly demonstrates that respondent failed to act with due diligence and promptness of her representation of [A] in her divorce, in violation of R.P.C. 1.3. This inaction was accompanied by a failure to keep [A] informed about the status of her case, despite repeated requests and the lapse of nine months, during which her client’s husband terminated support payments. Although respondent received messages that [A] had telephoned repeatedly, she did not return any of her client’s calls. Clearly this conduct constitutes a violation of R.P.C. 1.4(a). In the [E] matter, respondent has acknowledged her failure to return [E’s] entrusted property after termination of representation even after receiving an informal admonition, a blatant violation of R.P.C. 1.16(d). The issue before this board is the appropriate measure of discipline for this respondent based on all of the facts surrounding her misconduct. “The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system.” Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 80, 526 A.2d 1180, 1186 (1987). “[Disciplinary sanctions are not primarily designed for their punitive effects.” 515 Pa. at 80, 526 A.2d at 1185. The ideal remedy in a matter like the instant one is a disciplinary sanction based on these goals. We achieve these goals when we formulate a disciplinary sanction based on the individual circumstances surrounding each respondent, including consideration of any mitigating factors. See Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982); Office of Disciplinary Counsel v. Herman, 493 Pa. 267, 426 A.2d 101 (1981). Respondent was undeniably suffering physically when much of her misconduct occurred, a fact we consider relevant to the ultimate disposition of this matter. She is contrite, has cooperated fully throughout the instant proceedings and is highly regarded in the legal community. We are confident she has taken the necessary precautions, namely appointment of backup counsel, which will prevent a recurrence of her misconduct. We are also aware that disciplinary counsel has recommended a less severe sanction than possible for this particular respondent. In light of all these factors, it is our conclusion that the imposition of a private reprimand will adequately address this respondent’s unprofessional conduct. DETERMINATION The Disciplinary Board of the Supreme Court of Pennsylvania determines that the respondent, [ ], shall receive a private reprimand. The expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent. Ms. Flaherty did not participate in the adjudication. Mr. Saltz dissented. ORDER And now, March 11, 1993, upon consideration of the report and recommendation of Hearing Committee [ ] filed August 5, 1992, it is hereby ordered that the said [respondent] of [ ] be subjected to private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in Rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement. Costs are to be paid by the respondent.

CASCIO, This case is before the court on a demand for court hearing, filed by defendant, challenging our order of October 1,1992, which increased the existing order of support for two children from $200 per month to $380 per month effective January 1992. Plaintiff had filed a petition to increase the order setting the support at $200 per month and that petition was dismissed by order of this court entered January 8, 1992. Plaintiff then appealed the dismissal order and on May 8, 1992, we issued an order remanding the case to the Domestic Relations Department for further hearing. The order currently challenged by defendant arose following consideration of the case by the Domestic Relations Division on remand. Defendant essentially raises four issues for our review. First, he alleges that the court failed to take into, consideration the fact that he has the children in his primary physical custody during the summer months by virtue of a marriage settlement agreement entered into by the parties and reduced to court order. We find this argument to be without merit as there has been no showing that even with defendant’s partial custody rights during the winter months, this situation is so unusual as to require consideration in determining the support obligation. See Stein v. Stein, no. 289 Domestic 1989, 344 Domestic 1989, slip op., (C.P., Somerset County, June 20, 1990) (Fike II, P.J.) Next, defendant challenges the retroactivity provision of the order in which we determined that the order should be effective as of January 1992 as opposed to May 8, 1992, when the case was remanded to the department. Again, we find no merit in this contention. Plaintiff’s appeal, which was filed in January 1992, gave rise to the increase in the order complained of by defendant. Thus, it appears that retroactivity to the date of the filing of the demand by plaintiff is appropriate. Third, defendant claims that we should consider the fact that he is now paying the sum of $48.75 each month to provide medical insurance coverage on the children. It is true that, in determining monthly net income, one of the deductions allowable under the rules is that sum of money which is necessary to pay health insurance premiums for the benefit of the children. See Pennsylvania Rule of Civil Procedure 1910.16-5(b)(4). However, even with this reduction considered, the effect on the guideline calculation is negligible. Accordingly, we will not disturb the amount awarded on this basis. Finally, defendant challenges the portion of the order of October 1, 1992, requiring the parties to be equally responsible for any major medical expenses incurred by the children which are not reimbursable by insurance. Defendant alleges that the court has no authority to make such an award because the court lacks the authority to modify the provisions of the marriage settlement agreement. As provided in 23 Pa.C.S. §4324, “the court may require that an obligor pay a designated percentage of a child’s ... reasonable and necessary health care expenses.” Under the statutory scheme, this payment is considered part of the obligor’s support obligation. In addition, 23 Pa.C.S. §3105(b) provides that any “provision of an agreement regarding child support... shall be subject to modification by the court upon a showing of changed circumstances.” Thus, it would appear that the court has authority under the above-quoted statutory sections to make such an award despite the provisions of the marriage settlement agreement. However, the provisions of section 3105 have been determined to apply prospectively, and not retroactively, to property settlement agreements entered into between the parties. Flick v. Flick, 408 Pa. Super. 110, 596 A.2d 216 (1991). Because the marriage settlement agreement was approved by the court in January 1987 and section 3105 was not added until December 19, 1990, effective 90 days thereafter, it appears clear that we do not have that authority. This does not, however, end our inquiry with respect to this issue. According to the testimony presented at the hearing before us, the marriage settlement agreement is silent on the issue of payment of unreimbursed medical expenses. Thus, any action by this court in ordering the parties to share the burden of unreimbursed medical expenses does not affect or impact any of the provisions of the existing marriage settlement agreement. This is so because that issue was not addressed in the agreement and is, therefore, in our opinion, open to consideration by the court under section 4324. Accordingly, we find this argument to be without merit as well. Therefore, we deny the relief requested by defendant and ratify the order of October 1,1992, effective January 1992. ORDER And now, April 1, 1993, consistent with the foregoing memorandum, defendant’s demand for court hearing is hereby dismissed and the order of October 1, 1992, effective January 1992 is hereby ratified.

WOELFEL, J., Defendants Century 21, Central Penn Associates Inc. and Jan Rohrer have filed a motion to enforce settlement which requests that the court order the plaintiff to execute a document entitled “joint tort-feasor release under Pennsylvania Comparative Negligence Act,” a copy of which is attached to the defendants’ motion as Exhibit B. Based upon a review of the motion and the plaintiff’s answer thereto, and the representations of counsel to the court at argument on the motion, it is apparent that the parties agree on all of the facts as set forth in the motion and answer with the exception of one point: whether counsel for the defendant mentioned, and if she did, whether counsel for the plaintiff heard, reference to the inclusion of a “save harmless” clause in the release to be executed in memorialization of the settlement agreement. “The enforceability of settlement agreements is determined according to principles of contract law. If all of the material terms of the bargain are agreed upon, our courts will enforce the settlement.” Century Inn Inc. v. Century Inn Realty, 358 Pa. Super. 53, 516 A.2d 765 (1986). The issue in this instance is whether the parties agreed upon all of the material terms. The defendants made it abundantly clear at argument that the save harmless language in the release is critical to their understanding of and willingness to enter into the settlement agreement and the subsequent release. Counsel for the plaintiff represented to the court that his understanding of the settlement agreement did not contemplate save harmless language of the sort included in the release. Counsel for all parties interested in this issue agree that the specific language contained in the save harmless clause was not discussed, and counsel for the defendant indicated that she, when discussing the matter with plaintiff’s counsel, only made reference to the save harmless clause, without elaborating upon the contents of that clause. Counsel for the defendants represented that the joint tort-feasor release attached to her motion as Exhibit B was the standard joint tort-feasor release that she used, which included a save harmless clause, or more accurately a save harmless paragraph, that she was familiar with and used on a routine basis. Counsel for the plaintiff represented to the court his familiarity with joint tort-feasor releases, but that he used a different form that did not indemnify the releasee to the extent which counsel for the defendants sought. While counsel for the plaintiff understood that there would be certain indemnification or save harmless language in the agreement that would not require the released defendants to pay twice, he represented to the court that he had no expectation that the release would include save harmless language of the sort or to the extent included in the proposed joint tort-feasor release. This court finds that the parties did not agree on all of the material terms, and that there apparently was either a lack of communication or a miscommunication between counsel for the parties. Therefore, the court will decline to enforce what has been characterized as a settlement and will deny the defendants’ motion. ORDER And now, January 28, 1993, it is hereby ordered that the motion to enforce settlement filed by defendants Century 21, Central Penn Associates Inc. and Jan Rohrer is hereby denied. The parties agreed that the representations of counsel at argument as to the discussions of the parties of September 22, 1992, would serve as evidence in this matter, as opposed to the taking of testimony.

ORDER PER CURIAM. AND NOW, this 8th day of April, 2002, the Petition for Allowance of Appeal is hereby GRANTED, limited to the following issue: Whether the Superior Court erred in holding that Petitioner’s claims were waived because he did not file a statement of matters complained of on appeal as set forth in Pa.R.A.P 1925(b)?

OPINION BY Judge FRIEDMAN. Family Counseling Center (Employer) petitions for review of the November 6, 2001 order of the Workers’ Compensation Appeal Board (WCAB), which affirmed the decision of the workers’ compensation judge (WCJ) to grant the Review Petition filed by Marsha Porter (Claimant) and to dismiss the Suspension and Modification Petitions filed by Employer. We affirm. Claimant sustained an injury during the course of her employment with Employer on October 21, 1991. Claimant filed a claim petition and returned to work on December 31, 1991. In a decision dated September 4, 1992, the WCJ granted the claim petition, describing the injury as a cervical strain and bulging disc with right-sided radiculopathy. On March 17, 1993, Claimant underwent surgery, with the surgeon performing a discectomy and fusion at the C5-C6 level of Claimant’s spine. Claimant filed a reinstatement petition on March 18, 1993, alleging a recurrence of the work injury. In a decision dated September 15, 1995, the WCJ found that the surgery was compensable as treatment for Claimant’s October 21, 1991 work-related injury. The WCJ also reinstated Claimant’s total disability benefits as of Febra-ary 8, 1993. (WCJ’s Findings of Fact, No. 1; R.R. at 145a-46a.) Claimant began receiving treatment for depression in 1994. On December 7, 1998, Employer filed Suspension and Modification Petitions, alleging that, as of October 1, 1998, Claimant’s regular job was available to her and that Claimant was capable of performing that job. On March 15, 1999, Claimant filed a Review Petition, alleging that her work injury includes a psychiatric component. The parties filed timely and responsive answers to these petitions, and the petitions were consolidated for hearings before the WCJ. (WCJ’s Findings of Fact, Nos. 2, 12.) Claimant testified on her own behalf that her work duties at the time of the injury were clerical in nature and that her injury was caused by long periods of repetitive work at a computer keyboard. Claimant stated that she is unable to return to her pre-injury job because her medications impair her concentration and memory, because she is tired, because she has trouble dealing with people and because she cannot sit and work for prolonged periods of time. Claimant further testified that she has a continual headache, which varies only in its severity, and that she has pain in her neck and upper back at the shoulder. Claimant indicated that light activities such as cutting celery can increase her pain. (WCJ’s Findings of Fact, Nos. 4-5.) Claimant presented the deposition testimony of David J. Helfrich, M.D., who opined that Claimant has cervical spondy-losis, chronic myofacial pain and depression, all of them being consistent with her work injury. Dr. Helfrich limited Claimant to part-time sedentary work, feeling that Claimant would have difficulty with extremes of neck movement or maintaining a given neck posture for long periods of time. Dr. Helfrich stated that Claimant would not be able to do part-time work at a computer on a regular basis. (WCJ’s Findings of Fact, No. 8.) Claimant also presented the deposition testimony of Kiran Deoras, M.D., a psychiatrist who began treating Claimant on December 3, 1997. Dr. Deoras testified that Claimant suffers from a major depression illness that is in partial remission and that Claimant’s work injury is a factor in her depression. Dr. Deoras recognized that other events in Claimant’s life were possible factors in her depression, such as the death of Claimant’s parents, the death of a brother, concerns about the estate of her father, concerns about her son and a marital problem. However, Dr. Deoras opined that Claimant’s chronic pain, which followed her injury, and her resulting disability are a substantial cause of her depression. Dr. Deoras also opined that Claimant could not work in any capacity because of her depression. (WCJ’s Findings of Fact, Nos. 12-13.) Employer presented the testimony of its executive director, David Shaeffer, Ph.D. Dr. Shaeffer testified that Claimant’s pre-injury job was that of a fiscal assistant. Her work duties were clerical; they were performed for the most part at a desk; and the bulk of the work was done at a computer. By letter dated September 17, 1998, Dr. Shaeffer offered Claimant this job as a full-time position, with hours from 8:30 a.m. to 4:30 p.m. five days each week beginning on October 1, 1998. During his June 11, 1999 deposition, Dr. Shaeffer offered Claimant this job on a part-time basis, for as little as an hour per day and less than five days per week. Claimant did not accept any of Employer’s offers, alleging that she is unable to do full-time or part-time work because of her injury. (WCJ’s Findings of Fact, Nos. 9-10.) Employer also presented the deposition testimony of D. Kelly Agnew, M.D., who examined Claimant on August 19, 1998. Dr. Agnew stated that there is no significant objective medical evidence to support Claimant’s complaints. There are no spasms, no trigger points, and no strength or sensation abnormalities. Claimant’s cervical range of motion is reduced, but it is functional. Dr. Agnew stated that he would limit Claimant’s activities because of her complaints, but Dr. Agnew stated that Claimant could perform the pre-injury job described by Dr. Shaeffer. (WCJ’s Findings of Fact, Nos. 6, 8.) Finally, Employer presented the deposition testimony of L. Alan Wright, M.D., a psychiatrist who agreed with Dr. Deoras that Claimant has a major depression illness that is in partial remission and that Claimant’s work injury is a factor in her depression. However, Dr. Wright disagreed with Dr. Deoras that Claimant’s work injury is a significant factor in her depression. Dr. Wright also disagreed that Claimant was not employable, believing that Claimant should at least attempt to return to work for Employer. (WCJ’s Findings of Fact, Nos. 12-13.) After considering the evidence, the WCJ accepted the expert opinion of Dr. Agnew that Claimant had recovered from her physical injury as of August 19, 1998 to the point where she is able to perform her pre-injury job duties on a full-time basis. However, the WCJ also accepted the expert opinion of Dr. Deoras that Claimant is totally disabled by a psychiatric injury and that Claimant’s work injury is a substantial contributing cause of the psychiatric injury. Thus, the WCJ granted Claimant’s Review Petition, modifying the de scription of Claimant’s work injury to include a psychiatric injury, and dismissed Employer’s Suspension and Modification Petitions. Employer filed an appeal with the WCAB, which affirmed the WCJ’s decision. Employer now petitions this court for review. Employer argues that the WCJ improperly and illogically concluded that Claimant remains disabled as a result of a psychiatric disability after concluding that she recovered from her physical injury to the point where she could perform her pre-injury job duties. Employer bases its argument on the holdings in Thomas Jefferson University Hospital v. Workers’ Compensation Appeal Board (O’Hara), 745 A.2d 709 (Pa.Cmwlth.2000), Washington Steel Company v. Workmen’s Compensation Appeal Board (Argo), 167 Pa.Cmwlth.294, 647 A.2d 996 (1994), appeal denied, 540 Pa. 590, 655 A.2d 519 (1995), and School District of Philadelphia v. Workmen’s Compensation Appeal Board (Coe), 163 Pa.Cmwlth.89, 639 A.2d 1306 (1994). In those cases, this court held that it was illogical for the WCJ to determine that the claimant suffered from depression related to a physical injury after determining that the claimant had fully recovered from that physical injury. Id. However, the determining factor in each of those cases was the fact that the claimant’s recovery from the physical injury preceded the claimant’s initial treatment for a psychiatric injury. Id. That is not the case here. In this case, Claimant began receiving treatment for depression in 1994, long before she recovered from the physical work injury in August 1998. Moreover, both psychiatrists testified here that Claimant’s physical work injury was a factor in causing Claimant’s depression. It is true that the two psychiatrists disagreed as to whether Claimant’s physical injury was a substantial contributing cause of Claimant’s depression, but, on that issue, the WCJ accepted the expert opinion of Dr. Deoras. It is axiomatic that, as the fact finder, the WCJ has exclusive province over the credibility of witnesses and may accept or reject the testimony of any witness, including medical witnesses, in whole or in part. Collier v. Workers’ Compensation Appeal Board (Taylor Hospital), 719 A.2d 820 (Pa.Cmwlth.1998). Accordingly, we affirm. ORDER AND NOW, this 17th day of May, 2002, the order of the Workers’ Compensation Appeal Board, dated November 6, 2001, is hereby affirmed. . Although the WCJ found that the job was to begin on October 1; 1999, the record indicates that the job was to begin on October 1, 1998. (R.R. at 139a.) . Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

LEVIN, J., This matter is before the court on two motions by defendant Hamot Medical Center. Defendant requests this court grant its motion for entry of judgment of non pros filed on May 14, 1992, and also its motion for summary judgment against plaintiff filed on April 14, 1989. These issues will be discussed seriatim. The determination of whether a motion for entry of judgment of non pros should be granted requires an examination of the record. Initially the court notes that both parties have been culpable for delay. This action was commenced on November 22, 1974. Per the record, there was little progress on this case from that date until September 1984. From the time of the issuance of the summons in 1974 until the filing of the complaint in 1984, there was no action taken by the defendant to have the action dismissed. Had the defendant pursued entry of a judgment non pros during that time interval, the court would have seriously entertained such a request. The defendant, however, chose not to take such action. Therefore the delay from the time of the issuance of the summons to the filing of the complaint is not something the court will now consider in determining whether entry of a judgment of non pros is appropriate or proper. After the complaint was filed in 1984, the case proceeded with each party filing respective pleadings. These included primarily discovery pleadings. No request was made for the entry of judgment non pros. On August 30, 1988, the plaintiff filed a pretrial narrative. The defendant, even though requested by the plaintiff to file said document, has yet to file same. Instead of filing a pretrial narrative, the defendant, in 1989, filed a motion for summary judgment. Although briefs were filed, the argument was continued at the request of plaintiff’s counsel. The last correspondence received by defendant Hamot Medical Center from plaintiff’s counsel was a copy of a letter to this court dated May 24,1989. Therein the court was advised that the parties had agreed to delay the argument on the defendant’s motion for summary judgment. No further action was taken in this case until the current motion for entry of a judgment of non pros. The sole issue before the court on the question of the defendant’s entitlement to a judgment of non pros is whether the case known as Penn Piping Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992) dictates an automatic dismissal of the instant action. Granted, at first blush, Penn Piping, supra, along with the cases following such as Klein v. Walton, 413 Pa. Super. 150, 157 n. 4, 604 A.2d-1064, 1067 n. 4 (1992), and Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992), require that the plaintiff’s action be dismissed and entry of judgment non pros be entered. Thus, if the sole reason for the delay was caused by defendant’s motion for summary judgment, the court would grant the motion. In such a situation, the plaintiff would have had ample opportunity to bring this matter to a head by filing a brief and placing the matter on the argument list. See Erie County R.C.P. no. 209(c). However, as previously noted, this case was not only delayed by virtue of the motion for summary judgment but also by the defendant’s failure to file a pretrial narrative. The filing of such a narrative is far beyond the control of the plaintiff. This is a task only the defendant can complete. This fact alone makes the case distinguishable from those cases previously cited wherein the plaintiffs had a vehicle to bring the matter before the court. Herein, the plaintiff had no such ability to compel compliance. It would be a gross miscarriage of justice were the defendant permitted to take advantage of his own inaction and have the plaintiff’s cause of action thrown out of court. Were the court to approve same, it would be an abuse of discretion. There is no question that the granting of non pros, because of the plaintiff’s failure to prosecute his action within a reasonable time, rests with the discretion of the lower court, and the exercise of such discretion will not be disturbed on appeal, unless there is a proof of manifest abuse thereof. See Gallagher v. Jewish Hospital, 425 Pa. 112, 228 A.2d 732 (1967), as well as Penn Piping, supra. Inasmuch as this motion for non pros is something the court has the discretionary power to refuse or grant, it must weigh all factors, including the defendant’s own delaying tactics, when reaching a conclusion. Motion for entry of judgment of non pros is denied. As to the defendant’s motion for summary judgment, as stated in Garcia v. Savage, 402 Pa. Super. 324, 328, 586 A.2d 1375, 1376 (1991), the standard for summary judgment is exacting. “Summary judgment may properly be entered only if ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party.” 402 Pa. at 328, 586 A.2d at 1377 (citations omitted) In the instant motion for summary judgment, the defendant relies on the immunity statute of the Commonwealth of Pennsylvania, §603 of the Mental Health and Mental Retardation Act of 1960, 50 P.S. §4603. Whether or not said section is applicable depends on the existence of certain facts, including but not limited to the decedent’s status when at defendant hospital’s emergency room. Since these facts are in dispute, the court is not in a position to consider granting the imposition of summary judgment. ORDER And now, June 30,1992, it is hereby ordered, adjudged and decreed that the motion for dismissal and entry of judgment non pros filed by the defendant is denied. Further, the defendant’s request for motion for summary judgment is also denied.

CERCONE, President Judge Emeritus: This is an appeal from the lower court order that denied appellant’s writ of certiora-ri. We affirm. The Philadelphia Municipal Court found appellant guilty of possession of a controlled substance. In this appeal, appellant challenges the trial court’s denial of his pretrial suppression motion. Without question, it is the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Tuck, 322 Pa.Super. 328, 332, 469 A.2d 644, 646 (1983). In reviewing a trial court’s denial of a motion to suppress, the appellate court’s responsibility is to ascertain whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Brundidge, 533 Pa. 167, 170, 620 A.2d 1115, 1116 (1993). In making this determination, appellate courts must consider the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Id. The trial court set forth the following summary of the suppression court’s factual findings: On February 3, 1995, at approximately 6:00 p.m., Philadelphia Police Officer William Alexander and his partner Officer De-noble were on patrol in the vicinity of the 5700 block of Torresdale Avenue when they received a call over police radio to investigate “two black males and one white male selling drugs from a green truck on or near the 5700 block of Torresdale Ave nue.” Within minutes the officers approached the aforementioned location and observed a black male and a white male exit a green truck and proceed to walk across the street toward another black male standing on the opposite side of the street. Upon noticing the three suspects the officers stopped their vehicle, exited and told the three males to “put their hands up on the wall.” The officers then requested the three to produce any type of identification, which none of the three males could do. After which, the officers proceeded to conduct a “pat-down” of the three suspects for their (the officers) own safety, with Officer Alexander patting down appellant. While conducting the pat-down of appellant Officer Alexander felt “some type of object” concealed in appellant’s waistband area. Suspecting that the object was a weapon or an item which appellant could use to injure him, the officer removed the object from appellee’s waistband, uncovering a “black film canister” which contained several packages of an off-white chunky substance, alleged crack cocaine. The officer then immediately placed appellant under arrest for possession of a controlled substance. Trial Court Opinion filed December 18, 1995 at 2. According to appellant, the suppression court erred in denying appellant’s suppression motion inasmuch as there was no basis for the investigatory stop and frisk of appellant where the arresting officer acted solely on the basis of anonymous police radio information without independently observing any suspicious behavior, and the officer’s intrusion exceeded the permissible scope of a warrantless frisk by retrieving and opening a film canister from appellant’s clothing, in violation of the United States and Pennsylvania Constitutions. Appellant’s Brief at 3. Essentially, appellant argues that (1) the anonymous radio call cannot be the basis for a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (2) the officer’s subsequent decision to perform a pat-down or frisk was not justified; and (3) the officer exceeded the permissible scope of a “frisk” when he opened the film container retrieved from appellant’s waistband. We have reviewed the arguments presented by the parties and the record certified to this court on appeal. We find that the lower court concisely and correctly addressed appellant’s first two allegations of error and found them to be without merit. We therefore affirm on the basis of the trial court opinion filed December 18, 1995 with regard to appellant’s first two allegations of error. In his third allegation of error, appellant argues that the police officer exceeded the scope of a lawful frisk by opening a film cannister found in appellant’s waistband. In its brief, the Commonwealth cites Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985), a factual scenario similar to that in the instant case. In Kendrick, narcotics detectives received information from an informant regarding the sale of heroin from a private residence. Detectives obtained a search warrant for the residence based upon information received from the informant and information gathered by the detectives during their own surveillance of the house. While attempting to execute the search warrant, detectives knocked on the door of the house. Although detectives observed people running past the front door inside the house, no one responded to their knocks. The officers forcibly entered the home and were confronted with a man wielding a shotgun. The man retreated into a bedroom and was subsequently apprehended. Inside the bedroom, the detectives found defendant, a man, and two women. During a pat-down search for weapons, detectives noticed something black in the defendant’s hand. Officers seized the item which turned out to be a black film vial. Upon opening the vial, a detective found 27 foil packets containing heroin. The defendant in Kendrick sought suppression of the film vial and its contents claiming that the items were the product of an illegal search and seizure. The Commonwealth countered that the seizure of the vial was lawful because the vial was within the “plain view” of the detective. The Superior Court noted that “ ‘the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity’ (emphasis supplied). Thus, after Texas v. Brown, [460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)], the requirements for application of the ‘plain view5 doctrine are (1) lawful ‘initial intrusion’; (2) inadvertence; and (3) probable cause to associate the observed property with criminal activity.” Id. at 570, 490 A.2d 923 (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). As stated earlier, we find that the detective in the instant case was conducting a lawful Terry frisk when he first encountered the film vial. Thus, the “initial intrusion” was proper. Keeping in mind our scope of review, we likewise find that the detective’s discovery of the film vial was inadvertent. See N.T. 6/2/95 at 9 (Officer Alexander presumed hard object in waistband of appellant’s pants was a weapon). Our final inquiry, therefore, is whether the detectives had probable cause to associate the observed object with criminal activity. Commonwealth v. Kendrick, 340 Pa.Super. at 570, 490 A.2d at 927. The existence of probable cause requires that the facts available to the detective would warrant a person of reasonable caution in the belief that certain items may be contraband. Id. at 571, 490 A.2d at 927 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). In Kendrick, this court held that the officer had probable cause to associate a film vial with criminal activity: This Court believes that a film vial, a common package for carrying narcotics, is more closely akin to those rare single purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance” Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979). Admittedly, a film container has other uses and therefore is not purely a “single-purpose” container. However, given the circumstances of this case, we believe that the trained narcotics detective’s view of the container was tantamount to a view of the heroin itself. Commonwealth v. Kendrick, 340 Pa.Super. at 573, 490 A.2d at 928-29. Here, Officer Alexander acted on specific information regarding the selling of drugs by two black males and one white male from a green truck in a specific location. Officer Alexander observed two black males and one white male in the immediate proximity of a green truck in the specific location identified by radio. The three men could produce no identification. During a frisk for weapons, Officer Alexander encountered the film container. Additionally, we note that the officer in the instant case had more than a general expectation that he could encounter a drug deal in progress. Based upon the evidence presented at the suppression hearing, we believe that the totality of the circumstances point to sufficient probable cause to associate the film container with criminal activity. We find that Officer Alexander’s view of the film vial container was tantamount to a view of the cocaine in the container. Accordingly, we hold that the search of the vial was lawful. Because we find both the seizure of the film vial and the search of its contents to be lawful, we find no error on the part of the suppression court in denying appellant’s motion. The order of the trial court is affirmed. . 35 P.S. § 780-113(a)(16).

KIESER, J., This matter is before the court on the exceptions of the petitioner, Mother Renae Bowman, to the Family Court hearing officer’s decision of February 4, 1992. Specifically, the petitioner, through her counsel, James D. Casale, Esq., questions the decision insofar as it: (1) attributed an earning capacity to petitioner in the amount of $200 per week; (2) the hearing officer’s ordering of a support figure of $82 per week as opposed to the guideline suggested amount of $91 per week, giving variation of 10 percent from the support guideline chart, due to the transportation expenses paid by the respondent relating to child visitation; and (3) the determination that the respondent should pay $5 per week on the arrearage. In addition, the petitioner’s requested payment of support to be made during the summer months when the children are in the custody of the respondent to makeup the arrearage. The petitioner did not appear at the hearing on the exceptions. The respondent appeared on his own behalf at the exceptions hearing without the benefit of counsel. No evidence was presented as to why the petitioner’s earning capacity should not be assessed at $200 per week, which is representative of the net pay she received at her last employment with High Steel, Williamsport, Pa. The petitioner now resides in Cedar Rapids, Iowa, having moved there with the children. Insofar as the court can determine petitioner has voluntarily determined not to seek employment. There is no question that the respondent has a substantial expense in paying for his share of the transportation expenses, necessarily involved in exercising his rights to partial custody, as a result of the petitioner and the children voluntarily moving to Iowa. It has been made clear by prior court order that he is responsible for the cost of transporting the children from Iowa to Lycoming County for purposes of exercising those partial custody rights. Accordingly, it is appropriate to reduce his child support payments in part, because of this expense. It would appear that the expenses of the necessary airline tickets from Iowa to Pittsburgh will exceed $600 per year and that there will be additional transportation expenses involved in the respondent arranging for the children to travel from Pittsburgh to Lycoming County. The court believes that a 10 percent reduction in child support, which amounts to approximately $450 per year, in this case is appropriate. The court finds that the appropriate child support guideline amount given the income attributable to the parties of $200 per week to the petitioner and $307 per week to the respondent would be $91 per week and applying the 10 percent deviation it is appropriate to reduce that child support level to $82 per week. The court further finds that the household income of the respondent is $45,000 per year and that the respondent has the financial means to make payments of at least $13 per week on the arrearage. It appearing to the court that the arrearage at this time is $633.90, the court determines the said arrearage should be paid in full within one year of this date. In order to obtain that result, payments on account of the arrearage are appropriate during the period of time that the respondent has physical custody of the children. Accordingly, it is ordered and directed as follows: ORDER (1) The respondent shall pay child support for the two minors in the sum of $82 per week, retroactive to October 10, 1991. (2) Respondent shall pay the minimal sum of $13 per week on the arrearage that may exist; the present balance of the arrearage shall be paid in full within 12 months from this date. Payments on account of the arrearage shall continue during the time the respondent has physical custody of the children. (3) In all other respects not inconsistent with the above findings and this order, the order of the Family Court hearing officer dated February 4, 1992, is adopted and affirmed. Petitioner has suggested that the deviation should be applied to the income amounts, rather than the support amount. We disagree. See note to Rule 1910.16-4.

ORDER PER CURIAM. AND NOW, this 11th day of April, 2002, probable jurisdiction is noted and the order appealed is affirmed.

SPICER, J., Defendant moves to set aside a jury’s verdict of guilty of homicide by vehicle while under the influence of alcohol and related crimes. She originally advanced two trial issues, in addition to the argument that the attorney for the Commonwealth should have been disqualified. However, she has abandoned all but the contention that her case should have been prosecuted by someone other than J. Michael Eakin, Esq., district attorney of Cumberland Comity. Mr. Eakin was specially appointed by Roy Keefer, Esq., district attorney of Adams County, as an assistant district attorney to prosecute this case. Defendant argues that a person disqualified by reason of a conflict of interest should not be allowed to appoint someone else to do the job. There is no question that an actual conflict of interest prohibited Mr. Keefer from personally presenting the case against defendant. His private firm represented victims in the accident upon which the prosecution proceeded and, under Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992), Mr. Keefer was disqualified. In this last case, Supreme Court adopted the view of a dissent in Commonwealth v. Dunlap, 233 Pa. Super. 38, 335 A.2d 364 (1975) and justices who voted for reversal, 474 Pa. 155, 377 A.2d 975 (1977). Quoting Mr. Justice Roberts, the court commented on the difference in responsibility applicable to a district attorney (to seek justice) and to a private lawyer (to zealously represent his client and seek to resolve all questions in favor of his client). A showing of prejudice is no longer required, as it is in other areas. Before we attempt to predict the extent to which the ruling in Eskridge, supra, will be carried, the court wants to emphasize that defendant has never questioned the regularity of appointment or its validity. The court has never been presented with a challenge to Mr. Keefer’s power to appoint or the propriety of the exercise of that power. We have never been asked to address the mechanics of appointment or Mr. Eakin’s authority to act. The record is skimpy in regards to administrative machinery. We may surmise that Mr. Keefer acted pursuant to the County Code, 16 P.S. §1420, but the appointment is not in the file. Mr. Eakin’s oath of office is, however. The sole issue with which we deal relates to imputable disqualification. It may be that requesting assistance from the attorney general would have been preferable to appointing a special assistant. The statute specifically covers situations in which “there is a potential for actual or apparent conflict of interest on the part of the district attorney or his office.” 71 P.S. §732-205(a)(3). Obviously, choosing to request the assistance of Mr. Eakin has given defendant one issue about which to argue in an otherwise perfect case. We are required to predict where appellate courts will go in this somewhat troublesome area. If all that mattered were this court’s evaluation, there would be no problem. Mr. Eakin repeatedly assured the court that he was exercising independent judgment and discretion. It is really ludicrous to even consider that Mr. Eakin would be influenced in this case by the district attorney of a much smaller county. Mr. Eakin deserves our respect. When he assures the court that he has scrupulously detached himself from the local office, we should accept the representation without reminding him that he became, for the duration of the case, Mr. Keefer’s assistant. Although neither counsel have gone much beyond the opinion in Eskridge, supra, we are aware of larger ethical considerations in this case. The trend in conflict cases is to disqualify all members of one’s firm. Maritrans v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992). The terms “firm” or “office” are sometimes broadly interpreted. In Commonwealth v. Green, 379 Pa. Super. 602, 550 A.2d 1011 (1988), the Superior Court held that a public defender’s office is a law firm even though members are scattered throughout different private firms. The court further refused to consider the difference between real and potential prejudice. If Green, supra, controls the other side of the aisle, the technical designation of assistant district attorney dooms this prosecution. If on the other hand, the only purpose of the rule is to assure a disinterested prosecuting attorney, defendant’s conviction must stand. We see important differences between multiple representations of defendants, as occurred in Green, supra, and the need to present dispassionate justice in the case before us. The situation at bar is not even remotely similar to the one considered in Eskridge, supra, where the district attorney himself represented plaintiffs in a civil action. In the case at bar, that role was performed by another member of Mr. Keefer’s firm. The presence of an elected official from another county vitiates any public appearance or suggestion of bias. Mr. Eakin’s performance conformed to all ethical standards. To hold that the procedure followed taints the jury’s decision would exalt form over substance far beyond the degree that inspires the chief justice’s dissent in Eskridge, supra. Therefore, the attached order is entered. ORDER And now, May 4, 1993, defendant’s post-verdict motions are denied. The probation office is directed to perform a presentence investigation and submit a report. Defendant is directed to appear for sentencing May 27,1993, at 9 a.m. For example, a defendant’s complaint based upon hiring of his investigator by the district attorney was dismissed because actual prejudice was not shown, Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28 (1991).

ORIE MELVIN, J. ¶ 1 Appellant, Carolyn Bullotta, (“Wife”) appeals from the Order dismissing her Exceptions to the Memorandum Opinion and Order of Court dated October 24, 2000, in which the trial court held that the Order entered in the parties’ divorce proceeding adopting the marital settlement agreement shall remain in full force and effect and is controlling in the distribution of the estate of James A. Bullotta, Jr. (“Husband”). For the reasons that follow, we affirm. ¶ 2 The facts of this case were aptly set forth by the trial court as follows: James A. Bullotta, Jr., and Carolyn Bullotta were parties to a divorce action commenced on August 11,1998. During the course of the divorce proceedings, the parties reached an agreement concerning the division of marital assets, and on October 19, 1999, a consent Order of Court was entered setting forth the terms of their property settlement. The agreement provided for an award of the marital residence to Mrs. Bullotta, and an award of the parties’ Westmore-land County real estate to Mr. Bullotta. Both parties agreed to execute and deliver a deed conveying his and her interest in the real estate to the other. The agreement further provided for the allocation of various other assets between the parties, including a pension, an annuity, various securities, automobiles, and other personal property. On December 4, 1999, James A. Bul-lotta, Jr. died, the decree in divorce having not yet been entered, and all the terms of the property settlement not yet carried out. A petition for Probate of the Estate of James A. Bullotta, Jr. was filed with the Register of Wills, and Letters Testamentary were granted on December 9, 1999. Thereafter, the Executrix obtained a citation directed to Carolyn Bullotta to Show Cause Why assets should not be turned over to the estate in accordance with the terms of the October 19, 1999 Order of Court. Trial Court Opinion, 10/21/00, at 12. ¶ 3 On appeal, Wife raises the following issues for our review: 1. Is a Tenancy by the Entireties severed by a signed, but unfulfilled marital settlement agreement where the non-performing spouse dies and no divorce decree issues? 2. A marital settlement agreement in a non-bifurcated divorce action is a form of executory contract; if one spouse does not fulfill his terms of the agreement before his death, is the agreement a nullity? Appellant’s brief at 3. ¶ 4 Initially, before we may address the substance of Wife’s assertions, we must determine if this appeal is properly before us. Generally, unless otherwise permitted, only appeals from final orders disposing of all claims or all parties may be the subject of appellate review. Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa.Super.1998) (citing Pa.R.A.P. 341(b)). An appeal may be taken, however, from an interlocutory order as of right, a collateral order, or an interlocutory order by permission. Smitley v. Holiday Rambler Cory., 707 A.2d 520, 524 (Pa.Super.1998) (citation omitted). A collateral order is defined as follows: A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim -will be irreparably lost. Pa.R.A.P. 313(b), 42 Pa.C.S.A. ¶ 5 Here, the issue before us essentially deals with whether assets listed in and divided pursuant to a marriage settlement agreement entered as an order in the parties’ divorce action must be included in Husband’s estate. This Court concluded that a similar issue could be reviewed on appeal as a collateral order in In re Estate of Petro, 694 A.2d 627 (Pa.Super.1997), appeal denied, 550 Pa. 719, 706 A.2d 1213 (1997). In that case, the administrator of the decedent’s estate appealed from the trial court’s order denying a motion for a new trial and entry of judgment in favor of the decedent’s daughters and against the administrator of decedent’s estate upon the denial of the administrator’s petition to turn over assets. Id. at 630. This Court determined whether the assets that the decedent’s daughters claimed were an inter vivos gift should be included in the estate was an issue separable from and collateral to the main cause of action, which was the administration of the assets in the decedent’s estate. Id. Also, we found that the right involved was too important to be denied review, and the question was such that the claim might be irreparably lost because the potential existed for the dissipation of assets. Id. ¶ 6 Similarly, we conclude we have jurisdiction over Appellant’s claims in this matter because all elements for a finding of a collateral issue are met. First, the issue of whether the assets subject to the marital property settlement agreement encompassed in the October 19, 1999 Order should be subject to distribution as part of Husband’s estate is an issue separable from and collateral to the administration of Husband’s estate. Second, the right involved is too important to be denied review. Further, the question is such that the claim may be irreparably lost because there is the possibility that funds or real property that may be included in the estate may be transferred, sold, or dissipated before a final accounting occurs. As such, we will address Wife’s claims. ¶7 Essentially, Wife asserts that the trial court erred in holding that the marital settlement agreement entered as an Order on October 19, 1999 in the parities’ divorce action remained in effect after husband’s death. Specifically, Wife argues that the property held by Husband and Wife in the entireties passed to Wife upon Husband’s death. Also, she contends that in a non-bifurcated divorce proceeding, a marital settlement agreement becomes a nullity where one spouse dies before a final decree is entered. ¶ 8 Initially, we note that “[t]he death of a spouse during the pendency of a divorce proceeding abates the divorce action and any and all claims for equitable distribution.” In re Estate of Cochran, 738 A.2d 1029, 1031 (Pa.Super.1999) (citation omitted). As a divorce action is abated by the death of one of the spouses prior to entry of a divorce decree, economic claims are also abated prior to the entry of a decree by the death of one of the spouses. Estate of Pinkerton v. Pinkerton, 435 Pa.Super. 455, 646 A.2d 1184, 1185 (1994) (citations omitted). “However, once a final divorce decree has been entered, the right of a subsequently deceased spouse to the distribution of marital property and other economic claims, where these matters have been properly put in issue before the death of the spouse, is vested.” Id. (citations omitted). ¶9 When property is held by parties in the entireties, the tenancy by the entireties can be severed by joint conveyance, express or implied agreement, or divorce. Clingerman v. Sadowski, 513 Pa. 179, 183-84, 519 A.2d 378, 381 (1986) (citations omitted). Historically, a tenancy by the entireties “is a form of co-ownership in real and personal property held by a husband and wife with right of survivorship.” In re Gallagher’s Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945). Moreover, “[fits essential characteristic is that each spouse is seized per tout et non per my, i.e., of the whole or the entirety and not of a share, moiety, or divisible part.” Id. (citations omitted). Neither spouse may unilaterally sever an estate held in the entireties. Id. Further, when one spouse dies, the surviving spouse does not take a new estate; “the only change is in the properties of the legal entity holding the estate.” Fazekas v. Fazekas, 737 A.2d 1262, 1264 (Pa.Super.1999) (citation omitted). During the duration of the entireties estate, either spouse may act for both spouses as long as both spouses share in the proceeds, and neither spouse may appropriate property for the spouse’s own use to the exclusion of the other spouse without first obtaining the consent of the other spouse. Id. (citations omitted). ¶ 10 In this case, we are presented with an express agreement purporting to sever the entireties nature of property held by Husband and Wife in the entireties. In Stop 35, Inc. v. Haines, 374 Pa.Super. 604, 543 A.2d 1133, 1134 (1988), we reversed the trial court’s order directing the former wife of a judgment debtor to pay the judgment from proceeds derived from the sale of real property owned by the wife. In that case, the parties executed an agreement providing for the equal division of proceeds upon the sale of their residence. Id. at 1134. We determined that because the agreement relied upon by the judgment creditor was not a deed and was not recorded, the agreement “was nothing more than an agreement, modifiable by mutual consent, to divide equally the property in the event that sometime in the future the property were sold.” Id. at 1136. Further, we noted there was no present intent to sever the entireties estate in the real property. Id. As such, we concluded that the agreement “was nothing more than an expression of intention to divide the net proceeds if and when the real estate was sold for an adequate price.” Id. Accordingly, we found no severance of the entireties estate prior to the time the residence was conveyed to the wife, and thus concluded that the husband did not have a separate interest in the marital residence when the judgment debtor’s lien attached. Id. ¶ 11 Our analysis in this case, however, does not rest upon whether the entireties nature of the property was destroyed by the parties’ agreement. In Reese v. Reese, 351 Pa.Super. 521, 506 A.2d 471 (1986), this Court affirmed the trial court’s order enjoining the surviving husband from interfering with the distribution of the marital property in accordance with a decree of equitable distribution. In that case, this Court considered the issue of the effect of a spouse’s death before a final decree in divorce is entered when a decree of equitable distribution has been previously entered dividing the marital property owned by a husband and wife as tenants by the entireties. Id. at 472. The trial court in Reese denied the husband’s motion to strike the order of distribution and a subsequent monetary judgment entered pursuant to the order, and also enjoined the surviving husband from interfering with the disposition of property in accordance with the court order. Id. Pursuant to Husband’s request, the trial court heard the property claims without reference to a master, and later filed an order dividing the parties’ real and personal property. Id. at 472-73. The wife filed exceptions, and after some changes were made, a decree of distribution was entered. Id. at 473. Neither party filed an appeal and both parties took sole possession of the properties they were awarded. Id. The wife then passed away before a final divorce decree was entered. Id. After her estate filed a petition for special relief, the court entered a decree nisi directing husband to act in accordance with the decree of distribution. Id. The husband appealed from the denial of his exceptions and petition to vacate the order of distribution. Id. ¶ 12 This Court concluded that as the husband received the relief he requested and acted in accordance with the court’s order, he could not then argue that the divorce court had no jurisdiction to act. Id. at 474. We noted that the trial court had determined that both parties agreed to bifurcate the economic claims from the remaining divorce action and allow the equitable distribution to occur prior to the issuance of a divorce decree. Id. at 475. Further, we noted that the trial court ob served that neither party requested that the finality of the equitable distribution order be contingent upon the issuance of the final decree. Id. In sum, we concluded: “one who requests pre-divorce equitable distribution, who receives the relief he has requested and who acts to receive the benefits of an order distributing marital property is thereafter estopped from denying the jurisdiction of the court to enter the order prior to divorce.” Id. ¶ 13 In this case, Wife asserts that the Orphans’ Court cannot order the parties’ property held in the entireties to be divided pursuant to the October 19,1999 Order. She argues that the facts in this case are substantially different from the facts in Reese because this case involves an Order entered by the court adopting the parties’ marital settlement agreement and because an earlier Order prohibited bifurcation. We disagree that the facts of this case are so different from the factual scenario in Reese such that a different result is warranted. ¶ 14 Here, after Wife petitioned the court for an order prohibiting bifurcation the trial court entered an Order on September 25, 1998 specifically prohibiting bifurcation, and also providing that no divorce decree would be issued unless permitted by later Order of Court. Further, the Order directed the parties to file Inventories within sixty days. Subsequent to the entry of said Order, the parties began negotiations concerning their economic claims. On September 27, 1999, Wife filed a Petition to Enforce Settlement Agreement in which Wife asserted that the parties’ correspondence evidenced that a settlement agreement had been reached and that Husband was attempting to repudiate the agreement. Accordingly, on October 19, 1999, the trial court entered an Order specifically setting forth the distribution of the parties’ assets based upon the parties’ agreement. Wife was awarded a portion of Husband’s pension pursuant to a QDRO. She was also awarded fifty percent of Husband’s annuity and savings fund in accordance with a QDRO. The parties’ real estate located in Westmoreland County was awarded to Husband, and Wife was awarded the marital residence. The remaining real estate owned by the parties was to be sold, and the proceeds were to be divided equally. Prior to the sale of the parties’ rental property, Wife was to take over management of said property. The Order also listed several bank accounts, IRAs, mutual funds, and cash values of insurance contracts to be divided equally between the parties. The Order further directed Husband to file an accounting within twenty days and also required that the parties prepare the respective deeds of the property they were to receive and pursue qualification of domestic relations orders for the distribution of Husband’s pension and annuity funds. The Order also specifically stated: “[u]pon acceptance of such orders and qualifications of same by the respective Plan Administrators [sic] s [sic] Qualified Domestic Relations Orders, and recordation of deeds effecting the transfer of the marital residence and Westmoreland County properties, a divorce decree may issue herein.” Trial Court Order, 10/19/99, at 5. Finally, the Order provided that it constituted “a final order settling all claims between the parties pending herein.” Id. at 6. ¶ 15 Pursuant to said Order, the parties negotiated and executed QDROs regarding Husband’s pension and savings and annuity funds and began receiving payments and proceeds in accordance with those orders. Wife began withdrawing monies from a money market fund. Husband drafted a deed for one of the Westmore-land County properties and changed the beneficiary designation on one of the IRA accounts. Also, pursuant to the Order, Wife notified tenants of the parties’ rental property located in Pitcairn, Pennsylvania to begin paying her their rent. She also changed the locks at the workshop at the rental property. 1116 Accordingly, the facts of this case reveal that both parties began acting in reliance upon the October 19, 1999 Order directing distribution of the parties’ property. While certainly not all of the provisions set forth in the Order were fully effectuated as of the date of Husbands death, it is clear by Wife’s actions that she acted in reliance upon the October 19,1999 Order. Although Husband had not yet provided Wife with a full accounting of the marital estate and not all of the proceeds of the parties’ various accounts had been divided, both parties were taking steps to follow the terms of the Order. Further, the October 19, 1999 Order specifically provided that it represented the final agreement between the parties. ¶ 17 Moreover, we disagree that because the trial court in this case entered an Order based upon an agreement between the parties directing that a divorce decree would be issued upon completion of deed transfers and acceptance of the domestic relations orders by the appropriate plan administrators, the analysis in Reese is inapplicable to the facts of this case. In Reese, after a request by the husband for the court to hear the economic claims of the parties without reference to a master, the trial court issued a decree dividing the parties’ property. Here, after Wife requested and was granted an Order prohibiting bifurcation, she willingly entered into a final agreement with husband to dispose of the marital property. She petitioned the court to enforce said agreement, which was then entered as an Order. Accordingly, she cannot now claim and is estopped from arguing that the Order is unenforceable because of a prior Order prohibiting bifurcation. The October 19, 1999 Order clearly manifests the parties’ intent to finally settle economic claims between the parties. Further, we are unable to discern a practical difference between the fact that the Court in Reese issued a decree disposing of the parties’ property after a hearing on the matter and the fact that the trial court in the instant case entered an Order adopting the agreement of the parties. As such, we find the analysis in Reese controlling in the immediate case and hold that Wife is estopped from arguing that the October 19, 1999 Order is unenforceable. Finding no error in the court’s determination that the October 19, 1999 Order is controlling in the distribution of Husband’s estate, we affirm. ¶ 18 Order affirmed. . We note that while the Opinion is dated October 24, 2000, the Opinion was filed on October 26, 2000. . We note that this case does not present us with a factual scenario whereby the property held in the entireties was severed by implied agreement. Here, there was no misappropriation of the entireties property by one spouse and a request for partition by the other. See Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934) (holding that the unilateral action of wife in diverting $6000 from an entireties bank account was an offer that was accepted by husband’s petition for division of funds.); Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961) (holding that when husband withdrew bonds held in the entireties and deposited the proceeds in an account in his name only and wife then petitioned the court for an accounting and reimbursement for one-half of the amount of the bonds, the spouses' actions constituted an offer and acceptance and the property was then considered fit for accounting and division.) . This Order was filed on October 5, 1998. . The Order also provided that if one spouse died prior to the sale of the property, the surviving spouse would receive sixty percent of the sale proceeds, and the estate of the deceased spouse would receive forty percent of the proceeds.

BRADLEY, J., On October 6, 1990, the defendant Joseph Walker Jr., while driving, struck and killed a pedestrian, David Lisinski. Mr. Walker immediately reported the accident to the police. The investigating officer, Thomas Bush stipulated that although Walker did not deny that he had drunk alcoholic beverages prior to the accident, Bush did not conduct any field sobriety tests nor did he believe that he had probable cause to arrest Walker for DUI. Officer Bush did request that Walker submit to a blood-alcohol test and Walker agreed to accompany the police to Sacred Heart Medical Center where blood was drawn. Walker signed a hospital consent form at 5:10 a.m., 2 hours and 14 minutes after the incident was reported to police. Prior to his blood being drawn, he was not advised of his Miranda warnings or of his statutory right to refuse the blood test. Mr. Walker had a blood-alcohol level of 0.09 percent. Officer Bush was instructed by the District Attorney’s Office not to file any criminal charges against Walker. The estate of the deceased filed suit against Walker and sought to take his deposition. Because Walker had been advised that he would not be prosecuted, his attorney, Edward Carney, permitted Walker to be deposed on April 23, 1991, at which time he answered questions regarding his consumption of alcohol prior to the accident. Walker’s deposition testimony and the results of the blood- alcohol test were presented to an expert retained by the pedestrian’s estate, who concluded that Walker’s blood-alcohol level at the time of the accident was 0.13 to 0.14. The attorney for the estate subsequently brought the deposition testimony and the expert’s report to the district attorney’s attention. Officer Bush was directed to file DUI charges against Walker and did so on January 28,1992,15 months after the accident. The matter before the court was defendant’s motion to bar prosecution or, in the alternative, to suppress evidence. The preliminary hearing originally scheduled for June 10, 1992, was continued pending resolution of this motion. The threshold question is whether the court may consider this motion prior to the preliminary hearing. The Rules of Criminal Procedure provide only that a pretrial motion must be filed not later than 30 days after arraignment. They do not specifically preclude the filing of a pretrial motion prior to arraignment. Moreover, the comment to Rule 307 states specifically: “This rule is not intended to preclude the filing by any party of a motion prior to arraignment where circumstances necessitate such a motion and where otherwise not precluded by rule or by law.” The defendant’s motion to bar prosecution was denied. However, the defendant also requested the suppression of the blood-alcohol test results. In Commonwealth v. Danforth, 532 Pa. 152, 615 A.2d 308 (1992), the Pennsylvania Supreme Court suppressed the test results. In Danforth, supra, the Supreme Court held that blood tests authorized by the implied consent law, 75 Pa.C.S. §1547(1)(2), are invalid and that defendant’s consent to the taking of blood was invalid in a case factually similar to this case. The Pennsylvania Constitution, Article 1, section 8 requires a showing of probable cause before police can order a blood search. Admittedly, there was no probable cause. The Commonwealth also contends that the blood-alcohol test results were admissible because Walker voluntarily consented to the testing. In Danforth, supra. the officer at the scene requested a blood sample from Ms. Danforth for analysis based solely on the severity of the accident and the occurrence of a fatality. She agreed to have a sample taken. The officer did not inform her that the blood test was part of a criminal investigation nor was she asked to sign a consent form. The same scenario occurred in the instant case except that Mr. Walker did sign a hospital consent form to withdraw blood. The Supreme Court in Danforth dismissed the Commonwealth’s contention that the test results were admissible because Ms. Danforth voluntarily consented to the testing, Id., 532 Pa. at 158, n.l, 615 A.2d at 311, n.l, and held that the Superior Court properly concluded that the test results were not admissible because Ms. Danforth did not knowingly and voluntarily consent to the search. Id., see Commonwealth v. Danforth, 395 Pa. Super. 1, 576 A.2d 1013 (1990). Although Mr. Walker signed the hospital consent form, that alone does not persuade the court that he knowingly and voluntarily consented to the search. Accordingly, the test results were not admissible because Mr. Walker did not knowingly and voluntarily consent to the withdrawal of blood for testing. In view of the similarity of factors, the results of the blood-alcohol test should be suppressed.

MILLER, P.J., The court raised sua sponte, and now resolves, the question of whether or not the plaintiff is an aggrieved party or otherwise had standing to bring this mandamus action. After jury selection, the court held a second pretrial conference to discuss and resolve issues and raised the question we now face. The trial did not commence. On our own we continued the case generally to give the parties a short period of time to submit briefs on this issue. We believe that the standing issue should be resolved now before an expensive trial. BACKGROUND Mark Nader died as the result of a gunshot wound on March 8, 1987. The death was investigated by the Pennsylvania State Police, particularly Trooper Scott Patterson. The defendant, as coroner, did not visit the scene where the shooting occurred, nor did he interview the one eyewitness to the event. Patterson did those things. The coroner did order an autopsy by the Allegheny County Coroner’s Department and did seek certain ballistic opinions from the State Police Crime Lab in Harrisburg. The coroner reviewed the criminal investigation performed by the Pennsylvania State Police (including eyewitness statements), met with John Dawson, the district attorney, and talked with Trooper Patterson on a number of occasions. In early April 1987, the coroner concluded that death was caused by a self-inflicted gunshot wound, that is, a suicide. He made that final when he certified the cause of death on April 16, 1987. Sometime thereafter, Frank Nader (plaintiff), who is Mark Nader’s father, disturbed with the coroner’s conclusion, hired an attorney. Plaintiff, or someone on his behalf, hired private investigators. At some point, plaintiff, through his attorney and investigators, wrote to the coroner and district attorney. Plaintiff then met with them in an effort to encourage the coroner to change his conclusion and conduct an inquest. The coroner maintains that he made a reasonable investigation into the cause of death even though there are some things he did not do. Plaintiff disagrees with the coroner’s conclusion and filed his complaint on September 4, 1990. He filed suit on behalf of himself and the estate of Mark Nader. Because plaintiff has not averred in the complaint how Mark Nader’s estate is affected by the coroner’s action, we will assume that Frank Nader only filed suit on behalf of himself. The plaintiff’s complaint alleges that the coroner abused his “authority and discretion,” thus entitling the plaintiff to mandamus (see paragraphs 18 and 22 of the complaint). The injury to the plaintiff that he believes was caused by the coroner’s action is set forth in paragraph 20 of the complaint as follows: “The plaintiff, Frank Nader, is the father of the deceased, and has suffered incalculable stress and mental anguish over the death of his son and over what he believes to be the refusal of the district attorney and the coroner’s office to act responsibly upon the evidence in the matter of Mark Nader’s death. Further, the plaintiff has an intense interest, both religious (both the plaintiff and the deceased are Roman Catholics) and social, in clearing the stigma of suicide from the family and the deceased.” The coroner filed a motion for summary judgment which we denied on February 24, 1992, since we believe there is a substantial issue of material fact, that is, whether or not the coroner acted in an arbitrary or capricious fashion. Unfortunately, the question of standing was not directly raised by anyone at that time, including the court. DISCUSSION Mandamus “Mandamus is an extraordinary remedy which is available to compel the performance of a ministerial act or mandatory duty where there is (1) a clear legal right in the plaintiff; (2) a corresponding duty in the defendant; and (3) a lack of any other adequate, appropriate and specific remedy.” 18 Standard Pennsylvania Practice 2d, Mandamus, §99:1. Mandamus will not lie to compel the performance of a discretionary act unless the public official’s failure to exercise discretion is “arbitrary, fraudulent or based on an erroneous view of the law.” In addition, the plaintiff must establish a clear right to relief and the lack of any other remedy at law. Young Men & Women’s Hebrew Ass’n v. Monroeville Borough Council, 494 Pa. 283, 431 A.2d 260 (1987); Germantown Business Ass’n v. City of Philadelphia, 111 Pa. Commw. 503, 534 A.2d 553 (1987); Carino v. Armstrong, 79 Pa. Commw. 237, 468 A.2d 1205 (1983). Standing A plaintiff has standing when he has suffered a judicially cognizable injury that is the result of the defendant’s actions. “[T]he core of the concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial resolution of his challenge.” Game Commission v. Commonwealth, Dept. of Environmental Resources, 521 Pa. 121, 127, 555 A.2d 812, 815 (1989). The type of injury which gives a plaintiff standing was defined by our Supreme Court in William Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). “[A] person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” William Penn Parking Garage, supra, 464 Pa. at 192, 346 A.2d at 280-81. To determine whether a plaintiff is aggrieved, or stated in another way, has suffered a judicially cognizable injury, a court must find that the interest asserted is substantial, direct, and an immediate consequence of the challenged action. The plaintiff’s interest does not have to be pecuniary, but it must be substantial: “[T]he requirement of a ‘substantial’ interest simply means that the individual’s interest must have substance— there must be some discernible adverse affect to some interest other than the abstract interest of all citizens in having others comply with the law.” In addition, the plaintiff must show a sufficiently close causal connection between the challenged action and the injury: “The requirement that an interest be direct simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains.” Finally, the injury must be an “immediate and not a remote consequence” of the challenged action. William Penn, 464 Pa. at 193, 195, 346 A.2d at 282-83. See Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988), Bahian v. Commonwealth, Dept. of Public Welfare, 89 Pa. Commw. 644, 493 A.2d 803 (1985). We note that standing is an amorphous concept and that there is no bright-line rule to determine the sufficiency of the plaintiff’s interest once he has demonstrated an injury that is distinct from that suffered by the general public. Pennsylvania Tavern Ass’n v. Commonwealth, Liquor Control Board, 472 Pa. 567, 577-78, 372 A.2d 1187, 1192 (1977) (Roberts, J., concurring.) Whether a private party has standing to bring a mandamus action to compel a public official to take official action was addressed by our Supreme Court in Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968). The court held that a “private litigant may maintain a mandamus action to enforce a public duty when that plaintiff has an individual and beneficial interest in the litigation independent of that which is held by the public at large.” As indicated by the cases cited in Dombrowski, the beneficial interest does not have to be a contractual relationship or a vested right. Dombrowski, 431 Pa. at 204, 245 A.2d at 241. The court found that the plaintiff, a city employee whose retirement benefits had vested, had a beneficial interest, independent from the public at large, in the city making sufficient appropriations to the retirement system to make it ac tuarially sound. Id. at 210, 245 A.2d at 244. See Germantown Business Ass’n v. Philadelphia, 111 Pa. Commw. 503, 505-06, 534 A.2d 553, 554 (1987). We believe that there is no substantial difference between the standing requirements articulated by the court in William Penn and Dombrowski. In both cases, the court required the plaintiff to allege a distinct injury that is directly caused by the defendant’s actions. Court’s Power to Raise Standing The plaintiff objects to this court raising the issue of standing sua sponte after the jury was empaneled. Mandamus is an extraordinary remedy that can be granted only when the plaintiff has a clear right to relief. “One who sues in mandamus must demonstrate an immediate and complete legal right to the demanded action. Moreover, mandamus should never be invoked in a doubtful case.” Carino v. Armstrong, 79 Pa. Commw. 242, 244, 468 A.2d 1201, 1203 (1983). A plaintiff does not possess a clear right to relief unless he alleges all of the elements which are necessary to state a cause of action in mandamus. A plaintiff possessing a substantial and beneficial interest in the public official’s action is a necessary element in a mandamus action. Dombrowski, supra, 431 Pa. at 204-07, 245 A.2d at 241-43; Germantown Business Ass’n, supra, 111 Pa. Commw. at 506, 534 A.2d at 554; Bruhin v. Kassab, 12 Pa. Commw. 455, 458-59, 317 A.2d 58, 60 (1974). The Rules of Civil Procedure recognize that the plaintiff must allege a substantial and beneficial interest in order to state a valid cause of action. Pa.R.C.P. 1095(4) provides that in a mandamus action “[t]he plaintiff shall set forth in the complaint ... the interest of the plaintiff in the result....” Therefore, a court can raise the question of standing when a plaintiff’s interest is not apparent. Carino, supra, 79 Pa. Commw. at 248-49, 468 A.2d at 1205. The plaintiff’s interest in our case is not apparent to us and we decide if he has standing. Plaintiff’s Standing Does the plaintiff in our case have a substantial, direct and immediate interest in the coroner holding an inquest? To answer this question, we must consider the function of the coroner and the purposes served by an inquest. The statute covering the coroner’s duties changed in 1991. Act of November 29, 1990 P.L. 602, no. 152. Since Mark Nader’s death occurred in 1987 and the coroner’s decision was made prior to the amendments, the prior law applies. A coroner is directed to investigate certain types of deaths, including any sudden, violent, or suspicious death. Act of 1955, August 9, P.L. 323, §1237, 16 P.S. §1237. Section 1238 of the Act of 1955 directs the coroner to conduct an inquest if he is not satisfied that the death resulted from natural causes or suicide. The coroner’s powers to investigate suspicious deaths make him a part of the Commonwealth’s criminal investigation team. Commonwealth v. Anderson, 253 Pa. Super. 334, 346-47, 385 A.2d 365, 371-72 (1978). Section 1242 directs the coroner to consult and advise with the district attorney so far as may be practical. He protects public interests, not private interests. The purpose of the inquest is to assist the Commonwealth in the investigation of possible criminal activity. “At the inquest the coroner’s duty shall be to ascertain the cause of death and whether any person other than the deceased was criminally responsible therefore by act or neglect, and if so, the identity of the person and any further evidence and witnesses regarding the crime.” Section 1238. Neither police investigation of a possible homi cide or the district attorney’s authority to prosecute a case is predicated on the coroner having conducted an inquest. In Commonwealth ex rel. Czako v. Maroney, 412 Pa. 448, 194 A.2d 867 (1963), the court held that a defendant was not entitled to have an inquest performed upon the victim prior to his indictment. An inquest is required to be held only where the circumstances of death are suspicious and problematical. The deceased’s cause of death was clearly murder. Moreover, the court recognized the limited purpose of a coroner’s jury: “At common law, the verdict of a coroner’s jury could be used for prosecuting the offenders without and instead of an indictment by a grand jury. However, in modem times in the United States, the finding of a coroner’s jury is merely advisory to the public authority charged with the administration of the criminal law. It is only a prehminary investigation and not a trial on the merits. Its finding is binding on no one as a judgment. Its main purpose is to ascertain, if possible, if the death [was] due to other than natural causes.” Maroney at 450, 194 A.2d at 868. See Commonwealth v. Jennings, 442 Pa. 18, 274 A.2d 767 (1971); Andrews Petition, 39 D.&C.2d 358 (1964). The findings of a coroner can have no impact in a civil action to recover insurance proceeds, nor do the coroner’s findings impact upon his relatives’ personal rights. In Bair v. Fourhman, 95 York Leg. Rec. 1 (1981), the coroner had first ruled that the plaintiff’s son’s death was accidental and then later decided that it was a suicide and issued another death certificate reflecting his new decision. The plaintiff filed suit requesting that the coroner be ordered to reinstate the first death certificate or that he be given a due process hearing pursuant to section 4 of the Local Agency Law. Two injuries were alleged by the plaintiff in his complaint. One alleged injury was to his property rights because he believed that the coroner’s finding impaired his ability to collect the proceeds of certain life insurance policies on his son’s fife. The other injury was the personal grief caused by the coroner’s finding that his son committed suicide because the plaintiff’s son was a Mormon and suicide is contrary to the teachings of the Mormon faith. The court found that the plaintiff was not entitled to a due process hearing because the coroner’s decision was not an adjudication. The coroner’s decision did not affect the plaintiff’s property or personal rights. The court rejected the father’s contention that his ability to collect on the insurance policies was impaired because it found that the coroner’s decision could not be used in a suit to collect on an insurance policy. The court also found that the plaintiff’s personal grief did not affect his personal rights. “[Wjhile it is understandable that, because of religious reasons, the petitioner is distressed by the finding of suicide, given the fact, as we have indicated, that the coroner in the course of her investigation has the authority to make such a finding, and given the further fact that the finding is advisory only and not binding on anyone, we remain of the opinion that the finding does not affect the petitioner’s personal or property rights, privileges, immunities, duties, liabilities or obligations and does not therefore, qualify as an adjudication under the Local Agency Law.” Bair at 2. The York County Common Pleas opinion was adopted by the Commonwealth Court in Bair v. Fourhman, 65 Pa. Commw. 173, 442 A.2d 35 (1982). The Commonwealth Court specifically agreed with the county court that the coroner’s determination could not be used in a suit to collect on an insurance policy. Turning to our case, the plaintiff’s interest in the action is to relieve his stress and anguish over what he believes was a wrong decision made by the coroner and to clear the stigma of suicide from the family and the deceased. Plaintiff essentially has alleged a psychic injury. Fourhman indicates that the plaintiff’s psychic injury does not qualify as a substantial interest. The plaintiff is certainly more than an ideological plaintiff. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The cause of his son’s death is of more interest to him than the general public. One of the most unbearable experiences in one’s life is the death of a child. Nevertheless, the coroner’s finding is not binding on anybody and the plaintiff has not alleged how the supposed stigma of suicide has affected any of his tangible interests. We also note that the district attorney already has investigated this case and determined that Mark Nader’s death was caused by suicide. (See deposition of John Dawson.) We also find that the casual connection between the plaintiff’s psychic injury and the coroner’s refusal to hold an inquest to be too tenuous to qualify the plaintiff’s interest as direct and immediate. The plaintiff presumably will obtain peace of mind if the coroner holds an inquest and then determines that his son’s death was caused by something other than suicide. Although this court can order the coroner to exercise his discretion and conduct an inquest, we cannot direct the coroner to exercise his discretion in a certain manner and find that plaintiff’s son’s death was not a suicide. Marvin v. Monroe County, 154 Pa. Super. 75, 35 A.2d 781 (1944); Paczkoskie v. Ulrich, 41 Northum. L.J. 53, 56 (1969); Rubeck v. McLucas, 42 D.&C.2d 86, 95 (1967). The relief requested will not redress the injury alleged. As a result, the coroner may very well decide that Mark Nader’s death was the result of a suicide even after he holds an inquest. The scope of inquiry in this case centers around whether or not there was an arbitrary, capricious or bad-faith abuse of the coroner’s discretion. The most we can do is require an inquest. We cannot give the plaintiff exactly what he wants, that is, a change in the coroner’s conclusion. We therefore find that he does not have a distinct injury that was directly caused by the defendant’s actions. Furthermore, we find that the injury the plaintiff suffered, if he in fact did suffer any injury recognized by the law, cannot be redressed because of the limited scope of the relief this court can give in this mandamus action. The plaintiff has not alleged that any insurance policies are at stake, but if they were, the Commonwealth Court’s decision in Bair indicates that the coroner’s conclusions could not be used in a suit to collect on the policies. Because the plaintiff does not have a substantial, direct and immediate interest in the coroner’s conclusion, we find that the plaintiff lacks standing to maintain this suit. . Defendant did file a motion for summary judgment on February 17, 1992, after we raised the standing issue. . 16 P.S. §1244. . We recognize that whether or not the coroner acted arbitrarily may be a mixed question of law and fact. Because the coroner’s actions have a fact component, summary judgment could not be entered. . 42 Pa.C.S. §553.

FEUDALE, J., On June 30, 1992, Harry A. Strausser was cited for an alleged violation of section 3361 of the Motor Vehicle Code, driving at a safe speed, for operating his vehicle at a rate of 41 mph in a posted 25-mph zone. On August 8, 1992, at a summary trial held before a district justice, the defendant was found guilty of violating section 3361 and was sentenced to pay a fine and costs. The defendant appealed that conviction to this court, and on November 5, 1992, after a hearing, we also found the defendant guilty of violating section 3361. The defendant then timely filed a motion in arrest of judgment and a brief in support thereof. The defendant’s motion is now before us for our consideration. At the trial de novo in this matter, the facts surrounding the issuance of the citation were set forth through the testimony of Officer Bryan Chowka, the citing officer. Officer Chowka testified that by use of an accutrack timing device, he observed the defendant travelling 41 mph in a posted 25-mph zone. The officer also testified that the timing device had been properly calibrated and had been tested at an approved testing center. The officer used a hand-drawn diagram of the area to show the lay of the land where the citation was issued. The diagram showed the area to be residential in nature, with many driveways exiting onto the road where the defendant was observed. The weather conditions on the day in question were dry and clear. Officer Chowka stated he could not recall seeing any other vehicles or any pedestrians in the area, but that the area was frequently used by joggers and children riding bikes. In fact, it appears that the reason the officer cited the defendant under section 3361 was the heavy use of the area by pedestrians and children, coupled with the many driveways in the area, thereby giving rise to potential hazards. The defendant claims that this evidence is not sufficient to sustain a conviction under section 3361, as potential hazards were shown, but there were none then existing. This argument is derived from the language of the statute itself, which in its pertinent part states: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” 75 Pa.C.S. §3361. (emphasis added) The defendant, in his brief in support of his motion in arrest of judgment, argues that merely establishing that someone drove at a speed in excess of the posted speed limit is insufficient for a conviction under this section. The defendant further asserts that in order to obtain a conviction under this section, the Commonwealth must introduce evidence of actual and potential hazards then existing (i.e. pedestrian or vehicular traffic), that renders the defendant’s speed unreasonable under the conditions then existing. The standard to be applied when deciding the sufficiency of evidence is whether all the evidence and the reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict winner, here the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Crawford, 334 Pa. Super. 630, 483 A.2d 916 (1984). Viewing all the evidence in this case in a light most favorable to the Commonwealth, we now find that the Commonwealth failed to sustain its burden of proof in this matter. There is little guidance from the appellate courts on the issue involved herein. The defendant, in his brief, cites two Superior Court cases in support of his contention that merely traveling at a speed greater than the posted speed limit will not support a conviction under section 3361 of the Motor Vehicle Code. While these cases are not directly on point, they offer us some guidance in our decision. In Commonwealth v. Monosky, 360 Pa. Super. 481, 520 A.2d 1192 (1987), the defendantwas cited for violating section 3361 after he was observed traveling at a rate of approximately 50 mph in a posted 25-mph zone. The evidence showed that the area in question was residential in nature and that the day was foggy and wet. The court stated that due to the adverse weather conditions the hazards and conditions necessary for a conviction under section 3361 were readily apparent. Therefore, the “appellant’s driving at a speed in excess of the posted limit was greater than was reasonable and prudent given the prevailing conditions and potential hazards.” Monosky at 483, 520 A.2d at 1194. In Commonwealth v. Vishneski, 380 Pa. Super. 195, 552 A.2d 297 (1987), conditions other than the weather were in issue. In Vishneski, the defendant was timed at 84.5 mph in a 55-mph zone on a limited access highway in an area where traffic merged and exited. The record also showed that there was another vehicle in the immediate vicinity of the defendant, and that the defendant entered and exited the highway at a high rate of speed within a distance of one-tenth of a mile. On these facts, the court held that there was ample evidence that the defendant’s rate of speed was unreasonable under the circumstances, and therefore a conviction under section 3361 was warranted. While it is not controlling upon us, we find the case of Commonwealth v. Walker, 5 D.&C.4th 631 (1990), as very persuasive in reaching our decision due to its striking similarity to the instant situation. In Walker, the court found that the defendant was traveling at least 10 to 15 mph in excess of the posted 25-mph speed limit in a commercial/residential area. No evidence was presented showing that any pedestrians were in the area, no vehicles were on the road, and no vehicles were either parking in, or leaving from, the parking spaces along the roadway. The road conditions were dry and the visibility was unlimited. The trial court framed the issue as follows: “Can the mere proof of speed in excess of the posted maximum speed limit sustain a conviction for violation of section 3361 of the Motor Vehicle Code?” Walker at 633. The court then reviewed the Monosky and Vishneski cases, and distinguished them based upon the fact that there were factors upon which a conviction could stand beyond the mere fact that the defendant was speeding. As in the instant case, the Commonwealth in Walker, supra, argued that since the alleged infraction occurred in a residential area “where there are parked cars and the likelihood of pedestrians, these circumstances are ‘conditions’ and ‘potential hazards’ within the meaning of those words as they appear in section 3361.” The court’s simple reply was “We are not convinced by this argument. ” Walker at 634-35. The court further stated that the conditions and potential hazards of section 3361 include animate and inanimate objects, traffic on the streets, pedestrians and children, and also the weather conditions on the date in question. Since the existence or nonexistence of any of these conditions did not render the defendant’s speed unsafe, the court held that merely exceeding the posted maximum speed limit was insufficient to sustain a conviction for a violation of section 3361. We agree with this reasoning. Although the officer did a fine job in the preparation of his diagrams to support his showing of potential hazards, he did not show any actual or potential hazards then existing. The sole basis for the issuance of the citation was the defendant’s act of traveling 41 mph in a posted 25-mph zone. There was no testimony regarding other traffic, pedestrians or children present, and the day was dry and clear. Under the language of section 3361 of the Motor Vehicle Code, simply proving a defendant was speeding is not sufficient for a conviction for failure to drive at a safe speed. The Commonwealth must show that the prevailing conditions, and/or the existence of actual or potential hazards rendered the defendant’s rate of travel unreasonable and imprudent at that particular place and time. For all of the foregoing reasons, we enter the following ORDER And now, January 18, 1993, after argument held and in consideration of briefs submitted, it is hereby ordered and directed that the defendant’s motion in arrest of judgment is granted. The charges against the defendant in this matter shall be dismissed. . It appears that the officer should have cited the defendant under 75 Pa.C.S. §3362, maximum speed limits, but instead decided to “give the defendant a break” so that fewer points would be assessed against his driving record. The purpose behind this section is to keep those drivers who habitually speed off the road, and when it is applicable, as here, it should be charged. We recognize, of course, that police discretion occurs in the field. For example, an officer, depending on internal administrative guidelines, may choose to give a warning rather than issue a traffic citation. However, when the decision is made to cite a motorist, that citation should be based on the appropriate section of the vehicle code. Where a motorist is “given a break,” which Mr. Strausser was clearly the beneficiary of, he may show his “gratitude” in the manner we have witnessed herein. . It should be noted that the Commonwealth failed to file a responsive brief in this matter. While such a brief would have been helpful and possibly could have saved us some time, which is already a precious commodity for us, our own research turned up nothing which would have affected our decision in this appeal.

ORDER PER CURIAM. AND NOW, this 20th day of June, 2002, probable jurisdiction is noted and the order appealed is affirmed.

KJESER, /., The following opinion and order are made in consideration of the motion for habeas corpus filed by Joseph K. Cottrell, Esq., on behalf of his client, defendant, Daniel Roland Milton. The defendant is charged in the information with criminal attempt (the attempted crime being criminal trespass), possessing instruments of crime, loitering and prowling at nighttime and criminal mischief. The evidence presented to the court consisted primarily of a transcript of the preliminary hearing and statements of counsel. FINDINGS OF FACT The above charges against the defendant arise out of events occurring on the night of October 10,1991. From the evidence presented, the court makes the following factual determinations: At approximately midnight Kelly Ann Kerstetter, who resided at 1208-1/2 Isabella Street, Williamsport, Pa., heard a knock at the downstairs door of her residence. Upon looking out the window, she saw no one and assumed they had left. Ms. Kerstetter then heard someone on her back porch and the sound of the screen door being ripped or sliced. She then phoned the police. While she was on the phone the noise at the door stopped. Ms. Kerstetter could then see the silhouette of the kitchen window moving upward. Approximately two minutes later police arrived. Williamsport police officers Bauers and Laurenson responded to the call in a marked police cruiser. Bauers exited the vehicle at the front of the residence. It was at this point that Bauers observed an individual (later identified as the defendant, Daniel Milton) who was walking at a point approximately 100 feet east at the intersection of Isabella and Grier Streets. The individual was crossing Grier Street from the northwest comer to the northeast comer of the intersection. The officers investigated the Kerstetter premises and observed a vertical cut/tear in the screen and smudge marks on the kitchen window and porch banister. During the investigation by the officers, the defendant was stopped by a third officer, Peacock. The defendant was determined to be the same individual who had been observed by Bauers, crossing Grier Street. Peacock stopped the defendant on the sidewalk, on the north side of Isabella Street approximately three houses east of Grier Street. The defendant was still walking in an easterly direction when stopped. The defendant was questioned by the officers and was directed toward the front of the patrol car to be searched. It was then the defendant advised Peacock that he had a knife and withdrew a relatively small but sharp paring knife from his pants pocket. The defendant was taken into custody and given his Miranda rights. The defendant waived his Miranda rights and agreed to talk with the police. The defendant, Milton, stated to Bauers he had been at the Bull and Barrel Tavern and walked easterly on Park Avenue to Grier Street. He then stated he had proceeded south on Grier Street to Isabella. The streets travelled and direction the defendant was observed walking are consistent with the defendant walking from the area of the Bull and Barrel Tavern. He further stated that he had not been in the block where 1208-1/2 Isabella Street is located. The victim also testified at the preliminary hearing that she and the defendant “were friends.” The exact nature of the relationship is unclear, with the testimony supporting a finding that the victim and the defendant were acquaintances. DISCUSSION The defendant makes two claims: (1) The Commonwealth’s evidence establishes only mere presence of the defendant in the vicinity of the attempted criminal trespass and as such is insufficient, as a matter of law, to sustain a conviction; (2) An ordinary kitchen paring knife is not an instrument of crime. This court agrees with the defense on each claim. The test for sufficiency of evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably find that all of the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). Granted, circumstantial evidence alone may be sufficient to sustain a conviction. Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977). However, a conviction must be based upon more than mere suspicion or conjecture. Commonwealth v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980). The only evidence the Commonwealth has put forth in this case is that the defendant was walking easterly across Grier Street approximately 100 feet away from the house where the entry was attempted. While the defendant’s direction of travel when first observed was away from the crime scene, it did not necessarily indicate that the defendant had walked by the crime scene. Quietly walking home from a tavern at midnight is a legitimate and lawful activity for an adult citizen. No evidence appears of record to suggest the defendant was doing anything other than what he claimed to be doing. Therefore, the defendant’s mere presence in the vicinity of the crime is insufficient to sustain a conviction. Commonwealth v. Garrett, 412 Pa. 8, 222 A.2d 902 (1966). In Commonwealth v. McCrea, 308 Pa. Super. 271, 454 A.2d 132 (1982), the Commonwealth’s proof established that the defendant was standing in an alley urinating at 2:55 a.m. with pocketknife and pliers in his possession, four feet away from a jack base used to put a hole in a rear wall of a market. That evidence was held insufficient to support the defendant’s conviction of attempted burglary. Similarly, the Superior Court of Pennsylvania in Commonwealth v. Smith, 264 Pa. Super. 303, 399 A.2d 788 (1979) has held that evidence to convict on attempted burglary was insufficient where defendant was standing 10 feet away from an apartment building, when the second floor tenants heard a crash of glass and saw defendant walking away from the scene; it was later determined that a protective screen had been pried off the window and a rock thrown through it causing the sound heard by the tenants. In the instant case, the defendant’s location in relation to the crime scene is remote compared to facts of McCrea and Smith and his activities have much more of an appearance of legitimacy than either of the defendants in the foregoing cases. Here, the jury is left to pure speculation that the defendant, Milton, was at the scene of the crime and not walking legitimately along another street, when the attempted entry occurred, two minutes before the police arrived. Even though Milton had a small kitchen paring knife in his possession, there is no evidence that it had any relationship to the attempted crime or that he intended to use it for any criminal purpose. This evidence is insufficient to sustain a conviction of criminal attempt. The additional evidence in this case, that the victim and the defendant were acquaintances, does not add to the Commonwealth’s case. From the testimony presented at the preliminary hearing there is no inference that can be drawn from this fact. Nothing in the Commonwealth’s presentation at the preliminary hearing suggested that because of the acquaintanceship that the defendant had any reason, motive or desire to return to and enter into the victim’s residence. It is certainly probable that the nature of the acquaintanceship was such that it would be exculpatory evidence, in that it would be unlikely that a burglar would want to enter into the home of a Mend. Since the testimony regarding the acquaintanceship was not developed at the preliminary hearing, in either direction, no inference can be drawn therefrom and a jury would have to speculate as to what weight should be given to this fact, if any. Therefore, Counts I, III and IV of the information will be dismissed. With regard to Count II, the charge of possessing instruments of crime, this court, given the above facts, is not prepared to find that the kitchen paring knife was an instrument of crime. It is not a “criminal instrument” within the meaning of the statute prohibiting possession of criminal instruments; it is not specially made or specially adapted for criminal use, nor is a paring knife commonly used for criminal purposes. As noted above, the evidence is insufficient to connect the defendant to the crime; likewise, it does not suffice to connect his knife. Certainly the screen in the door could have been cut by a knife such as the defendant’s, but it also could have been cut with many instruments or even ripped. No evidence suggested the screen was cut by the defendant’s knife except his presence 100 feet away, two minutes later. The record is devoid of any evidence showing the defendant’s “intent to employ the knife” criminally, with the exception of it merely being possessed by him, which the Commonwealth would argue circumstantially, is evidence, since a “paring knife” is normally found in a kitchen, not a pants pocket. We could accept the Commonwealth’s argument in some situations, perhaps, but in this case the evidence concerning intent is so weak that the jury would have to speculate; it is insufficient to sustain a conviction. Therefore, Count II of the information will also be dismissed. ORDER And now, March 23, 1992, the defendant’s motion for habeas corpus is granted. All charges against the defendant in this matter are dismissed. Costs are placed on the County of Lycoming. . Such evidence could consist of matters such as, the elapsed time from the time the defendant left the tavern, the normal and usual route the defendant would follow to his home or intended place of residence, the absence of any other way for the perpetrator to leave the scene, evidence of attempting to flee or evade being observed, whether or not the defendant had been drinking, whether or not the defendant was at the tavern or if the defendant had a vehicle parked at the tavern or some other location. It should also be noted that if people choose to imbibe at a tavern, it is the court’s preference that they walk rather than drive themselves home, should they be under the influence of alcohol. . Possessing an instrument of crime is made criminal by the provisions of 18 Pa.C.S. §907(a)(c) as follows: “(a) Criminal instruments generally — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally. “(c) Definitions — As used in this section the following words and phrases shall have the meanings given to them in this subjection: “Instrument of crime: “(1) Anything specially made or specially adapted for criminal use; or “(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.”

OPINION ANNOUNCING THE JUDGMENT OF THE COURT Justice CAPPY. The issue before the court is whether exigent circumstances excused the Commonwealth’s warrantless search of a vehicle, after the occupants had been removed from the vehicle and taken into police custody. I conclude that under the unique facts of this case, there existed a potential threat of deadly harm to the police, and thus, exigent circumstances that justified the Commonwealth’s failure to obtain a search warrant. As resolution of this case is fact-driven, a detailed recitation of the facts is necessary. On Saturday June 8, 1996, at approximately 3:00 a.m., Javon Jones and Bobby Mahalati were driving a GEO Tracker to Illusions, an after-hours club. At the same time, Appellant Perry was driving a white Lexus and Appellant Stewart was a passenger in the vehicle. Perry had stopped the Lexus at a green fight on 7th Street which was around the corner from the club. Perry and Stewart were blocking a lane of traffic while the men conversed with some women who were in the car behind them. Jones, driving the Tracker with the top and windows down, pulled along side the Lexus as the light turned red. Stewart turned to Jones and remarked, “What the f — you looking at?” Jones and Mahalati ignored Stewart. When the light turned green, Jones drove around the Lexus and stopped in front of the entrance to Illusions. Perry pulled the Lexus along the passenger side of the Tracker. Perry asked Mahalati, “What the f — you looking at?” Perry then repeated several times, “What do you want to do? Do you want to f — us?” Mahalati responded, “All right, What ever p — .” One or both of the Appellants shouted, “What? Do you want to take care of this” and “We can take care of this around the corner.” Perry and Stewart then drove to the end of the block and turned left onto 8th Street. Perry positioned the Lexus on 8th Street so as to leave only enough room for a single vehicle to pass. Jones and Maha-lati drove past the Lexus, passing it on the right. Jones and Mahalati observed that both Perry and Stewart were holding guns. Mahalati threw his seat back in an attempt to protect himself while Jones attempted to speed away. Shots rang out and Mahalati lost feeling in his legs. Jones drove around the block in an effort to seek help. Jones flagged down Philadelphia Police Officer Tyrone Forrest, who was on duty outside of Illusions. Officer Forrest observed the bullet hole in the side of the Tracker and noted blood on the seat. After summoning an ambulance, Officer Forrest broadcasted an alert over police radio at 2:59 a.m., stating that a man had been shot and that his assailants were two black males who had driven southbound on 8th Street in a two-door white Lexus. Officer John Barker received the police broadcast. Approximately one minute later, he observed Perry and Stewart in the white Lexus which was proceeding south on 8th Street. Barker requested back up and followed. Officer Barker and Sergeant Glenn Katz, who had joined in the pursuit, ultimately stopped the men near the intersection of 11th and Federal Streets. The Lexus was blocking one of two southbound lanes of 11th Street. The officers directed Perry and Stewart out of the car. The officers did not request that Perry turn off the engine, and thus, the motor remained running. The police frisked the men as a safety precaution but no weapons were found on their persons. The police took Jones to the stopped vehicle in an attempt to identify the assailants. Jones arrived within fifteen minutes after Officer Forrest had reported the shooting over the radio. Upon seeing Perry and Stewart, Jones immediately exclaimed, “that’s them and they have two guns.” At that point, Perry and Stewart were handcuffed and placed in police vehicles. Jones informed police that at least one of the guns appeared to be an “automatic” weapon. This information was relayed to Lieutenant Thomas McDevitt who had arrived on the scene. Determining that as a matter of public safety it was imperative for the guns to be recovered, Lieutenant McDevitt requested that Officer Barker search the Lexus for the weapons. Officer Barker returned to the vehicle and shined a flashlight into the passenger compartment. He noticed that the floor mat on the driver’s side was askew. Concerned that one of the guns may be lying beneath the mat, Officer Barker lifted the mat and uncovered a 9mm Helwan, loaded with six bullets. Officer Barker then searched under the passenger side floor mat and uncovered a .22 Beretta. Once the weapons were removed, the Lexus was driven to police headquarters. No other search was made of the vehicle, and the vehicle was immediately driven to an im-poundment area. Perry and Stewart were held for trial for attempted murder, aggravated assault, criminal conspiracy, and related charges. On March 9, 1998, a joint suppression motion was filed in which Perry and Stewait claimed that the police had acted illegally in conducting a warrantless search of the Lexus and in seizing the guns. The court suppressed the weapons seized from the Lexus finding that the police were not permitted to search the vehicle without a search warrant. More specifically, the suppression judge noted that at the time the police entered the Lexus, both Perry and Stewart had been handcuffed and taken into police custody. Thus, no exigent circumstances were present which would justify the warrantless search. The Commonwealth appealed to the Superior Court, certifying that the suppression of the weapons had substantially handicapped its prosecution of Perry and Stewart. The Superior Court reversed the order of the suppression court. The Superior Court found that exigent circumstances existed with respect to public safety and with respect to police safety that excused the warrantless search of the Lexus. The Superior Court remanded the matter for further proceedings. This court granted allocatur and the cases were consolidated for review. The issue before the court is whether exigent circumstances excused the war-rantless search of the Lexus, thus rendering the search constitutionally reasonable. As neither Perry nor Stewart contends that the search was violative of the Fourth Amendment to the United States Constitution, the starting point in resolving this issue is the Pennsylvania Constitution. Article I, Section 8 of the Pennsylvania Constitution sets the parameters of governmental searches and seizures of the citizens of our Commonwealth, their homes, and their possessions: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Pa. Const., art. I, § 8. This court has consistently embraced the principle that Article I, Section 8 of the Pennsylvania Constitution requires that searches by the state be permitted only upon obtaining a warrant issued by the neutral and detached magistrate. Thus, as a general proposition, warrantless searches are unreasonable for constitutional purposes. Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 998 (1999). However, this court has recognized a number of exceptions from this general warrant requirement. Under certain limited circumstances, the failure on the part of police to obtain a warrant prior to a search will be excused and the subsequent search will not be deemed violative of the privacy protections granted by our Constitution. For example, under Pennsylvania law, for a warrantless search of a motor vehicle to be valid, there must be a showing of both probable cause and exigent circumstances. Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995). The parties in this case have focused on this court’s opinion in White. Each party contends that White compels a ruling in their favor. Thus, an in-depth review of that case to determine its impact on this appeal is appropriate. White involved a warrantless search of an automobile for drugs. In White, the police were informed that William White and another individual, Henry Bennett, had a large supply of cocaine and that they were expected to make a sale of the drugs on a particular date. Moreover, the police understood that the cocaine was being moved back and forth between White’s residence and Bennett’s residence. The police obtained a search warrant for Bennett’s residence, vehicle, and person and obtained a warrant for the search of White’s residence and person. However, the police failed to obtain a warrant for White’s vehicle. As fate would have it, White drove his vehicle into the stakeout area and an unidentified man entered White’s vehicle. As this was happening, Bennett also drove by and passed White’s car a number of times. Bennett then left the area and the police took White and his passenger into custody. Without obtaining a warrant for White’s automobile, the police then entered his vehicle and retrieved a bag containing cocaine as well as a marijuana cigarette that was in plain view on the vehicle’s console. The suppression court suppressed the evidence. The Superior Court reversed. On appeal, this court first reiterated the general rule that a warrant is required before the police may engage in the search of an automobile. The court then proceeded to discuss four exceptions to the warrant requirement. Three of the exceptions considered exigent circumstances and the fourth exception addressed a warrantless search for inventory purposes. In discussing the first exception, the court addressed the timing aspects of vehicular searches. [Pjolice may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e., there are exigent circumstances. Commonwealth v. White, 669 A.2d at 900. Thus, this type of exigent circumstances exception to the warrant requirement focuses on the potential for loss of contraband and concentrates on the ability of the Commonwealth to have obtained a warrant in advance of the search. In White, the court determined that the police had ample information that White’s automobile would be involved in criminal activity and that there were no unforeseen circumstances that would justify a warrantless search of the vehicle. The court also spoke to a second type of exception dealing with an exigency that justifies a search in the absence of a warrant — a search incident to an arrest. The White court, citing Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), explained that a warrantless search may be permissible as a search incident to an arrest. However, the court reaffirmed the extent of such a search and limited the warrantless search of a vehicle incident to an arrest to areas and clothing immediately accessible to the person arrested. Id. The purpose of this second type of exception was to prevent the arrestee from securing weapons or destroying contraband. White, 669 A.2d at 902, citing Timko, 417 A.2d at 622-23. The court found that White was removed from the car and patted down for weapons, then moved a short distance from the car and was placed under police guard. As the contents of the vehicle were not accessible to White, the police could not search White’s automobile incident to his arrest. The White court also touched upon a third excuse to the warrant requirement dealing with another type of exigent circumstance. The court recognized the propriety of a warrantless search where there is potential danger to the police or to others, but where the harm does not lie at the direct hand of the defendant. As explained in White: We do not propose to invalidate war-rantless searches of vehicles where the police must search in order to avoid danger to themselves or others, as might occur in the case where police had reason to believe that explosives were present in the vehicle. Emergencies such as this, however, are not part of this case. White, 669 A.2d at 902, n. 5. The court determined that there was nothing in the record to support an exigency such as danger to the police to justify the warrant-less search. Finally, the court addressed an exception to the warrant requirement for searches conducted for inventory purposes. The court, again citing to Timko, found that an inventory search is permissible, but only when the police demonstrate that the search was in fact conducted as a search for purposes of the protection of the owner’s property which remained in police custody, the protection of police against claims of lost or stolen property, and the protection of police against danger. Id. citing Timko, 417 A.2d at 623. The White court made clear that if the search was conducted as part of a criminal investigation, it could not qualify as an inventory search. In White, the court found that the warrantless search in that case was conducted as part of a criminal investigation, and thus, could not be excused as an inventory search. Although the parties discuss each of these exceptions, it is clear that only the third exception, that dealing with potential danger to the police or public, is truly implicated in this appeal. In the matter sub judice, it is uncontested that although the police did not have the opportunity to obtain a warrant prior to stopping Appellants, there was no danger of the automobile leaving with the contents therein. Furthermore, as Perry and Stewart were secured in a police cruiser prior to the time the search of the vehicle was conducted, a search of the vehicle incident to the arrest could not have been lawfully performed. Finally, it is plain that the search was part of a criminal investigation and not conducted as part of the inventorying of property. Thus, it is the potential danger to police or others, as discussed in footnote five of the White opinion, that is the proper focus in this appeal. Turning to this limited exception, the Superior Court in this case gave two bases for finding exigent circumstances, public safety and police safety. As to concern for the public in general, the Superior Court credited the Commonwealth’s explanation that unless the guns were located in the car, the police would have to organize an immediate search of the entire route that the defendants had traveled while fleeing through the city in order to recover the weapons. Lieutenant McDevitt testified that police resources were low at that time and obtaining a search warrant at approximately 3:00 a.m. on a Saturday morning would have taken several hours. Lieutenant McDevitt opined that by that time, there could be children on the streets. Alternatively, the Superior Court noted that Officer Barker testified that he would have searched the Lexus, even absent Lieutenant McDevitt’s direction to search the vehicle, out of concern for his safety and the safety of his fellow officers. Specifically, Officer Barker noted that the motor of the Lexus was still running when the men were in custody and that the vehicle was in the middle of one lane of 11th Street. This constituted an unsafe situation. Furthermore, in attempting to drive or to park the vehicle, an officer ran the risk of injury from a concealed weapon. The police believed from Jones’ statement that a 9mm “automatic” was allegedly used in the crime. Finally, Lieutenant McDevitt testified that such a weapon could “easily go off on the officer, if he hit a bump or stepped on it or kicked it by accident with his foot.” N.T. 3/10/98 at 261. The Superior Court found that the Commonwealth had met its burden in demonstrating probable cause and exigent circumstances that excused the requirement of a search warrant. The Superior Court opined that the officers were faced with two equally difficult and dangerous situations, thus, the court found a need for immediate action. Based upon the gravity of the offense and the level of danger as well as the minimal intrusion into defendant’s expectation of privacy, the Superior Court concluded that the search was not unreasonable and reversed the suppression of the weapons. Based upon the unique facts of the case, I too find that exigent circumstances existed to excuse obtaining a warrant to avoid danger to the police. White teaches that in an extreme situation in which there is a great potential for deadly harm, exigent circumstances may exist to justify a war-rantless search of a vehicle. The contours of this exception should be defined so that when police are faced with a situation that they did not create, which necessitates that they enter an automobile, and they possess specific and articulable facts from which they reasonably believe that there exists a great potential for deadly harm, the police may conduct a limited search of the vehicle to ensure their safety. Turning to the case sub judice, it is of critical import that the Lexus was in the middle of a lane of traffic with its engine running. This required the police to enter the vehicle to remove it from the right of way and to turn off the vehicle’s ignition. Moreover, the police possessed the specific knowledge that a shooting had occurred minutes before which resulted in serious injury. An eyewitness to the crime immediately identified the men in custody as the shooters. Furthermore, the witness stated that there were two weapons involved in the crime and that one of the guns was an automatic weapon. Appellants had been frisked and no weapons were discovered on their person, increasing the likelihood that the guns were in the Lexus. The uncontradicted testimony by the police established that the type of weapon alleged to have been used in the crime was fragile and could easily go off if bumped or stepped upon, posing an immediate threat to any officer who attempted to move the vehicle. Thus, the police were faced with the necessity of entering the vehicle and were armed with specific and articulable facts that established a great potential for deadly harm to the police if the search of the automobile was not conducted. Finally, the police engaged in a search limited only to establishing the integrity of the passenger compartment of the vehicle. Indeed, after the weapons were discovered, no further search of the vehicle was conducted. Faced with all of these unique and extreme circumstances, considered in toto, it was not unreasonable for police to have searched the vehicle without a warrant. The concurrence authored by Justice Castille takes issue with the analytical approach taken above as it relates to the first exception to the warrant requirement. It does so by attempting to paint this court’s majority decision in White as dicta, as a misapprehension and erroneous application of law, flawed by mischaracterization and incomplete quotation, and incredibly, as actually being “coterminous” with federal law. However, the reticular argument offered by the concurrence is more daring than convincing. The court’s decision in White stands as a declaration by our court affording our citizens broader protections under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment of the United States Constitu tion. The court in White created a construct to interpret this Commonwealth’s Constitution and it is a majority opinion that is binding precedent. The concurrence by Justice Castille maintains that there is no indication that White’s approach was different under Article I, Section 8 than under the Fourth Amendment. This is not so. While perhaps not as precise as desired by the concurrence, White reveals a significantly different approach. Rather than engage in the mental gymnastics necessary to reach the concurrence’s position, a more natural and comfortable reading of White is that it was merely an attempt to reconcile Pennsylvania law with certain aspects of federal law, but to nevertheless establish independent state law regarding automobile searches. After emphasizing the importance of the defendant’s state constitutional claims, the White majority discussed the exigent circumstances requirement in the context of federal and state law. While the majority cited to the quarter century old decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), it did not review, nor even cite to, subsequent cases by the United States Supreme Court that converted the automobile exception into an absolute rule allowing searches in the presence of probable cause. See, e.g., United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Instead, the majority looked to state cases that support the conclusion that Pennsylvania law is independent of federal law. See Commonwealth v. Ionata, 518 Pa. 472, 544 A.2d 917 (1988)(plurality noting that there exists no per se exemption and exigent circumstances are necessary to justify a search). Thus, rather than a misinterpretation and disregard of federal law, it becomes clear that the White majority, attempted to reconcile federal and state case law, ultimately setting forth the law under Article I, Section 8, independent of federal law. This interpretation is bolstered by Justice Castille’s dissent in White which speaks volumes and would be nothing short of bizarre if White’s analysis were indeed coterminous with federal law. Spe cifically, the dissent in White urged that the “automobile exception to the warrant requirements of this Commonwealth should be a per se rule” recognizing an automobile exception regardless of how much time police may have to obtain a warrant. White, 669 A.2d at 909 (emphasis supplied). The dissent’s per se rule would allow warrantless searches of all automobiles for which police have independent probable cause to believe, inter alia, that a felony has been committed by the occupants of the vehicle. White, 669 A.2d at 909-10. Such a position is coextensive with federal law. It becomes obvious that the dissent in White knew that the majority was interpreting state law and that law was different than federal law. If the White majority were setting forth an analysis that was “coterminous” with federal law, the dissent would have had no foundation to urge the “adoption” of a per se rule. See Pennsylvania v. Labron, 518 U.S. 938, 945-46, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)(Stevens, J. dissenting). Accord Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655, 659 n. 6 (2000)(Castille, J.)(recognizing that Labron and White were a departure from Fourth Amendment “automobile exception” to warrant requirement). White stands as a statement by this court as to the warrant requirement for automobile searches under Article I, Section 8 that is independent of federal law. Any doubt about this fact vanishes when subsequent case law is considered. These cases consistently confirm that White sets the standard for analysis under Article I, Section 8, and this paradigm is not coterminous with federal law. See, e.g., Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87 (1999); Commonwealth v. Casanova, 748 A.2d 207, 211 (Pa.Super.2000); Commonwealth v. Burns, 700 A.2d 517, 518 (Pa.Super.1997); Commonwealth v. Gelineau, 696 A.2d 188, 191 (Pa.Super.1997); Commonwealth v. Lechner, 454 Pa.Super. 456, 685 A.2d 1014, 1016 n. 7 (1996); Commonwealth v. Haskins, 450 Pa.Super. 540, 677 A.2d 328, 330 (1996). In fact, this court’s post-White decision in Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87 (Pa.1999), sharpens the point. First, and absolutely necessary to an understanding of Luv, by the time Luv was decided, the United States Supreme Court had made eminently clear that the automobile exception under federal law does not have a separate exigency requirement. Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)(the “automobile exception” has no separate exigency requirement); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)(if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment allows a search without more). As there can be no question that federal law did not require exigent circumstances at the time Luv was decided, the White standard requiring exigent circumstances, reaffirmed and utilized in Luv, can only stand as a statement of our unique state law jurisprudence. The Luv majority, quoting the White standard and construing prior cases, unambiguously stated that “[tjhe determining factors in all of these cases are the existence of probable cause and the presence of exigent circumstances. One without the other is insufficient to justify a warrantless search of a vehicle.” Luv, 735 A.2d at 93 (emphasis supplied). To suggest that the Luv court’s use of the White construct constituted a continued ignorance of federal law in the face of Dyson and Labron, or worse, a refusal to apply federal law, is simply too strained to be credible. Rather, Luv reasonably and properly interpreted the White construct as the law under Article I, Section 8. Further confirming this reading of White is the Luv court’s emphasis on the possibility of the loss of evidence if the vehicle were not searched. Critical to the decision in Luv, yet brushed aside by the concurrence, was the fact that the police were faced with the possibility that if the car was not searched without a warrant, the automobile would continue, possibly resulting in the introduction of a substantial amount of drugs into the community. These were the exigent circumstances that justified the warrantless search and clearly were not required under federal law. Luv, 735 A.2d at 94. The import of this is undeniable. Thus, this court’s case law subsequent to White is consistent with the analysis set forth today. In conclusion, far from being “coterminous” with federal law, White sets forth a straightforward approach that maintains the integrity of the warrant requirement and the privacy of our citizens, bowing only to limited exigencies, for example, when officers’ lives are at risk. The order of the Superior Court is affirmed and the matter remanded for further proceedings. Former Chief Justice FLAHERTY did not participate in the decision of this case. Justice CASTILLE files a concurring opinion joined by Justice Newman. Justice SAYLOR files a concurring opinion. Justice NIGRO files a dissenting opinion joined by Chief Justice ZAPPALA. . The Commonwealth may appeal a suppression order as a final order "when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps the prosecution.” Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985). . When reviewing the rulings of a suppression court, this court must determine whether the record supports that court's findings of fact and then determine whether the inferences and legal conclusions drawn from those facts are reasonable. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997). Where the defendant has been successful before the suppression court, the appellate court may consider only the evidence of the witnesses offered by the defendant, as the verdict winner, and only so much of the evidence for the prosecution as read in the context of the record as a whole that remains uncontradicted. Where the record supports the findings of fact, the court are bound by those facts and may reverse only if the court erred in reaching its legal conclusion based upon the facts. In re D.M., 556 Pa. 160, 727 A.2d 556, 557 (1999). . For example, police do not need a warrant where the subject of the search gives his or her consent to be searched. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). Likewise, if a defendant abandons property, retrieval of such objects does not constitute a search or a seizure necessitating a warrant. Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). Furthermore, police may, as part of a standardized inventory procedure, search a container or items in a defendant’s possession without a warrant. Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992). . While Pennsylvania law requires both a showing of probable cause and exigent circumstances, federal law requires less and does not offer the same protection under the United States Constitution. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)(pursuant to Fourth Amendment, "automobile exception” has no separate exigency requirement; thus, where there is probable cause to search an automobile, a search is not unreasonable for purposes of the Fourth Amendment if based on facts that would justify the issuance of a warrant even if a warrant is not obtained). . This warrant exception regarding police safety finds further support in Timko in which this court suggested that a warrantless search would be justified if police were confronted with "explosives or some other item which might in some way endanger the police officers or others....” Timko, 417 A.2d at 623. . The parties do not seriously contest that the officers had probable cause to believe that the Lexus contained evidence regarding the shooting. Thus, this appeal turns on the issue of whether exigent circumstances were present which justified the warrantless search. . I note that this court should not assume or accept that all 9mm automatic weapons are sensitive. However, for purposes of review in this appeal the court must accept the uncontradicted testimony of the Commonwealth. In re D.M., 556 Pa. 160, 727 A.2d 556 (1999). . As I would find that the warrantless search was excused due to the exigency of consideration of police safety, it is not necessary to address the Superior Court's alternative holding that public safety created a separate exigency that justified the warrantless search. I express no opinion as to the merits of this alternative theory. . The concurrence first claims that the court’s discussion in White regarding the first type of exigent circumstances is dicta and is not precedent for the proposition that this court follows an Article I, Section 8 approach to automobile searches that is distinct and different from the approach under the Fourth Amendment. In the concurrence’s expansive view of dicta as applied to White, and carried to its logical conclusion, the only statement in an appellate opinion strictly necessary to the decision of the case is the order of the court. Of course, such a parsimonious interpretation of what is “necessary” to a decision is jurisprudentially unsound. Yet, it is what the concurrence suggests in its ultra-broad view of dicta. Such an interpretation is inconsistent with the established role of supreme courts. Courts frequently construct tests that act as an interpretation of the law. The case in White arose under Article I, Section 8. The “automobile exception” issue was certainly necessary to the disposition of the appeal. Moreover, as the issue was resolved in a manner inconsistent with federal law, it was necessarily distinct from such law. Finally, it is anomalous for the concurrence to suddenly assert that the court’s discussion of the automobile exception in White is dicta, when in his dissent in White, Justice Castille voiced no such concern, but maintained instead that the discussion regarding a search incident to an arrest was dicta. White, 669 A.2d at 909; see also Pennsylvania v. Labron, 518 U.S. 938, 946 n. 5, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)(Stevens, J. dissenting). It certainly draws into question what is left of White if, as according to the concurrence, the court's discussions regarding the automobile exception and the court's analysis regarding search incident to an arrest are now both labeled and dismissed as dicta. Casual and convenient application of the dicta label to an analysis that is objectionable does not make it so. . This is a critical aspect that distinguishes Luv from the case sub judice where the defendants were arrested and in police custody prior to the search and there was no possibility that the evidence would be lost prior to obtaining a warrant.

MUNDY, This matter comes before the court on a motion to open and/or strike foreign judgment filed by the defendant, Sylvano Tagnani. The action was initiated when the plaintiff filed a complaint against the defendant in the Chancery Court for Davidson County, at Nashville, Tenn., on July 21, 1989. The plaintiff, in that action, sought judgment against the defendant in the amount of $32,506.07, plus interest, attorney’s fees and costs allegedly arising from the defendant’s execution of a certain limited guaranty to the plaintiff bank. On August 18, 1989, the defendant filed an answer to the complaint averring that the defendant’s indebtedness on the guaranty to the plaintiff bank was $2,500 and not the $35,506.07 demanded. In February of 1991, the attorney representing the defendant was granted leave to withdraw his appearance, and, thereafter, the defendant was unrepresented. On April 18, 1991, the plaintiff bank filed a motion to set a trial date in the action and, according to plaintiff’s counsel an order of coin! set the date for July 8, 1991, at 9 a.m. The docket entries from Davidson County reflect the entry of an order on July 1, 1991, setting trial for July 8, 1991, at 1:30 p.m., but do not reflect the alleged original order. Moreover, the docket does not reflect that either order was served on the defendant-petitioner. Plaintiff maintains that notice of the original order was sent by certified mail on May 3 and June 6, 1991, as well as by regular mail. Plaintiff acknowledges, however, that the certified mailings were both returned unclaimed. Additionally, with regard to the original order, plaintiff’s counsel maintains that he advised a person who identified himself as the defendant-petitioner of the original date by a telephone conversation on June 6, 1991. The defendant-petitioner denies he was so advised. With regard to the subsequent order, scheduling this matter for July 8, 1991, at 1:30 p.m., certified mail forwarded on July 2, 1991, was also returned unclaimed. Telephonic notice was allegedly made to a person who identified herself as the defendant-petitioner’s housekeeper on said date, but not to the defendant-petitioner. The trial occurred in the Tennessee Court on July 8, 1991, at 1:30 p.m., and the defendant was not present. The court apparently accepted some evidence as to the indebtedness, and judgment was entered against the defendant in the amount of $39,285.47 plus $8,892 in attorney’s fees, interest and costs. On November 26, 1991, the Tennessee judgment was entered in the Prothonotary’s Office of Luzerne County as a foreign judgment. On January 21, 1992, the present action was initiated by the defendant by the filing of a rule requesting that the foreign judgment of November 26, 1991, be opened or stricken. The plaintiff avers that he received no actual or constructive notice of the Tennessee proceeding, and became aware of the judgment for the first time on December 2, 1991, when he received notice of the Luzerne County judgment. Therefore, at issue before this court is the validity of the said foreign judgment entered in Luzerne County on November 26, 1991. The Pennsylvania Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S §4603(b), provides as follows: “(b) Filing and status of foreign judgments — A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with [an] act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of the filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for re-opening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.” Our Legislature has recognized the potential due process issues that arise in conjunction with the entry of foreign judgments. As a result of that recognition, the Uniform Foreign Money Judgment Recognition Act of November 22, 1990, P.L. 559, reported in 42 Pa.C.S. §22001 et seq. at §22004, adopted in Pennsylvania, states: “A foreign judgment need not be recognized if: “(1) The defendant in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend.” As is clear from the language of the Acts aforesaid, a foreign judgment is entitled to full faith and credit in Pennsylvania so long as there was jurisdiction by the court which originally awarded judgment and defendant had an opportunity to appear and defend. The second prong of that two-fold test is the issue before this court; i.e., whether the defendant had an opportunity to appear and defend. Having an opportunity to appear and defend presumes notice of the proceeding, such notice being the most basic requirement of due process. Failure to provide notice of the proceedings in a manner reasonably calculated to inform the party is fatally defective to everything that flows from said proceedings. The burden of proof with regard to the failure to provide notice rests with the party challenging the validity of the judgment, the defendant-petitioner herein. In support of the aforesaid burden, the defendant-petitioner testified as follows: Q. “Did you ever receive any notice that a trial had been listed in this matter for July 8, 1991, either at 9 a.m. or at 1:30 p.m.?” A. “Absolutely not.” The defendant-petitioner did not appear at the July 8, 1991, trial, commencing at 1:30 p.m., at which the judgment which is the subject of this proceeding was rendered. On its face, and in the absence of evidence to the contrary, the foregoing establishes the petitioner’s burden. A review of the entire record before this court does not establish with sufficient certainty that the defendant was properly notified of the Tennessee proceedings. In fact, with regard to the July 8, 1991, 1:30 p.m. hearing, from which the judgment at issue in this proceeding issued, the evidence is to the contrary. The certified mailing was returned unclaimed, and the only telephonic discussion was with an unidentified person who indicated she was the defendant-petitioner’s housekeeper. Even, if such notice had been received, however, it was not received in a timely enough fashion to provide the defendant-petitioner with an opportunity to properly defend. As to the alleged original hearing, scheduled for July 8, 1991, at 9 a.m., both certified mailings were returned unclaimed and the regular mailings were sent to the same inaccurate address. As to the alleged phone call, there is a dispute as to its substance. Overriding all of the above, however, is the fact that even if that notice was received, that proceeding was rescheduled and there is no clear evidence that the rescheduled notice was received. While this court appreciates the frustration apparent in the attempts to provide proper notice, to relax the notice requirements in a proceeding such as this would undermine the very foundation of our system of justice. Absent more concrete evidence of proper notice, there is no choice but to enter the attached ORDER It is hereby ordered, adjudged and decreed as follows: (1) The petition to open and/or strike foreign judgment filed by the defendant, Sylvano Tagnani, is granted; (2) The judgment entered by the plaintiff in the Prothonotary’s Office of Luzerne County on November 26, 1991, is hereby stricken; and (3) The prothonotary is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.

STEFAN, J., The first and interim account of Charles R. Breznicky, executor under the will of Edna M. Gunn dated September 21, 1988, was called for audit on September 8,1992. Hearing on the objections filed thereto having been held on December 22, 1992, the matter is now ripe for adjudication. The account shows a balance of principal and income in the amount of $799,742.19. The fund presently before the Orphans’ Court is not subject to the payment of transfer inheritance tax to the Commonwealth of Pennsylvania. However, any amount awarded to claimant as a result of further hearing will be subject to said tax. All parties having or claiming any interest in the estate, of whom the accountant has notice or knowledge, are stated to have received written notice of the audit in conformity with the rules of court. The decedent died on May 6, 1989. Her will provided for the American Cancer Society and the Montgomery County Society for the Prevention of Cruelty to Animals to share her net estate equally. On August 18, 1992, claimant, Kevin Geuther Russell, filed objections to the executor’s account, alleging that she and the decedent entered into an agreement in 1971 whereby she would take care of the decedent and her husband during their lifetimes in return for being made sole beneficiary of the Gunns’ estate. Mr. Gunn predeceased Mrs. Gunn. In the objections, Mrs. Russell claimed the sum of $176,075.00 as the fair and reasonable value of services allegedly rendered and expenses allegedly incurred by her in providing this care to the Gunns. On December 15, 1992, Mrs. Russell filed amended objections to the account, in which she claimed the entire estate, or, in the alternative, the specific sum stated above. At the hearing before the undersigned, the claimant first presented the testimony of her husband, James Russell. He married Kevin Russell in 1981 and met the decedent and her husband in 1982. He testified to being party to a conversation in August of 1982 during which the decedent said to his wife, “The time is coming when we are going to need your help. At that time, can we count on you?” He stated that his wife replied in the affirmative, and the decedent then said, “ ‘You will not be sorry. In return for that help and that care, we will leave you our entire estate.’ Those were the exact words that she used at the time.” (N.T. 13.) Mr. Russell also testified that he and his wife moved from Florida to Pennsylvania in 1986 at the decedent’s request. He stated that his wife would thereafter visit the decedent and her husband at least every other day. He listed the services Mrs. Russell rendered to the Gunns (taking care of their dogs, taking Mrs. Gunn to the hairdresser, to the food store, and out for lunch). The next witness was Jean Heye who met and became friends with Mrs. Russell in 1971 when they both were Florida residents. She met the decedent at Kevin Russell’s home in Florida in 1975. She spent time with the decedent at social gatherings and while showing her properties in her capacity as a real estate agent. Ms. Heye testified that the decedent discussed, in her presence, her plan to will her estate to Mrs. Russell in exchange for her help. She saw the decedent again in 1976 when she was in Florida for another visit with Mrs. Russell. Gloria LeBeau, another Florida resident and friend of the claimant, next testified. She assisted Mr. and Mrs. Russell in their move to Pennsylvania in 1986 and met the decedent at that time. She testified that Mrs. Gunn told her that Mrs. Russell “was to be their heir and receive all of their property and estate” in return for taking care of the Gunns. (N.T. 49.) Sandra Jarvinen, a third friend from Florida and a former supervisor of the claimant, echoed the testimony of Ms. LeBeau. Ms. Jarvinen also helped the Russells relocate to Pennsylvania. She testified that both Mr. and Mrs. Gunn told her that Mrs. Russell would inherit everything they had for all her help. Raymond Fanic, a neighbor of the Gunns, testified to seeing the claimant at the Gunns’ residence approximately every other day, tending to their dogs, cutting the grass, picking Mrs. Gunn up to run errands, etc. The objectant’s next witness was Maijorie L. Walton, one of the Russells’ neighbors. She testified to meeting Mrs. Gunn at the Russells’ home on three occasions, to commenting on what a help Mrs. Russell was to her, and to being told by Mrs. Gunn that Mrs. Russell would be well rewarded for all her help in that she would inherit everything the Gunns had. The claimant then called Emil Ciavarelli, a funeral director who became acquainted with the decedent shortly before the death of her husband. He stated that the decedent told him of her gratitude towards Mrs. Russell and of her intent to reward her. She also stated that she planned to make the SPCA and the Cancer Society beneficiaries of her estate. She told him: “[A]s far as the assets or property and personal effects ... I want to give to Kevin Russell.” (N.T. 81.) 'The claimant’s final witness was Charles R. Breznicky, the decedent’s accountant and the executor of her estate, who testified that Mrs. Gunn never took any deductions on her tax returns for payments to the claimant. At time of hearing, the court took under advisement the issue of whether the objectant’s amended claim for the entire estate was properly before the court. The estate contends the claim is time-barred under section 3383 of the PEF Code, which states: “The death of a person shall not stop the running of the statute of limitations applicable to any claim against him, but a claim which otherwise would be barred within one year after the death of the decedent shall not be barred until the expiration of one year after his death.” The court determines that this claim was subject to a four-year limitation under 42 Pa.C.S. §5525(3) (“an action upon an express contract not founded upon an instrument in writing”) and was timely presented. Accordingly, the amended claim can be considered on its merits. We now turn to the measure of proof required for establishing the claim at hand. A contract to make a will or to bequeath by will, as other contracts, must be established by proof of an offer, an acceptance and legal consideration; the terms of the contract must be shown with certainty and lucidity; the evidence must be scrutinized with great care; there must be direct evidence in proof of the contract. The claimant must prove his case by clear and convincing evidence. “There must be shown by believable testimony that the decedent in the presence of the claimant, made statements, in the form of a promise or offer, upon which the claimant could reasonably be expected to act in reliance on such statements. Such a rule is sound because a contract to bequeath by will must be shown as any other contract must be shown; essential to such proof is evidence that the minds of the parties met on the terms of the contract....” Fahringer v. Strine Estate, 420 Pa. 48, 54-55, 216 A.2d. 82, 85-86 (1966). (emphasis in original) The instant claimant proved the existence of an oral contract through evidence of statements by the decedent in the presence of claimant in the form of a promise or offer. These statements were made in the presence of the claimant’s husband. The objection to Mr. Russell’s testimony on the basis of the Dead Man’s Statute was properly overruled. See Estate of Grossman, 486 Pa. 460, 406 A.2d 726 (1979), wherein it was held that the spouse of an interested party to a transaction with a decedent may not be barred from testifying on the basis of marital status alone. Mr. Russell’s testimony was bolstered by the numerous other disinterested witnesses to whom Mrs. Gunn repeated her promise to make Mrs. Russell her heir. The decedent did establish the existence of an oral contract to leave claimant her entire estate. However, because the estate consisted, in part, of real estate, and a contract to devise real estate falls within the statute of frauds, a question arises as to this contract’s enforceability. The claimant contends the contract is fully enforceable, relying upon Beeruk Estate, 429 Pa. 415, 241 A.2d 755 (1968), wherein the decedent made an oral agreement to leave the residue of his estate to his nephew in return for services rendered. In 1963, he executed a will which embodied the terms of this promise, but did not make specific reference to the parties’ agreement. At the time of execution of the will, the decedent told his attorney of the bargain he and his nephew had struck. The decedent hereafter remarried and executed a new will in which he left the residue to his wife. After the uncle died and the later will was probated, the nephew filed a claim for the uncle’s residuary estate. The Supreme Court rejected the widow’s statute of frauds argument against the nephew’s claim, on the grounds that, although the contract was oral, the 1963 will constituted a sufficient memorandum of its terms to satisfy the statute. The court decided that the nephew was entitled to the entire residue since there was no violation of the statute of frauds. Instantly, no writing or memorandum of any kind exists to take the oral contract out of the statute of frauds. Furthermore, the real estate cannot be severed from the personalty to permit enforcement of the parol agreement as to the latter alone. See Norris’s Estate, 329 Pa. 483, 198 A. 142 (1938). Accordingly, the contract cannot be enforced in full or in part. Claimant’s remedy must instead lie in quantum meruit, i.e., damages representing the value of the services she performed. Jones Estate, 359 Pa. 260, 59 A.2d 50 (1948); Estate of Bahl, 25 D.&C.3d 58 (1982). Claimant having produced insufficient evidence of same at time of hearing to determine this value, a date will be set for consideration of this one issue. The parties should note that claimant’s evidence will be restricted to a six-year period under the applicable statute of limitations. See Estate of Porter, 110 Pa. Super. 27, 167 A. 490 (1922). The net ascertained balances of principal and income are awarded back to the accountant pending further proceedings in accordance with this adjudication. The account is confirmed. This adjudication is not final or appealable. After hearing on the issue of quantum meruit, the court will enter a decree nisi to which the parties may file exceptions.

OPINION BY Judge SMITH-RIBNER. The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of November 21, 2001 of the Court of Common Pleas of Chester County that upheld Appellee John Siekierda’s statutory appeal and dismissed the one-year suspension of his driving privileges pursuant to Article IV(a)(2) of the Driver’s License Compact (Compact), Section 1581 of the Vehicle Code, 75 Pa.C.S. § 1581. DOT contends that the trial court erred in sustaining Siekierda’s appeal on the ground that DOT failed to produce a record of conviction for driving under the influence from the out-of-state licensing authority pursuant to Article III of the Compact. The issue DOT raises is whether the Court should overrule its prior decisions requiring that DOT produce a conviction report from the licensing authority of a party state to meet its burden of proof in Compact license suspension cases. I On May 21,1998, Siekierda was arrested in Indiana, a Compact state, and was charged with driving while intoxicated (DWI) in violation of Section 9-30-5-2 of the Indiana Code. On July 28, 1998, Sieki-erda was convicted of DWI in the Hancock Superior Court of Indiana and was sentenced to pay a fine of $1,000, costs totaling $125 and to serve a one-year term of probation. The Indiana court also suspended Siekierda’s privilege to drive in Indiana for 30 days but granted him probationary driving privileges. In February 1999 DOT notified Siekierda that it had received notice of his Indiana conviction and that DOT would suspend his driving privileges for one year effective March 17, 1999 pursuant to Section 1532(b) of the Vehicle Code, as amended, 75 Pa.C.S. § 1532(b), which authorizes a one-year suspension for conviction of driving under the influence of alcohol, see Section 3731(a) of the Vehicle Code, 75 Pa.C.S. § 3731(a), or a substantially similar offense reported to DOT under Article III of the Compact. See also Article IV(a) of the Compact. Siekierda thereafter filed his appeal. A de novo hearing was held before the trial court at which time DOT, over the objection of Siekierda, entered into evidence its certified packet of documents containing a copy of a certification of an Indiana abstract of court record, an order of conditional probation and an order requesting that the commissioner of the Indiana Bureau of Motor Vehicles grant conditional driving privileges to Siekierda. Exhibit 1. The court sustained Siekierda’s appeal on the basis of PennDOT v. Harrington, 42 Pa. D. & C.4th 153 (1999), rev’d, 563 Pa. 565, 763 A.2d 386 (2000). DOT appealed to this Court, and thereafter it filed an application to transfer the appeal to the Pennsylvania Supreme Court, which was granted in May 2000. The Supreme Court reversed the trial court’s decision and remanded the matter for disposition of the other issues raised by Siekierda. See Siekierda v. Department of Transportation, Bureau of Driver Licensing, 563 Pa. 521, 762 A.2d 1085 (2000). On remand the trial court held a hearing in February 2001 and admitted into evidence DOT’s certified packet of documents from Indiana signed under seal of the director of DOT’s Bureau of Driver Licensing. After considering DOT’S exhibit, the briefs filed on remand and the briefs and exhibits filed and/or admitted in the original statutory appeal proceedings, the court sustained Siekier-da’s appeal. The court held that the report of Siekierda’s Indiana DWI conviction did not comply with the requirements of Article III of the Compact because the conviction report is itself a court abstract and did not originate from the Indiana licensing authority as required. The court cited Boots v. Department of Transportation, Bureau of Driver Licensing, 736 A.2d 64 (Pa.Cmwlth.), appeal denied, 564 Pa. 722, 766 A.2d 1242 (1999), as controlling. II DOT filed its appeal to this Court contending that its decisions in Boots and in Tripson v. Department of Transportation, Bureau of Driver Licensing, 773 A.2d 195 (Pa.Cmwlth.2001), appeal denied, — Pa. —, 796 A.2d 320 (2002), should be overruled pursuant to the Supreme Court’s decisions in Department of Transportation v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), and Harrington v. Department of Transportation, Bureau of Driver Licensing, 563 Pa. 565, 763 A.2d 386 (2000). DOT maintains that this Court’s decisions restrict its efforts to fully enforce the Commonwealth’s drunk driving statutes. DOT argues that the notice it received from the Indiana court is sufficient to satisfy the requirements of Article III of the Compact. Article III provides in pertinent part that “[t]he licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee.” The burden of proof in license suspension cases under the Compact is on DOT. Scott v. Department of Transportation, Bureau of Driver Licensing, 567 Pa. 631, 790 A.2d 291 (2002). DOT must produce a record of the licensee’s conviction of a substantially similar DUI offense in another state upon which DOT may impose a reciprocal license suspension under Article IV(a). Id.; Tripson; Boots. More particularly, the Court held in Tripson that it was a part of DOT’s burden in Compact cases to offer proof that the licensing authority of the convicting state transmitted to DOT a report of the licensee’s conviction. In Siekierda’s case, the conviction report came in the form of a court abstract, but it was not transmitted from the Indiana Bureau of Motor Vehicles, the licensing authority. See Boots. DOT does not contend that Siekierda’s conviction report came from the Indiana licensing authority, but instead it merely repeats the argument that conviction reports may come from other sources. In Boots the Court held that the records pertaining to a driver’s conviction in Indiana for DWI were not admissible because there was no evidence that the documents were received from Indiana’s licensing authority. The Court concluded that “the words ‘the licensing authority of a party state shall report’ evidences a legislative intent to require that the licensing authority be the reporting body.” Id., 736 A.2d at 66. Moreover, the Harrington and McCafferty rulings do not support the argument that conviction reports do not have to come from the licensing authority of the reporting state. Those cases held that the technical informational reporting requirements of Article III of the Compact are mandatory for a party state when it reports a conviction within its jurisdiction, but Article III does not preclude DOT as the licensing authority of the home state from relying upon a deficient conviction report which lacks all of the information required by the Compact. In short, full compliance with technical reporting requirements of Article III is not mandated before DOT may act to impose a reciprocal license suspension. The Supreme Court has not held, however, that the conviction report upon which DOT relies to impose a reciprocal suspension does not have to come from the licensing authority of the reporting state. The conviction reports in Harrington and McCafferty were in fact forwarded to DOT by the proper licensing authority. It is significant to note that the Supreme Court denied DOT’s appeals of the decisions in Boots and Tripson: Boots was decided before Harrington and McCafferty and Tripson was decided after those decisions. Despite DOT’s efforts to overturn Boots and Tripson, those decisions remain the controlling and settled precedent in this matter, and they establish that the requirement that conviction reports be transmitted to DOT from the licensing authority of a party state is more than a mere technicality. Rather it is a substantive and fundamental requirement of the Compact inasmuch as the licensing authority’s conviction report provides the very foundation for DOT’s reciprocal suspension. See McCafferty (Cappy, J., concurring). As Boots and Tripson do not conflict with Harrington or McCafferty, the Court discerns absolutely no basis for it to overturn Boots or Tripson. DOT makes one additional argument. It argues that the Court must consider the unambiguous terms of the Driver’s License Compact Administrative Procedures Manual of 1990, U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT Exhibit B, which permit party states to use a court abstract as a report of conviction, and that the process followed in Siekierda’s case complied with the Procedures Manual. Although the Court agrees that Harrington and McCafferty essentially support the view that the form in which the information is compiled and transmitted to DOT is not dispositive, the Procedures Manual expressly provides that only the appropriate licensing authority shall transmit driver information under the Compact to another party state. Procedures Manual, Article VII. The Procedures Manual also provides that the head of each party state’s licensing authority shall furnish to the administrator of each other party state any information or documents reasonably necessary to facilitate the administration of the Compact. Id.; accord Article VII of the Compact. In addition, the Procedures Manual does not exempt any licensing authorities, whether reporting or receiving information, from the above requirement when they transmit conviction reports electronically as opposed to manually. Finally, DOT contends that it was “more likely than not” that the Indiana Bureau of Motor Vehicles forwarded the copy of Siekierda’s conviction report to DOT, but it offered no proof before the trial court to support this contention. The Court is not unmindful of DOT’s statutory responsibility and the purposes behind the reciprocal license suspension statutes of protecting the citizens of this Commonwealth and of sister states from the dangers created by intoxicated drivers on the roadways. McCafferty. However, the Court may not, in its zeal to enforce the legislative purposes behind the Compact, disregard the well-established rule of law that DOT must first satisfy its burden in driver’s license suspension proceedings in accordance with applicable law before it may suspend a license. Because DOT failed to meet its burden to produce a conviction report from a licensing authority under Article III, the Court affirms the order of the trial court. ORDER AND NOW, this 22nd day of May, 2002, the order of the Court of Common Pleas of Chester County is hereby affirmed. The Court denies the request of John W. Sieki-erda for an attorney’s fee award against the Department of Transportation. . Article IV(a)(2) of the Compact provides that DOT shall give the same effect to conduct reported under Article III as DOT would if the conduct had occurred in Pennsylvania in the case of conviction for driving while under the influence of intoxicating liquor to a degree rendering the driver incapable of safely driving a motor vehicle. . This Court’s review is limited to determining whether the trial court’s findings of fact are supported by competent evidence and whether it committed an error of law or an abuse of discretion in reaching its decision. Kline v. Department of Transportation, Bureau of Driver Licensing, 725 A.2d 860 (Pa.Cmwlth.), appeal denied, 560 Pa. 712, 743 A.2d 924 (1999). . Rule 1114 of the Pennsylvania Rules of Appellate Procedure explains the considerations that govern the Supreme Court’s decision to grant allowance of appeal. The rule provides: Except as prescribed in Rule 1101 ... review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and important reasons therefore. Note: The following, while neither controlling nor fully measuring the discretion of the Supreme Court, indicate the character of the reasons which will be considered: (1) Where the appellate court below has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with applicable decisions of the Supreme Court of Pennsylvania or the Supreme Court of the United States. (2) Where an appellate court has rendered a decision in conflict with the decision of the other appellate court below on the same question, or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an administrative agency or lower court, as to call for an exercise of the power of supervision of the Supreme Court. . According to the Procedures Manual, Article IX, 2.4.1, 2.4.3 and 2.4.4.1, conviction reports may be transmitted from the licensing authority in various forms, which identify, among other things, the person convicted, the violation committed and whether the conviction was by way of plea or the result of forfeiture of bail or other security. Although referring to relevant portions of the Procedures Manual, the Court does not rule that it has the force of law.

GEORGELIS, J., Before us are the preliminary objections of all of the defendants to the plaintiff’s second amended complaint. The objections are in the nature of two demurrers and a motion to strike, but the first demurrer has been withdrawn by a stipulation of the parties. The motion to strike is directed at the plaintiff’s claim for punitive damages, but we will not address it, because we will grant the second demurrer which seeks the dismissal of the second amended complaint on the ground that the dispute between the parties must be resolved pursuant to provisions in their contract and not by litigation. This lawsuit arises out of the parties’ written contract agreement, the terms of which provided that the plaintiff would furnish, and be compensated for by the defendants, all of the labor and materials for the construction of an 18-hole golf course and practice range. The second amended complaint alleges that the plaintiff discontinued the work because the corporate defendant had not made progress payments and that the individual defendants fraudulently induced the plaintiff into entering into the agreement by misrepresenting that financing had been obtained and that they owned the land on which the construction was to take place. It contains four counts: breach of an express contract; breach of an implied contract; unjust enrichment; and fraudulent misrepresentation. As noted above, the defendants’ second demurrer seeks the dismissal of the action on the ground that the agreement provides a dispute resolution procedure without litigation. The plaintiff’s position is that the claims it has against the defendants do not relate to the work it performed under the agreement and that they are not, therefore, encompassed by that dispute resolution procedure. Paragraph 5 of the general conditions of the agreement provides, in part, as follows: “A. The architect/engineer will be the initial interpreter of the terms and conditions of the contract documents and the judge of the performance thereunder. In his capacity as interpreter and judge he will exercise his best efforts to insure faithful performance by both the owner and the contractor. He will not show partiality to either and shall not be liable for the results of any interpretation or decision rendered in good faith. Claims, disputes and other matters relating to the execution and progress of the work or the interpretation of or performance under the contract documents shall be referred initially to the architect/engineer for decision which he shall render in writing within a reasonable time. “D. Arbitration: All decisions of the architect/engineer shall be final except in cases involving time or financial considerations, which, if no agreement regarding such cases is reached, shall be subject to arbitration. The demand for and procedure of arbitration, and the selection of arbitrators shall conform to the Construction Industry Arbitration Rules of the American Arbitration Association.” We begin our analysis of the issue before us with the holdings in three Pennsylvania Supreme Court cases, to which the defendants refer us and which we believe set forth the law in Pennsylvania on clauses for the out-of-court resolution of contractual disputes. The first of these, Ambridge Borough Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974), held that such clauses are valid, enforceable and generally irrevocable. The second, Wyoming Radio Inc. v. National Association of Broadcast Employees & Technicians, 398 Pa. 183, 157 A.2d 366 (1960), held that, where such a clause exists by the agreement of the parties to a contract, the parties are bound by their commitment to resolve any contractual dispute under the specific terms of the clause, just as if they had entered into a stipulation in court. The third, Chester City School Authority v. Aberthaw Construction Co., 460 Pa. 343, 333 A.2d 758 (1975), held that it is improper to avoid the provisions of such a clause by a party’s unilateral termination of the contract. The plaintiff does not argue against the holdings of these three cases, but it contends that its dispute with the defendants is not covered by paragraph 5 of the agreement’s general conditions. Specifically, it contends that the language in the first sentence of sub-paragraph 5A limits its applicability to disputes involving the “terms and conditions of the contract documents” and that, since the second amended complaint contains claims premised on implied contract, unjust enrichment and fraudulent misrepresentation, paragraph 5 cannot be invoked to resolve these claims and such other matters as oral modifications of the agreement, consequential damages and other disputes outside the contractual document. In support of this contention, the plaintiff refers us to Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975), to which the defendants also refer us. Flightways involved a contract which provided for the arbitration of “any controversy or claim arising out of or relating to” the contract and a lawsuit which alleged fraud in the inducement and mutual mistake. Our Supreme Court held that an arbitration agreement “cannot be circumvented ... because of fraud in the inducement or mutual mistake” and that, only when the claim of fraud in the inducement goes specifically to the arbitration provision itself should the matter be adjudicated by a court rather than an arbitrator. Id. at 663, 331 A.2d at 186. We have reviewed the plaintiff’s fraudulent misrepresentation claim, and it is clear that it does not allege fraud in the inducement as to the agreement’s arbitration provision. Therefore, we believe that Flightways is authority for the defendants’ position that the fraudulent misrepresentation count of the second amended complaint does not preclude the invocation of paragraph 5 of the agreement’s general conditions. As to this count, the plaintiff contends further that paragraph 5 does not apply because the fraudulent misrepresentation claim is against the individual defendants, who were not parties to the agreement. The agreement, a copy of which is attached to the second amended complaint as Exhibit A, was signed by the defendant, Elizabeth R. Groff, as president of the corporate defendant, and was sealed by the defendant, Abram B. Groff, as secretary of the corporate defendant. Therefore, the plaintiff accurately states that the individual defendants were not parties to the agreement. However, the fraudulent misrepresentation count fails to allege that the individual defendants were not acting as corporate officers, and we do not believe, therefore, that this is a sufficient consideration to remove the fraudulent misrepresentation claim from the coverage of paragraph 5. As to the plaintiff’s contentions that its claims for breach of an implied contract and unjust enrichment, along with matters such as oral modifications of the agreement and consequential damages, do not fall within the “terms and conditions of the contract documents” language of paragraph 5, we believe that the plaintiff asks us to interpret that language too narrowly. It suggests that this language is much narrower than the language in Flightways, which language, as noted above, provided for the arbitration of “any controversy or claim arising out of or relating to” the contract. We disagree and note that sub-paragraph 5A, in addition to speaking of the “terms and conditions of the contract documents,” also states, as noted above: “Claims, disputes and other matters relating to the execution and progress of the work or the interpretation of or performance under the contract documents shall be referred initially to the architect/engineer for decision which he shall render in writing within a reasonable time. ” Our Supreme Court, in interpreting the arbitration clause in Flightways, stated that it would be difficult to contrive broader language than the “any controversy or claim arising out of or relating to” language in that contract. We believe that the same is true of the above language of sub-paragraph 5A. That is, we believe that “[c]laims, disputes and other matters relating to the execution and progress of the work or the interpretation of or performance under the contract documents” is as encompassing as “any controversy or claim arising out of or relating to.” Furthermore, we have read the averments of Count II, breach of implied contract, and Count III, unjust enrichment, of the second amended complaint, and we believe that the plaintiff is straining in its effort to argue that these two claims do not fall within the requirement of sub-paragraph 5A. In fact, Count II appears to aver that the express contract, i.e., the agreement, is an implied contract. Perhaps this count is intended as an alternative cause of action, but we find it inconsistent in that the pleadings contain no indication of the invalidity of the agreement and in that its prayer seeks the compensation provided for by the agreement. The same, we believe, is true of Count III. Finally, we believe that matters such as the oral modification of a written contract and the consequential damages resulting from the breach of a contract are matters which are very routinely associated with written contracts. It would be unreasonable for the parties to expect paragraph 5 not to apply to these potential developments to their agreement. The plaintiff also refers us to Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964), and Chester City School Authority v. Aberthaw Construction Co., 460 Pa. 343, 333 A.2d 758 (1975). Emmaus involved contract language which required that a demand for arbitration be filed no later than the time for final payment, and the Supreme Court held that this language was indicative of the parties’ intent that arbitration be used only during the life of the contract and that litigation was therefore appropriate. Chester City School Authority did not involve a provision as the one in Emmaus, and the Supreme Court held that claims arising after the termination of the contract had to be arbitrated. The plaintiff presents the holdings in these two cases, we believe, in support of its position that the parties here could not have intended the arbitration of disputes which are outside the expertise of the arbitrator. This position asks us to speculate on the parties’ intent, which we are not willing to do, especially in light of the very clear language of sub-paragraph 5A. Any evidence of the parties’ intent outside the four comers of the agreement, may very well be thwarted by the parol evidence rule. Furthermore, as the defendants point out in their reply brief, we believe that Chester City School Authority is authority for our conclusion here, in that the agreement contains no time limitation for the applicability of its paragraph 5. For all of these reasons, we believe that the plaintiff must present the claims it has asserted in its second amended complaint for resolution pursuant to paragraph 5 of the general conditions of its agreement with the corporate defendant. Accordingly, we enter the following ORDER And now, November 4, 1992, for all of the reasons stated in the foregoing opinion, the preliminary objection of the defendants, Groff Farm Restaurant & Golf Club Inc., Elizabeth R. Groff and Abram B. Groff, in the nature of a demurrer to the plaintiff’s second amended complaint, is sustained. The second amended complaint is dismissed.

GARB, J., This is a declaratory judgment action. Plaintiff seeks a declaration of whether defendant, American Manufacturers Co., may be subrogated to any recovery she makes as a result of a personal injury claim she has filed against the other defendants herein. We will declare herein that the said defendant may assert a subrogation right against that recovery. For purposes of this declaratory judgment action, the facts are not in dispute. Plaintiff testified that on January 10, 1987, she was the store manager for the Fashion Bug located in the Gilbertsville Shopping Center. On that morning, she drove to work. It was snowing. It was still snowing when she arrived at the parking lot of the shopping center, and there was a dusting of snow on the surface. She parked in the shopping center parking lot in front of the World Travel Store which was immediately next door to the Fashion Bug. She parked facing a driveway immediately in front of those stores. She got out of her car, locked it, and crossed the access lane within the parking lot immediately adjacent to the Fashion Bug. It was still snowing. She waited until the assistant manager arrived, and then, pursuant to company policy, they both entered the store. They went to the rear of the store where they secured the proceeds of the previous day’s business, calculated it, and checked it with the register tapes. She then prepared the deposit slip and put the deposit and the deposit slip in a locked bank bag. Once again, pursuant to company policy, she and the assistant left the store with the deposit bag, re-locking the store. They walked to her car where she unlocked the passenger door and the assistant manager entered the car. It was their intention to drive the bank deposit bag to the bank so as to make the deposit. It was company policy for this entire procedure to be followed, including the two of them driving the deposit bag to the bank, which was located in the same shopping center. After the assistant manager had entered the vehicle, the plaintiff began to walk towards the rear of the vehicle with the intention of walking around the car and to the driver’s side door where she intended to enter it in order to drive to the bank. As she was walking towards the rear of the car, she fell in a hole in the parking lot. She was not touching the car at that time and did not fall against it. The fall, apparently, was caused by a hole in the parking lot and a slippery condition caused by the still falling snow. The defendant felt that she was hurt and sat on the ground for a few moments in order to collect herself. Of course, the assistant manager got out of the car and eventually helped her to her feet. She thereupon walked around the car, got into the driver’s seat, and they then drove to the bank where the deposit was made. It was this fall which forms the basis of the lawsuit against the other defendants. As a result of the fall and whatever injuries she incurred, in addition to the lawsuit heretofore referred to she made a claim for workers’ compensation benefits. As a result of that claim, she has received benefits in the approximate amount of $35,000. As a result, the defendant, American Manufacturers Insurance Co., the workers’ compensation carrier, intends to assert a subrogation claim against any recovery she makes against the other defendants named herein. The Act of February 12, 1984, P.L. 26, no. 11, §3, 75 Pa.C.S. §1701 et. seq. is a chapter of the Vehicle Code and is known as the Motor Vehicle Financial Responsibility Law, essentially the successor to the Uninsured Motorists’ Statute. Section 1720 of that statute provides in relevant part as follows: “In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under section 1711 (relating to required benefits) 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement, whether primary or excess under section 1719 (relating to coordination of benefits).” The question for determination is the meaning of the term “maintenance or use of a motor vehicle” as that term is used in this section. In construing the language of this section, we begin with the observation that the Motor Vehicle Financial Responsibility Law provides that there shall be no subrogation of a claimant’s tort recovery with respect to workers’ compensation benefits where the benefits received rise from the use of a motor vehicle. Allstate Insurance Co. v. McFadden, 407 Pa. Super. 537, 595 A.2d 1277 (1991). While use or maintenance of a motor vehicle may have different meanings depending upon the purpose for which these terms are being applied (for example, in application to the sections of the Vehicle Code dealing with driving while under the influence of intoxicating liquor or driving while under suspension or revocation), the critical determination has to do with the purpose for which those terms are used in this section. In specifically referring to sections 1711, 1712 and 1715 of the Act, First-Party Benefits, the Legislature is clearly declaring that there shall be no subrogation rights for such payments or payments under the Workmen’s Compensation Law where a recovery has been made outside of the Financial Responsibility Act. It is perfectly clear that the purpose of this legislation is to provide complete insurance coverage to the Commonwealth’s motorists with the recognition that an employee injured in a job-related motor vehicle accident may be more in need of workers’ compensation benefits than in any other on-the-job injury. See Walters v. Kamppi, 118 Pa. Commw. 487, 545 A.2d 975 (1988). However, it cannot be said that every injury wherein there is some motor vehicle connection, regardless of how tenuous, is insulated from the subrogation rights of the workers’ compensation carrier. Bearing in mind, once again, that this section is a part of the Motor Vehicle Financial Responsibility Act, those cases which decide when first-party benefits are payable are instructive. Clearly, the Motor Vehicle Financial Responsibility Law, like its predecessor, the No Fault Act, is not a general liability insurance intended to cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to cover motor vehicle accidents. See Camacho v. Nationwide Insurance Co., 314 Pa. Super. 21, 460 A.2d 353 (1983), aff’d, 504 Pa. 351, 473 A.2d 1017 (1984). Automobile insurance is designed to compensate for vehicle-caused injuries. Smith v. United Services Automobile Assn., 392 Pa. Super. 248, 572 A.2d 785 (1990). There must be some causal connection between the motor vehicle and the injury before the motor vehicle insurer is required to pay first-party benefits. Roach v. Port Authority of Allegheny County, 380 Pa. Super. 28, 550 A.2d 1346 (1988). In Roach, for example, the plaintiff was riding on a bus and was injured as a result of a fight between two other passengers. Since there was no causal link between the injury and the use of a motor vehicle, the court held that the plaintiff’s complaint for first-party benefits must be dismissed. In Alvarino v. Allstate Insurance Co., 370 Pa. Super. 563, 537 A.2d 18 (1988), the lack of a causal connection precluded recovery where a child was bitten by a dog while riding in a motor vehicle. See also McKelvey v. Prudential Property and Casualty Insurance Co., 392 Pa. Super. 216, 572 A.2d 769 (1990). (This latter case may be most instructive because there the insured injured his shoulder when he struck a door frame while rushing to his children after his house was struck by an automobile not covered under the Motor Vehicle Financial Responsibility Law.) In Huber v. Erie Insurance Exchange, 402 Pa. Super. 443, 587 A.2d 333 (1991), the plaintiff was injured when he was loading materials into his vehicle. The trial court granted judgment on the pleadings for defendant and was affirmed, per curiam, by the Superior Court. In so holding, the court held as follows: “In view of the purpose of the MVFRL, i.e., compensating victims of automobile accidents, and the legislative intent of restricting, to some extent, first-party coverage in order to keep insurance costs manageable, we must conclude that appellant has not shown a causal connection between his injuries and the vehicle. Accordingly, we affirm the trial court’s order.” In this vein, we likewise fail to find a causal connection between plaintiff’s injuries and her motor vehicle. Based upon these cases, we do not believe that she would qualify for first-party benefits. Such benefits are not paid “simply because an injury occurs in or around a motor vehicle.” Huber v. Erie Insurance Exchange, supra. As such, this anti-subrogation provision of 1720, being a part of the same statute, likewise does not apply. Plaintiff suffered an injury as a result of a slip and fall in a parking lot. The mere fact that this happened in the vicinity of and while she was approaching her motor vehicle does not establish the requisite causal connection between her injuries and the vehicle. As such, section 1720 does not apply, and defendant, American Manufacturers Insurance Co., may assert its right of subrogation. Other defendants in this case have likewise requested a declaration regarding the application of section 1722 of the Act. That Act provides in relevant part as follows: “In any action for damages against a tort-feasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverage as set forth in this subchapter, or workers’ compensation ... shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation...” We will decline to make any declaration regarding the applicability of this section. This section can only come into play if the case actually goes to trial. Under those circumstances, we think it is more appropriate for the trial judge to make this determination. ORDER And now, March 5, 1993, it is hereby declared that section 1720 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1720, is not applicable to any tort recovery which the plaintiff may make in this matter, and as such, defendant, American Manufacturers Insurance Co., may assert whatever rights of subrogation or reimbursement it may have from plaintiff’s tort recovery. It is further ordered that no declaration shall be made with respect to the applicability of section 1722,75 Pa.C.S. §1722.

OPINION Justice SAYLOR. The question presented is whether a two, four or six year statute of limitations attaches to claims for damages resulting from a judgment creditor’s failure to mark a judgment satisfied of record after it has been paid in full and an appropriate request for satisfaction has been made. In 1990, CoreStates Bank (“CoreS-tates”) extended to Pantuso Motors, Inc. (“Pantuso”), a revolving credit line secured by mortgages, a promissory note, and financing statements. In July of 1994, CoreStates confessed judgment against Pantuso in the amount of $471,716.71. Two months later, on September 12, 1994, Pantuso tendered a sum representing payment in full of all obligations owed the bank, and made a written request that CoreStates satisfy all of the obligations of record. CoreStates does not dispute that the obligation was paid in full. In June of 1995, when CoreStates had still failed to enter the satisfactions, Pantu-so made another written request that it do so. Finally, on April 18, 1997, CoreStates entered satisfaction of the judgment, but took no similar action relative to the mortgages and financing statements. Thus, on April 28, 1997, Pantuso demanded that CoreStates mark those security interests as satisfied, a request with which CoreS-tates eventually, albeit belatedly, complied. On May 28, 1997, Pantuso instituted suit against CoreStates, based upon the latter’s failure to timely record satisfaction of the judgment and security interests, and sought statutory damages pursuant to Sections 9 and 10 of the Act of May 28, 1715, concerning satisfaction of mortgages, Sec tion 8104 of the Judicial Code, concerning satisfaction of judgments, see 42 Pa.C.S. § 8104, and then-Section 9404(a) of Pennsylvania’s Uniform Commercial Code, concerning termination statements. In its answer and new matter, CoreStates raised the statute of limitations as an affirmative defense. Cross-motions for judgment on the pleadings followed. The trial court concluded that the two-year statute of limitations applied to all of Pantuso’s claims, but that such limitations period was renewed each time Pantuso demanded that CoreStates enter satisfaction. Because suit was filed less than two years after Pantuso’s final demand for satisfaction, the court determined that Pantu-so’s claims were timely. Accordingly, the court entered judgment in Pantuso’s favor as to liability, reserving for trial the determination of damages. An order was subsequently entered, awarding Pantuso $235,858.36 in liquidated damages, an amount representing 50% of the initial judgment of $471,716.71, pursuant to the statutory formula contained in Section 8104(b), 42 Pa.C.S. § 8104(b). Although, as noted, CoreStates was deemed liable pursuant to the other two statutes involved, the trial court did not award any damages under those provisions, opting instead to craft a remedy based solely upon Section 8104(b)’s liquidated damages formula. CoreStates appealed to the Superior Court, renewing its argument that all of Pantuso’s claims were barred by the two-year statute of limitations. The Superior Court deemed the two-year statute controlling, relying upon dicta from its prior decision in Hanover Plumbing Supply, Inc. v. Russell, 452 Pa.Super. 32, 35, 680 A.2d 1181, 1182 (1996)(stating that “section 8104 of Title 42 is a punitive statute aimed at encouraging the timely removal of satisfied judgments from the court dockets”). See Pantuso Motors, Inc. v. CoreStates Bank, N.A., 745 A.2d 614, 618 n. 3 (Pa.Super.1999). The panel then concentrated its review upon the arguments pertaining to renewal of the limitations period. In this regard, it analyzed and compared the three statutes involved in Pantuso’s initial complaint — Sections 681 and 682 of Title 21, Pennsylvania Statutes, Section 8104 (Title 42, Pa.C.S.), and Section 9404 (Title 13, Pa.C.S.) — taking special note of the mandate in Section 682 that the mortgagee be fined for “every such offense,” as well as the absence of similar language in Sections 8104 and 9404. Given such omission, the court determined that, for claims based upon the latter provisions, the statute of limitations could not be renewed with each additional demand for satisfaction. However, the court agreed that, for claims based upon Sections 681-682, the limitations period could be renewed for “each offense,” i.e., each unheeded written request for satisfaction of the mortgage. See Pantuso, 745 A.2d at 618-19. Because the trial court’s damage award was based exclusively upon the formula in Section 8104(b), the Superior Court vacated that award and remanded for a re-calculation based upon Section 682, 21 P.S. § 682. See id. at 619. We initially allowed appeal to consider, inter alia, whether successive Section 8104 demands for entry of satisfaction of an open judgment either revive the initial cause of action or constitute a new cause of action, thus rendering Pantuso’s claim under that provision timely. See Pantuso Motors, Inc. v. Corestates Bank, N.A., 566 Pa. 212, 779 A.2d 1142 (2001). After hearing argument, we entered an order allowing appeal on the additional question of whether a two, four or six year statute of limitations applies to Section 8104(b). Pennsylvania’s two-year statute of limitations applies, inter alia, to “actionfs] upon a statute for a civil penalty or forfeiture.” 42 Pa.C.S. § 5524(5). CoreStates points to the Hanover Plumbing Supply dicta and argues that, notwithstanding its “liquidated damages” label, see supra note 4, the remedy provided by Section 8104(b) is primarily punitive in nature, as it is designed to encourage timely removal of satisfied judgments from court dockets, rather than to compensate the debtor for any harm suffered. CoreStates thus contends that the applicable limitations period is governed by Section 5524(5), 42 Pa.C.S. § 5524(5). Pantuso and amicus curiae disagree, and indicate that Section 8104 is remedial, not punitive. They argue that it is governed by either the four-year statute, see 42 Pa.C.S. §§ 5525(7) and (8) (pertaining to actions upon bonds, notes, written contracts, or similar instruments), or the residual six-year period set forth at Section 5527 of the Judicial Code, 42 Pa.C.S. § 5527. In either case, they maintain, the action was timely, as it was brought less than four years after the initial demand for satisfaction of the obligations was made. As an initial matter, Section 5525 can be eliminated from consideration. Although the underlying transaction that ultimately led to entry of the confession of judgment may have included an agreement reduced to writing, Pantuso’s claim under Section 8104 is founded upon the statute itself, and not upon a contract, bond, or other written instrument. The question, then, distills to whether Section 8104(b) is a remedial statute intended to compensate debtors for the harmful effects of stale judgments, or instead constitutes a “civil penalty or forfeiture” for purposes of the two-year statute, 42 Pa.C.S. § 5524(5), as indicated by the Superior Court. In deciding this question, our role, as with all statutory interpretation, is to give effect to the intent of the Legislature. See 1 Pa.C.S. § 1921. In ascertaining such intent, section headings and titles may be used as an aid, see 1 Pa.C.S. § 1924; Wiley v. Umbel, 355 Pa. 206, 208 n. 1, 49 A.2d 371, 373 n. 1 (1946), and words and phrases must be understood according to their common usage. See 1 Pa.C.S. § 1903(a). Terms that have acquired specialized meaning, however, are to be interpreted according to such meaning. See id. Whenever possible, statutes must be construed so as to give effect to every word. See 1 Pa.C.S. § 1921(a); Masland v. Bachman, 473 Pa. 280, 291, 374 A.2d 517, 523 (1977). With these principles in mind, substantial weight attaches to the prominence of the term “liquidated damages” in the enactment at issue. The General Assembly not only chose to place this phrase within the heading of Section 8104(b), but selected it to appear twice within the statutory text as the sole designation of the statutory remedy there provided. See supra note 4. Liquidated damages is a term of art originally derived from contract law; it denotes “‘the sum a party to a contract agrees to pay if he breaks some promise, and which, having been arrived at by a good faith effort to estimate in advance the actual damage that will probably ensue from the breach, is legally recoverable ... if the breach occurs.’ ” In re Plywood Co. of Pa., 425 F.2d 151, 154 (3d Cir.1970) (quoting Westmount Country Club v. Kameny, 82 N.J.Super. 200, 197 A.2d 379, 382 (1964)). A penalty, by contrast, is fixed, “not as a pre-estimate of probable actual damages, but as a punishment, the threat of which is designed to prevent the breach.” Westmount Country Club, 197 A.2d at 382 (citing McCormick, Damages § 146, pp. 599-600). Thus, contracting parties may provide for pre-determined liquidated damages in the event one party fails to perform, particularly in circumstances where actual damages would be difficult to estimate in advance or to prove after a breach occurs. See Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 213, 146 A.2d 714, 718 (1958); Kelso v. Reid, 145 Pa. 606, 611, 23 A. 323 (1892); Restatement (Second) of Contbaots, § 356(l)(“Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss[;][a] term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.”). See generally Geisinger Clinic v. Di Cuccio, 414 Pa.Super. 85, 99, 606 A.2d 509, 516 (1992)(listing criteria to differentiate liquidated damages from penalties). CoreStates maintains that, although Section 8104(b) is denominated “liquidated damages,” the remedy it prescribes operates as a penalty because liability under the statute may bear little relationship to the harm suffered by the judgment debtor. In this regard, CoreStates, as noted, cites Hanover Plumbing Supply, and additionally calls our attention to Holt’s Cigar Co. v. 222 Liberty Assocs., 404 Pa.Super. 578, 591 A.2d 743 (1991), in which the Superior Court’s disposition generally reflects the Restatement rule as stated above. See id. at 586-88, 591 A.2d at 747-48 (citing Restatement (FIRST) OF CONTRACTS § 339). Although this Court has declined to endorse the Restatement’s precise formulation, see Commonwealth, Dep’t of Transp. v. Mitchell, 517 Pa. 203, 214, 535 A.2d 581, 586 (1987), we have indicated that liquidated damages in actions in contractu may be awarded “only in cases where the amount is reasonable and there is a difficulty in assessing the harm that would be caused by a breach.” Id. (citing Musser Forests, 394 Pa. at 212, 146 A.2d at 717). This position reflects the public policy of this Commonwealth favoring reasonableness in contractual stipulations generally. See Insley v. State Mut. Life Assur. Co., 334 Pa. 368, 375, 5 A.2d 544, 547 (1939); see also Kunkle v. Wherry, 189 Pa. 198, 201, 42 A. 112 (1899) (observing that one basis for the unenforceability of contractual penalties is that a party should not be allowed to profit from the other’s default). Whether or not CoreStates’ argument would have merit in a private contractual setting, it must not be overlooked that the damage award here at issue was calculated by reference to legislative enactment, not contractual stipulation. Manifestly, absent constitutional infirmity the courts of this Commonwealth may not refuse to enforce on grounds of public policy that which the Legislature has prescribed. See Commonwealth ex rel. Alessandroni v. Borough of Confluence, 427 Pa. 540, 544 n. 4, 234 A.2d 852, 854 n. 4 (1967); Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., No. 6, 414 Pa. 95, 98, 199 A.2d 266, 267 (1964)(stating that the Legislature has the exclusive responsibility to enunciate public policy). It would likewise be anomalous for this Court to declare, on grounds ultimately rooted in public policy, that a remedy which the General Assembly has specifically designated as liquidated damages is in fact a statutory penalty or forfeiture. This is particularly true where, as here, the harm to be remedied reasonably lends itself to a liquidated damages solution: the injury resulting from paid judgments remaining unsatisfied of record — including possible damage to the debtor’s reputation, credit rating, and financial affairs generally — is likely to be difficult to quantify, and, like the Section 8104 formula, may increase with the amount of the stale judgment and the duration it remains of record. Thus, we are skeptical of the Hanover Plumbing Supply court’s declaration that Section 8104(b) is penal in nature, which, in any event, lacked supporting analysis or authority. CoreStates also submits that, in Werner v. Auto. Fin. Co., 347 Pa. 217, 31 A.2d 898 (1943), this Court indicated that the remedy provided by the mortgage satisfaction statute, 21 P.S. § 682, is punitive as to the mortgagee. CoreStates argues by analogy that, given the similarity between that enactment and Section 8104(b), the latter remedy is punitive as to the judgment creditor, and hence, operates as a statutory fine or forfeiture subject to the two-year statute. While it is true that Werner characterized the remedy under the mortgage statute as having the dual purpose of compensating the aggrieved party and punishing the offending party, see id. at 219, 31 A.2d at 899, we do not view that decision as indicating that Section 8104(b)’s remedy constitutes a penalty as to the judgment creditor, as there are important differences between the two statutes. For one, the penalty prescribed by Section 682 is discretionary with the court and designed as a “[f|ine for neglect.” See 21 P.S. § 682. The award under Section 8104(b), by contrast, is specified in precise terms and denominated “liquidated damages.” See 42 Pa.C.S. § 8104(b). Further, the Werner court referred to the penalty aspect of the mortgage statute’s remedy chiefly to emphasize that trial courts could consider the defendant’s culpability when fixing the damage award and should reserve the harshest penalties for mortgagees who act unreasonably or wantonly. See, e.g., Crawford v. Simon, 159 Pa. 585, 589, 28 A. 491, 492 (1894). While this Court has made similar observations regarding Section 8104’s predecessor statute, 12 P.S. § 971 (repealed), see Henry v. Sims, 1 Whart. 187 (Pa.1836), such prior legislation — similar to Section 682 — had afforded the trial court wide latitude in setting the penalty for failure to remove satisfied judgments. Accordingly, under that predecessor statute the blameworthiness of the defendant’s conduct was relevant in determining the amount of the award, and the remedy was correctly viewed, at least in part, as a penalty as to him. See id. at 200. Notably, it is that prior legislation that the Werner Court stated was similar to Section 682. In a subsequent amendment, the remedy was altered to remove any discretion, and with it, any possibility of factoring the culpability of the defendant’s conduct into the award. Thus, to the extent an analogy existed at the time of the Werner decision between the prescribed schemes for compensating mortgagors and judgment debtors, it has been diminished via legislative change. Consequently, we are not inclined to contravene the General Assembly’s present designation of the award at issue as liquidated damages, but rather, defer to its judgment in terms of the approach that it has chosen to employ. Accordingly, as the two- and four-year limitations periods do not attach to Pantu-so’s cause of action under Section 8104(b), the six-year residual statute applies. Consequently, Pantuso’s Section 8104 claim, as predicated upon its initial request for entry of satisfaction in 1994, was timely, and we need not reach the question of whether any subsequent demand revived the limitations period. The Superior Court’s order is reversed, and the matter is remanded for reinstatement of the order of the trial court awarding Pantuso damages pursuant to Section 8104(b). Justice EAKIN did not participate in the consideration or decision in this matter. . CoreStates is the successor in interest to Third National Bank & Trust Co. of Scranton, the original judgment creditor. For simplicity both entities are referred to as CoreStates. . The individual plaintiffs, Alfred D. Pantuso, Sr. and Judith Pantuso, executed the mortgages and promissory note as a personal guarantee of the credit line. Additionally, Pantuso Motors, Inc., executed a promissory note and two financing statements in favor of the bank. All three Appellees/Cross-Appel-lants are referred to herein collectively as "Pantuso.” . Act of May 28, 1715, 1 Sm. L. 94, §§ 9 and 10 (as amended, 21 P.S. §§ 681, 682). These provisions state: Sec. 681 Satisfaction of mortgage on margin of record or by satisfaction piece. Any mortgagee of any real or personal estates in the Commonwealth, having received full satisfaction and payment of all such sum and sums of money as are really due to him by such mortgage, shall, at the request of the mortgagor, enter satisfaction either upon the margin of the record of such mortgage recorded in the said office, or by means of a satisfaction piece, which shall forever thereafter discharge, defeat and release the same; and shall likewise bar all actions brought, or to be brought thereupon. Sec. 682 Fine for Neglect. And, if such mortgagee, by himself or his attorney shall not, within forty-five days after request and tender made for his reasonable charges, return to the said office, and there make such acknowledgment as aforesaid, he, she, or they, neglecting so to do, shall for every such offence, forfeit and pay, unto the party or parties aggrieved, any sum not exceeding the mortgage money, to be recovered in any Court of Record within this Commonwealth, by bill, complaint or information. 21 P.S. §§ 681, 682. . At the time the action was commenced, Section 8104 provided: Duty of judgment creditor to enter satisfaction. (a) General Rule — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment. (b) Liquidated Damages — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered. 42 Pa.C.S. § 8104. . Act of Nov. 1, 1979, P.L. 255, No. 86, § 1 (as amended, 13 Pa.C.S. § 9404(a) (repealed and recodified as amended at 13 Pa.C.S. § 9513)). This provision is not presently at issue. . That section states that ‘‘[a]ny civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.” 42 Pa.C.S. § 5527. . Act of April 13, 1791, 3 Sm. L. 28, § 14 (repealed). . The prescribed penalty was "any sum of money, not exceeding one-half of the debt or damages so adjudged and recovered.” 12 P.S. § 971 (repealed); see Henry v. Sims, 1 Whart. at 197. . CoreStates argues in the alternative that, even if the two-year statute for civil penalties and forfeitures is not implicated, the limitations period for tortious injury to persons or property bars the present suit, as its failure to enter judgment satisfaction amounted to negligent conduct. See 42 Pa.C.S. § 5524(7)(im-posing a two-year limitation period for “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct ...”). CoreStates fails to cite any authority for the conclusion that violating the requirements of Section 8104 constitutes a tort controlled by Section 5524(7). Moreover, the award of liquidated damages — rather than damages premised upon the plaintiff’s proof of specific injuries together with proximate causation — undermines CoreStates’ theory in this regard. See Commonwealth v. Root, 403 Pa. 571, 574, 170 A.2d 310, 311 (1961)(observing that proof of proximate cause is necessary for recovery based upon negligence). Thus, absent legislative guidance, we decline to classify a violation of Section 8104 as tortious conduct for purposes of Section 5524(7).

Me ANDREWS, This matter is before the court on the motion of defendant, Bensalem Country Club Inc., d/b/a The Bam, for judgment notwithstanding the verdict or for a new trial, pursuant to Pennsylvania Rule of Civil Procedure 227.1. Plaintiff Mark McHale, on November 28, 1990, filed this civil action in trespass against defendant, seeking to recover damages arising out of injuries inflicted on the plaintiff while a patron at the defendant’s establishment. This matter was tried without a jury on the dates of February 14 and March 2, 1992, before the undersigned. This court, having heard all of the evidence, found against defendant and in favor of plaintiff and entered an award in the amount of $30,000. On March 10,1992, defendant filed this motion for post-trial relief. For the reasons set forth below, this motion is denied, and the verdict stands. FACTS The defendant is the owner-operator of a nightclub establishment known as The Bam. Live music is featured and alcoholic beverages are available for sale. The plaintiff testified that he arrived at The Bam on March 23, 1990, at approximately 9:45 p.m. and was asked for identification by three doormen attending the entrance way. At approximately 12:15 a.m. on March 24, 1992, the plaintiff was on the second floor of The Bam when he decided to leave. As he approached a stairwell leading from the second floor to the first floor, he was grabbed from behind the neck, picked up and pushed down the stairwell. Plaintiff fell on his face. The assailant was wearing a white polo shirt labeled “staff.” On the first floor plaintiff was restrained by two men wearing black satin jackets bearing the insignia of The Bam. He recognized one of those men as a doorman who had earlier requested identification from him. These two men repeatedly punched and kicked plaintiff about his body, upper body and legs. One of the assailants then pinned plaintiff against the wall, while the second continued to repeatedly punch and kick plaintiff. Soon the two men were joined in their assault by the man who pushed plaintiff down the stairwell. The two men held plaintiff tightly while the third repeatedly punched plaintiff’s body. The three men then pushed plaintiff out the front door and told him to sit on a nearby rock. Plaintiff sat on the rock for 20 minutes waiting for medical assistance. No aid arrived. Plaintiff’s testimony indi cates that he consumed eight bottles of beer between 7:15 p.m. and 12:15 a.m., although no evidence was presented that plaintiff was intoxicated. Donna Slusarski, a patron at the nightclub on March 23, 1990, also testified and essentially corroborated the testimony of plaintiff. Ms. Slusarski observed the men punching and kicking plaintiff, and identified a jacket presented as an exhibit at trial which was similar to the jacket worn by one of the assailants. The jacket was the type worn by employees of The Bam. Dr. Mark Medway, a board certified physiatrist at Jeanes Hospital in Philadelphia, Pennsylvania, testified that plaintiff came under his care on April 11, 1990. Dr. Medway treated plaintiff for seven weeks. Dr. Medway’s diagnosis was persistent neck and chest pain caused by two fractured ribs, increased spasm and tenderness in the cervical paraspinal muscle and surrounding muscles, and local tenderness over the right chest wall. Dr. Medway approved of plaintiff’s continued use of anti-inflammatory medication and prescribed a physical therapy program. Plaintiff further testified that because of his injuries, he was forced to miss 16 weeks of work. Kevin King, the manager at The Bam, testified that the doormen wear white shirts with “The Bam” written on them, black pants and black satin jackets. He further testified that while the jackets have been worn by patrons, it is infrequent. Mr. King testified that doormen are never allowed to use force beyond taking hold of a person’s arm and escorting that person outside. If a patron resists, the doormen were instructed to call the police. Any deviations from standard operating procedure were to be reported. No other witnesses were presented by defendant. Having heard the evidence this court found that: (1) plaintiff was assaulted at The Bam by defendant’s em ployees; (2) plaintiff did not provoke the assaults; and (3) defendant’s employees were acting within their scope of employment. A judgment notwithstanding the verdict should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Atkins v. Urban Redevelopment Authority, 489 Pa. 344, 414 A.2d 100 (1980). It is an extreme remedy, properly entered by the trial court only in a clear case where, after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 537 A.2d 814 (1987), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). In considering a motion for judgment notwithstanding the verdict, the verdict winner must be given the benefit of every reasonable inference of fact arising from the evidence, and any conflict in evidence must be resolved in its favor. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977). The issue presently before the court is whether its findings of fact at trial were proper, viewing the evidence in the light most favorable to plaintiff. Plaintiff has sustained his burden of proof on the issue of whether he was assaulted at The Bam by defendant’s employees. Plaintiff testified that for no apparent reason he was repeatedly punched and kicked by three men, each wearing some part of The Barn’s uniform. Plaintiff recognized at least one of these men as being a doorman that requested identification from him upon his arrival at The Bam. Plaintiff’s testimony was substantially corroborated by Donna Slusarski who recognized two of the assailants as men who functioned as The Barn’s doormen earlier in the evening. No direct evidence was presented tending to prove that the incident did not occur. Rather, defendant would have the court conjecture that the assault did not occur based on Mr. King’s testimony that, to his knowledge, the incident was not reported to those responsible for receiving incident reports. Defendant’s burden cannot be sustained by conjecture. See Anschel v. Pennsylvania Railroad Co., 346 Pa. 123, 29 A.2d 694 (1943). After viewing the evidence in the light most favorable to plaintiff, no two reasonable minds could fail to agree that plaintiff sustained his burden of proving that plaintiff was assaulted at The Bam by defendant’s employees. Second, defendant has failed to sustain its burden of proof on the issue of whether plaintiff provoked the assaults. Wilbert v. Pittsburgh Consolidation Coal Co., 385 Pa. 149, 122 A.2d 406 (1956) (“Ordinarily, one who asserts an affirmative defense has the burden of proving it....”). Defendant’s argument that plaintiff provoked the assaults was based solely on the fact that plaintiff had been drinking beer on the night in question. This assertion is purely conjectural and inadequate to sustain defendant’s burden of proof. See Anschel, supra. Third, defendant has failed to sustain his burden of proving that his employees were acting outside the scope of their employment. The general rule in Pennsylvania is that the employer is responsible for the tortious conduct of its employee if the conduct occurs within the course and scope of employment. Johnson v. Glenn Sand and Gravel, 308 Pa. Super. 22, 453 A.2d 1048 (1982). Pennsylvania courts have held that in order for the employee’s tortious conduct to be within the scope of employment so as to render the employer liable, the injurious action must have been committed within the time and space of employment and the employee’s activity must in some way further the employer’s business. Id. The assaults were not so grossly excessive as to absolve the defendant of liability. As the Superior Court stated, “[t]he master who puts the servant in a place of trust or responsibility ... is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another.” Ash v. 627 Bar Inc., 197 Pa. Super. 39, 44, 176 A.2d 137, 140 (1961) (quoting Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 590-91, 12 A.2d 25, 27 (1940)). The defendant’s own witness, Kevin King, testified that doormen must maintain order at the bar. As part of this directive, doormen were authorized to grab a patron by the arm and “show him to the door.” (N.T. King, p. 29). It is clear that the doormen were instructed to use reasonable force to control and/or remove disorderly patrons. Although the assault inflicted upon plaintiff was excessive conduct, the doormen’s conduct was not so “grossly excessive” or “so excessive and dangerous, totally without responsibility or reason, that we are compelled as matter of law to absolve defendant of vicarious liability.” Howard v. Zaney Bar, 369 Pa. 155, 157, 85 A.2d 401, 402 (1952). (emphasis in original) See also Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270 (1979). In Zaney Bar, the defendant, Zaney Bar’s employee-bartender, while acting within the time and space of his employment, shot and seriously wounded a male patron, after the patron made advances to a female patron sitting at the defendant’s bar. The Supreme Court held that the defendant, as employer, was not liable for the acts of its bartender in shooting tibie male patron because such action was so outrageous that it was not within the scope of employment. In the instant case, a deadly weapon was not used by the employees. The assault here, albeit an act without responsibility or reason, wets not “grossly excessive,” considering the doormen’s instructions. Therefore, we must address the next issue regarding whether the doormen were acting within their scope qf employment: Whether the doormen were furthering the interests of defendant by controlling a disorderly patron. “If an assault is committed for personal reasons or in an outrageous manner, it is not actuated by an intent of performing the business of the employer and is not done within the scope of employment.” Fitzgerald, 270 Pa. Super, at 106, 410 A.2d at 1272. As was stated in Fitzgerald: “The Restatement (Second) of Agency, §228, defines conduct within the scope of employment as follows: ‘(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) if force is intentionally used by the servant against another, the use of the force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.’” Id. at 107,410 A.2d at 1272. Three uniformed employees, acting in concert, shared the common goal of removing plaintiff from the premises. The desired result was consistent with what the doormen were instructed to do with disorderly patrons. Once outside the building plaintiff was told where to sit and wait. Such a command was given only with the apparent authority of the employer. This was not a case where one doorman acted unilaterally with a purpose of his own. The doormen were acting as instructed and reacted according to instructions, albeit excessively. Therefore, the doormen were acting within their scope of employment when they assaulted plaintiff. Defendant contends that the verdict was excessive. In Pennsylvania, the courts have consistently held that “damages are to be compensatory to the full extent of the injury sustained.” Kaczkowski v. Bolubasz, 491 Pa. 561, 566, 421 A.2d 1027, 1029 (1980); see Incollingo v. Ewing, 444 Pa. 299, 307, 282 A.2d 206, 228 (1971); McLane v. Pittsburgh Railways Co., 230 Pa. 29, 79 A. 237 (1911). Under Pennsylvania law, a plaintiff is entitled to be compensated for all past medical expenses reasonably and necessarily incurred and all future medical expenses reasonably likely to be incurred for the treatment and care of his injuries; past lost earnings and lost future earning capacity; and past, present and future pain and suffering. Owens v. Peoples Passenger Railway Co., 155 Pa. 334, 342, 26 A. 748, 749 (1893); see McClinton v. White, 285 Pa. Super. 271, 277, 427 A.2d 218, 222 (1981) (survival action), vacated on other grounds, 497 Pa. 610, 444 A.2d 85 (1982). See generally, Pennsylvania Suggested Standard Jury Instruction, Civil, sections 6.01 A-1 (PBI 1981). “Infliction of pain means taking from a person what is his own to possess and retain, namely, health and well-being. Whoever robs another of that health and well-being is required by law to make recompense, to the extent that the deprivation may be calculated in money damages.” Thompson v. Iannuzzi, 403 Pa. 329, 331, 169 A.2d 777, 778 (1961). In this case, plaintiff was attacked from behind, pushed down a flight of steps and repeatedly kicked and punched by three men. The doormen took turns punching and kicking plaintiff while plaintiff was restrained by one or more of the others. As a result of this assault, plaintiff sustained two fractured ribs, contusions, great pain and suffering, and loss of work. This attack occurred without explanation and without provocation. After the attack, he was pushed out the door and told to sit on a rock and wait. None of defendant’s employees rendered any assistance to plaintiff. Regarding plaintiff’s injuries, Dr. Medway testified that Mr. McHale complained of persistent pain in the chest and neck areas. He had reduced motion at the avervical spine, increased spasm and tenderness in the cervical paraspinal muscles as well as local tenderness over the right chest wall. The x-ray findings indicated non-displaced fractures of the anterior eighth and ninth ribs on the right side. These multiple fractures were consistent with plaintiff’s pain in the chest area. “Rib fractures when they occur or fractures of bone are quite painful no matter where they occur.” (Deposition of Dr. Medway, February 6, 1992, p. 15-23). In Burgan v. Pittsburgh, 373 Pa. 608, 613, 96 A.2d 889, 891 (1953), Justice Musmanno said: “Pain and suffering are substantive losses and, for the same reason that a person is entitled to retain, against the encroachment of others, the full and unimpeded use of his limbs, organs and other parts of his body, so is he equally guaranteed freedom from physical and sensory torment. Pain and suffering, while existing, can be as much a disability as crippling, rupture or dismemberment. It is the jury’s duty to appraise the pain and the agony of an anatomy in discord and to affix monetarily the responsibility of the person or legal entity which broke nature’s harmony. “The item of pain, suffering and inconvenience is also one of substance.” Bochar v. J.B. Martin Motors Inc., 374 Pa. 240, 245-46, 97 A.2d 813, 816 (1953). In light of the excess nature of the assault, the resultant fractured ribs, contusions, and persistent pain and suffering, loss of wages, and the fact that the assault was not provoked, an award of $30,000 is not excessive. Viewing the evidence in the light most favorable to the verdict winner, it is entirely reasonable for one to conclude, by a preponderance of the evidence, that plaintiff Mark McHale was unjustifiably assaulted by The Barn’s doormen, without provocation and while the doormen were acting within the scope of their employment, and that an award of $30,000 is not excessive. In passing upon a motion for new trial, it is necessary to consider the entire record to determine whether the verdict was arbitrary or capricious or whether it was against the weight of the evidence, or whether there was clearly error of law or palpable abuse of discretion in the rulings of the court. Gonzalez v. U.S. Steel Corp., 248 Pa. Super. 95, 374 A.2d 1334 (1977), aff’d, 484 Pa. 277, 398 A.2d 1378 (1979). Only if the court concludes that the judicial process has effected a serious injustice may it grant a new trial. Smith v. Barker, 368 Pa. Super. 472, 534 A.2d 533 (1987), appeal denied, 520 Pa. 577, 549 A.2d 137 (1988). A new trial based on an error of law alone is not warranted and there must also be a showing that error influenced the verdict and led to an incorrect result. Naccarati v. Garrett, 351 Pa. Super. 437, 506 A.2d 428 (1986). Plaintiff raises two instances, which he contends constitute clear errors of law which influenced the verdict and led to an incorrect result and serious injustice. These instances are addressed seriatim: (1) Admittance into evidence over objection of hospital medical records which contained medical opinion. Over the objection of the defendant, the court admitted into evidence as Exhibit P-1, medical records from Jeanes Hospital. The records contained a statement that the red marks on plaintiff’s neck were “strangulation” marks. This statement was admitted along with the entire record and defendant did not call the doctor’s opinion to the court’s attention. Without regard to the merits of this objection, the conclusion did not influence the verdict or lead to an incorrect result. (2) The plaintiff’s physician testified from physical therapy notes not in evidence. Without regard to the merits of this objection, the court notes that any medical testimony by itself had a negligible impact on the total award of punitive damages and thus its admittance did not affect the verdict and was not a reversible error. For all the above reasons, this court denies the defendant’s motion and enters the following ORDER And now, January 14, 1993, the motion of plaintiff Mark McHale for judgment notwithstanding the verdict or for a new trial is denied.

ORDER PER CURIAM. AND NOW, this 10th day of June, 2002, the Petition for Allowance of Appeal is granted and the case is remanded to the Workers’ Compensation Judge to consider whether Claimant’s claim petition was timely filed based on this Court’s decision in Schreffler v. WCAB (Kocher Coal Company), 567 Pa.527, 788 A.2d 963 (2002).

SOLOMON, J., On March 11, 1992, following a jury trial, the defendant was found guilty of corruption of minors, 18 Pa.C.S. §6301; endangering the welfare of a child, 18 Pa.C.S. §4304; and indecent assault, 18 Pa.C.S. §3126. The jury was unable to reach a unanimous verdict as to all other charges (incest, 18 Pa.C.S. §4302; aggravated indecent assault, 18 Pa.C.S. §3125; rape, 18 Pa.C.S. §3121; and statutory rape, 18 Pa.C.S. §3122) and, upon motion of the defendant, a mistrial was declared. On May 1, 1992, the defendant filed a motion to dismiss the informations upon which the jury was unable to reach a verdict, based on double jeopardy, which motion was denied by the court on May 6, 1992. The defendant is now appealing that denial to the Superior Court. This opinion is in support of the order of May 6, 1992. STATEMENT OF THE CASE In December 1990, Jessica Lynn Grow revealed to her grandmother that her father had been “touching” her in her “privates.” The evidence at trial established that over a period of years, Jessica’s father, the defendant, Cecil Grow, had been sexually molesting Jessica since she was approximately six years old. The defendant was found guilty, following a jury trial, of corruption of a minor, indecent assault and endangering the welfare of a cMd. Upon motion of the defendant, a mistrial was declared as to the remaining charges (incest, rape, statutory rape and aggravated indecent assault), based on the jury’s inability to reach a unanimous verdict. The defendant then filed a motion to have the remaining charges dis missed, based on double jeopardy, claiming that the Commonwealth will be subjecting the defendant to double jeopardy. It was the contention of the defendant that by trying him on the remaining charges, the Commonwealth will be required to establish the element of sexual intercourse, for which the defendant has already been prosecuted. The court, finding that the motion was without merit, denied the motion, giving rise to this appeal. DISCUSSION The defendant contends that the Commonwealth, in trying the defendant after his conviction on the charge of corruption of minors, would subject the defendant to double jeopardy because the subsequent offenses would require the Commonwealth to establish the element of sexual intercourse (penetration), for which the defendant has already been prosecuted. The defendant argues that sexual intercourse was an essential element of the crime of corruption of a minor because the information charging the defendant stated that “the defendant exposed the minor child ... to immoral sexual activity which would corrupt or tend to corrupt the morals of said child and the defendant engaged in an indecent assault upon the child and forced the child to submit to sexual intercourse.” Where, as here, the defendant is charged with separate offenses, the only protection offered by the double jeopardy clause is the right not to have a second trier of fact redetermine those issues “necessarily determined between the parties in the first proceeding.” Commonwealth v. Crenshaw, 504 Pa. 33, 37, 470 A.2d 451, 453 (1983); citing Commonwealth v. Zimmerman, 498 Pa. 112, 117, 445 A.2d 92, 95 (1981). From the information itself, it is clear that the jury was not required to determine whether sexual intercourse took place in order to return a guilty verdict as to the corruption of minors charge. The Commonwealth’s information alleged, in addition to sexual intercourse, an indecent assault upon the child by defendant. Furthermore, sexual intercourse is not a required element of indecent assault. Commonwealth v. Grassmyer, 237 Pa. Super. 394, 352 A.2d 178 (1975). Several acts short of intercourse, which involved exposing the minor child to immoral sexual activity and indecent contact, were testified to at trial (defendant touching child’s “privates” with his fingers; defendant touching child between her legs with his hand and penis). Thus it is clear that the jury did not have to base its guilty verdicts on a determination that sexual intercourse took place. We also bear in mind that “[w]hen a general verdict is rendered, knowledge of the basis of the decision rests only with the jury itself. Therefore, it is impossible, not to mention improper, to draw specific conclusions from a general verdict.” Commonwealth v. Anderson, 379 Pa. Super. 589, 592, 550 A.2d 807, 809 (1988). Thus, as there is nothing in the record indicating the basis of the jury’s verdict, and since it is clear that in order to return a guilty verdict as to the corruption of minors charge it was not necessary for the jury to determine whether sexual intercourse took place, the defendant’s argument must fail. Additionally, it should be noted that where, as here, a mistrial has been declared because the jury is hopelessly deadlocked, double jeopardy does not bar retrial on the charges on which the jury has been unable to agree unless the jury’s conclusions as to one or more other charges must be interpreted as acquittal on the offense for which the defendant is being retried. Commonwealth v. Harris, 400 Pa. Super. 12, 82 A.2d 1319 (1990). Here, as set forth above, the jury’s conclusions as to the verdicts rendered do not mandate that they be interpreted as an acquittal on the offenses on which the jury was unable to return a verdict.

BOWES, J. ¶ 1 Gary Nagle has appealed following entry of an equitable distribution award entered in this divorce action between his parents, Mary S. and James D. Nagle. He challenges a number of the divorce court’s decisions relating to eighty shares of stock that are titled in Appellant’s name. The divorce court concluded that the stock was marital property, imposed a constructive trust on the stock in favor of Appellant’s parents, valued the stock for equitable distribution purposes as of the date of distribution, and ordered Appellant to buy-out his parents’ interest in the stock. We affirm. ¶ 2 The record indicates the following. On October 21, 1994, Mary Nagle (‘Wife”) instituted this divorce action against James Nagle (“Husband”). She indicated that she and her husband were married on July 23, 1942, and that they had been separated for more than two years. The record also indicates that the parties actu ally had been separated since approximately 1972, that they had seven children, and that during the 1950s, Wife was a homemaker raising those children. In her divorce complaint,-Wife requested alimony, alimony pendente lite, costs, counsel fees, and equitable distribution of the marital property. On April 4, 1995, the parties entered a consent order regarding the payment of- alimony pendente lite, which was set in the amount of $1,000 per month. The matter was referred to a master. ¶ 3 Two master’s hearings were held in June 1997, two additional hearings were held in October 1997, and a final hearing was held in January 1998. On May 4, 1998, Wife filed a motion to join Appellant as an additional defendant and filed a third party complaint against him. Those documents contain the following allegations. The primary marital assets consist of land, which is jointly owned by Husband and Wife, and a business located on that land. The business is known as James Nagle’s Rebuilt Truck Parts and Sales, Inc. (the “Corporation”). Its stock, which at one time was owned wholly by Husband and was acquired during the marriage, primarily is titled in Appellant’s name. Husband transferred his majority interest in the business to Appellant without consideration on January 11, 1995, approximately three months after this divorce action was instituted. At the June master’s hearings, the parties stipulated that for equitable distribution purposes, Husband owns eighty percent of the stock. Attached to the joinder petition is an excerpt from the master’s hearing wherein Husband stipulated that he owned eighty percent of the stock of the Corporation, and Wife agreed to this stipulation. “[Appellant] was present when [this] stipulation was made.” Third Party Complaint, 4/30/98, at ¶ 11. ¶ 4 Husband’s expert witness testified that the stock was worth $297,000 while the land was worth $270,000. The parties agreed to this valuation. In addition, Wife’s expert witness performed an inventory of the company and determined that its inventory of used truck parts was worth over $2,000,000. ¶ 5 It also was established at the master’s hearing that Husband’s sources of income were limited to his social security benefits and the company’s payment of $2,500 a month on a loan that Husband made to it. However, the evidence established that Husband would withdraw “large amounts” of money from the Corporation for land rental and for repayments of other purported loans. Motion to Join Additional Party Defendant and to Stay Proceedings, 4/30/1998, at ¶ 17. ¶ 6 Wife also averred the following. Husband made the transfer of stock to Appellant to avoid paying Wife the large sum of money that might be due her as a result of any equitable distribution award regarding the $2,297,000 in assets that he owned prior to the stock transfer. Appellant was aware of the divorce proceedings at the time the stock was transferred to him, was aware that these sums may be payable to his mother, and participated in the fraud on her marital rights by accepting the transfer to remove the property from the jurisdiction of the divorce court. The transfer also unjustly enriched Appellant. Wife asked that a constructive trust be imposed on the stock. ¶ 7 Appellant answered the complaint in relevant part as follows. He contended that the company was incorporated after the parties separated. He also denied that the transfer was made to defeat Wife’s marital interest, alleging that the transfer was “pursuant to an estate plan.” Answer to Motion to Join Additional Defendant and to Stay Proceedings, 6/11/98, at ¶ 18. In addition, Appellant alleged that he paid consideration for the stock by virtue of his work for the Corporation. ¶8 On August 4, 1998, Wife’s joinder motion was granted. Appellant then petitioned to re-open the record so that he could dispute the finding that the stock was marital property and the value placed on the stock at the June 1997 hearings. That petition was denied. ¶ 9 Husband filed an answer to the third party complaint, in which he admitted that he owned the “business at the time of separation” and stated that it was “not incorporated until thereafter.” Original Defendant’s Answer to Third Party Complaint, 8/24/98, at ¶ 7. Husband also made averments similar as to Appellant, alleging that the transfer was pursuant to a valid estate plan and that Appellant paid consideration for the transfer by managing the Corporation. ¶ 10 Wife then replied to the allegations contained in Appellant’s pleadings, alleging that the incorporation occurred before separation and that the business had existed as a sole proprietorship for “some time” before it was incorporated. Reply to New Matter, 9/14/98, at ¶ 19. Attached to the reply is a portion of the master’s hearings containing Wife’s testimony. That testimony confirms the factual averments in Husband’s pleadings that the business was started before 1972. Furthermore, her testimony indicates that the business was located on the acreage surrounding the marital home and that when it was opened, she helped with the business by answering the telephone, completing paperwork, cleaning the office, and organizing parties. She maintained that she continued to help with the business for five years after the parties’ separation. ¶ 11 Also attached to Wife’s reply is a portion of the testimony of Robert C. Na-gle, another of the parties’ sons, taken from the June 4, 1997 master’s hearing. Robert testified that he was involved in the business when it was started, that it was opened fifteen to eighteen months prior to its incorporation, and that when it was incorporated, Husband received 100% of the stock. Robert also stated that the separation date was “well after the incorporation.” Master’s Hearing, 6/4/97, at 41. Robert testified that the separation occurred at the beginning of 1973, when Husband went to five in a trader in Mar-tinsburg, Maryland. ¶ 12 On November 30, 1998, Appellant filed a “counter complaint” requesting attorney’s fees and costs incurred in defense of the third-party claim. He claimed that the action was frivolous and vexatious. Thereafter, Wife moved to bifurcate the proceedings, a divorce decree was entered on December 11, 1998, alimony pendente lite was continued until the economic issues were resolved, and Husband was relieved of his obligation to provide medical insurance for Wife. ¶ 13 On February 1, 1999, a hearing was held regarding the issue of whether a constructive trust should be imposed. Husband testified that he did not know the date of separation. However, Robert Na-gle testified that he recalled specifically that while Husband left the marital residence in 1972, he returned and was living there when the Corporation was formed on October 26, 1972. Robert stated that the parties did not permanently separate until late 1972 or early 1973, and his father was sleeping overnight occasionally at. the house through 1974 and even into 1975. Robert testified that his mother and father were living together when the business was incorporated, a fact he remembered because he drove his father to the incorporation. Appellant conversely testified that Husband and Wife were separated when the business was incorporated. ¶ 14 Husband transferred the stock as follows. Appellant and Robert each received ten shares in 1988. On January 11, 1995, the controlling interest was transferred to Appellant. After the hearing, the divorce court found that eighty shares of the stock had been transferred to Appellant without consideration and that the transfer unjustly enriched Appellant to the detriment of Wife and Husband. While Appellant did work in the business, the divorce court noted that he had been compensated consistently with a managerial salary that had increased over the years. The court concluded that Appellant’s “efforts in managing the business were compensated by salary, and the extremely, large transfer of the controlling stock (eighty (80) shares ...) was not justifiable compensation.” Trial Court Opinion, 8/24/99, at 12. ¶ 15 The divorce court acknowledged that while the stock might have been transferred pursuant to an estate plan, “there is no explanation or involvement of [Wife’s] potential interest in the estate plan.” Id. In addition to imposing a constructive trust in favor of Husband and Wife, the divorce court also concluded that the transfer was a fraudulent transfer with respect to Wife under the Uniform Fraudulent Conveyance Act. In making this determination, the divorce court observed that the following facts established that Husband retained control over the Corporation even after the January 1995 stock transfer: Both Gary Nagle and the bookkeeper, Theresa Tutko, have testified the corporation will pay for any bill submitted by James Nagle and that James Nagle has absolute authority and discretion to submit any bill he [chooses], and that the corporation will unwaveringly pay the bill. (Evidentiary hearing, February 1, 1999, pp. 9-11, 54 and 146). As a result, we see James Nagle still exerts complete and unfettered control over the corporate assets. Still further, there is a corporate debt which is outstanding to James Nagle, and regular payments are made to James Nagle on that Note, however, there is no sufficient physical evidence to prove this loan was made. Rather, what exists is an unsigned invoice showing money lent to the corporation by James Nagle. (Hearing, February 1, 1999, transcript pp. 55, 147-149 and 151-157). Further, these loans have been deemed “stockholder loans” up until 1997. (Evidentiary Hearing, February 1, 1999, transcript p. 155). However, James Nagle has not been a stockholder in the corporation since 1995. (Evidentiary Hearing, February 1, 1999, transcript p. 47 and 65). Still further, it has been the testimony of Mr. Delozier, a previous employee, that James Nagle was the “boss” and controlled the business until at least 1997, approximately two (2) years after the transfer. (Evidentiary Hearing, February 1, 1999, transcript p. 30). As a result of these factors, it is obvious that James Nagle has reserved benefit in the transferred property for his own behalf. Still further we note James Nagle has a residence in Maryland which is owned by the corporation which James Nagle has possession and control over at all times. (Hearing, February 1, 1998, transcript p. 58). In fact, James Nagle has testified that he believes he owns the house, and utilizes the property as if he had title in fee simple. (Evidentiary Hearing, February 1, 1999, transcript p. 6). Again, we note this evidences an unfettered control over corporate assets and a retention of possession of a corporate asset. Id. at 15-16. ¶ 16 The matter was referred to a master, who issued an equitable distribution recommendation. In that recommendation, the master awarded the stock equally to Husband and Wife, valued the eighty shares in the business at $281,600, and ordered Appellant to pay his parents for the stock as well as to execute financing documents in order to secure their interest in it. Appellant filed exceptions. He argued that the master erred in distributing the stock equally between Husband and Wife because it was not marital property. He excepted to the value of the stock being set at $281,600. He also excepted to being ordered to pay $4,000 per month to his parents at six percent interest “because [Appellant] is the owner of the stock, free and clear of [Husband and Wife,] as again said stock was not a marital asset.” Exceptions to Master’s Report, 10/25/00, at ¶2. For the same reason, i.e., that he owned the stock, Appellant excepted to the master’s ruling that he had to file financing statements and other documents to secure his payment to his parents. Wife filed exceptions to the'master’s failure to include any value of the inventory in the value placed on the stock. Husband also filed exceptions. ¶ 17 On March 26, 2001, the divorce court denied the exceptions without actually re-entering the master’s equitable distribution award, and Appellant filed the appeal at number 643 WDA 2001 from this order. On April 6, 2001, the divorce court corrected its oversight and entered a final order relating to equitable distribution, as follows: 1)The parties, Mary S. Nagle and James D. Nagle, shall continue to own the business real estate situate in Allegheny Township, Blair County, Pennsylvania, consisting of approximately 5.39 acres (and having a value for distribution purposes of Two Hundred Seventy Thousand Seven Hundred and 0/100 ($270,700.00) dollars, as tenants in common. 2) The parties, Mary S. Nagle and James D. Nagle, are entitled to equal distribution of the value of Eighty (80) Shares of the corporate stock for the corporation known as James Na-gle’s Rebuilt Truck Parts and Sales Incorporated, that stock having a total value for distribution purposes of Two Hundred Eighty-One Thousand Six Hundred and 0/100 ($281,600.00) dollars. 3) Gary Nagle is directed to pay the sum of Two Hundred Eighty-One Thousand Six Hundred and 0/100 ($281,600.00) dollars on account of the eighty (80) shares of corporate stock that he previously acquired, with payments to be made to Mary S. Nagle and James D. Nagle of Two Thousand and 0/100 ($2,000.00) dollars per month each [for a total payment of Four Thousand and 0/100 ($4,000.00] dollars per month), with interest accruing on the unpaid balance due and owing of six (6%) percent per annum; provided, however, that at any time Mr. Nagle may pay to each party the remaining balance due to that party without penalty. 4) In order to secure payment of the Two Hundred Eighty-One Thousand Six Hundred and 0/100 ($281,600.00) dollars due from Gary Nagle to James D. Nagle and Mary S. Nagle, the said Gary Nagle, in his capacity as majority owner of the corporation known as James Nagle’s Rebuilt Truck Parts and Sales, Inc., shall execute UCC-1 Financing Statements and any other documents required by counsel for Mary S. Nagle and/or James D. Nagle, in order to properly secure the remaining balance owed by Gary Nagle. 5) Neither party shall be entitled to any alimony nor shall any party receive any contribution on account of his costs or expenses in the divorce action from the other party. 6) Except as otherwise set forth herein, all items of property not specifically referenced shall become the property of the party possessing the same. 7) Each party shall execute any and all documents necessary to give full force and effect to the provisions of this order. Trial Court Order, 4/6/01, at 1-2. Appellant filed the appeal at 817 WDA 2001 from this order. ¶ 18 Appellant assails the finding that the stock was marital property. Initially, we note that when we review an equitable distribution order, our standard of review is limited, and we will not disturb the divorce court’s decision unless there is an abuse of discretion or error of law. Brody v. Brody, 758 A.2d 1274 (Pa.Super.2000). Furthermore, the determination of whether an asset is a marital asset is a matter with the sound discretion of the divorce court. Id. ¶ 19 The definition of marital property is found in 23 Pa.C.S. .§ 3501 which provides in relevant part that marital property includes “all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3).” There are exceptions to this definition, but none applies in this case. More importantly, included within the definition of marital property is property acquired after separation until the date of divorce if that property is acquired “in exchange for marital assets.” 23 Pa.C.S. § 3501(a)(4). Finally, 23 Pa.C.S. § 3501(b) states: (b) Presumption. — All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a). ¶ 20 By focusing on whether the incorporation occurred before or after the separation, Appellant misses the point. There is no question that Husband acquired the business as a sole proprietorship in 1971 when the parties were not separated; therefore it was marital property. Even if the incorporation occurred after separation, Husband’s receipt of 100% of the stock in exchange for his sole proprietorship interest constituted an acquisition of property in exchange for marital property. The stock, therefore, was marital property. ¶ 21 Furthermore, we reject Appellant’s challenges to the divorce court’s determination that the incorporation preceded separation. Appellant argues that Robert is not worthy of belief on this issue since he was an interested party who sided with their parénts in this matter. Appellant continues that Chris Patete, Husband’s accountant in 1972, should be credited instead, since he was a disinterested witness. Mr. Patete testified that to his knowledge, the parties were separated when the Corporation was formed. He stated the Corporation was formed because Husband and Wife were having marital problems, which were the motivating factors for the incorporation. ¶ 22 The law is clear that absent an abuse of discretion, the trial court’s findings of fact, if supported by credible evidence of record, are binding upon a reviewing court. Wellner v. Wellner, 699 A.2d 1278 (Pa.Super.1997). Since the court’s determination regarding the date of separation is supported by Robert’s testimony, it must be affirmed. Id. Furthermore, the court was relying upon Robert’s personal knowledge of where Husband was living in 1972 rather than the accountant’s surmise of what was transpiring. Mr. Pa-tete knew that Husband and Wife were experiencing marital problems. However, Husband and Wife could have experienced marital problems without being separated. ¶ 23 We also observe that Appellant stresses that Wife never participated in the business. However, there is no requirement that a spouse participate in the management of an asset in order for that asset to be considered a marital asset. A marital asset is one that is acquired during the marriage with clearly delineated exceptions not applicable herein. Further, Appellant’s position is eroded by Wife’s testimony that she did contribute to the operation of the business for six years. ¶ 24 Next, we address the propriety of the imposition of a constructive trust upon the eighty shares of stock at issue. Appellant contends that it improperly was imposed because there was no unjust enrichment. In support of this contention, he points to two factors: 1) he worked for the company; and 2) the transfers of stock were made as part of a valid estate plan. A constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground he would be unjustly enriched if he were permitted to retain it. Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). The necessity for such a trust may arise from circumstances evidencing fraud, duress, undue influence or mistake. Id. The controlling factor in determining whether a constructive trust should be imposed is whether it is necessary to prevent unjust enrichment. Roberson v. Davis, 397 Pa.Super. 292, 580 A.2d 39 (1990). DeMarchis v. D’Amico, 432 Pa.Super. 152, 637 A.2d 1029, 1036 (1994); see also Santoro v. Morse, 781 A.2d 1220, 1231 (Pa.Super.2001). ¶ 25 Appellant challenges the imposition of a constructive trust by arguing that the transfers were made pursuant to a valid estate plan. He notes that he received fifteen shares of stock on December 23, 1993, fourteen shares on January 31, 1994, and fifteen shares on January 11, 1995, and that the transfers were made pursuant to recommendations by an estate planner. This argument may have had some validity if Wife had participated in that plan. However, it is clear that Husband transferred Wife’s interest pursuant to this estate plan without her consent. Indeed, she had no knowledge of the transfer until 1998, immediately before she moved to join Appellant as a party in this action. ¶ 26 Appellant also suggests that there was adequate consideration for the transfer because he worked for the Corporation. Appellant ignores the fact that he was paid a salary for this work. We cannot confer vested property rights to a gift by virtue of employment for which a salary is paid. Indeed, Appellant concedes that his broth er, Robert, also was working for the Corporation until 1996, yet he received none of the transfers of stock in 1993, 1994, and 1995. ¶ 27 Finally, Appellant attacks the divorce court’s determination that Husband retained control over the corporate assets after the stock was transferred. However, this determination is supported by the testimony of. the Corporation’s bookkeeper that Husband was permitted to write checks to himself, that he lived on real estate owned by the Corporation, and that he regularly was paid for a “loan” that he never actually made to the Corporation. ¶ 28 Appellant next argues that the stock should have been valued at zero, the value on the date of separation, rather than its value as of the date of distribution because he and his father worked to increase its value after separation. He relies upon Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987). In Diamond, we observed that the Divorce Code does not set a date for valuation of marital assets and that the trial court has the discretion to choose a valuation date that best effectuates economic justice between the parties, which is the overriding goal of the Divorce Code. In Diamond, the divorce court chose the separation date for valuing one of the marital assets since husband’s post-separation efforts increased the value of the asset. ¶ 29 However, the discretion accorded the divorce court in choosing the valuation date was diminished by our Supreme Court’s decision in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). In that case, the Court noted a preference for using the date of distribution for valuation purposes. There had been a considerable amount of time between separation of the parties and distribution. Included in the marital estate were various business interests, including an automobile dealership that may have fluctuated in value widely between separation and distribution. While acknowledging that the Divorce Code does not contain a provision regarding selection of a date for valuation of marital property, the Court concluded that the provisions of the Code relating to equitable distribution imply that a valuation date reasonably proximate to the date of distribution normally should be utilized. ¶ 30 The Court in Sutliff recognized that there may be situations where the assets have been disposed of by one of the parties so that current valuation may be impossible to determine. In such cases, the Court concluded the separation date would necessarily have to be used. However, the Sut-liff Court indicated clearly that in the usual case, the current values of the assets should be used. The Court also stated expressly that this reasoning applied to privately owned business interests. ¶ 31 In line with the Sutliff decision, the date of distribution has been the preferred date for determining the value of marital assets. See Butler v. Butler, 541 Pa. 364, 371 n. 5, 663 A.2d 148, 152 n. 5 (1995); Solomon v. Solomon, 531 Pa. 113, 123 n. 11, 611 A.2d 686, 691 n. 11 (1992); Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382 (1996); Smith v. Smith, 439 Pa.Super. 283, 653 A.2d 1259 (1995); Goldblum v. Goldblum, 416 Pa.Super. 438, 611 A.2d 296 (1992), aff'd mem., 539 Pa. 246, 652 A.2d 282 (1994); Downey v. Downey, 399 Pa.Super. 437, 582 A.2d 674 (1990). ¶ 32 On the other hand, we have observed that there are limited circum stances where it is more appropriate to value marital assets as of the date of separation. Litmans, supra. However, those circumstances are confined to situations where one spouse consumes or disposes of marital assets or there are other conditions that make current valuation difficult. See Benson v. Benson, 425 Pa.Super. 215, 624 A.2d 644 (1993) (closely held family business properly valued as of separation date; value of business, which was under husband’s control, would be difficult to value after separation because husband could influence value of business); McNaughton v. McNaughton, 412 Pa.Super. 409, 603 A.2d 646 (1992) (same). ¶ 33 In the present case, we believe that the divorce court’s valuation of the business should be affirmed for a number of reasons. The distribution date is the preferred date for valuing assets for purposes of equitable distribution and since the business clearly was capable of being valued as of the date of distribution, there is no need for that preference to be disregarded. Furthermore, Appellant was aware of his parents’ separation and of his mother’s interest in the stock; indeed, the business was incorporated in order to defeat her interest. Appellant continued to work and increase the value of the business despite his awareness of her interest. Appellant now asks that we give the business a value of zero, its purported value as of the date of separation, which hardly would achieve economic justice between the parties. ¶ 34 This observation invokes another significant reason to uphold the valuation award. The divorce court gave a value to the stock that is designed to achieve economic justice in this action. The achievement of economic justice is, in the end, the goal of the Divorce Code. 23 Pa.C.S. § 3502(a). Herein, the court discounted the value of the business significantly. Eighty percent of this business was valued at $281,600. However, the divorce court refused to give Wife any monetary award for the $2,000,000 in inventory, which was acquired by post-separation efforts of Husband and Appellant, held by the business at the time of distribution. Appellant now owns $2,000,000 in used-parts inventory transferred to him by his father. Appellant can hardly complain that his efforts were not rewarded. ¶ 35 Appellant’s final contention is that the master did not have the power to order a buy-out of the stock. Initially, we note that this issue is waived because it was not included in exceptions to the master’s report and therefore was neither presented to nor addressed by the divorce court. See Blatz v. Blatz, 412 Pa.Super. 449, 603 A.2d 666 (1992). In his exceptions, Appellant argued that the buyout was incorrect solely because he was the owner of the stock and Husband and Wife had no interest in it. He never objected to the master’s authority or power to order a buy-out under the Divorce Code. Furthermore, the court does have the authority to order a forced buy-out when in-kind distribution is not practical. Ryan v. Ryan, 528 Pa. 186, 596 A.2d 140 (1991); Gill v. Gill, 450 Pa.Super. 611, 677 A.2d 1214 (1996); 23 Pa.C.S. § 401(c) (divorce court is given full equity power to “grant such other relief or remedy as equity and justice require”). ¶ 36 The divorce court’s Solomon-like approach achieved economic justice between Husband and Wife. Economic jus tice is the overriding goal of the Divorce Code. We commend the Honorable Jolene Grubb Kopriva for achieving a just result in a very complex and difficult case. ¶ 87 Orders affirmed. ¶ 38 President Judge. Del Sole files a Concurring and Dissenting Opinion. . Appellant owns ninety shares of the stock, and his brother Robert owns ten shares. Only eighty shares are at issue in this appeal. . The dissent would reverse this portion of the order and remand for imposition of a constructive trust only as to Wife’s interest in the stock. However, Appellant never requests this relief. He assails the imposition of a constructive trust as to all the shares that are titled in his name. Appellant’s brief at 48, 66. Our Supreme Court has made it clear that we should not grant relief on the basis of issues not presented to the trial court or raised on appeal. Knarr v. Erie Insurance Exchange, 555 Pa. 211, 723 A.2d 664 (1999); Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995); Pennsylvania Department of Transportation v. Boros, 533 Pa. 214, 620 A.2d 1139 (1993). . As we reject Appellant's challenges to the divorce court’s decision to impose a constructive trust on the stock, we do not need to review the propriety of its ruling that the transfer of stock was a fraudulent transfer. . In making this observation, we do not mean to suggest that there was error in this regard. Rather, this fact is set forth merely to demonstrate that Appellant’s main complaint, which is that his years of effort in building the value of the business have gone unrewarded, is without merit.

SLOANE, Member, Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline. HISTORY OF PROCEEDINGS On September 26, 1991, the Office of Disciplinary Counsel filed a petition for discipline of respondent based on allegedly improper handling of client funds. The matter was referred to Hearing Committee [ ], which was chaired by [ ], Esq., and included [ ], Esq., and [ ], Esq. The committee held hearings on the matter on January 7 and 21, 1992. On May 26, 1992, the Hearing Committee filed its report on the matter and recommended that respondent be disbarred. Respondent filed a brief on exceptions to the Hearing Committee report on June 19, 1992. On June 24, 1992, petitioner filed a brief in opposition to respondent’s exceptions. Oral argument on the matter was held before a three-member panel of the Disciplinary Board on October 14, 1992. The matter was adjudicated at the October 23, 1992 meeting of the Disciplinary Board. FINDINGS OF FACT (1) Petitioner, whose principal office is located at Suite 400, Union Trust Building, 501 Grant Street, Pittsburgh, PA 15219, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules. (2) Respondent, [ ], was admitted to the Pennsylvania bar in 1980. He maintains an office for the practice of law in [ ], [ ] County, Pa. Charge I — [A] Matter (3) In April 1987, one [A] was involved in an automobile accident and thereafter hired respondent for legal representation on a contingency fee basis. (4) In late March 1990, the respondent settled [A’s] accident case for the sum of $8,000 with the insurance carrier, [B]. (5) Respondent provided the carrier with a release purportedly signed by [A] on March 28, 1990. (6) In fact, the release was not signed by [A] but her signature was fraudulently placed on the release by respondent without his client’s knowledge, authorization or consent. (7) On or about March 29, 1990, the insurance company issued its settlement check in the amount of $8,000 payable to both respondent and to [A]. (8) On respondent’s receipt of the insurance carrier’s check, he forged [A’s] endorsement on the reverse side and cashed the check at the [C] Bank in [ ], Pa. (9) Upon cashing the check, respondent deposited $5,000 into his own account and on April 10,1990, used some of his client’s funds for his own purposes without her knowledge, consent or permission. (10) Thereafter, respondent entered into a course of deceit and misrepresentation with regard to the aforesaid settlement proceeds. (11) On or about May 2, 1990, respondent asked [A] to come into his office to sign a release form to procure a settlement of $8,000. (12) At no time did respondent inform [A] that he had previously submitted a release with her forged signature to the insurance company nor that he had previously cashed an insurance settlement check of $8,000 with her forged endorsement. (13) On May 3, 1990, [A] did, in fact, sign a release in respondent’s office. (14) At no time during the meeting of May 3, 1990, did respondent tell her about the previously received release, and that he had signed her name to it, or that the prior release had been submitted to the insurance company and funds received. (15) Respondent thereafter continued his course of misrepresentation and deceit by telephoning [A] and advising her that the insurance company would not issue its settlement check until after May 30, 1990. (16) On various occasions thereafter, between May 3, 1990 and August 10, 1990, respondent continued his deceit and misrepresentation by falsely informing [A] that there was a delay on the part of the insurance company in issuing her insurance settlement check. (17) On or about August 10, 1990, [A] met with respondent at which time he finally issued a check to her in the amount of $5,333, which check was postdated for August 20, 1990. (18) In a later conversation, respondent advised [A] to hold off cashing the check until August 21 because he had to transfer funds into his account in order to cover the check. Charge II — [D] Matter (19) The respondent represented Mr. and Mrs. [D], who co-signed a note for their son [E] at the [F] Co. using a mortgage as collateral for the note. (20) After the son entered into bankruptcy, [F] proceeded against Mr. and Mrs. [D] with a mortgage foreclosure action and respondent represented the [D] in this litigation. (21) Respondent and counsel for [F] eventually agreed to resolve the foreclosure action for the sum of $2,500. (22) In order to pay the settlement, the [D] arranged for a $2,500 loan from the [G] Bank of [ ], Pa. (23) On July 26, 1990, the [D] obtained an “official check” in the aforesaid amount which designated respondent as payee and the [D] as the remitters. (24) After the aforesaid check was delivered to respondent, he cashed said check on or about July 31,1990, at the [C] Bank in [ ], Pa., and he did not deposit the proceeds into his escrow account. (25) Instead, respondent converted and misappropriated the aforesaid sum to his own uses and purposes without the knowledge, consent or permission of the [D]. (26) The balance in respondent’s escrow account on September 7, 1990 was $112.58. (27) On September 12, 1990, respondent deposited the amount of $2,500 into his escrow account which increased the balance to the amount of $2,762.58. (28) After the aforesaid deposit, respondent issued a check on his escrow account for $2,500, dated September 11, 1990, payable to the law firm of counsel for [F] in resolution of the mortgage foreclosure action. Charge III — [H] Matter (29) On or about September 20,1988, [¶] was injured in a slip and fall accident, and she hired respondent to represent her in her claim against [I]. (30) In March 1990, respondent settled [H’s] case for $1,000. (31) As a result of the aforesaid settlement, the [I] Corporation issued its check in the amount of $1,000 dated March 29, 1990, payable both to respondent and to [H], (32) On April 3,1990, respondent negotiated the check at the [C] Bank in [ ], Pa., whereupon he retained $250 in cash as his 25 percent contingency fee and deposited the balance of $750 into his escrow account. (33) Respondent thereafter issued various checks from his escrow account, none of which represented the payment to [¶] of her share of the settlement proceeds, and by April 18,1990, the balance in respondent’s escrow account had been reduced to approximately $14, thereby establishing respondent’s misappropriation and conversion of [H’s] share of the settlement proceeds, without her knowledge, consent or permission. (34) Respondent, on at least one occasion, incorrectly advised his client that he had not as yet received the settlement check. (35) [¶] telephoned respondent on several occasions to determine when she would be paid her settlement proceeds. (36) On those occasions, respondent failed to advise [¶] of his receipt of an insurance settlement check and his subsequent conversion of [H’s] share of the settlement proceeds. (37) In early September 1990, respondent contacted [¶] and continued his misrepresentations by informing her that he still had not yet received the insurance settlement check, but expected to receive it soon. Respondent requested [¶] to come to his office on September 14, 1990. (38) When [¶] arrived in respondent’s office on September 14, 1990, he provided her with $750 in cash and had her sign a handwritten letter the same date which stated in part, “This letter acknowledges my receipt in cash from a check from [I] Co. to my name and your name in the amount of $1,000.” Charge TV — [J] Matter (39) On or about March 27, 1988, [J] was involved in an accident and thereafter hired respondent to represent her with reference to that accident. (40) Thereafter, in January 1990, respondent settled the [J] accident case for $6,000. (41) The [K] Insurance Co. issued its settlement check for $6,000 payable to both respondent and [J] which check was dated January 31, 1990. (42) On or about February 1, 1990, respondent negotiated the aforesaid check at the [C] Bank in [ ], Pa. (43) Respondent deposited $5,000 of the $6,000 into his escrow account, retaining $1,000 as a legal fee. (44) Thereafter, respondent issued various checks on his escrow account, none of which represented payment to [J] of her share of the settlement proceeds. (45) As of March 29,1990, the balance in respondent’s escrow account had been reduced to approximately $10. (46) On or about March 29, 1990, respondent had settled the accident case of [A]. (47) As a result of that settlement, respondent had deposited $5,000 of the $8,000 [A] settlement funds into his escrow account on March 30, 1990. (48) Respondent’s deposit of $5,000 resulting from the [A] accident case provided him with sufficient funds to pay [J] $5,000 which he accomplished by issuing check no. 836 on March 31, 1990. CHARACTER TESTIMONY (49) [L], Esq., a deputy attorney general, testified that he had known respondent since law school and despite his knowledge of the present proceedings before the board, he would still trust [respondent] to represent his family. (50) The sheriff of [ ] County, [M], testified that in his official duties he had dealt with respondent and found him honest and professional and [M] testified that he had never heard a derogatory remark regarding respondent’s reliability, trustworthiness and honesty. (51) A second cousin of respondent, [N], a priest, was a recently retired professor of psychology at [ ] University and Father [N] testified that the respondent was repentant and had a reputation for honesty and as a family man in [ ]. (52) [O], Esq., testified as an attorney and president of the [ ] Bar Association and testified that he had had a working relationship over the past four or five years pursuant to which respondent would refer personal injury cases to him. He opined that he had been referred approximately 10 to 15 cases. Attorney [O] testified that respondent had a reputation for honesty in the community. (53) [P] was a drug and alcohol treatment supervisor for the State of Pennsylvania at [ ] who had known respondent his entire life and he testified that respondent conducts himself professionally, is very dedicated to his family and is a human being. (54) [O], [Q], [R] and [S] all testified that respondent’s reputation in the community where he lives as being honest, truthful, a good family man for the best and highly respected. (55) Respondent’s wife of 15 years, [T], testified that they had three children, ages 12, 10 and 4. (56) [T] is employed by [U] Nursing Association working a four-day week as a private duty nurse. She received a check for $464 each week, of which $80 went to the [U] Nursing Association. These amounts were the only income other than her husband’s in the household. Their mortgage payments of $885 per month were delinquent and the house was subject to foreclosure. Respondent’s office is at home. She testified that her husband was a good family man and attended church on Sundays. (57) [V] of [ ], Pa., was an environmental technician who testified he had known respondent for approximately 16 years. He testified that respondent’s reputation for being an honest, good family man was good and excellent. He testified that respondent had helped raise funds for his sick child. (58) Respondent testified and corroborated his wife’s testimony. A balance sheet prepared by him showing a negative net worth of $5,450 was introduced in evidence. Moreover, respondent argued that the reason why he got into difficulty was that he was counting on funds from a case called “[W],” but that the case never settled as anticipated. (59) Respondent testified that [A] was paid in full in August 1990, that the [D] money was paid in full to the [F] Co. (60) Respondent testified that after charges were brought against him criminally in February 1991, he was placed in an ARD program following a preliminary hearing. (61) Respondent had received a plaque from Legal Services for his work with the BBI Program and still does much pro bono work. (62) Respondent graduated from [ ] Law School in 1980, having done one year of law school at [ ]. His undergraduate work was done at [ ] College in [ ] where he was a magna cum laude graduate. He went to [ ] High School and [ ] Elementary School. CONCLUSIONS OF LAW Respondent, by virtue of his aforementioned conduct, has violated the following Rules of Professional Conduct: (63) R.P.C. 1.4(a), which requires a lawyer to keep a client informed about the status of a matter and promptly comply with reasonable requests for information. (64) R.P.C. 1.4(b), which mandates that a lawyer explain a matter to the extent necessary for the client to make informed decisions in regard to the representation. (65) R.P.C. 1.15(a), which requires a lawyer to hold a client or third party’s property separate from his own. (66) R.P.C. 1.15(b), which commands a lawyer to promptly notify a client or third party of receipt of funds or property in which that person has an interest, and deliver and account for such property promptly. (67) R.P.C. 1.15(c), which requires the segregation of property in which both a lawyer and another party claim an interest, until there is an accounting and severance of their interest. (68) R.P.C. 8.4(a), which prohibits the attempted or actual violation of a Rule of Professional Conduct or inducement or violation of such Rules by another. (69) R.P.C. 8.4(b), which proscribes commission of a criminal act adversely reflecting upon a lawyer’s honesty, trustworthiness, or fitness to practice law. (70) R.P.C. 8.4(c), which precludes a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. DISCUSSION Respondent has engaged in an intentional and deliberate pattern of misappropriating client funds, forgery, and misrepresentation. The documentary and testamentary evidence conclusively demonstrate that respondent repeatedly forged clients’ signatures in order to gain access to funds received in the course of professional representation and that he used those monies for his own benefit. In both the [A] and [¶] matters, respondent forged his clients’ signatures. He then deposited and used settlement proceeds without the knowledge or consent of his clients. In all four matters outlined in the petition for discipline, respondent mishandled entrusted funds without the knowledge or consent of his clients. The issue before this board is the appropriate measure of discipline for such egregious professional misconduct. There is no “per se” rule for discipline in Pennsylvania. See Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). However, the Disciplinary Board and Supreme Court have traditionally regarded the misappropriating of client funds as a serious act of misconduct requiring the strictest disciplinary sanction. As the Supreme Court stated in the Ewing case, misappropriation of client funds and misrepresentation concerning such devious conduct on the part of an attorney warrants disbarment. Office of Disciplinary Counsel v. Ewing, 496 Pa. 35, 436 A.2d 139 (1981). The mishandling of client monies is a serious breach of public trust which will not be tolerated in this Commonwealth. Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981). It is the actual abdication of one’s fiduciary duty, and the resulting loss of public faith, that provides the foundation for attorney discipline. As the court found in the Kanuck case, it is irrelevant that the attorney was in possession of sufficient funds to replace those which had been converted; the salient fact was that the respondent had breached his duty to keep client funds inviolate. Office of Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69 (1987). Just as the ability to replace converted funds is irrelevant, so is the reason for the lapse of ethical behavior. See Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986); Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982). Respondent has attempted to elicit a lesser disciplinary sanction based on the fact that he did make restitution and was in dire financial straits at the time the misconduct occurred. Although we sympathize with his predicament, we find that his arguments for mitigation lack merit. Each of the four charges upon which the evidence was presented involved misappropriation of funds, deceit, and in some instances, forgery. The Supreme Court has often stated that a number of incidents, although unrelated, when considered together, can demonstrate such complete disregard for professional standards that disbarment is necessitated. Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 484, 345 A.2d 616, 622 (1975). Although certain cases were cited by respondent which represent circumstances where disbarment was not imposed, respondent’s conduct is closer to the conduct warranting disbarment in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). In Keller, multiple charges of misappropriation were involved, the misappropriation was compounded by forgeiy, and respondent Keller “used deception to cover his misconduct...” Id. at 581, 506 A.2d at 876. Just as the instant respondent advised [A] to wait before depositing the check that he finally provided to her, respondent Keller made a similar request. Id. The court made the following statement in Keller, which is just as applicable to the instant respondent: “The real question raised in this case is whether the sanction of disbarment is too harsh under the circumstances presented. If we were here primarily concerned with a punishment of the individual, strong argument could be made in view of the circumstances surrounding the errant behavior. We sympathize with the situation that confronted respondent and concede that if judgment of him alone was the sole consideration extenuating circumstances could be persuasively argued. However, as we previously noted, the focus is not upon the respondent but rather it is directed to the impact of his conduct upon the system and its effect on the perception of that system by the society it serves. “Here we are confronted with a forgery, the conversion and commingling of entrusted funds, the use of misrepresentation in an effort to avoid detection, and the adverse effect upon the interests of his clients caused by his behavior. These serious breaches of trust cannot be ignored because of the mitigating circumstances offered by respondent in his defense... “Unfortunately for respondent, the imposition of a period of suspension, even for a period of five years, would be an inadequate response...” Id. at 585, 506 A.2d at 877-78. Another similar case which resulted in disbarment is Office of Disciplinary Counsel v. Ewing, 496 Pa. 35, 436 A.2d 139 (1981). As in the instant matter, the Ewing case involved “commingling of funds entrusted to him with personal funds, indiscriminate personal use of said funds, material misrepresentations when the individuals requested that the funds be returned...” Id. at 42, 436 A.2d at 142. However, we believe that the instant matter is even more egregious in that it involves [respondent’s] forgery of a release and insurance settlement checks. See also, Office of Disciplinary Counsel v. Wittmaack, 513 Pa. 609, 522 A.2d 522 (1987) and In re Anonymous Nos. 47 and 89 D.B. 87 and 15 and 23 D.B. 88, 12 D.&C.4th 122 (1990). The respondent in the instant matter has attempted to mitigate his egregious conduct by offering evidence in the nature of both character testimony and his poor financial condition at the time the thefts occurred. Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982), is another case where there were multiple charges of misappropriation and dishonest statements to clients, as well as related misconduct. Respondent attributed his “misconduct to financial difficulties arising from his extensive involvement in politics, coupled with his desire to maintain an image of solvency.” The court answered this argument by simply stating, “This in no way mitigates the seriousness of his misconduct involving clients’ funds,” adding the fact that respondent had no prior disciplinary record was not a mitigating factor under the circumstances of the case. Id. at 403, 441 A.2d at 1201. In Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981), the court again ordered disbarment in a matter involving misappropriation of client funds and misrepresentations, although it was not compounded by the forgery that is present in the instant matter. In disbarring Lewis, the court gave no weight to respondent’s “belated restitution,” and, perhaps more importantly, made the following statement: “What we wish to emphasize in this case is that Mr. Lewis’ actions involved a breach of public trust. A client must be able to look to his attorney for sound advice; know that the attorney will pursue the client’s interests vigorously and effectively; and rest assured that any financial transactions carried out on the client’s behalf will be scrupulously honest, will be fully accounted for at the client’s request and will involve full and immediate payment of funds that are due and owing the client. This public trust that an attorney owes his client is in the nature of a fiduciary relationship involving the highest standards of professional conduct. As the U.S. Circuit Court of Appeal for the Seventh District put it: ‘[T]he real question at issue in a disbarment proceeding is the public interest and an attorney’s right to continue to practice a profession imbued with public trust.’ In re Echeles, 430 F.2d 347, 349-50 (7th Cir. 1970), cited with approval in Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 479, 345 A.2d 616, 620 (1975), cert. den., 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976).” Respondent also argues that the Hearing Committee should have permitted testimony concerning the “[W] case” which allegedly was a civil proceeding in which the respondent was to receive a large referral fee, according to his brief. Apparently, respondent believes that his anticipation of a referral fee mitigates the misappropriations, forgeries, and material misrepresentations which have taken place in the instant case. This is not the first instance in which a respondent has sought mitigation by pointing to other funds, whether real or anticipated. In Office of Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69, (1987), the respondent had argued that there was “no investigation into his assertion that sufficient funds were available in bank accounts other than those in which client funds were deposited, to cover the amount of funds entrusted to him.” The court answered the argument by the following statements: “We note further that had respondent accepted the committee’s invitation to submit such documentation, it would not have been relevant either as a defense or in mitigation of the violations which were proven by clear and convincing evidence. It is quite obvious that the committee exercised its discretion as a finder of fact to give no credence to respondent’s claim of wealth.” Id. at 173, 535 A.2d at 76. (emphasis added) Finally, and most importantly, we do not believe that respondent even comprehends the seriousness of his misconduct. This is important since one of the functions of the disciplinary process is to determine the continued fitness of an attorney to practice law. Office of Dis ciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). Instead of acknowledging his improper conduct, respondent testified that he has now changed his power of attorney in personal injury cases to permit him to sign his clients’ names and endorse checks issued to them. Therefore, we are shocked to see that respondent’s answer to his disciplinary problems is to attempt to somehow get permission from his clients to make it easier to mishandle their funds. In disciplinary matters, the primary task of the Supreme Court is to protect the public and maintain the integrity of the legal profession. We are therefore in unanimous agreement that respondent’s misappropriation of client funds, some of which he gained access to by forging client signatures and releases, and misrepresentations concerning his possession of entrusted property, warrants disbarment. No sanction short of removal of respondent from the practice of law will ensure that the interests of the public and the integrity of the bar are maintained. See Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987); Office of Disciplinary Counsel v. Kissel, 497 Pa. 467, 442 A.2d 217 (1982). RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent, [ ], be disbarred. In addition, the board recommends that the court direct that respondent pay all necessary expenses incurred in the investigation and processing of this matter pursuant to Rule 208(g), Pa.R.D.E. Ms. Flaherty did not participate in the adjudication. ORDER May 21, 1993 — Upon consideration of the report and recommendations of the Disciplinary Board dated January 21,1993, and following oral argument, it is hereby ordered that [respondent] be and he is disbarred from the bar of this Commonwealth 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.

OLSZEWSKI, Judge: Following approximately nine years of marriage, Bryan Hinkle (Father) and Susan Hinkle (Mother) were divorced in 1990. Two children, Dustin and Jared, were born of this failed marriage. During the course of the marriage, Father was employed as a professional football player in the National Football League (NFL) as a Pittsburgh Steeler. The parties entered into an agreement dated April 19,1990 pursuant to the divorce wherein they agreed to a custody arrangement for the two minor children and set forth Father’s child support obligation. Regarding child support, Father agreed to pay $4,000 per month for any month in which he was employed and being paid as a full-time player in the NFL. In any month that Father was not so employed, the parties agreed that child support would be determined by applying the Pennsylvania Support Guidelines. Between April 1990 and January 1994, Father made the agreed-upon support payments of $4,000 per month. At the end of January 1994, however, Father retired as an active player in the NFL. The parties subsequently instituted legal proceedings to determine the proper amount of support in the wake of Father’s retirement. After a hearing and a hearing officer’s recommendation, the trial court entered an order setting Father’s support obligation at $2,000 per month for February 1994 through December 1994, and $835 per month starting in January of 1995. Both parties appealed from this order. Initially, we note that our scope of review in support cases is narrowly defined. “This Court will not disturb a child support Order absent an abuse of discretion, which is not made lightly and rests upon a showing of clear and convincing evidence. This Court has held an abuse of discretion occurs if insufficient evidence exists to sustain an award or if the trial court overrides or misapplies existing law.” Kelly v. Kelly, 430 Pa.Super. 31, 34, 633 A.2d 218, 219 (1993) (citations omitted). On appeal, Father first argues that the trial court erred in setting his support obligation at $2,000 per month for the period between February and December 1994. Specifically, Father asserts that a sum of $200,000 earned in 1993 and deferred until 1994 should not have been included in the calculation of his 1994 support obligation. According to Father, the $200,000 was already accounted for, in that his 1993 support payments of $4,000 per month were based on the fact that he earned $400,000 per year, even though half of that income was deferred until the following year. Therefore, Father argues, “[t]o allow a support order for 1994 to include the $200,000 of the 1993 deferred income would allow Mother two bites of the apple and result in an unjust financial burden upon Father.” Father’s brief at 9. The success of Father’s argument hinges upon his ability to establish that the $200,000 was indeed taken into account in setting the $4,000 per month support payments in 1993. Unfortunately for Father, the parties agreement does not establish this crucial fact. Pursuant to paragraph 8 of the parties’ agreement, Father agreed to pay child support as follows: 8. ... Beginning August 1, 1990, Husband’s obligation for child support shall be calculated based upon the incomes of both parties using the child support guidelines then in effect for the Commonwealth of Pennsylvania, except that for any month in which Husband is employed and being paid as a full-time player in the National Football League, Husband’s obligation for child support shall be $4000.00 per month. Agreement, 4/19/90 at 5. According to the clear language of the agreement, the $4,000 per month payment is conditioned upon Father being employed and being paid as a full-time player in the NFL. The agreement does not condition the $4,000 per month obligation upon Father making $400,000 per year, as Father now asserts. Although Father attempts to explain that the parties’ understanding was that the monthly payment was based upon his salary of $400,000 per year, we simply cannot accept such evidence when the language of an agreement is clear and unambiguous. See Halpin v. LaSalle University, 432 Pa.Super. 476, 480-82, 639 A.2d 37, 39 (1994), appeal denied, 642 Pa. 670, 668 A2d 1133 (1995). Father’s first claim must therefore fail. Father also claims that the trial court erred in calculating the 1995 support obligation by “arbitrarily assessing Father with a $1,000.00 a month earning capacity.” Father’s Brief at 9. It is well-established that a parent’s earning capacity may be considered in determining the proper support obligation. See, e.g., Perlberger v. Perlberger, 426 Pa.Super. 245, 282-83, 626 A.2d 1186, 1206, appeal denied, 536 Pa. 628, 637 A.2d 289 (1993). “A person’s earning capacity is defined ‘not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.’ ” Id. (quoting Myers v. Myers, 405 Pa.Super. 290, 297, 592 A.2d 339, 343 (1991)). Instantly, the trial court’s assignment of a $1,000 per month earning capacity to Father was amply supported by the record. At the support hearing, Father testified that he was physically and mentally capable of working, that he was currently working part time in sales, and that he was looking for full time employment. See Support Hearing Transcript, 4/27/95 at 47-49. Father also testified that he held a college degree in sociology, and that he could be qualified to coach football, although he would prefer to get away from the game for a few years. Id. at 50-51. In the immediate future, Father stated that he was seeking to purchase a restaurani/bar in the Pittsburgh area. Id. at 13. On the basis of this record, particularly the testimony indicating that Father was physically and mentally capable of working, the trial court was not unrealistic is assigning to Father a minimal earning capacity of $1,000 per month. See Perlberger, supra. Mother also appealed from the trial court’s order, and she raises two issues for our review. First, Mother argues that the trial court erred in excluding from the support calculations a severance payment, in the amount of $140,000, that Father received in 1995. As Mother correctly notes, “all the parents assets must be examined regardless of the source” in determining a proper child support award. Butler v. Butler, 339 Pa.Su per. 312, 317, 488 A.2d 1141, 1143 (1985). Notwithstanding this general rule, however, the trial court concluded that the severance award was considered at the time of the parties’ agreement and was meant to be excluded from the calculation of Father’s income for purposes of support. Trial Court Opinion, 12/18/95 at 3. Mother does not challenge this determination. Since Mother’s argument on appeal does not address the basis for the trial court’s decision, let alone assert that the trial court erred in relying on the parties’ agreement, her claim must fail. Mother also asserts that the trial court erred in failing to award sufficient attorney’s fees. While Mother was already awarded $500 in attorney’s fees, she asserts that she is entitled to an additional $7,500 because Father acted in bad faith. See Mother’s brief at 9-10. We find no evidence to support this assertion. WTrile Father’s argument with respect to the $200,000 of deferred income ultimately failed, it was not a frivolous argument and it does not establish bad faith. Since we find no evidence to suggest that the trial court erred in awarding only $500 in attorney’s fees, we reject Mother’s final claim. Order affirmed.

SOLOMON, This court issued an order granting the plaintiff’s request for a preliminary injunction on July 22, 1992. On July 30, 1992, after hearing, the court ordered that the injunction be made permanent, and the defendant filed the instant appeal. This opinion is filed in support of that order. STATEMENT OF FACTS On or about June 12, 1991, the defendant, Americorp Financial Inc., brought suit in the Circuit Court for Oakland County, in the state of Michigan, against, inter alia, the plaintiff, George A. Dileo. Americorp was seeking to enforce Dileo’s obligation under both a lease and a guaranty agreement. The lease was entered into in Pennsylvania on or about September 28, 1988. The lease covered certain equipment for a TCBY franchise store located in Uniontown, Pa. The plaintiff and John C. Lish, individually, guaranteed the obligations of the corporation under the lease. The lease and the guaranty contained a forum selection clause which provided that Michigan law would govern any disputes arising under the agreements. On or about My 15, 1991, the defendant filed suit in state court in Pontiac, Mich., against, inter alia, George A. Dileo for breach of the lease. The defendant, Dileo, filed an answer to the plaintiff’s first amended complaint and filed affirmative defenses in which he raised the issue of lack of jurisdiction. He also filed a motion for leave to file jury demand and participated in discovery in the Michigan action. The case was eventually listed for trial and Dileo filed his motion for preliminary injunction with this court requesting that the court: (1) enjoin the defendant from proceeding in the lawsuit filed in the Oakland County, Michigan Circuit Court; (2) enjoin the defendant from commencing any litigation against the plaintiff related to the subject lease in any court other than a court of appropriate venue in Pennsylvania; (3) direct the defendant to dismiss its action filed in the Michigan court; and (4) enjoin the docketing in Pennsylvania of any judgment rendered in the subject Michigan lawsuit. This court granted the preliminary injunction on My 22, 1992, and made the injunction permanent by order of My 30,1992, and the defendant filed its appeal. DISCUSSION The defendant’s argument as stated in its statement of matters complained of on appeal is essentially that the court erred in granting the injunction because the defendant had participated to some degree in the Michigan litigation. Apparently, the defendant makes this argument because the Pennsylvania case law on this issue, Churchill Corp. v. Third Century Inc., 396 Pa. Super. 314, 578 A.2d 532 (1990), and Tandy Computer Leasing v. DeMarco, 388 Pa. Super. 128, 564 A.2d 1299 (1989), involves Pennsylvania defendants who did not participate in the foreign forum lawsuits which were brought against them. The defendant, however, has provided no authority to support this argument. For the reasons which follow, we conclude that Churchill and Tandy are controlling in this situation and that the issuance of the permanent injunction was proper. In Churchill, supra, the Pennsylvania Superior Court held that a Pennsylvania resident was entitled to an injunction prohibiting a Missouri corporation from bringing suit against him in a foreign forum. The facts of that case are similar to those of the case currently before the court. In Churchill, a Pennsylvania resident entered into a lease for office equipment with a Missouri corporation. The lease contained a consent-to- jurisdiction clause which designated Missouri law as controlling. The Churchill court found that the consent-to-jurisdiction clause was unenforceable because enforcement of the clause would seriously impair the Pennsylvania resident’s ability to pursue its cause of action in that the costs of defending the action in Missouri would have been higher than the amount necessary to satisfy any default judgment which may have been entered in the action. The court also noted that whether or not a party has received consideration under a contract for its agreement to litigate in a specified forum is relevant to the enforceability determination. In this case, all of the witnesses to the transaction are in Pennsylvania or some forum other than Michigan. The plaintiff would be required to pay the costs necessary to transport his witnesses and himself to Michigan for this litigation. Additionally, the plaintiff would suffer a serious business hardship if he was forced to travel to Michigan for a trial. His presence in Michigan would necessitate the closing of his Uniontown, Pa. pharmacy as it would be very difficult for him to find a pharmacist to replace him while he is gone. Finally, the subject equipment, the value of which must be determined in this litigation, is also in Pennsylvania. It also is clear from the testimony that the plaintiff was not even aware of this provision, and did not bargain for or consent to it, having received the lease agreement in the mail and being required to sign it and send it back the same day. Thus, this court will not enforce this forum selection clause as it is clear that the plaintiff did not receive any consideration for it, or bargain for it, and that the cost of litigating in Michigan would seriously impair the plaintiff’s ability to pursue his cause of action. We find that the consent to jurisdiction clause is unenforceable and thus does not divest this Pennsylvania court of jurisdiction in this matter.

MILLER, J., This case currently comes before us on plaintiffs’ petition to disqualify Timothy Kelly, Esq., and the law firm of Munley, Matisse and Kelly, as defendants’ counsel. The underlying dispute between the parties centers on the defendants’ alleged breach of an agreement to release certain of plaintiffs’ real estate from the liens of mortgages in which the defendants had an interest and the defendants alleged tortious interference with the plaintiffs’ contractual relations with a third party for the sale of said same real estate. This case has previously been before us on defendants’ preliminary objections to plaintiffs’ amended complaint, which preliminary objections were denied by opinion and order dated June 4, 1992. A complete statement of the somewhat complex factual background is set forth therein. With regard to the issue presently outstanding, it is noted that, following the filing of their respective briefs, counsel for the parties appeared before us at oral argument on December 8,1992, at which time the defendants were represented by attorney James F. Marsh. Attorney Kelly’s deposition also comprises part of the record in this matter and is relied upon by the parties to bolster their arguments. We are now ready to proceed with the disposition of the issues raised by plaintiffs’ petition. In support of their instant petition to disqualify counsel, plaintiffs invoke Pennsylvania Rule of Professional Responsibility 3.7 which provides as follows: “Rule 3.7 Lawyer as Witness “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: “(1) the testimony relates to an uncontested issue; “(2) the testimony relates to the nature and value of legal services rendered in the case; or “(3) disqualification of the lawyer would work substantial hardship on the client. “(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule I.7 or Rule 1.9.” The plaintiffs argue, further, that the contract allegedly breached by the defendants in this matter is an oral one, the terms of which were negotiated personally by attorney Kelly on behalf of the bank. In order to prove their case at trial, plaintiffs maintain that it will be necessary to call attorney Kelly as a witness and that he will be questioned as to contested and material matters including his alleged telephone conversation with plaintiff Valerie J. Denyko. We have considered plaintiffs’ arguments and have examined the record in this case, including attorney Kelly’s deposition, and conclude that plaintiffs’ position is without merit. There is no indication from the record produced that attorney Kelly personally negotiated the terms of the alleged oral contract between the parties. It seems clear to this court that attorney Kelly was no more than a conduit for the terms and conditions of any agreement which then had to be approved by the bank. To disqualify counsel for performing these ordinary legal services would put clients in the position of looking for new trial counsel every time a deal falls through. Moreover, we find that the extent of Mr. Kelly’s contacts with plaintiff Valerie J. Denyko were limited to an attempt on his part to explain to a very persistent woman that, as she was already represented by counsel, he was unable to discuss this matter with her. Having reached this conclusion regarding attorney Kelly, it is unnecessary for us to address the remainder of plaintiffs’ petition. For the foregoing reasons, we deny plaintiffs’ petition to disqualify counsel. ORDER And now, December 28, 1992, plaintiffs’ petition to disqualify counsel is hereby denied.

REILLY, Jr., J., Plaintiffs Robert Player and Shirley Player above-named, are the parents of Rebecca Player and Jeffrey Player. Defendant, James M. Singer, M.A., is a psychologist licensed to practice in the Commonwealth of Pennsylvania. Plaintiffs in their complaint alleged that in August 1986, defendant visited Jeffrey Player who at the time was a patient at the DuBois Regional Medical Center. This visit was at the request of Jeffrey Player’s treating physician. During the visit, defendant came into contact with plaintiff Rebecca Player who was visiting her brother at the hospital. As a result of these contacts and various interviews with Jeffrey and Rebecca, the complaint alleges that defendant filed a report of suspected child abuse with Clearfield County Children & Youth Services. The complaint further alleges that Singer filed the report without any basis and not based on any credible evidence and plaintiffs seek to recover money damages for injury to their good name, fame and reputation, and for mental pain and suffering and severe emotional distress. Defendant filed preliminary objections to the original complaint and on June 12,1992, this court sustained said objections and required plaintiffs to amend their complaint to state in separate counts all demands for relief. The amended complaint was filed and defendant has filed preliminary objections to said amended complaint in the nature of a demurrer to all three counts contained therein. This court does herein sustain defendant’s demurrers and dismisses the amended complaint. Count 1 of plaintiffs’ amended complaint contains the claim of Jeffrey Player and must be dismissed in that it clearly does not state a cause of action by Jeffrey Player against the defendant. There is no basis for this claim set forth in the complaint and therefore, it must be stricken. Counts 2 and 3 of the complaint are the claims of Robert and Shirley Player and their daughter, Rebecca Player, and to these counts defendant raises the defense of immunity. The claims here are based on allegations that defendant reported to proper authorities suspected child abuse of Rebecca Player by her father, Robert Player, without proper foundation. Under the Child Protective Services Act (23 Pa.C.S. §6311) the defendant, as amental health professional, is required to report suspected child abuse. Further, under 21 Pa.C.S. §6318(a) and (b) he is immune from civil liability and is by law presumed to have acted in good faith. Indeed, as a mandated reporter under this Act, defendant faces criminal prosecution for failure to report any suspected case of child abuse. While the Act requires good faith in the making of a report of child abuse, the complaint alleges nothing to the contrary. Plaintiffs seek to state a cause of action for defamation against Singer and to do so must plead facts that if proved would establish the following: “(1) the defamatory character of the communication; “(2) its publication by the defendant; “(3) its application to the plaintiff; “(4) the understanding by the recipient of its defamatory meaning; “(5) the understanding by the recipient of it as intended to be applied to the plaintiff; “(6) special harm resulting to the plaintiff from its publication; and “(7) abuse of a conditionally privileged occasion.” 42 Pa.C.S. §8343(a); Chicarella v. Passant, 343 Pa. Super. 330, 336, 494 A.2d 1109, 1112 (1985). An individual plaintiff must also plead facts that establish negligence or willful misconduct by the defendant and that establish the falsity of the alleged defamatory communication. See Dougherty v. Boyertown Times, 377 Pa. Super. 462, 547 A.2d 778 (1988). Plaintiffs’ amended complaint in Counts 2 and 3 does not set forth facts that establish negligent conduct (See Rutt v. Bethlehems’ Globe Publishing, 335 Pa. Super. 163, 484 A.2d 72 (1984)) on the part of the defendant, nor does it set forth facts that establish abuse of a conditionally privileged occasion. It must also be remembered that by statute the allegation in the complaint must also overcome the legal presumption of good faith on the part of the defendant. The amended complaint alleges that Mr. Singer interviewed Rebecca Player several times before making his report along with other family members over the course of approximately three days and only then did he submit his report of suspected child abuse. These allegations certainly do not indicate that defendant exercised anything other than reasonable care and diligence in his activities here. In a very similar situation the U.S. District Court for the Eastern District of Pennsylvania in Roman v. Appleby, 558 F. Supp. 449 (1983) discussed the good-faith provisions of the Act. Therein the court discussed the obligation of the mandated reporter under the statute, noting that he is under threat of criminal sanction if a required report is not made. In a clearly similar situation, the court in Roman found that the complaint faded to overcome the good-faith presumption established by the statute and noted that the mandated reporter under the Act need not have “probable cause” to be required to make a report of suspected child abuse but need merely have “reason to believe” that such is the case. The District Court further held that the good-faith presumption “must be judged against objective standards rather than alleged motives or allegations of maliciousness” and in the instant case this court is of the opinion that nothing in the amended complaint is sufficient to overcome the presumption. Moreover, defendant Singer was not required to make a prereport investigation of his suspicions. See Brozovich v. Circle C Group Homes, 120 Pa. Commw. 417, 548 A.2d 698 (1988). Here the court noted that the Act does not require prereporting investigation and was unwilling to presume that the failure to consider such investigation was in bad faith in light of the need for prompt reporting of suspected child abuse cases. In sustaining defendant’s demurrers, this court also relies on the proposition that one who publishes defamatory matter is not liable if the publication was made subject to a qualified privilege, and the privilege was not abused. See Chicarella, supra. Such a privilege protects communications made on a proper occasion from a proper motive in a proper manner and based upon reasonable cause. Further: “An occasion giving rise to a conditional privilege occurs when: (1) some interest of the publisher is involved; (2) some interest of the recipient of the matter, or a third party is involved; (3) or a recognized interest of the public is involved.” Id. If a complaint pleads facts which establish conditional privilege it must also establish abuse of that privilege. Clearly a conditional privilege exists for information according to the mandatory reporting requirements of the Act. A report of suspected abuse made pursuant to the Act constitutes a conditionally privileged occasion, and therefore, it was plaintiffs’ burden to set forth something in the amended complaint pleading an abuse of the privilege. “Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.” Beckman v. Dunn, supra at 537, 419 A.2d at 588. (citations omitted) Plaintiffs’ amended complaint does not state facts which demonstrate abuse of this privilege nor do they allege malice or negligence and therefore, it does not establish abuse of a conditional privilege. While it is possible that based on allegations contained in plaintiffs’ brief the defendant, James Singer, may have acted with insensitivity, nevertheless, this court is of the opinion that the requirements of the Child Protective Services Act and public policy outweigh any harm that may have resulted therefrom and this court is required to sustain defendant’s demurrers. In view of the foregoing, it will be unnecessary to discuss defendant’s allegation that the amended complaint should be stricken for failure to file within 20 days of this court’s order dated June 12, 1992. Wherefore, the court enters the following ORDER Now, December 17, 1992, upon consideration of preliminary objections filed on behalf of defendant to plaintiffs’ amended complaint in the nature of demurrers thereto and briefs and argument thereon, it is the order of this court that said objections be and are hereby sustained, Counts 1, 2 and 3 of the amended complaint stricken and the complaint dismissed.

OLSZEWSKI, Judge. Since the law in Pennsylvania is unsettled concerning the level of antecedent justification necessary to subject an arrestee’s companion to a “pat-down” search, the opportunity to definitively address the issue in this case is welcomed. On August 8, 1995, appellant Durrell Graham was convicted, after a non-jury trial, of possession and possession with intent to deliver 3.37 grams of crack cocaine. The Honorable Jess S. Juliante sentenced Graham to one to two years’ imprisonment plus a $5,000 fine. Post-sentence motions were subsequently filed and denied, and this appeal follows wherein Graham claims that the trial court erred in failing to suppress the crack cocaine. In support of his claim, Graham contends that the stop and frisk, which resulted in the recovery of the illicit drugs, was violative of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. On an appeal from a motion to suppress, we only review whether the record supports the trial court’s factual findings and whether the trial court’s legal conclusions drawn from the facts are in error. Commonwealth v. Medley, 531 Pa. 279, 282-84, 612 A.2d 430, 432 (1992). Instantly, the record supports the trial court’s following findings: [O]n July 18, 1994, at approximately 1:45 a.m., K-9 Officer Terry Dawley of the Erie Police Department was on routine patrol in the area of 23rd and German Streets with his dog[,] “Cujo.” While on patrol, in this high crime, high drug-trafficking area[,] Officer Dawley noticed three (3) black males on the porch of the Gateway Day Care Center. Recognizing some of those individuals, he determined that there was an outstanding arrest warrant for one of the three, i.e, Mr. Ronnie Beason. He recognized the other individuals as [Graham] and Mr. Terry Jones.[] As he watched the three (3) men, they began walking in an easterly direction on East 23rd Street. At that time he yelled for them to stop in order to apprehend Mr. Beason. Upon catching up to the three, he told Mr. Beason that he had a warrant for him and directed him to lie down. As Officer Dawley was about to arrest Beason on the authority of the outstanding warrant, he looked at [Graham,] who was approximately three (3) feet from him. At the same time he noticed a bulge in [Graham’s] front left pocket. Officer Dawley testified that[,] as this was occurring, he was concerned for his safety and the dangers involved in being in this particular area. It is also significant that at the time of this incident, Officer Dawley was alone. In order to allay his concerns for safety, Officer Dawley patted [Graham] down and felt what he believed was money in the Defendant’s front pocket. He asked [Graham] what was in his pocket and the defendant admitted that it was money. Officer Dawley then patted [Graham’s] back pockets and, as he was doing so, shined a flashlight down to the pocket and noticed a Lifesaver Holes bottle which appeared to contain crack cocaine. Opinion, 2/21/96 at 2-4 (citations omitted). Consequently, Officer Dawley seized the cocaine and arrested Graham. Was Officer Dawley justified in conducting a pat-down search upon Graham? This question is not so easily answered. Both the United States and Pennsylvania Constitutions protect citizens from “unreasonable searches and seizures.” U.S. Const, amend. IV; Pa. Const, art. 1, § 8. Thus, a seizure of the person without probable cause normally renders all evidence obtained as a result of the illegality inadmissible at trial. Commonwealth v. Elliott, 376 Pa.Super. 536, 544-45, 546 A.2d 654, 658 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989). Nevertheless, in limited circumstances, an individual may be stopped, briefly detained and frisked for investigatory purposes without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). In order for such a stop and frisk to be reasonable, however, the police conduct must meet two separate and distinct standards. Commonwealth v. Robinson, 410 Pa.Super. 614, 618-620, 600 A.2d 957, 959 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992); Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991), alloc. denied, 530 Pa. 653, 608 A.2d 29 (1992). First, in order for the stop to be appropriate, the officer must have reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. Robinson* supra; Martinez, supra. Second, in order to justify the frisk, the officer must reasonably believe that the suspect is armed and dangerous. Robinson, supra; Martinez, supra. Despite these standards, there is authority in Pennsylvania to find that law enforcement officers are per se authorized to conduct a pat-down search upon an arrestee’s companions. In Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984), this Court quoted with approval the following language from U.S. v. Berryhill, 445 F.2d 1189 (9th Cir.1971): We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a police officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the suspect’s] associate because he cannot, on the spot, make a nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the 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. 332 Pa.Super. at 114, 480 A.2d at 1212 (emphasis added). While the Supreme Court of Pennsylvania has acknowledged Berryhill’s “automatic companion rule,” the Court noted that the rule has drawn a large amount of criticism. Commonwealth v. Shiflet, 543 Pa. 164, 174 n. 4, 670 A.2d 128, 133 n. 4 (1995) (citing 3 LaFave, Search and Seizure § 9.4a at 511, n. 71 (2d ed.1987); Notes, The Automatic Companion Rule: An Appropriate Standard to Justify the Terry Frisk of an Arrestee’s Companion?, 56 Fordham L.Rev. 917 (1988); Comment, United States v. Bell, Rejecting Guilt by Association in Search and Seizure Cases, 61 Notre Dame L.Rev. 258, 269 (1986); United States v. Flett, 806 F.2d 823 (8th Cir.1987); United States v. Bell, 762 F.2d 495 (6th Cir.1986)). After careful review, Berryhill’s critics must prevail in that the “automatic companion rule” is contrary to both the United States and Pennsylvania Constitutions. The “automatic companion rule” grants authority to the police to stop and search an individual based solely upon his choice of company without requiring reasonable suspi cion that either criminal activity is afoot or that the individual is armed and dangerous. As such, it is not harmonious with the state or federal constitution. First, the Supreme Court of the United States of America has rejected the notion that a brightline test may be applied to warrantless search cases. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968) (“The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual ease.”). See also Terry, 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910. Secondly, and more specific to the subject of searching an arrestee’s companion, the Supreme Court has stated that “a person’s mere propensity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 86, 100 S.Ct. 338, 339, 62 L.Ed.2d 238, 245 (1979). See also United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210, 216 (1948) (the Court was “not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”). Further, our State Supreme Court has concluded that: third parties (or their property) are generally not subject to searches merely because they are in the vicinity of an arrest unless there is probable cause or an articulable reasonable suspicion that the subject of the search is engaged in criminal activity or harbors a weapon. Shiflet, supra at 170-72, 670 A.2d at 131. See also Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), alloc. denied, 515 Pa. 619, 531 A.2d 427 (1987) (bystanders in location that is the subject of a lawful search warrant are not themselves subject to search absent probable cause or reasonable suspicion). In light of the above, a per se rule that a companion to an arrestee is subject to a “pat-down” search regardless of justification, effectively warrants “unreasonable searches” and is, thus, contrary to the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution. Having rejected the “automatic companion rule,” the question next becomes what is the appropriate manner of review for cases involving the stop and frisk of an arrestee’s companion. As noted above, a proper stop and fiisk must usually meet two separate and distinct standards. Robinson, supra at 618-20, 600 A.2d at 959. See Commonwealth v. Jackson, 451 Pa.Super. 129, 678 A.2d 798 (1996). The officer must have reasonable suspicion, based upon specific and articulable facts, that 1) criminal activity may be afoot and 2) the suspect is armed and dangerous. Robinson, supra. Bystander eases are unique, however, and warrant special consideration under this bifurcated test. It is well settled that to determine whether a search or seizure is reasonable, under the United States or Pennsylvania Constitution, “we must balance the societal interest in law enforcement and in protecting law enforcement officials against the individual’s right to personal security free from arbitrary government interference.” Commonwealth v. Davidson, 389 Pa.Super. 166, 170-71, 566 A.2d 897, 899 (1989), alloc, denied, 525 Pa. 624, 578 A.2d 412 (1990). See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614-15 (1975); Commonwealth v. Leninsky, 360 Pa.Super. 49, 55-57, 519 A.2d 984, 988 (1986). Under the instant set of facts, the societal interest in safeguarding law enforcement officials is at a premium. Unquestionably, the officer’s task of performing an arrest is inherently fraught with danger. Any other conclusion is belied by the fact that 23% of all law enforcement officers killed in the line of duty are killed while attempting arrests. See Note: The Automatic Companion Rule: A Bright Line Standard for the Terry Frisk of an Arrestee’s Companion, 62 Notre Dame L.Rev. 751, 758 (1987). In light of the extreme risks facing lawmen in performing arrests, it will always be reasonable for officers to take some actions to insure their safety concerning companions of arrestees. To find otherwise, would be equivalent to turning a blind eye to reality and declaring open season on our protectors of the peace. Consequently, it is inherently reasonable for a law enforcement officer to briefly detain and direct the movement of an arrestee’s companion, regardless of whether reasonable suspicion exists that the companion is involved in criminal activity. Such minimal intrusion upon the companion’s federal and state constitutional rights are clearly outweighed by the need to extinguish the risks otherwise posed to the lawman’s well-being. Accordingly, the first prong of the “stop and frisk” test is a nullity in eases involving an arrestee’s companion. Frisking the companion, however, involves a much greater intrusion upon the person’s constitutional rights than a mere detention. As stated in Terry, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” 392 U.S. at 25, 88 S.Ct. at 1882, 20 L.Ed.2d at 908. Further, the lawman’s interest in safety is aptly protected by the ability to direct an unarmed companion to move to a location beyond physical reach. Thus, without additional justification, we cannot find that a “pat-down” search of the arrestee’s companion serves to insure the safety of the officer to any greater extent than the officer’s ability to briefly detain the companion and direct his/her movement. Accordingly, as with any “stop and frisk,” the officer must have reasonable and articulable suspicion that the arrestee’s companion is armed and dangerous before conducting a pat-down search. See Davidson, supra. Thus, the question in the instant ease becomes whether Officer Dawley’s belief that Graham was armed and dangerous was reasonable. It was. The officer was alone and executing an arrest warrant at 1:45 a.m. in a high-crime and high drug-trafficking area. Further, and more importantly, Officer Daw-ley observed a bulge in Graham’s pocket. In light of these circumstances, it was reasonable for Officer Dawley to conclude that Graham may have been armed and dangerous and, thus, the lawman was justified in frisking appellant. See Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 92, 666 A.2d 323, 326 (1995) (bulge in suspect’s pocket allowed court to conclude that “officers had a reasonable belief that their safety was in jeopardy.”); Commonwealth v. Patterson, 405 Pa.Super. 17, 22, 591 A.2d 1075, 1078 (1991) (“The police may reasonably believe themselves to be in danger when the hour is late or the location is desolate.”). As to the actual discovery and seizure of the crack cocaine on Graham’s person, it was the result of nothing less than thorough police work. It is well settled that the “ ‘plain view doctrine permits a warrant-less seizure of private possessions by police.” Commonwealth v. Kendrick, 840 Pa.Super. 563, 569, 490 A.2d 928, 926 (1985). The requirements for the “plain view” doctrine are: 1) the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position to view the evidence; 2) the officer must discover the incriminating evidence inadvertently; and 3) there must be probable cause to associate the observed property with criminal activity. Id. at 569-70, 490 A.2d at 927. Instantly, having been authorized to conduct a “pat-down” search of appellant, Officer Dawley was lawfully in a position to observe the exposed contents of Graham’s back pocket. Further, there is no evidence that the lawman opened or even touched Graham’s pocket when he used the flashlight to illuminate its contents. In fact, at Graham’s suppression hearing, Officer Dawley testified as follows: A. I continued to pat Durrell. I went around to the rear of him and patted his back pockets. In his right rear pocket I felt what I believed to be a Lifesavers Holes bottle. Q. And at that point what did you do? A. At that point I shined my flashlight down to his pocket, observed the Lifesavers Holes bottle with rocks of crack cocaine. Q. Were you able to see the rocks of crack cocaine. A. Yes. N.T., 6/26/95 at 8. While Officer Dawley would not have been warranted in opening or reaching into Graham’s pocket to expose its contents, he was clearly justified in using his flashlight to illuminate its already exposed cargo. Commonwealth v. Merkt, 411 Pa.Super. 127, 131, 600 A.2d 1297, 1299 (1992) (“the use of flashlights during the observation does not negate plain visibility.”); Commonwealth v. Bentley, 276 Pa.Super. 41, 48, 419 A.2d 85, 88 (1980) (“The fact that [officer] required illumination from a flashlight to see into the darkened interior of the vehicle did not prevent the [evidence] from being in plain view or render the policeman’s conduct unreasonable.”); Commonwealth v. Clelland, 227 Pa.Super. 384, 387, 323 A.2d 60, 61 (1974) (“Since it was dark, the [officer’s] use of an artificial light to look into the vehicle was justified.”). See Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985) (officers were justified in seizing stolen items which they had viewed through car window with the aid of a flashlight); Commonwealth v. Burton, 292 Pa.Super. 73, 436 A.2d 1010 (1981) (“officer’s discovery, albeit with the aid of a flashlight, of marijuana in plain view was not improper”). Further, there is no evidence that Officer Dawley frisked Graham for any reason other than to insure his own safety. As such, the discovery of the drugs must be deemed inadvertent. Finally, as the lawman could see the rocks of cocaine in the bottle, there was no question that he had probable cause to associate the observed property with criminal activity. Consequently, Officer Pawley's seizure of the drugs was proper and Graham’s judgment of sentence must be affirmed. Judgment of sentence affirmed. McEWEN, President Judge, concurs in the result. FORD ELLIOTT, J., files a dissenting opinion. . Graham also contends that the trial court improperly allowed an expert witness to testify as to whether Graham possessed his drugs with an intent to deliver. This argument is easily disposed of, however, as this Court has already stated that expert testimony concerning whether “the packaging, paraphernalia, and quantity of [seized] cocaine ... was consistent with distribution” is “clearly admissible.” Commonwealth v. Montavo, 439 Pa.Super. 216, 225 n. 5, 653 A.2d 700, 705 n. 5, alloc. denied, 541 Pa. 636, 663 A.2d 689 (1995). See Commonwealth v. Campbell, 418 Pa.Super. 391, 402-04, 614 A.2d 692, 698 (1992), alloc. denied, 535 Pa. 630, 631 A.2d 1003 (1993). . While the Pennsylvania Supreme Court recognized the existence of the "automatic companion rule" in Shiflet, the Court declined to address whether the rule was constitutional. 543 Pa. at 174 n. 4, 670 A.2d at 133 n. 4. Furthermore, the Chamberlain Court, likewise, did not address this constitutional issue. As such, the issue is ripe for our consideration. . Clearly, this decision is not meant to allow the law enforcement officer to utilize the level of restraint associated with a formal arrest of the companion. The officer is merely warranted in effecting a protective detention of the person. As with investigatory detentions, the factors utilized in determining whether the detention became so coercive as to constitute the equivalent of a formal arrest include: the duration of the detention; the location; whether and how far the suspect was transferred against his will; whether restraints were used; and the show, threat, or use of force. See Commonwealth v. Diaz, 442 Pa.Super. 238, 252-54, 659 A.2d 563, 570, alloc. denied, 542 Pa. 658, 668 A.2d 1123 (1995). . This decision is not novel. In cases involving "stop and frisks” of persons located on premises in which a search warrant is being executed, our state and federal courts have not required that law enforcement officers possess reasonable suspicion that the suspect may be involved in criminality. The courts have focused merely upon whether the officers possessed a reasonable belief that the suspect was armed and dangerous. See Ybarra, supra; Commonwealth v. Eichelberger, supra; Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980). The United States Supreme Court has stated that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercised unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340, 349-50 (1981) (emphasis added) (footnote omitted). .The dissent contends that the instant analysis of the automatic companion rule is unwarranted. This view, however, is short-sighted. Clearly, analysis of the automatic companion rule is necessary in determining the proper standard to be applied in the instant case. The dissent can necessarily overlook this point as it baldly concludes, without offering any analysis, that "[hinder the facts of this case, I agree that the officer was justified in conducting a pat down.” Dissenting Opinion at 1. Consequently, one is merely left to speculate as to how, in reaching its conclusion, the dissent would distinguish Martinez, supra (flight from street comer and bulge in jacket do not support a conclusion that criminal activity is afoot). . The dissent places great emphasis upon whether the bottle was protruding out of Graham’s pocket or entirely inside an open pocket. This distinction, however, is irrelevant. If the bottle was exposed above the pocket line, then there is no question that the plain view doctrine warranted its seizure. As explained below, however, the same holds true if the bottle was inside Graham's pocket which was open and, thus, exposing its contents to the outside world. . The dissent likens the instant matter to a police officer crouching down and shining his flashlight under the seat of a car. This analogy totally misses the point concerning the plain view doctrine. It is well settled that "[t]he only requirement for the plain view doctrine is that the officer must have had a right to be in the position to have the view.” E.g., Clelland, 227 Pa.Super. at 387, 323 A.2d at 61. Instantly, the dissent agrees that Officer Dawley had a right to be in the position to view Graham's opened pocket, i.e., while conducting the “pat down” search. Consequently, the dissent’s analogy, in which the officer clearly does not have the right to be position to view evidence, is inapplicable. The more appropriate comparison is to where an officer utilizes a flashlight to peer into a darkened car and observes the contents of an opened glove compartment. In both the instant matter and the glove compartment scenario, where the officer has a right to be where he observes evidence, the mere additional element of using a flashlight for illumination cannot render the officer’s conduct improper. Id.

OPINION OF THE COURT FLAHERTY, Chief Justice. Appellant, Karl S. Chambers, seeks relief from his second sentence of death. In his original appeal, this court affirmed his convictions of robbery and murder of the first degree but vacated his death sentence and remanded for resentencing due to the prosecutor’s improper argument during the penalty phase of the trial. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991). A new jury again imposed the death penalty. This appeal, therefore, involves only claims of error in the penalty phase. In appellant’s original penalty hearing, the prosecutor stated in closing argument: “Karl Chambers has taken a life.... As the Bible says, ‘and the murderer shall be put to death.’ ” We held that the argument exceeded the bounds of permissible oratorical flair as it advocated to the jury that an independent source of law existed for imposing the death penalty on appellant. Chambers, 528 Pa. at 586, 599 A2d at 644. We then held that “reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se.” Id. The verdict of death which followed the improper argument might have been the product of passion, prejudice, or an arbitrary factor, so 42 Pa.C.S. § 9711(h)(4) required that appellant’s death sentence be vacated and that he be awarded a new sentencing hearing. Id. On remand, a new jury was selected on May 16 and 17, 1994. The resentencing hearing commenced on May 31, ending with the court’s charge on June 3,1994. The jury returned a verdict of death the same day. This direct appeal is pursuant to 42 Pa.C.S. § 9711(h)(1). Appellant’s first challenge to his death sentence is a two-pronged allegation of unconstitutionality. His initial argument is that “retroactive” application of 42 Pa.C.S. § 9711(h)(4) to his case offends his right to due process and equal protection. Appellant was convicted of crimes occurring on February 1, 1986. At that time, this court, in its automatic review of a death sentence, had two options: “the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.” 42 Pa.C.S. § 9711(h)(2), repealed effective December 21, 1988. In 1988, the statute was amended to read as follows: ... the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings.... If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence or because the sentence of death is disproportionate to the penalty imposed in similar cases, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing.... 42 Pa.C.S. § 9711(h)(2) and (4), as amended 1988, Dec. 21, P.L. 1862, No. 179, § 2, imd. effective. The legislation provided that the amendment “shall apply to all criminal offenses committed on or after the effective date of this act and to all criminal cases or appeals pending on the effective date of this act.” Act of 1988, Dec. 21, P.L. 1862, No. 179, § 3. Appellant recognizes that this language includes his case, and acknowledges that Commonwealth v. Young, 536 Pa. 57, 637 A2d 1313 (1993), held that the statute was constitutionally permissible. He attempts to distinguish his case from Young by characterizing the reason for Young’s remand as procedural error but his own as “prosecutorial misconduct,” attempting to bring his case within the ambit of Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). Smith held that intentional prosecutorial misconduct, deliberately undertaken to deny the defendant a fair trial, required his discharge on double jeopardy grounds. The intentional prosecutorial misconduct in Smith descended to a level which “violate[d] all principles of justice and fairness embodied in the Pennsylvania Constitution’s double jeopardy clause.” Id. at 183, 615 A2d at 324. We do not find Smith applicable to this case. Our opinion in appellant’s prior appeal did not characterize the improper Commonwealth argument as intentional prosecutorial misconduct, but rather as overstepping the “bounds of oratorical flair.” Chambers at 584, 599 A2d at 643. It was a violation of a rule first announced in that decision. The biblical reference was described by Mr. Justice McDermott in his dissenting opinion as an “isolated comment” in “the last sentence of a brief closing. This was not emotional oratory calling for divinely motivated retribution; rather it was a reference to one of the texts from which our social system has evolved.” Chambers at 587, 599 A2d at 644. It certainly cannot be described as violating “all principles of justice and fairness embodied in the ... double jeopardy clause.” Appellant’s reliance on Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981), is likewise misplaced. Story was tried, convicted, and sentenced to death under the provisions of a statute later held to be unconstitutional in Commonwealth v. Moody, 476 Pa. 223, 382 A2d 442 (1977). Everyone who had been sentenced to death under the statute was uniformly resentenced to a sentence of life imprisonment. Story’s case was on appeal at the time of the Moody decision; the result of Story’s appeal was reversal of his conviction due to trial error and the grant of a new trial. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). His second trial resulted in a sentence of death under a new, constitutional death penalty statute. In his second appeal, this court vacated his sentence of death and imposed a life sentence, holding that application of the new death penalty statute in Story’s second trial violated equal protection and due process. This was so because everyone sentenced to death under the prior, unconstitutional statute had automatically received a sentence of life imprisonment, even those who had been unsuccessful on appeal. To impose a new death sentence on Story, who had been successful on appeal, would have placed him in a worse position than everyone else sentenced under the prior statute. Story, 497 Pa. at 281, 440 A.2d at 491. Appellant, by contrast, did not have his death sentence vacated because the prior sentencing statute was unconstitutional, but because of trial error. It is certainly not the case that everyone else sentenced under this statute prior to its amendment in 1988 was resentenced to a term of life imprisonment. Moreover, the Story court relied heavily on the presumption that statutes are not to have retroactive effect unless the legislature “clearly and manifestly” indicates a contrary intention, and the statute at issue in Story manifested no such intention. Id. at 276-77, 440 A.2d at 489-90. The amendment affecting appellant, on the other hand, expressly stated that it should apply “to all criminal cases and appeals pending on the effective date of this act,” December 21, 1988. We therefore hold that this issue is controlled by Commonwealth v. Young, supra, and that application of the amended procedure of 42 Pa.C.S. § 9711(h) did not deprive appellant of any constitutional right. Appellant’s second allegation of unconstitutionality is that he was denied due process and equal protection by virtue of the trial court’s confusion as to the aggravating circumstance applied in his ease: “[t]he defendant committed a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6). The court instructed the jury that it must be satisfied beyond a reasonable doubt that appellant had committed the robbery in the perpetration of the killing. Appellant argues that this is clearly not the law: “The law states specifically that the jury must find beyond a reasonable doubt that the defendant committed a killing during the commission of a felony — not the other way around.” (Emphasis in appellant’s brief). The trial court has broad discretion in phrasing jury instructions, and may choose its own wording as long as the law is clearly, adequately and accurately presented to the jury for its consideration. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990); Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). The reviewing court must consider the entire charge, not merely isolated fragments. Id. at 582, 470 A.2d at 70. We have examined the jury instructions in their entirety, including answers to questions submitted by the jury dmmg its deliberations. Though the instructions on killing during the perpetration of a felony, 42 Pa. C.S. § 9711(d)(6), are lengthy and repetitive, at times quoting the statute, the charge considered as a whole is an accurate statement of the law. The distinction between killing during a robbery and robbing during a killing is semantical. In answering the jury’s question, “Because the Defendant has been found guilty of first degree murder, are we compelled to accept the fact that the aggravating circumstances already exist? Are they a given?”, the court stated: The answer to that, ladies and gentlemen, is, No. You must accept the fact that the Defendant has been convicted of murder in the first degree. That is not before you because that’s why we are having only the sentencing here, death or life. However, the Commonwealth has presented the position that the killing was during the commission of a felony, and the felony in this case that they are contending is robbery. You have already been told that the Defendant was convicted of robbery by the other jury, but that you need not accept as fact. You must make a determination beyond a reasonable doubt that the robbery as I’ve defined it for you did occur in the commission of the killing, and that you must find beyond a reasonable doubt. It’s not a given because the jury must make a determination as to the aggravating circumstance, and it is for you to make a determination whether or not there was a robbery that occurred during the commission of the killing or during the killing of the woman whether she was killed in order to take money from her or money was taken from her at the time she was killed. That would be within the scope of the killing, but that is for you, and you must decide that beyond a reasonable doubt. The difficulty was inherent in the jury’s question; in view of appellant’s convictions of robbery and first-degree murder, it might appear that the aggravating circumstance was predetermined. It was the court’s task to explain that the two convictions, standing alone, did not establish the aggravating circumstance. It is insignificant that in doing so, the court transposed the terms robbery and killing, telling the jury it must determine whether the robbery occurred in the commission of the killing. The point of the question and the point of the answer was that it was for the jury to determine whether appellant committed the killing while in the perpetration of the robbery. In other words, though appellant’s convictions of robbery and mur der had been affirmed on appeal, the jury still had to decide whether the statutory aggravating circumstance had been established beyond a reasonable doubt. We do not agree that the court’s charge was confusing or erroneous. The next issue is whether the trial court erred in denying a change of venue or the imposition of life imprisonment due to prosecutorial misconduct. Appellant’s argument combines allegations of misconduct which Commonwealth v. Smith, swpra, condemned, prohibiting a retrial, and allegations of pervasive and inherently prejudicial pretrial publicity which would require a change of venue. Appellant refers to the prosecutor’s November, 1991 statements to a reporter that the supreme court’s decision in this case was “outrageous, incredibly ludicrous, and completely ridiculous,” and “I don’t know any God-fearing prosecutor that has not used some scriptural or religious reference in arguing to a jury. God’s law is the basis for Pennsylvania law and all law.” The prosecutor allegedly made other public statements defending his use of the Bible in court. Appellant argues that these statements violated Pennsylvania Rule of Professional Conduct 8.4(d), engaging in “conduct that is prejudicial to the administration of justice”; the comment to Pa.R.P.C. 3.8, ignoring a prosecutor’s “specific obligations to see that the defendant is afforded procedural justice”; Pa.R.P.C. 3.5, engaging in “conduct disruptive to a tribunal”; and Pa.R.P.C. 3.6(a), making public statements which “have a substantial likelihood of materially prejudicing an adjudicative proceeding.” We do not agree. Public criticism of judicial decisions, including decisions of this court, is not inherently prejudicial to adjudicative proceedings. We have already determined that the prosecutor’s isolated biblical reference in the original penalty hearing was riot intentional misconduct as in Smith. Likewise, the prosecutor’s publicly aired opinion—that this court’s decision in appellant’s first appeal was outrageous, ludicrous, and ridiculous— was not prosecutorial misconduct which violated all principles of justice and fairness embodied in the double jeopardy clause. Appellant has therefore failed to establish that he was entitled to escape a resentenc-ing hearing and to receive a sentence of life imprisonment. In determining whether pretrial publicity entitled appellant to a change of venue, we must examine the nature and the extent of the publicity, as well as the presence or absence of a cooling-off period. An application for a change of venue is addressed to the sound discretion of the trial court, which is in the best position to assess the community atmosphere and judge the necessity for a venue change, and its exercise of discretion will not be disturbed in the absence of an abuse of discretion. Commonwealth v. Pursell, 508 Pa. 212, 220-21, 495 A.2d 183, 187 (1985). The mere existence of pretrial publicity does not warrant a presumption of prejudice. Commonwealth v. McCullum, 529 Pa. 117, 125, 602 A.2d 313, 317 (1992). If pretrial publicity occurred, its nature and effect on the community must be considered. Commonwealth v. Casper, 481 Pa. 143, 151-54, 392 A.2d 287, 292-93 (1978). Factors to consider are whether the publicity was sensational, inflammatory, and slanted toward conviction rather than factual and objective; whether the publicity revealed the accused’s prior criminal record, if any; whether it referred to confessions, admissions, or reenactments of the crime by the accused; and whether such information is the product of reports by the police or prosecuting officers. Id. If any of these factors exists, the publicity is deemed to be inherently prejudicial, and we must inquire whether the publicity has been so extensive, so sustained, and so pervasive that the community must be deemed to have been saturated with it. Commonwealth v. Breakiron, 524 Pa. 282, 288, 571 A.2d 1035, 1037 (1990). Finally, even if there has been inherently prejudicial publicity which has saturated the community, no change of venue is warranted if the passage of time has significantly dissipated the prejudicial effects of the publicity. Commonwealth v. Gorby, 527 Pa. 98, 108, 588 A.2d 902, 906 (1991); Commonwealth v. Breakiron, 524 Pa. at 288, 571 A.2d at 1037. With respect to a cooling-off period, the Breakiron court noted the following guidance: In testing whether there has been a sufficient cooling period, a court must investigate what a panel of prospective jurors has said about its exposure to the publicity in question. This is one indication of whether the cooling period has been sufficient. Thus, in determining the efficacy of the cooling period, a court will consider the direct effects of publicity, something a defendant need not allege or prove. Although it is conceivable that pre-trial publicity could be so extremely damaging that a court might order a change of venue no matter what the prospective jurors said about their ability to hear the case fairly and without bias, that would be a most unusual ease. Normally, what prospective jurors tell us about their ability to be impartial will be a reliable guide to whether the publicity is still so fresh in their minds that it has removed their ability to be objective. The discretion of the trial judge is given wide latitude in this area. Id., 524 Pa. at 288 n. 1, 571 A.2d at 1037-38 n. 1. In applying these factors to appellant’s case, we find no indication that the trial court abused its discretion. The prosecutor’s statements, while rash, cannot be said to have had any significant effect on the community. The newspaper articles complained of were neither sensational nor inflammatory; they merely reported the prosecutor’s statements regarding this court’s earlier decision. Some articles contained a factual history of the case including appellant’s conviction and the reversal of his original sentence. These articles cannot be deemed inherently prejudicial to appellant; if anything, they stigmatized the prosecutor as injudicious. The final factor, dispositive in itself, is whether there was a sufficient lapse of time for the effects of the adverse publicity to dissipate. The publicity appellant complains of occurred primarily at the time of this court’s decision in appellant’s first appeal, which was in November of 1991. Appellant’s resentencing hearing began in May of 1994. Even if the prosecutor’s public statements were blatantly and pervasively inflammatory, it is unlikely that fires of retribution should still be burning in the hearts of potential jurors more than two years later, making it impossible for them to render a true and just verdict. The voir dire of prospective jurors confirms that, although a moiety knew something about the case, not a single one had a predisposition which would make it difficult to render an impartial decision based only on the evidence presented in court. It is clear that the publicity in this case did not require a change of venue. Appellant’s next argument is that the court erred in allowing a two-week time lapse between selecting a jury and commencing the hearing, and in refusing to sequester the jury. Appellant claims that it was an abuse of discretion to delay the hearing and to fail to sequester the jury, on the basis of nine prominent articles printed in York newspapers between May 3 and June 3,1994. He argues that the hearing was a “media event,” and that the jurors could not be trusted to follow the court’s instructions not to read or watch any news coverage of the case. The decision to grant or deny a request for a continuance or sequestration is within the sound discretion of the trial judge. Commonwealth v. Crispell, 530 Pa. 234, 608 A.2d 18 (1992). This court has defined the standard for abuse of discretion as follows: An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236 (1934). Furthermore, the decision not to sequester a jury shall not be reversed unless the defendant can make a proper showing of prejudice. Gorby, supra. In order to establish such a showing of prejudice, the defendant must show that the jurors are subject to extraneous influences or pressures, or that the case is the subject of unusual prejudicial publicity. Id. at 111, 588 A.2d at 908. The purpose of the two-week continuance following selection of the jury was to permit the Commonwealth to conduct a psychiatric examination of appellant. At the end of the selection process, the trial judge instructed the jury to avoid press accounts of the trial and cautioned them to keep open minds during the period of the continuance. When the hearing was reconvened approximately two weeks later the jury was again questioned concerning possible exposure to media accounts of the case. None of the jurors indicated any such contact. Furthermore, the trial court gave the same cautionary instructions at the close of each day’s proceedings. Applying the Mielcuszny standard to the facts, the trial judge did not abuse his discretion in either granting the request for continuance or denying the request for sequestration. Additionally, given the fact that none of the jurors indicated exposure to any media accounts of the trial, appellant has failed to make a proper showing of prejudice. Therefore, in accordance with the Gorby standard, this court will not reverse the decision of the trial court. Appellant next claims that the trial court erred in admitting a crime-scene photograph of the victim which had been deemed too prejudicial during the trial of the case. The photograph depicts the emaciated victim nude, lying face up, with blood visible. Appellant claims, “Not only was this photograph highly prejudicial, but the photograph was totally irrelevant_” We do not agree. This claim lacks merit and warrants only brief discussion. We have repeatedly held that: 1) photographs of a murder victim are not inadmissible per se; 2) the admission of such photographs is a matter within the sound discretion of the trial judge; and 3) only an abuse of that discretion will constitute reversible error. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305 (Pa.1996); Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995); Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786 (1994); Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982). Additionally, we have held that the test for determining the admissibility of such photographs is whether they are inflammatory and, if so, whether their evidentiary value clearly outweighs their potential to impassion the jurors. Auker, 545 Pa. at -, 681 A.2d at 1318. The photograph also must not be merely cumulative of other evidence. Id. at —, 681 A.2d at 1318. In this case, what was inadmissible at trial was admissible in the second sentencing hearing. First, a different jury had judged appellant’s first sentencing hearing. This second jury had not heard the trial evidence, but was totally unfamiliar with the facts when the capital sentencing hearing began, as discussed infra. Second, the issues at the trial were different from the issues at the second sentencing hearing. The trial jury had to determine guilt or innocence of the crimes of murder and robbery. The second sentencing jury, on the other hand, had to accept the trial jury’s verdict that appellant had committed first-degree murder and robbery. Its tasks were to determine whether the killing occurred during the perpetration of the robbery, and, if so, to balance that aggravating factor against the mitigating factors presented by appellant. Thus, the admissibility of photographic evidence must be decided by different factors of relevancy. Although the photograph in question clearly depicted the victim and her injuries, it was presented to show the jury the circumstances surrounding the victim’s death, such as the geographically secluded nature of the area and the orientation of the body in relation to the victim’s personal belongings which had been scattered about in the course of the attack. Indeed, the vast majority of the testimony relating to the photograph dealt with these circumstances and not the victim or her injuries. Because the only aggravating factor presented was that the killing occurred during the commission of a felony, i.e., a robbery, the evidentiary nature of the photograph in relating the location of the body to the victim’s possessions clearly outweighs any potential of impassioning the jury. Therefore, we conclude that the admis sion of the photograph did not constitute an abuse of discretion. The next issue raised by appellant is whether he was denied due process when the court forbade defense counsel from using the term “life without parole,” then erroneously instructed the jury on the parole issue, violating the holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 138 (1994). Appellant’s jury sent a question to the court during deliberations, “Do we have the ability to choose life in prison without the opportunity of parole?” The court responded as follows: [T]he statute unequivocally bars all parole for first degree murder whether the sentence is life or death. It may be that the Defendant may not be eligible for parole, but there is in Pennsylvania a commutation of sentence in which a Defendant sentenced to life can be released, but that’s not your prerogative. Your prerogative is not to make the determination as to life or death. I like life rather than death. Set that aside. Your determination in this case is based on what you find with regard to aggravating and mitigating circumstances. But to give consideration as to what life means should not become part of your decision. Your decision is based on the law as I have given it to you. Appellant claims the judge’s response was a clear violation of the Simmons holding. Moreover, appellant’s jury, like the Simmons jury, reached a verdict less than an hour after receiving the judge’s answer to its question, giving the appearance that the answer prompted a quick decision to impose the death penalty. Appellant believes the injustice of the process is particularly apparent in his ease wherein the jury found only one aggravating circumstance and numerous mitigating circumstances, but still imposed the death penalty. We have held that Simmons mandates that “where future dangerousness is at issue and a specific request is made by the capital defendant, it is a denial of due process to refuse to tell a jury what the term ‘life sentence’ means.” Commonwealth v. Christy, 540 Pa. 192, 216, 656 A.2d 877, 889 (1995). The jury question in this case, raising the issue of “life in prison without the opportunity of parole,” is virtually identical to the jury question in Simmons. The United States Supreme Court interpreted the question to bear on the issue of future dangerousness, which was unavoidable as the prosecutor had raised that issue in his argument to the jury. It is possible that appellant’s jury, as well, was concerned with the issue of appellant’s danger to the community if he were released on parole; as the issue had not been raised by the prosecutor during appellant’s sentencing hearing, however, it is also possible that the jury was simply concerned with the length of appellant’s punishment rather than the collateral consequence of danger. Even if we interpret the jury question in appellant’s case as implicating the issue of future dangerousness, as appellant suggests, there is no violation of the Simmons mandate. The trial court did not refuse to tell the jury what “life sentence” means. The court correctly instructed the jury that “the statute unequivocally bars all parole ... whether the sentence is life or death.” The court correctly added that parole is not the only possible means by which a prisoner may be released from prison. The court then correctly instructed the jurors that it was not their prerogative to debate whether they “like life rather than death,” but their responsibility was to weigh aggravating and mitigating circumstances. The jury was thus informed, as accurately as possible, of the meaning of a life sentence, and there was no deprivation of due process of the sort prohibited in Simmons. Appellant’s next claim is that the court’s erroneous denial of challenges for cause during voir dire entitles him to a new trial. He alleges that one prospective juror admitted he would be unable to consider mitigating circumstances yet the court denied appellant’s challenge for cause, forcing him to use a peremptory challenge. In examining a second potential juror, the prosecutor made light of the “Bible issue,” telling the juror: “I won’t quote the Bible, Dan, so don’t be worried.” This allegedly disrupted “the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness.” Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Again, appellant’s challenge for cause was denied and he was forced to use another peremptory challenge. We have held that the decision to grant or deny a challenge for cause is within the sound discretion of the trial judge and will not be reversed absent a palpable abuse of that discretion. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). Furthermore, a trial judge may properly refuse to excuse a juror for cause when the judge believes that the juror would be fair and impartial. Marshall at 497, 633 A.2d at 1104. It is also well established that it is harmless error when a juror who should have been excluded for cause is actually excluded by a peremptory challenge, if the defense does not exhaust its peremptory challenges. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988); Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d 1101 (1987); Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975). Appellant has mistakenly relied upon Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), to support his position concerning the juror who admitted a predisposition toward the death penalty. Morgan is distinguishable from the present ease in that it dealt with a trial court’s refusal to allow questioning of the venire in order to determine such predispositions. Specifically, although the trial court in Morgan allowed the prosecution to question potential jurors regarding their willingness to impose a death penalty, the court did not allow the defense an opportunity to question the jury pool regarding whether they would automatically vote for the death penalty once a guilty verdict had been returned. In the present ease, the defense was given the opportunity to question all potential jurors regarding their stance on the death penalty. Initially, the first juror in question stated that he would be inclined to vote automatically for the imposition of the death penalty. However, the first time defense counsel directly asked the juror whether he would have any difficulty following the court’s instructions regarding consideration of aggravating and mitigating (with emphasis on mitigating) circumstances, he unequivocally stated that he would not. It was only after persistent questioning by defense counsel that the juror again gave an indication that he would automatically vote to impose the death penalty. Nevertheless, upon further questioning by the prosecution the juror explicitly stated that he would comply with the court’s instructions. Similarly, the second juror in question, upon examination by the court, indicated that comments regarding the Bible would not influence his decision on sentencing and that he would be able to render a fair verdict. The trial judge must interpret the answers and demeanor of all potential jurors to evaluate their ability and willingness to render a fair verdict according to the evidence presented. Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989). There is no evidence in the record to suggest that the trial judge abused his discretion or that the potential jurors’ ability to render a fair verdict was so questionable as to necessitate their removal for cause. Even if these jurors should have been excluded for cause, since the appellant did not exhaust his peremptory challenges this denial would amount to nothing more than harmless error. We consider the appellant’s reliance upon dicta from Murphy neither relevant nor persuasive. The prosecutor’s offhand remark concerning the Bible may not have risen to the level of solemnity considered appropriate by the appellant, but there is no evidence to suggest, as appellant claims, that the remark disrupted or influenced the proceedings in any way. These claims regarding the court’s improper denial of challenges for cause lack merit. Appellant’s next argument is that his privilege against self-incrimination was violated in two ways in the resentencing process. First, he claims the court erred in ruling that a jury would be informed if appellant failed to cooperate in a psychiatric examination sought by the Commonwealth. He argues that he was put in the position of either cooperating with the examination, thereby changing his trial strategy due to the Commonwealth’s possession of information obtained in the examination, or refusing to cooperate and having that refusal disclosed to the jury, creating potential prejudice. Appellant correctly restates the U.S. Supreme Court’s holding that where Fifth Amendment issues are concerned there is “no basis to distinguish between the guilt and penalty phases of ... [a] ... capital murder trial.” Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359, 369 (1981). However, we easily distinguish the facts in the present case from those in Estelle. In Estelle, the State, during the sentencing phase, introduced a psychiatrist’s testimony regarding his evaluation of the defendant where, during the course of the evaluation, the defendant was never advised of his Fifth Amendment rights and did not have counsel present. The Supreme Court affirmed the federal circuit and district courts’ holding that the defendant’s Fifth Amendment rights had been violated and vacated his death sentence. Id. See also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In the present case, appellant claims that the Commonwealth’s and the psychiatrist’s failure to advise him of his Miranda rights entitles him to a new sentencing hearing. However, although appellant was not advised of his Miranda rights by either the Commonwealth or by the examining psychiatrist, unlike Estelle, appellant had the benefit of counsel throughout the course of all proceedings including the mental examination, thereby satisfying any Miranda requirements. Even if Miranda requirements had not been satisfied, appellant has failed to demonstrate how, in fact, he was prejudiced since this evidence was never introduced. Although appellant may be correct in stating that the threat of informing the jury of his non-cooperation amounts to a court-ordered, coerced, evaluation, the mere possession of the evaluation results is not enough to prove actual prejudice. Again, the evidence was not introduced and the jury was not informed even of the existence of such evidence, let alone the appellant’s cooperation or non-cooperation. For these reasons, appellant’s claim lacks merit. Second, appellant claims the district attorney violated his right to remain silent by informing the resentencing jury that appellant did not testify at his trial. He argues that such information is constitutionally prohibited under Commonwealth v. Freeman, 386 Pa.Super. 105, 562 A.2d 375 (1989). This argument is meritless, as the prosecutor’s inquiry was in response to the testimony elicited by defense counsel: “At trial or at a previous proceeding in this matter you testified, did you not?” Appellant answered, ‘Tes, sir.” The answer was truthful because appellant had testified at his original sentencing hearing. On cross-examination, the prosecutor asked, “Mr. Chambers, at the last trial you didn’t testify at the trial phase of this ease at all, did you?” Appellant answered, “No, sir.” Defense counsel clearly opened the door for the prosecutor to inquire into appellant’s silence at trial, if only to clarify a possibly misleading answer on direct examination. Moreover, appellant’s argument overlooks the cumbersome burden on the prosecution in a resentencing hearing following a remand in a case such as this. When the same jury decides guilt and penalty, the evidence presented at the sentencing phase need not include everything presented in the guilt phase. The jury is well acquainted with the trial evidence. Here, however, as we discussed supra, the jury is called upon to sentence the defendant to life imprisonment or the death penalty without having attended his trial. It is incumbent on the prosecutor to prove beyond a reasonable doubt everything that will enable the jury to perform its duty. This entails duplicative presentation of evidence presented at trial, but not in the original sentencing hearing, to place the re-sentencing jury as nearly as possible in the shoes of the original jury. If it was error for the resentencing jury to learn that appellant did not testify at his trial, the error was harmless, as appellant’s original jury knew, when it deliberated on his sentence, that he had not testified at his trial. Appellant next claims that the court abused its discretion by permitting the Commonwealth to recall a witness after the close of the Commonwealth case so the witness could “correct” his testimony. The last prosecution witness was a detective who testified about his investigation of the homicide. The following day, in the middle of the defense case, the Commonwealth received the court’s permission to recall the detective to clarify certain dates and times pertinent to his investigation. Appellant argues that the exact dates and times specified in the second period of testimony were cumulative, adding absolutely nothing to the proceeding, and that the process was merely a ploy to interrupt the presentation of the appellant’s case. As appellant admits, the decision to permit either side to reopen its case, recalling witnesses and presenting additional evidence in order to prevent a failure or miscarriage of justice, is within the trial court’s discretion and will not be reversed absent an abuse of that discretion. Commonwealth v. Tharp, 525 Pa. 94, 575 A.2d 557 (1990); Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1979); Commonwealth v. Irving, 485 Pa. 596, 403 A.2d 549 (1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980). The purpose of recalling this witness was to clarify the specific details of several events regarding the murder investigation (including dates, times, and interviews) which he could not recall during previous testimony. Approximately eight years had passed since the witness testified in the first sentencing hearing. During cross-examination, the witness testified that he was unable to precisely recall certain events surrounding the murder investigation about which he had testified years earlier. This confusion was due primarily to his inability to locate his supplemental notes concerning the investigation upon which he had relied in his previous testimony. After reviewing the transcript of his testimony from the previous hearing, the witness was recalled and allowed to correct and elaborate on his testimony regarding subject matter raised by appellant’s counsel during cross-examination. Appellant’s claim — that complete answers to his own line of questioning are cumulative — is absurd. Considering the length of time that had elapsed since the investigation and applying the Mielcuszny standard, supra, we cannot agree that the trial judge abused his discretion. Therefore, this claim lacks merit. In a related claim, appellant argues that the court abused its discretion by permitting the Commonwealth to claim surprise and cross-examine its own witness. The witness, appellant’s acquaintance, gave inconsistent testimony regarding a statement allegedly made by appellant. The Commonwealth expected this witness to testify (as he had previously) that appellant had admitted to the murder. Instead, the witness testified that appellant stated only that he believed he was a suspect iii the murder. Pennsylvania “courts have been liberal in allowing a party to cross-examine his own witness when it is believed that the interests of truth and justice so require.” Commonwealth v. Smith, 511 Pa. 343, 353, 513 A.2d 1371, 1376 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). The general rule for allowing a party to cross-examine his own witness on a plea of surprise is that the current testimony must be: 1) unexpected; 2) contradictory to prior statements; and 3) harmful to the party calling the witness and beneficial to the opposing side. Id. at 353, 513 A.2d 1371. See also Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976)(permitting parties surprised by adverse statements made by their own wit nesses to cross-examine them based on prior inconsistent statements). The inconsistent statements in this case clearly meet the criteria for allowing a party to cross-examine his own witness. The statements were unexpected, contradictory, and harmful to the calling party while benefitting the opposition. The trial court did not abuse its discretion by allowing the Commonwealth to cross-examine this witness. Appellant’s final claim is that the court abused its discretion when it refused to allow appellant personally to interview the venire. “[T]he manner in which voir dire will be conducted is left to the discretion of the trial judge ... [and] ... will be reversed only where the record indicates an abuse of the discretion_” Commonwealth v. Abu-Jamal, 521 Pa. 188, 201, 555 A.2d 846, 852 (1989). Furthermore, as we stated in Abw-Jamal, there is no requirement, constitutional or otherwise, that a party be permitted to engage personally in voir dire questioning. Id. at 201, 555 A.2d at 852. In the present ease, appellant sought to question a potential juror himself. The prosecution objected and the trial court denied the request. Appellant argues that defendants in other York County cases had been allowed to question potential jurors personally, and therefore, he should have had the same opportunity. Just as the judges in other cases exercised their discretion in allowing such questioning, however, the trial judge in this ease exercised his discretion in disallowing such questioning. Since appellant had no right to engage personally in the questioning and since the manner of questioning was within the trial court’s discretion, we will not reverse the trial court’s decision. We have complied with our duty under 42 Pa.C.S. § 9711(h)(3)(iii) to review sentences of death from the standpoint of proportionality to sentences imposed in similar cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 63, 454 A.2d 937, 961 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We reviewed the sentence imposed on appellant in light of sentencing data compiled and monitored by the Administrative Office of Pennsylvania Courts. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08 (1984). The jury found the existence of the aggravating factor in 42 Pa.C.S. § 9711(d)(6) (killing while in the perpetration of a felony) and the existence of the mitigating factor in 42 Pa. C.S. § 9711(e)(1) (no significant history of prior criminal convictions). The jury further formd that the aggravating factor outweighed the mitigating factor and imposed the death penalty. This sentence is not excessive nor disproportionate to sentences imposed in similar cases. Further, the record does not provide any basis for belief that the sentence of death was the “product of passion, prejudice or any other arbitrary factor.” See 42 Pa.C.S. § 9711(h)(3)(i). Also, the evidence supports the finding of at least one aggravating circumstance specified in 42 Pa.C.S. § 9711(d), viz. § 9711(d)(6). See 42 Pa.C.S. § 9711(h)(3)(ii). Accordingly, the sentence must be affirmed. Judgment of sentence affirmed. NIX, former C.J., and MONTEMURO, J., who was sitting by designation, did not participate in the decision of this case. ZAPPALA, J., concurs in the result. . Appellant filed motions in state court as weE as federal court, accounting for the two-and-a-half-year delay in conducting the resentencing hearing. . Despite the apparent flippancy of the remark in isolation, the record reveals that frequently both defense counsel and the prosecutor addressed prospective jurors by their given names. The prospective juror in question was first addressed as Dan by appellant’s defense counsel, then questioned at length regarding his awareness of the prosecutor’s statements about the Bible during appellant’s original penally hearing. The prosecutor’s quoted remark was in response to that questioning. . The Prothonotary of the Supreme Court is directed to transmit the complete record in this case to the Governor. 42 Pa.C.S. § 971 l(i).

OPINION BY Judge SMITH-RIBNER. The Commonwealth of Pennsylvania has filed exceptions to the decision of a panel of this Court on these consolidated petitions for review from orders of the Board of Finance and Revenue (Board) that affirmed the recalculation by the Department of Revenue (Department) of the capital stock tax liability of Shawnee Development, Inc. (Shawnee). Applying Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a), the panel concluded that the term “income per books” as applied in reference to a non-“S” corporation had acquired a peculiar and appropriate meaning derived from federal tax law. The panel further concluded that because Shawnee remained insolvent after substantial debt forgiveness the Department erred by regarding the amount forgiven as income per books in calculating the capital stock value and reversed. Shawnee Development, Inc. v. Commonwealth, 764 A.2d 659 (Pa.Cmwlth.2000), exceptions filed (Pa.Cmwlth., January 12, 2001) (Nos. 871 F.R.1996 and 925 F.R.1998). The Commonwealth questions whether the term “income per books” for Pennsylvania capital stock tax purposes properly includes debt forgiveness, when it is included under Generally Accepted Accounting Principles (GAAP) and when Shawnee consistently has included it in “net income per books” on its federal income tax returns. The Commonwealth also questions whether the Court’s panel erred when it incorporated and applied federal income tax law to Pennsylvania’s capital stock tax law to exclude debt forgiveness from “income per books” and “average net income” under the fixed formula for capital stock value. I Shawnee is a Pennsylvania corporation involved in the business of selling and developing real property in the Commonwealth, and it is subject to the Pennsylva nia capital stock tax. Shawnee was forced to restructure its operations as a result of a downturn in the real estate market. Fifteen financial institutions and other secured lenders agreed to cancellation of indebtedness totaling $38,038,595 over the four-year period beginning April 1, 1991 and ending March 31, 1995. Shawnee was insolvent as defined under Section 108(d)(3) of the Internal Revenue Code of 1986, 26 U.S.C. § 108(d)(3), i.e., its liabilities exceeded the fair market value of its assets, at all relevant times, even after the cancellation of indebtedness. The cancellation of indebtedness was not considered income for federal income tax or Pennsylvania corporate net income tax purposes, and Shawnee did not include it in computing its capital stock tax. The tax base of the capital stock tax is “capital stock value,” which is defined by Section 601(a) of the Tax Reform Code of 1971 (Tax Reform Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7601(a), in a fixed formula that has two components: “average net income” and “net worth.” The parties agree as to net worth, and the present case concerns only the proper treatment of average net income. Section 601(a) defines average net income in part as follows: The sum of the net income or loss for each of the current and immediately preceding four years, divided by five.... In computing average net income, losses shall be entered as computed, but in no ease shall average net income be less than zero. The net income or loss of the entity for any taxable year shall be the amount set forth as income per books on the income tax return filed by the entity with the Federal Government for such taxable year, or if no such return is made, as would have been set forth had such a return been made, subject, however, in either case to any correction thereof, for fraud, evasion or error. For the tax year ending March 31, 1995, after adjustments by the Department, Shawnee’s average net income was increased from 0 as reported to $1,041,358; its capital stock value was increased from 0 to $5,428,635; and its capital stock tax was increased from the reported $300 to $69,215. Shawnee appealed from the determination for that year and the previous year, and the Board refused relief and approved the Department’s actions, with noted dissents in both cases by the desig-nees for the State Treasurer and the Auditor General. The parties agree that the central issue is whether cancellation of indebtedness for the periods ending March 31, 1992, March 31, 1993, March 31, 1994 and March 31, 1995 must be included in “income per books” for Pennsylvania capital stock tax purposes. II The Commonwealth first quotes the definition of capital stock value from Section 601(a) of the Tax Reform Code, with its mathematical formula, and the definition of average- net income, with its reference to “the amount set forth as income per books on the income tax return filed by the entity with the Federal Government for such taxable year....” The Commonwealth notes that the U.S. Corporation Income Tax Return, Form 1120, includes a Schedule M-l, “Reconciliation of Income (Loss) per Books With Income per Return.” Line 1 of Schedule M-l is “Net income (loss) per books.” The Commonwealth states that this is the amount referred to in the definition of capital stock value and points out that that is the only entry on the federal income tax return that could possibly reflect book net income as contemplated by the statute. The Commonwealth asserts that Shawnee consistently has included debt forgiveness income on its Schedule M-l, Line 1 of Form 1120. Further, GAAP require that extraordinary items be included in book net income on the income statement, in accordance with the current all-inclusive approach to net income embodied in GAAP. Forgiven debt is an extraordinary item of income. Also, the Department’s regulation at 61 Pa.Code § 155.26(h) provides: “No adjustment to net income or loss may be permitted on account of non-recurring or extraordinary items.” The Commonwealth characterizes this as an interpretation within its broad grant of power to interpret and enforce the Tax Reform Code. It notes that in reviewing technically complex statutory schemes, a court must be even more chary to substitute its discretion for the expertise of the administrative agency. SmithKline Beckman Corp. v. Commonwealth, 85 Pa.Cmwlth. 437, 482 A.2d 1344 (1984), aff'd per curiam, 508 Pa. 359, 498 A.2d 374 (1985). The Commonwealth asserts that the enactment of the fixed formula for determining capital stock value represented a radical change from the former method of determining “actual value” based on a totality of the circumstances approach. In addition, the Commonwealth argues that each time Shawnee had a debt forgiven it realized a financial benefit in that it became less insolvent than it was before the restructuring transaction. Under a separate heading the Commonwealth contends that the panel of this Court erred in concluding that “income per books” is ambiguous in this case and erred in applying federal income tax law to the Pennsylvania capital stock tax. It also contends that the panel erred by citing Tool Sales & Service Co., Inc. v. Commonwealth, 536 Pa. 10, 637 A.2d 607 (1993), for the proposition that the phrase is ambiguous because Tool Sales concerned the 1984 and 1985 capital stock tax of an S corporation. There the ambiguity stemmed from the fact that before 1990 the tax return form for such a corporation, Form 1120S, did not include a line entry similar to “Net income (loss) per books” of Form 1120, Schedule M-l, Line 1, and the Supreme Court limited its holding to those narrow circumstances. The Commonwealth argues that income per books, average net income and capital stock tax have nothing to do with federal income tax law. Moreover, the legislature is well aware of the concept of federal “taxable income,” and the capital stock tax does not use that term. The Commonwealth asserts that taxpayer insolvency has no relevance to the application of yearly net income per books to determine the average net income component of the fixed formula, and the panel erred in applying Sections 61 and 108 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 61 and 108, because those provisions deal with determining taxable income for federal income tax purposes. Shawnee in response notes that it is well settled that a capital stock value .tax is a property tax on the assets of a corporation as represented by its shares of stock and not a tax on the income of the corporation. Commonwealth v. Philadelphia Market Street Subway-Elevated Railway Co., 408 Pa. 357, 184 A.2d 488 (1962). Shawnee notes that the term “income per books” is not defined in Section 601(a) of the Tax Reform Code or in regulations other than by reference to the entity’s federal income tax return. It contends that federal tax law does not define this term or specify any method by which to calculate it, rendering the term ambiguous. Shawnee argues that no statute or regulation requires income per books to be calculated according to GAAP, and it notes that other comprehensive bases for financial reporting have been recognized and authorized. In the heart of its argument, Shawnee contends that the unreasonable and illogical results produced by the Commonwealth’s position must be considered. Shawnee notes that it is undisputed that it was insolvent before and after the cancellation of indebtedness and that on May 1, 1993, majority shareholders Charles and Virginia Kirkwood conveyed 1467 shares of Shawnee common stock, or 55 percent of outstanding shares, back to the corporation for no consideration. Additional Stipulation of Facts ¶ 30. Shawnee never made an operating profit during the period in question, and in fact it incurred substantial losses. In addition, because the definition of “average net income” requires averaging the net income for the current year and each of the previous four years, that purported income will be considered through the year ending March 31, 1999. Shawnee refers to the principle that when the words of a statute are not clear it is presumed that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1). It notes that in a case involving the Pennsylvania franchise tax on domestic operations of multi-jurisdictional entities, the Court held that application of a statutory apportionment formula resulting in a value 44.5 percent higher than actual value was unfair and inequitable and required adjustment. Unisys Corp. v. Commonwealth, 726 A.2d 1096 (Pa.Cmwlth.1999). Because Shawnee maintains that its capital stock had no value in view of its financial condition and its history, it contends that the Department’s assigned value under its interpretation of the fixed formula was far more disproportionate. With regard to the Department’s regulation at 61 Pa.Code § 155.26(h), which provides for no adjustment to net income or loss on account of nonrecurring or extraordinary items, Shawnee agrees with the panel’s conclusion that it is not involved because the cancellation of debts of an insolvent is not income per books in the first instance. If the Court concludes otherwise, Shawnee states that before 1984 capital stock value was defined by taking into consideration: the average selling price of stock, corporate earnings, dividends declared and stockholder equity, with the “corporate earnings” element defined as “the book income as reported to the shareholders which is adjusted for distortions in the current and prior years created by nonrecurring-type gains and losses or by use or correction of inconsistent or erroneous accounting practices.” 61 Pa.Code § 155.22. Shawnee asserts that income per books thus had “acquired a peculiar and appropriate meaning” within the contemplation of Section 1903(a) of the Statutory Construction Act of 1972 and that nothing in the 1983 legislation indicated an intent by the legislature to depart from this established meaning. Finally, Shawnee argues that including cancellation of indebtedness for an insolvent taxpayer in income per books creates problems of constitutional dimension. The capital stock tax is justified on the premise that a corporation’s property may be taxed in the state of its creation. Commonwealth v. After Six, Inc., 489 Pa. 69, 413 A.2d 1017 (1980). In this case, however, where Shawnee had no operating profits during any of the periods at issue and its liabilities exceeded the fair market value of its assets, the determination of a capital stock value of $5,428,635 and a capital stock tax of $69,215 is so arbitrary and so far out of line with the actual value of the company as to be confiscatory. Shawnee cites Norfolk & Western Railway Co. v. Missouri State Tax Commission, 390 U.S. 317, 88 S.Ct. 995, 19 L.Ed.2d 1201 (1968), in which the Supreme Court held that a state violated due process by rigidly applying a formula to determine the value of a railway’s rolling stock to be taxed by comparing the miles of track within the state to the total in all states, when the railway produced evidence that although over 8 percent of its track was located in the state, the actual value of the rolling stock located there was approximately 3 percent. The Court rejected rigid application of formulas when a distorted result is produced. In a reply brief the Commonwealth asserts that effective for tax years beginning in 1984 the fixed formula became the only method authorized by the Tax Reform Code for determining stock value. Shawnee’s references to actual value are irrelevant to the determination of capital stock value under the fixed formula. The regulation at 61 Pa.Code § 155.26(h) reflects the intent of the legislature in adopting the fixed formula, it maintains, because the legislature did not employ the term “corporate earnings,” which by regulation did exclude “nonrecurring-type gains and losses” from “book income.” Rather the legislature chose the more inclusive concept of “income per books.” The Commonwealth asserts that the statutory definition of capital stock value and the Department’s regulatory interpretation do not violate Shawnee’s constitutional rights, quoting at length from City of Pittsburgh v. Aleo Parking Corp., 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974), which held that the judiciary should not interfere with a bona fide tax. The Court agrees that the panel incorrectly applied provisions of the Internal Revenue Code of 1986 relating to taxable income for federal income tax purposes to define “income per books” under Pennsylvania’s capital stock tax. As the Pennsylvania Chamber of Business and Industry (Amicus) asserts in an amicus brief, the concept of federal taxable income is relevant to computation of the Pennsylva nia corporate net income tax, and “taxable income” is defined in terms of federal taxable income in Section 401(3) (1) (A) of the Tax Reform Code, 72 P.S. § 7401(3)(1)(A). Amicus cites 34 P.L.E. § 146 for a statement of the proposition that a change of language in different sections of a statute is prima facie evidence of a change of intent. See also Corley v. Pennsylvania Board of Probation and Parole, 83 Pa.Cmwlth. 529, 478 A.2d 146 (1984) (noting that fundamental principle of construction is that when a statute contains a given provision, omission of that provision from a similar section shows a different intent). As the Commonwealth stresses, Section 601(a) of the Tax Reform Code expressly states that average net income shall be determined from “the amount set forth as income per books on the income tax return filed by the entity with the Federal Government for such taxable year,” not “taxable income,” and Form 1120, Schedule M-1, Line 1, “Net income (loss) per books,” is the only entry on the federal income tax return that could possibly reflect book net income. The Court rejects Shawnee’s citation to Tool Sales & Service Co., Inc. v. Commonwealth, 149 Pa.Cmwlth. 389, 613 A.2d 143 (1992), aff'd, 536 Pa. 10, 637 A.2d 607 (1993), to support a claim that “income per books” is ambiguous. That term was held to be ambiguous in the context of an S corporation only because the tax return for the period at issue did not include a line comparable to Schedule M-l, Line 1. There is no requirement for Pennsylvania to adopt federal “taxable income” in its calculation of capital stock value, and Pennsylvania has not done so. Compare Smith v. Director, Division of Taxation, 108 N.J. 19, 527 A.2d 843 (1987) (holding that the New Jersey legislature rejected the federal income tax model in adopting its gross income tax act and that other branches of government could not superimpose the Internal Revenue Code upon the state tax act in the guise of statutory construction). The question remains whether Shawnee should be permitted to exclude debt forgiveness from its income per books. Shawnee does not dispute that GAAP ordinarily would require the inclusion of the forgiven debt as income per books on the federal income tax return, and it does not dispute that it included forgiven debt as income per books during the years at issue here. It suggests that other accounting systems sometimes have been approved, but it does not assert that it has employed such other systems. Shawnee cites Scott Electric Co. v. Commonwealth, 692 A.2d 289 (Pa.Cmwlth.1997), exceptions overruled, adhered to, 704 A.2d 205 (Pa.Cmwlth.1998), for the proposition that GAAP need not always be followed and that if an express regulation is contrary to GAAP in a particular instance, the regulation will control. In this case, the regulation in dispute, 61 Pa.Code § 155.26(h), is consistent with the GAAP treatment of income per books by not allowing for adjustments for extraordinary or nonrecurring items. Shawnee’s basic contention is its repeated assertion that because it was insolvent as defined in Section 108 of the Internal Revenue Code of 1986 during the periods at issue here, then its stock was necessarily worth nothing, and any positive value calculated under the statutory formula is therefore incorrect. However, Shawnee offers no support for this assertion. There is no question that a corporation may be technically insolvent and still have stock that is valuable. As Amicus points out, the “book income component” of the formula in Section 601(a) of the Tax Reform Code is not arbitrary but is derived from the second part of the “Three-Way Method” of computing capital stock value, which was formerly one of the approved methods specified under 61 Pa. Code § 155.24(b). Shawnee relies in part upon an assertion in the Additional Stipulations that the Kirkwoods conveyed substantial stock back to the corporation for no consideration because they thought it had no worth. The same stipulations also indicate that they retained a one-third ownership of Shawnee stock after transfer, presumably regarded as having value. The Department performed a calculation of capital stock value according to express statutory provisions and according to the Department’s regulations interpreting those provisions. In Scott Electric Co. this Court cited the Supreme Court’s decision in Tool Sales & Service Co., Inc. for the propositions that agencies are entitled to deference in interpreting the statutes that they enforce and that where a scheme is technically complex, such as the Tax Reform Code and its regulations, a reviewing court must put aside its discretion for expertise of the administrative agency. In addition, the Supreme Court stated that regulations enforcing the Tax Reform Code will not be disregarded unless clearly inconsistent with the Code and that a taxpayer has a heavy burden of establishing that the regulations are clearly erroneous. Id. See also Gilmour Manufacturing Co. v. Commonwealth, 750 A.2d 948 (Pa.Cmwlth.2000). The Court concludes, therefore, that Shawnee’s bald assertion that its stock must be of no value because it is insolvent is not sufficient to meet its heavy burden to establish that 61 Pa. Code § 155.26(h) is clearly erroneous or its at least equally heavy burden of showing that application of Section 601(a) of the Tax Reform Code works an unconstitutional confiscation of its property. Accordingly, after reconsideration of this matter, the Court grants the exceptions of the Commonwealth and affirms the orders of the Board. President Judge COLINS dissents. ORDER AND NOW, this 15th day of May, 2002, the exceptions filed by the Commonwealth of Pennsylvania in the above-captioned matter are hereby granted. The panel decision of this Court in Shawnee Development, Inc. v. Commonwealth, 764 A.2d 659 (Pa.Cmwlth.2000), is vacated, and the orders of the Board of Finance and Revenue are hereby affirmed. The capital stock tax liability of Shawnee Development, Inc, for the tax year ending March 31, 1995 is $69,215. .Section 61(a)(12) of the Internal Revenue Code of 1986, 26 U.S.C. § 61(a)(12), includes in the definition of "gross income” "[ijncome from discharge of indebtedness,” but Section 108(a)(1)(B), 26 U.S.C. § 108(a)(1)(B), excludes discharge of indebtedness from gross income if "the discharge occurs when the debtor is insolvent....” . Section 601(a) defined "Capital stock value” for the year ending March 31, 1994 as: The amount computed pursuant to the following formula: the product of one-half times the sum of the average net income capitalized at the rate of nine and one-half per cent plus seventy-five per cent of net worth, from which product shall be subtracted fifty thousand dollars ($50,000), the algebraic equivalent of which is (.5 x (average net income/.095 + (.75) net worth))) - $50,000 The section was amended to provide for subtraction of $75,000 for the period including the year ending March 31, 1995, and the current figure is $125,000. . The Court’s review of a decision of the Board is governed by Pa. R.A.P. 1571. Although the Court hears such appeals in its appellate jurisdiction, it functions essentially as a trial court under that Rule. Brown v. Commonwealth, 670 A.2d 1222 (Pa.Cmwlth.1996). . As the Commonwealth points out, however, Shawnee has not sought to establish through stipulation that it actually employed some other recognized method of accounting. Shawnee states that it has not stipulated that it used GAAP for financial reporting purposes, but it acknowledges that the record shows that it excluded cancellation of debt in income per books when calculating its capital stock value but did not exclude that amount on Schedule M-l, Line 1. Shawnee maintains that its including those amounts on that schedule was not binding upon the Department, and it asserts that it should not be bound by any reporting error. . According to Shawnee, even if it remained unprofitable and insolvent through that period, by rigidly applying the formula in Section 601(a) the Department would value its capital stock over $17,000,000 in the year ending March 31, 1997 and would impose additional taxes based upon essentially phantom value of over $500,000 through the tax year ending March 1999. . Amicus endorses the result reached by the panel but argues that the panel erred by relying upon statutory provisions relating to federal taxable income. It notes that the present fixed formula for determining capital stock value was adopted in an effort to end the cycle of valuation appeals as to the weight to be afforded various factors to be considered in determining actual value. The legislature did not employ the term "taxable income” in fashioning the capital stock value formula. Although GAAP ordinarily would dictate in-elusion of discharge of indebtedness in income per books, Amicus argues that in the extreme circumstances of this case they may be modified to exclude the discharge of indebtedness so as to clearly reflect income. . See Gilmour Manufacturing Co. v. Commonwealth, 750 A.2d 948 (Pa.Cmwlth.2000), which compared the results reached in other jurisdictions that examined the issue involved there under similar or identical statutes. . The Court observes that even when Section 108(a)(1)(B) of the Internal Revenue Code of 1986 does apply to exclude from gross income a discharge of indebtedness that occurs when the taxpayer is insolvent, such exclusion is not without a price. Section 108(b) requires that the amount excluded under Section 108(a)(1)(A), (B) or (C) shall be applied to reduce enumerated tax attributes of the taxpayer, including net operating loss and basis in property. See United States v. Farley, 202 F.3d 198 (3d Cir.2000).

OPINION BY President Judge COLINS. The Department of Transportation, Bureau of Driver Licensing appeals from an order of the Court of Common Pleas of Lancaster County that sustained Angela Lynn Rossi’s appeal of the Bureau’s one-year suspension of her operating privilege. The Bureau imposed the suspension pursuant to Section 1543(c)(1) of the Vehicle Code, 75 Pa.C.S. § 1543(c)(1), for Rossi’s violation of Section 1543(a) of the Vehicle Code, 75 Pa.C.S. § 1543(a), driving while operating privilege suspended or revoked. We affirm the trial court. Rossi’s operating privilege was suspended for 15 days effective August 31, 1999 for a speeding violation that occurred on March 11,1999. An additional 15-day suspension, effective September 15, 1999, was added to that suspension for a stop sign violation that occurred on June 22, 1999. Rossi was stopped and cited for driving while her operating privilege was suspended or revoked on November 18, 1999. Rossi’s appeal of her summary conviction of that offense was sustained by the Court of Common Pleas of Lancaster County. This appeal followed. At the hearing on her statutory appeal Rossi testified that she surrendered her license prior to August 31, 1999, and that she did not operate a motor vehicle during the period from August 31, 1999 through September 30, 1999. It was her understanding that her operating privilege was automatically restored following the statutory period of suspension. The Bureau claims that Rossi’s operating privilege was still suspended on November 18, 1999 because she had not complied with the Bureau’s administrative process and paid a $25.00 restoration fee. The question we are asked to determine is whether a motorist’s operating privilege remains suspended after a time-certain period of suspension where a motorist has not complied with the Bureau’s administrative process of restoration. We addressed this issue in our decisions in Department of Transportation, Bureau of Driver Licensing v. Manuel, 119 Pa.Cmwlth. 264, 546 A.2d 1336 (1988), petition for allowance of appeal denied, 521 Pa. 624, 557 A.2d 727 (1989) and Caruso v. Department of Transportation, 125 Pa.Cmwlth. 54, 557 A.2d 54 (1989), petition for allowance of appeal denied, 525 Pa. 588, 575 A.2d 117 (1990). Our holding in each of these cases is that a period of suspension or revocation must end on the date certain determined by the length of the statutorily specified suspension. Applying these cases to the one before us Rossi would not be guilty of driving while her operating privilege was suspended because her privileges were restored by operation of law when her suspension ended on September 30, 1999. The Bureau, however, claims that the General Assembly amended Section 1543(c)(1) in 1994 in response to Manuel and Caruso by adding the phrase “and had not been restored” to Section 1543(c)(1) to bring it into accord with this similar language from Section 1543(a): “and before the operating privilege has been restored.” In its brief the Bureau tells us that the legislature inserted this language into Section 1543(c)(1) to expand the period where drivers convicted of violating Section 1543 would be hable for additional periods of suspension or revocation of their operating privileges from that outlined in Manuel and Caruso to also include those periods of time after a driver had served a time certain suspension up until the driver had completed the steps necessary for a restoration of operating privileges. Appellant’s brief at 18. The disingenuousness, if not outright dishonesty of this assertion is clearly demonstrated by the fact that the addition of “and had not been restored” to Section 1543(c)(1) does not in any way affect this statement that we made in Manuel: By delineating in Section 1543(a) that driving “before the operating privilege had been restored” the legislature clearly intended that such action would be penalized. However, the onset and expiration dates of suspension and revocation periods must still be recognized. Manuel, 546 A.2d at 1337. Thus, in Manuel we specifically find that the existence in the statute of the phrase “before the operating privilege has been restored” does not change the fact that the “onset and expiration dates of suspension and revocation periods must still be recognized.” If the General Assembly did not agree with this clearly stated interpretation of its words and wanted to expand periods of revocation and suspension it would not do that by using language that we had already interpreted as having no effect on statutorily prescribed periods of suspension. We do not know why this phrase was inserted into the statute but it was not put there to change the effect of anything we said in Manuel or Caruso. The fact that Rossi was not in physical possession of her driver’s license when she was stopped on November 18, 1999 is not relevant to the question of whether she possessed the privilege of operating a motor vehicle on that date. The physical possession of a driver’s license does not confer such a privilege on a motorist whose privilege has been suspended or revoked any more than the failure to physically possess a license strips an otherwise qualified motorist of that privilege. Section 1511(a) of the Vehicle Code, 75 Pa.C.S. § 1511(a), requires a motorist to carry a valid driver’s license while operating a motor vehicle and to produce that license at the request of a police officer: 1511. Carrying and exhibiting driver’s license on demand (a) General rule. — Every licensee shall possess a driver’s license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer, and when requested by the police officer the licensee shall write the licensee’s name in the presence of the officer in order to provide identity. However, Section 1511(b) specifically provides that penalties for violating the statute, if any, shall be limited: (b) Production to avoid penalty. — No person shall be convicted of violating this section or section 1501(a) (relating to drivers required to be licensed) if the person: (1) produces at the headquarters of the police officer who demanded to see the person’s license, within 15 days of the demand, a driver’s license valid in this Commonwealth at the time of the demand; or (2) if a citation has been filed, produces at the office of the issuing authority, within 15 days of the filing of the citation, a driver’s license valid in this Commonwealth on the date of the citation. There is no penalty for driving a vehicle while not carrying a driver’s license if a person possesses the privilege to operate a motor vehicle in the Commonwealth at the time and can produce a valid license within 15 days. Section 1511(b) specifically prohibits an issuing authority from convicting a motorist found in violation Section 1511(a) of violating Section 1502(a). By drafting Section 1511(b) in this way the General Assembly has made a clear and unambiguous distinction between physically carrying a driver’s license and possessing the privilege to operate a motor vehicle. Rossi did not physically possess a driver’s license when she was stopped on November 18, 1999, but she did possess a valid privilege to operate a motor vehicle in the Commonwealth on that date; she could not, therefore, have been operating a motor vehicle in "violation of Section 1543(a). In so finding we reaffirm our holding expressed in Manuel and Caruso that suspensions and revocations of operating privileges are limited to the time-certain periods of those suspensions and revocations. Accordingly, we affirm the order of the Court of Common Pleas of Lancaster County in this matter. ORDER AND NOW, this 29th day of April 2002, the order of the Court of Common Pleas of Lancaster County in the above-captioned matter is hereby affirmed. . 1543. Driving while operating privilege is suspended or revoked (a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200. (c) Suspension or revocation of operating privilege. — Upon receiving a certified record of the conviction of any person under this section, the department shall suspend or revoke that person’s operating privilege as follows: (1) If the department’s records show that the person was under suspension, recall or cancellation on the date of violation, and had not been restored, the department shall suspend the person’s operating privilege for an additional one-year period. . Our original holding was in Manuel. We issued our decision in Caruso on reconsideration to bring it into accord with Manuel. . Manuel was decided in 1988, Caruso in 1989. If what the Bureau says is true, we are left to wonder why the General Assembly waited five years to address this issue. . Section 1501. Drivers required to be licensed. (a) General rule.—No person, except those expressly exempted, shall drive any motor vehicle up on a highway or public property in this Commonwealth unless the person has a driver’s license valid under the provisions of this chapter.

OPINION BY Judge LEAVITT. The Municipal Authority of Hazle Township (Authority) appeals from an order of the Court of Common Pleas .of Luzerne County (trial court) denying the Authority’s Motion for Post-Trial Relief. By this motion, the Authority sought a reduction in the jury award of $220,000 for property taken in a condemnation proceeding or, in the alternative, a new trial. We affirm the trial court. On May 29, 1998, the Authority condemned 0.29 acres of land belonging to Frank L. Tedesco (Landowner) in connection with its construction of a new sewer system. The condemnation consisted of a fee simple taking of 0.16 acres for construction of a sanitary sewer pumping station and a taking by easement of 0.13 acres for a sanitary sewer line. The condemned property was part of Landowner’s larger tract of 23.72 acres of land, which was zoned commercial. Viewers were appointed to consider the damages to Landowner resulting from the condemnation of .29 acres of his land, and they awarded $75,000 as compensation. Both parties appealed the decision of the viewers, and a de novo hearing before the trial court followed. The trial court proceeding began with a visit to the site by the jury. Landowner’s property consists of an unimproved lot in a commercial area of Hazleton targeted for growth. Prior to 1994, the area had seen only scattered development by small local businesses. This changed when Wal-Mart built a SuperCenter, reportedly one of the largest in the country. After that, the area surrounding Landowner’s property began a period of rapid commercial development by businesses drawn by Wal-Mart’s SuperCenter; property values escalated accordingly. At the hearing, Landowner presented testimony on an option contract he executed on September 25, 1992 (Option Contract), which granted an option to purchase Landowner’s 30 acres of property at $1,500,000 for a nonrefundable payment of $30,000. The 30 acres subject to the option included the 23.72 acres of land still owned by the Landowner at the time of condemnation in 1998. The Option Contract also included an option to lease; neither option was ever exercised. Landowner also offered the testimony of an expert witness. The expert testified that the placement of the pumping station and the path of the sewer line were such that they effected a taking of more than the 0.29 acres condemned by the Authority for the project. The expert explained that the use of the 23.72 acre parcel was impaired because any development of the property would have to accommodate the easement, making some parts of Landowner’s property unusable or inaccessible. He also testified that the value of the property was further diminished because the property could not be sold as immediately available, and a purchaser would incur additional development costs in order to accommodate the easement. To establish Landowner’s damages, the expert used comparable sales for comparison. He identified various properties and discussed the reasons for his selection, which included such factors as location, grade, access, time frame and easements. It was the opinion of Landowner’s expert that the loss in fair market value of Landowner’s property as a result of the condemnation was $330,000. In rebuttal, the Authority offered, inter alia, the testimony of the Authority’s Chairman that Landowner had appeared at numerous meetings of the Board and expressed interest in having the sewer project proceed forthwith. Engineering testimony was offered by the Authority relating to the impact on Landowner’s property and the cost to Landowner were he to build his own sewer line. The Authority also produced a valuation expert, who testified that although the Landowner was benefited by the project, it was a general benefit for all property owners served by the new sewers and, thus, was not used to value damages. He also used comparable sales to produce his valuation. In the opinion of the Authority’s expert, the damage and consequent compensation due to the Landowner was $50,000. At the conclusion of the trial, the jury returned a verdict of $220,000 for Landowner. The Authority filed its Motion for Post Trial Relief seeking a reduction in the jury verdict to $50,000 or a new trial. The Motion was denied, and the Authority appealed to this Court. On appeal, the Authority seeks a reversal of the trial court because it believes that: 1) the trial court erred in several evidentiary rulings; 2) prejudicial remarks were made by Landowner’s counsel during closing argument; and 3) the jury verdict of $220,000 for .29 acres, almost triple the amount of the viewers’ award, is manifestly unjust, requiring this Court’s intervention. Our scope of review of the trial court’s ruling on the Motion for Post Trial Relief is limited. In general, we will not disturb the lower court’s ruling unless the court manifestly abused its discretion or committed an error of law that affected the outcome of the case. Stated differently, this Court’s inquiry is to determine whether the trial court acted capriciously or palpably abused its discretion. Brown v. Redevelopment Auth. of the City of Harrisburg, 35 Pa.Cmwlth. 415, 386 A.2d 1052 (1978). The Authority first challenges the trial court’s decision to admit the Option Contract into evidence. It contends that because the option was never exercised, the Option Contract is the functional equivalent of a mere offer, as opposed to a sales agreement. It also challenges the admissibility of the Option Contract because by the time of the condemnation, the contract was six years old and related to 30 acres, not the 23.72 acres subject to the trial court proceeding. The Authority acknowledges that option agreements may be used as evidence in condemnation proceedings, but it claims their use is rare and only for the purpose of cross-examining the condemnee. It argues that allowing Landowner to testify about the Option Contract violated the longstanding principle’ that a purchase price offer that a condemnee receives in the open market prior to condemnation is inadmissible. Redevelopment Auth. of Philadelphia v. Lieberman, 8 Pa.Cmwlth. 366, 302 A.2d 915 (1973); Saunders v. Commonwealth, 345 Pa. 423, 29 A.2d 62 (1942). Further, the Authority notes that in Commonwealth, Department of Transportation v. Bellas, 14 Pa.Cmwlth. 293, 321 A.2d 418 (1974), this Court refused to allow an option agreement to be used even for cross-examination purposes because, as here, the option was part of a lease. It is true that offers are generally not admissible in a condemnation proceeding, both in direct and cross-examination. Saunders remains good law notwithstanding changes in the Eminent Domain Code over the years, but exceptions to this general rule have developed. For example, in Durika v. School Dist. of Derry Township, 415 Pa. 480, 208 A.2d 474 (1964), our Supreme Court refused to require a new trial where a condemnee, on cross-examination, was required to admit that three years before the condemnation he was willing to sell his property for a lower price than the value to which he testified on direct. In Commonwealth, Department of Transportation v. Lutz, 14 Pa.Cmwlth. 448, 322 A.2d 800 (1974), this Court permitted the condemnee to testify about an offer made six years before the condemnation, because the purpose of the testimony, which did not refer to the offer amount, was to rebut the condemnor’s claim that the property only became attractive to investors because of the new highway. Of course, offers made by a condemnor and rejected by a condemnee prior to a hearing are never admissible because they measure the settlement value of a case, not the fair market value of the condemned property, and to hold otherwise would discourage settlement of litigation. E.g., Redevelopment Auth. of Philadelphia v. Pelullo, 48 Pa.Cmwlth. 68, 409 A.2d 122 (1979). The case law on offers, however, is not dispositive of whether an option agreement will be admissible. Section 705(2)(i) of the Eminent Domain Code provides that the testimony of a qualified valuation may include “[t]he price and other terms of any sale or contract to sell the condemned property_” Act of June 22, 1964, Sp. Sess., P.L. 84, as amended, 26 P.S. § 1-705(2)(i) (emphasis added). In Rossi v. Commonwealth, 39 Pa. D. & C.2d 808 (1966), the Court of Common Pleas of Lu-zerne County, the trial court in this case, considered whether an option agreement was admissible under the Section 705(2)(i). The condemnor had argued that unless an option concludes in a sale of the property, it lacks probative value. The court disagreed, noting that the Eminent Domain Code refers to a “contract to sell” not a “contract of sale.” Even though an option is a unilateral contract, the court found that the law was clear that it was a “contract to sell” property at a fixed price within a certain time. This reasoning was found persuasive by this Court in Bellas. Thus, we disagree with the Authority that the Option Contract was inadmissible as a mere offer; it is a “contract to sell” within the meaning of the Eminent Domain Code. This does not end the inquiry because the Option Contract had to be “in effect a reasonable time before ... the date of condemnation ....” in order to be admissible. Section 705(2)(i) of the Eminent Domain Code, 26 P.S. § 1 705(2)(i). Cases have held that a sale eleven years old may be too remote to consider, but one four years old may be considered if there have been no changes in the real estate market. In applying the reasonable time standard, the court will also consider whether there has been a change in the condemned property during the passage of time. In Brown v. Redevelopment Auth. of Harrisburg, for example, a sale occurring three years and nine months prior to the condemnation was excluded because of the improvements made to the condemned property. In Klick v. Commonwealth, Department of Transportation, 20 Pa.Cmwlth. 627, 342 A.2d 794 (1975), this Court upheld the trial court’s ruling to exclude a five-year-old sale from evidence because of the rapid inflation in real estate prices and the changing character of the neighborhood. This is a close case. A six-year old agreement falls within the time -parameters approved by this Court in Klick, but Landowner’s property is in an area where real estate prices are escalating quickly, which, under the , Klick reasoning, would make it inadmissible. Here, however, the trial court reasoned that the factual differences between the property in 1992 and 1998 were well developed for the jury through direct examination, competent cross-examination by the Authority’s counsel and by the other evidence presented. On this basis, the trial court admitted the Option Contract. Evidentiary rulings will not be set aside unless palpably wrong; we cannot hold as a matter of law that the trial court erred and, thus, uphold the trial court’s decision to admit the Option Contract. The Authority next asserts that the trial court erred in allowing certain comparable sales identified by Landowner’s expert to be considered by the jury. Section 705(2) of the Eminent Domain Code, 26 P.S. § 1-705(2), does not set forth specific criteria for what is “comparable.” It merely restricts the evidence to comparable property sold within a reasonable time before or after the condemnation. Breinig v. Hatfield Township, 23 Pa.Cmwlth. 394, 352 A.2d 230 (1976). Section 705 provides in relevant part: Whether at the hearing before the viewers, or at the trial in court on appeal: (1) A qualified valuation expert may, on direct or cross-examination, state any or all facts and data which he considered in arriving at his opinion, whether or not he has personal knowledge thereof, and his statement of such facts and data and the sources of his information shall be subject to impeachment and rebuttal. (2) A qualified valuation expert may testify on direct or cross-examination in detail as to the valuation of the property on a comparable market value, reproduction cost or capitalization basis, which testimony may include but shall not be limited to the following: (i) The price and other terms of any sale or contract to sell the condemned property or comparable property made within a reasonable time before or after the date of condemnation. 26 P.S. § 1-705 (emphasis added). A trial court has the duty of determining whether a comparable sale is admissible or, as it is often articulated by our courts, “judicially comparable.” Whether particular valuation evidence is probative and relevant, and thereby admissible, is determined on a case-by-case basis. Breinig, 352 A.2d at 230. The Authority argues that the trial court erred in admitting certain property sales because they were for smaller parcels than Landowner’s. The trial court considered the Authority’s objections but found that these differences were explained for the jury by the experts and developed by counsel in cross-examination. We cannot disturb the trial court’s decision with respect to judicially comparable sales unless we find a “gross” abuse of discretion. Commonwealth v. Fox, 16 Pa.Cmwlth. 23, 328 A.2d 872 (1974). Because we can find no abuse of discretion in the trial court’s decision to admit some properties as comparable and exclude others, we decline to reverse. The Authority really challenges how the jury exercised its judgment, not the admissibility of certain comparable sales. Because no two properties are alike, experts in valuation matters testify about the differences between properties using such factors as size, topography, access, time and other conditions in determining fair market value. In re: Condemnation of Legislative Route 52, Commonwealth, Department of Transportation, 93 Pa.Cmwlth. 403, 501 A.2d 1172 (1985). The opinion of the expert is subject to impeachment and rebuttal under Section 705(1) of the Eminent Domain Code. The factors the experts considered and how they arrived at their opinions go to the weight and credibility of their testimony and are for the jury to decide. Appeal of Redevelopment Auth. of the City of Scranton, 156 Pa.Cmwlth. 388, 627 A.2d 292 (1993). We cannot substitute our judgment for that of the jury. The Authority next argues that Landowner’s counsel made statements in closing argument so outrageous and prejudicial that they warrant a new trial. In the first comment objected to by the Authority, Landowner’s counsel claimed that counsel for the Authority had not timely submitted its expert report to Landowner’s counsel in the pre-trial phase of the proceeding. In the second comment, Landowner’s counsel misstated what the Authority’s expert had stated about the condemned property. Remarks by counsel may be grounds for a mistrial, but they must be beyond correction by any admonition which the court may give the jury. 7 STANDARD PENNSYLVANIA PRACTICE 2d § 38:50. In deciding whether the remarks are beyond correction, the trial court will look at the totality of the circumstances and whether the offending statements were cut short by opposing counsel before serious damage was caused. Here, the remarks were cut short by the timely objection of the Authority’s counsel. The trial court found that its immediate, curative instructions to the jury were sufficient to avoid harm and that, in any case, the remarks were not so prejudicial as to warrant the extreme remedy of a new trial. We agree. Finally, the Authority argues that the $220,000 verdict was excessive and against the evidence. The Authority claims that Landowner did not meet his burden of proving such damages, and, thus, the verdict shocks the conscience. It is reversible error to grant a new trial where the jury’s verdict falls within the range of expert testimony on value. Fink v. Commonwealth, 85 Pa.Cmwlth. 290, 482 A.2d 281 (1984). In a condemnation case, it is the province of the jury to weigh the credibility of the conflicting testimony and determine the fair mar ket value of the property at the time of the condemnation. Redevelopment Auth. of the City of Philadelphia v. Nunez, 109 Pa.Cmwlth. 240, 580 A.2d 1041 (1987). In this case, Landowner’s expert testified the damages were $830,000, and the Authority’s expert testified the damages were $50,000. The jury’s award of $220,000 falls within these valuations. Furthermore, where the jury views the premises, as in this case, its award is entitled to special weight upon appellate review. Id. Indeed, where a jury views the site, this Court has held that the jury may base its verdict on its own judgment and disregard the expert testimony entirely. Appeal of Redevelopment Auth. of the City of Scranton, 156 Pa.Cmwlth. 388, 627 A.2d 292 (1993). The jury’s verdict was within the range of each expert’s valuation and was based on a view of the property. We cannot say the verdict of the jury is so contrary to the weight of the evidence as to shock one’s sense of justice. Borough of Tamaqua v. Knepper, 54 Pa.Cmwlth. 630, 422 A.2d 1199 (1980). Because we find that the trial court did not err in the exercise of its discretion to deny the Authority’s Motion for Post Trial Relief, we affirm. ORDER AND NOW, this 31st day of May, 2002, the Order of June 7, 2001 of the Court of Common Pleas of Luzerne County in the above-captioned matter is hereby affirmed. . Landowner sold approximately 7 acres between 1992 and 1998. . A general benefit may not be used to value damages, but a special benefit that improves only the property of the condemnee may be used. Commonwealth, Department of Transportation v. Lutz, 14 Pa.Cmwlth. 448, 322 A.2d 800 (1974). . This is because the rental payments were a factor in establishing the option price, and it could be misleading to allow the jury to consider the option. Thus, Bellas upheld the trial court’s decision not to admit the option agreement. This holding is distinguishable. First, the Option Contract here was not part of a lease; the lease option was an alternative to the purchase option. There is no evidence that the lease alternative determined the stated purchase price. Second, it was the condemnee in Bellas that objected to the evidence because it was offered to prove a lower value to the property. Here, the con-demnee offered the Option Contract into evidence. Ordinarily, a condemnee would not offer into evidence an agreement that states a purchase price of less than 50% of the value claimed by the condemnee, which is our case here. The Option Contract, covering 30 acres, stated a purchase price of $1,500,000 in 1992; the Landowner’s expert assigned a market value of $3,138,000 for 23.72 acres in 1998. However, the Authority’s expert assigned a 1998 market value of $900,000 for Landowner’s 23.72 acre parcel, substantially below the 1992 option price. .The Authority conflates “offer” and "option agreement.” On occasion, courts do as well. In Bellas, for example, this court referred to the option agreement as an "offer.” Clearly, at issue in Bellas was an executed option agreement, which agreement was specifically found to be a sales agreement, not an offer as that term was used in Saunders. . Redevelopment Auth. of the City of Chester v. Bosacco, 46 Pa.Cmwlth. 242, 406 A.2d 1163 (1979). . Whittaker v. Commonwealth, Department of Transportation, 45 Pa.Cmwlth. 260, 406 A.2d 819 (1979). . The Klick Court noted that as a general principle, a sale between three to seven years before the condemnation will be found to have occurred within a "reasonable” time. . The record shows that the trial court admit ted some property sales offered into evidence by Landowner over the Authority's objections but denied others, such as Sale Property No. 1. The evidentiary rulings were not one-sided. . The case law provides numerous examples of counsel remarks that do not justify a mistrial. E.g., Rutalonis v. Rospieski, 289 Pa. 456, 137 A. 606 (1927) (remark by counsel slurring witnesses); Arnold v. McKelvey, 253 Pa. 324, 98 A. 559 (1916) (a remark by counsel commenting on failure of adverse party to call a material witness in the employ of that party); Rondlnelli v. City of Pittsburgh, 407 Pa. 89, 180 A.2d 74 (1962) (remark by plaintiff’s counsel that a small verdict would not be fair or reasonable).

OPINION BY Judge McGINLEY. Bell Atlantic Mobile Systems, Inc. (Bell) and AWACS, Inc. (AWACS) (collectively, Taxpayer) petition for review from an order of the Pennsylvania Board of Finance and Revenue (Board) that reassessed the sales and use tax and interest against Bell and sustained the decision of the Board of Appeals' assessment against AWACS. Taxpayer and the Commonwealth of Pennsylvania (Commonwealth) stipulated to the following: 2. Taxpayer is a for-profit corporation engaged in the business of producing and selling mobile domestic cellular radio telecommunications service, sometimes referred to as cellular radiotelephone service. Such service is referred to herein as “Cellular Telecommunications Service” or “CTS.” 3. CTS is a form of commercial mobile radio service. Taxpayer sells CTS to individual, commercial, industrial and institutional customers in Pennsylvania and elsewhere. Taxpayer also sells Cellular Telecommunications Service to other cellular system providers for their customers who engage in cellular communications while in Taxpayer’s operational area. (A customer of CTS provider A, who is using cellular service in provider B’s service area, is referred to as “roaming”). Taxpayer also provides services to a minor extent at wholesale to resellers for resale to retail customers. In describing Taxpayer’s activity as “producing”, or the “production” of, CTS or a part thereof, the parties make no stipulation whether the activity constitutes manufacturing, processing, or producing public utility service for Sales and Use Tax purposes, (emphasis added). 4. The Federal Communications Commission (‘FCC’) has granted Taxpayer licenses to provide Cellular Telecommunications Service over assigned frequencies, within each of Taxpayer’s designated cellular service areas. The terms of the license require Taxpayer to construct and operate facilities and provide service throughout the designated service area within certain time deadlines. 10. In order to produce Cellular Telecommunications Service, Taxpayer purchases various items, including but not limited to the following, which are used in providing Cellular Telecommunications Service: electricity for nonresidential use (sometimes referred to as “commercial electricity”) radio transmitting and receiving equipment radio signal antennas electronic signal filtering and processing equipment electronic signal amplifiers signal switching equipment intrastate and interstate telephone service for nonresidential use telecommunications services provided by entities other than Taxpayer Each of these items constitutes tangible personal property for Sales and Use Tax purposes, (emphasis added). 37. Since about 1970, the Department of Revenue and the Board of Finance and Revenue have maintained and implemented a policy to treat producers of electricity as manufacturers for Sales and Use Tax purposes and have determined that the machinery, equipment and supplies used by a producer of electricity qualify for the manufacturing exclusion for Sales and use tax purposes .... 48. The Commonwealth extends to a taxpayer the public utility exclusion for Sales and Use Tax purposes where the taxpayer provides services to the general public, without discrimination, which are subject to regulation by a governmental authority, such as the Pennsylvania Public Utility Commission or comparable federal agency, even though the agency’s regulation does not extend to rates .... (emphasis added). Joint Partial Stipulation of Facts, September 10, 2001, Paragraphs 2-4, 10, 37, and 48 at 2, 4, 25, and 28. Bell was audited for the period from January 1, 1989, to April 30, 1991, (state) and October 1, 1991, to April 30, 1993, (local) and “[a]s a result of an audit, the Department of Revenue issued Assessment No. A-76980 ... for state sales tax of $773.51, use tax of $203,975.09, interest of $74,696.63, and penalties of $10,237.42 for a total state assessment in the amount of $289,682.65; and the Department issued Assessment No. A-76985 ... for local use tax of $11,627.88, interest of $3,757.42 and penalties of $636.25 for a total local assessment of $16,021.55.” Partial Stipulation of Facts between Bell and the Commonwealth, Paragraph 3 at 1. Bell’s assessed items included amplifiers, antennas, switching and testing equipment. Bell appealed the state and local assessments to the Board and contended that it was a manufacturer or alternatively, a processor, and was exempt from the sales and use tax. Bell sought relief of $177,604.04 from the sales and use tax and $10,937.97 from the local use tax. The Board abated the penalties imposed but sustained the tax and interest assessment. AWACS sought a refund of the sales tax in the amount of $3,002,816.79 and, like Bell, contended that its services qualified for the manufacturing and/or processing exclusion. The Board sustained the decision of the Board of Appeals. On appeal Taxpayer contends that it manufactures CTS and is entitled to the “manufacturing” exclusion from the sales and use tax under Section 201 of the Tax Reform Code of 1971 (Tax Code) , 72 P.S. § 7201 and that Taxpayer is also entitled to an exclusion because it is a public utility. Is Taxpayer a Manufacturer? Section 202 (imposition of tax) of the Tax Code, 72 P.S. § 7202 provides: (a) There is hereby imposed upon each separate sale at retail of tangible personal property or services, defined herein, within this Commonwealth a tax of six per cent of the purchase price, which tax shall be collected by the vendor from the purchaser, and shall be paid over to the Commonwealth as herein provided, (emphasis added). Section 201(m) of the Tax Code, 72 P.S. § 7201(m) defines the term “tangible personal property” as “[cjorporeal personal property including but not limited to ... interstate telecommunication service originating or terminating in the Commonwealth and charged to a service address in this Commonwealth, intrastate telecommunications services originating and terminating in the Commonwealth ....’’ Section 201(c) of the Tax Code, 72 P.S. § 7201(c) defines the term “manufacture” as: The performance of manufacturing, fabricating, compounding, processing or other operations, engaged in as a business, which place any tangible personal property in a form, composition or character different from that in which it is acquired whether for sale or use by the manufacturer _ (emphasis added). Therefore, in order to qualify for an exclusion from the sales and use tax, the manufacturer must change the tangible personal property from its original composition into a different form or product. Taxpayer asserts that the manufacture of CTS involves the application of labor and skill in order to transform the tangible personal property of electricity and various signals into different signals. The question whether a Taxpayer who provides these types of services is a manufacturer entitled to the exclusion under Section 201(c) of the Tax Code has not been addressed by our Pennsylvania courts. However, our prior decisions contain a rationale which is relevant and controlling. In Suburban Cable TV Co., Inc. v. Commonwealth, 131 Pa.Cmwlth. 368, 570 A.2d 601 (1990), (Suburban Cable I), affirmed, 527 Pa. 364, 591 A.2d 1054 (1991), Warner Cable Corporation of Pittsburgh and Warner Amex Cable Communications, Inc. (Warner) sought an exclusion from the sales and use tax in addition to the capital stock tax. Warner contended that “the transformation of an electronic signal through the use of equipment and personnel, from a form that may not be viewed on a television set to one that may be viewed on a television set constitute^] manufacturing under the ... sales and use tax laws .... ” Id. at 603. This Court rejected Warner’s argument: At this stage of jurisprudence in Pennsylvania, this court perceives the concepts of the legislature and the Supreme Court as bestowing the manufacturing exemption only upon dealings with such tangible matter, not dealings with electrical or electronic impulses. The courts have held that the production of electricity is not entitled to the manufacturing exemption.... This court recognized the reality of the tangible-versus-material distinction by stating: The traditional legal concept assumes tangible ‘material’ as a starting point, and a continuity of existence of the material into the final product. Finally, controlling upon the manufacturing issue is Golden Triangle Broadcasting, Inc. v. City of Pittsburgh, 31 Pa.Cmwlth. 547, 377 A.2d 839 (1977), aff'd. 483 Pa. 525, 397 A.2d 1147 (1979), where this Court and the Supreme Court held that the broadcasting of radio and television signals by KDKA in Pittsburgh did not constitute manufacturing. This court concluded that electrical signals and microwaves did not constitute a product but rather only the means by which such broadcasting occurs, ‘more analogous to the provision of a service than the manufacture of a product.’ 31 Pa.Cmwlth. at 560-62, 377 A.2d at 846-47. We also concluded that broadcasting essentially is the transmission of information rather than the manufacture of information. When the Supreme Court affirmed, the majority and dissenting opinions of that court indicate that the majority declined to accept the view of the dissenting justice, Mr. Justice Larsen, who would extend the manufacturing concept to a more technologically advanced concept, recognizing that dealing with electronic elements could constitute manufacturing. Id. at 607-08. In Suburban Cable TV Co., Inc. v. City of Chester, 685 A.2d 616, 618 (Pa.Cmwlth.1996), (Suburban Cable II), this Court reaffirmed our decision in Suburban Cable I and added: [W]e noted that the legislature and the Pennsylvania Supreme Court ‘have confined the subject matter dealt with by manufacturing to tangible matter ... We further noted that cable transmissions (i.e., electrical signals) do not constitute a product; rather they constitute a service .... Our legal conclusion in Suburban Cable, that cable televisions are not entitled to a manufacturing exemption, is binding in this case and determinative on this issue. Aside from, the issue of a tangible versus intangible product, the cable television system does not qualify for the manufacturing exemption because Suburban Cable does not transform any material or thing into something different from that received. The Suburban Cable system primarily consists of video switching equipment, computers, modulators and demodulators, receivers and transmitters, scramblers and de-scramblers, signal converters, monitor and testing equipment, an antenna, and satellite dishes .... Signals originating from several sources are received in signal processing facilities, where they are converted and otherwise processed for cable transmission ... and assigned to cable channels. Suburban does not give the incoming signals a new identity; rather, it processes the signals and retransmits them in a single package or format. The processing and retransmission do not constitute a substantial transformation in form, qualities, and adaptability in use. Suburban Cable provides a service whereby it delivers to customers the products (i.e., the channels) produced by the individual networks, broadcasters, and others, (citations and footnote omitted, emphasis added). Here, Taxpayer’s service involves a subscriber’s mobile unit which converts the sound waves of the human voice into a signal. Taxpayer’s equipment captures the signal, amplifies it and then transmits it. The recipient’s mobile unit receives and restructures the signal and produces sound waves that are similar to the subscriber’s/caller’s input. Taxpayer’s service commences with radio waves, the caller’s message, and terminates with radio waves, a replica of the caller’s message. Taxpayer transports an electronic signal, that may be converted to a light or laser signal, which may in turn be changed in frequency and voltage. However, the content, i.e., the encoded communication, remains the same. Although the signals may change in some respects the informational content of the signal remains the same. Like the electrical or electronic impulses in Suburban Cable I and the cable transmission in Suburban Cable II, the conversion of the sound waves of the human voice into a signal and its transmittal does not qualify for the manufacturing exclusion. Is Taxpayer a Manufacturer Because Telecommunications Services are Tangible Personal Property? Taxpayer also asserts that Section 201(m) of the Tax Code, 72 P.S. § 7201(m) was amended to include in the definition section of “tangible- personal property”, “telecommunication services.” Taxpayer maintains that because CTS is now considered “tangible personal property” it. is entitled to the manufacturing exclusion. This Court is constrained to disagree. First, the inclusion of “telecommunication service” in the definition of “tangible personal property” did nothing more than establish that CTS is subject to the sales and use tax. Second, to interpret Section 201(m) of the Tax Code to extend the manufacturing exclusion to a “telecommunication service” solely because “telecommunication service” is defined as “tangible personal property” would require ’ the Court to ignore the statutory definition of manufacturing and create an absurd result. Third, as noted, Taxpayer was required, and failed, to satisfy the definitional requirements of “manufacturing” in order to qualify for the exclusion. Is Taxpayer a Public Utility? Taxpayer contends that it is entitled to an exclusion from the sales and use tax because (1) Taxpayer performs services for the general public without discrimination (2) Taxpayer is licensed by the Federal Communications Commission (FCC) as a common carrier and (3) Taxpayer’s service is highly regulated. Taxpayer also contends that the application of the public utility exclusion to cellular carriers would prevent tax pyramiding. Pursuant to Section 201(k)(8)(C) of the Tax Code, 72 P.S. § 7201(k)(8)(C), a taxpayer is entitled to a tax exclusion for “[t]he producing, delivering or rendering of a public utility service, or in constructing, reconstructing, remodeling, repairing or maintaining the facilities which are di rectly used in the producing, delivering or rendering such service.” The Tax Code does not define the term “public utility.” However, this Court again finds guidance from our prior case law and the “Public Utility Code” (Public Utility Code), 66 Pa. C.S. §§ 101-1328. In Vincent Construction, Inc. v. Commonwealth, 668 A.2d 289, 291 (Pa.Cmwlth.1995) this Court determined: The [Tax] Code excludes from the use tax property which is directly used in rendering a public utility service. 72. P.S. § 7201(o). The [Tax] Code does not define ‘public utility service,’ but this Court has held the public utility exemption is only available to: (1) a public utility as defined under the Public Utility Code; (2) a contractor who purchases the materials for the use of a, public utility in the service of providing the public utility service; and (3) an entity long established by the courts to be a public utility .... (emphasis added). ... For a facility to be considered a public utility, the services of the facility cannot be limited to a special class of persons, but must be able to be used by the indefinite public .... Whether a facility is private or public in nature does not depend upon the number of people who use the service but whether or not the service is available for the use of all members of the public who may request it. (footnote and citations omitted). Section 102(l)(vi) of the Public Utility Code, 66 Pa.C.S. § 102(l)(vi) defines the term “public utility” to include “[a]ny person or corporation now or hereafter owning or operating in this Commonwealth equipment or facilities for ... [cjonveying or transmitting messages or communications, except as set forth in paragraph (2)(iv) by telephone or telegraph or domestic public land mobile radio service including, but not limited to, point-to-point microwave radio service for the public for compensation.” Section 101(2)(iv) of the Public Utility Code provides that “[t]he term does not include ... [a]ny person or corporation, not otherwise a public utility who or which furnishes mobile domestic cellular radio telecommunication service.” (emphasis added). Here, the General Assembly has determined that Taxpayer is not a public utility as defined by the Public Utility Code. And pursuant to Vincent Construction, Taxpayer is not a contractor that either provided material to a public utility or has previously been recognized by our appellate courts as a public utility. Further, Section 102 of the Public Utility Code specifically excludes a CTS as a public utility. To extend the sales and use tax exclusion to Taxpayer simply because it is subject to the FCC regulation would require this Court to ignore Pennsylvania statutory authority and case law and allow any public service organization regulated by any government agency to qualify as a public utility in Pennsylvania. This Court is convinced the General Assembly was not so inclined. Accordingly, we affirm. ORDER AND NOW, this 28th day of May, 2002, the order of the Pennsylvania Board and Finance and Revenue in the above-captioned matter is affirmed. The Chief Clerk shall enter judgment in this matter unless exceptions are filed within thirty days of this order pursuant to Pa.R.A.E 1571(i). . On September 21, 2001, this Court granted Bell’s and AWACS’ petition for application for consolidated argument. . Although this Court hears appeals from an order of the Board of Finance and Revenue in our appellate jurisdiction, this Court functions essentially as a trial court. Norris v. Commonwealth, 155 Pa.Cmwlth. 423, 625 A.2d 179 (1993); Pa. R.A.P. 1571 (Determinations of the Board of Finance and Revenue). "The stipulation of facts is binding and conclusive upon this Court, but we may draw our own legal conclusions from those facts.” Id. at 182, citing Suburban/Bnstleton Pharmacy v. Department of Aging, 134 Pa.Cmwlth. 71, 579 A.2d 426 (1990). . Act of March 4, 1971, P.L. 6, as amended. . Section 201(rr) of the Tax Code, 72 P.S. § 7201(rr) defines the term "telecommunications services” as; Any one-way transmission or any two-way, interactive transmission of sounds, signals or other intelligence converted to like form which effects or is intended to effect meaningful communications by electronic or electromagnetic means via wire, cable, satellite, light waves, microwaves, radio waves or other transmission media. The term includes all types of telecommunication transmissions, such as local, toll, wide-area or any other type of telephone service; private line service; telegraph service; radio repeater service; wireless communication services; personal communications system service; cellular telecommunication service; specialized mobile radio service; stationary two-way radio service; and paging service.... . In Lancaster Laboratories, Inc. v. Commonwealth, 148 Pa.Cmwlth. 465, 611 A.2d 815, 817 (1992), affirmed, 534 Pa. 392, 633 A.2d 588 (1993) this Court stated: [Ajlthough the regulatory requirement of a 'different product' is not expressly stated in the statute, manufacturing under § 201(c)(1) must include transformed property for sale or use by the manufacturer that is passed ultimately to the consumer or another manufacturer which is necessarily a different product with a distinctive name, character and use. . Specifically, Taxpayer describes the manufacturing process as follows: 20.14 ... Taxpayer’s cell site equipment transforms commercial electricity and the signal from the cell site antenna into the higher, intermediate frequency electronic signal which is encoded with the intellectual content (voice-derived or data) to be conveyed. Then, if the transmission to the MSC [mobile switching center] is by wire, Taxpayer's cell site equipment transforms additional commercial electricity and the intermediate electronic signal into a new electronic signal similarly encoded for transmission over the T line to the MSC. Where transmission to the MSC is by optical cable, Taxpayer’s cell site laser equipment transforms additional commercial electricity and the intermediate signal into a light wave signal (i.e., a stream of photons) for transmission over the optic cable to the MSC. The cell site laser equipment transforms additional commercial electricity and the intermediate electronic signal by causing them to stimulate laser-generating material to emit radiation in the form of a lightwave signal similarly encoded. Where transmission to the MSC is by microwave, Taxpayer's cell site equipment transforms additional commercial electricity and the intermediate frequency signal to produce the higher-frequency microwave signal similarly encoded, which is then transmitted to the MSC. A microwave signal is a form of high frequency electromagnetic radiation. In each of these cases, the energy in the commercial electricity and in the intermediate electronic signal become the energy in the electronic, lightwave or microwave signal that is transmitted to the MSC. Joint Partial Stipulation, Paragraph 20.14 at 13. . Suburban Cable TV Co., Inc. (Suburban) sought an exclusion from the capital stock tax only. See Section 602 (imposition of tax-capital stock), 72 P.S. § 7602. . Although this Court referred to exemption in relation to manufacturing, Section 204 of the Tax Code, 72 P.S. § 7204 refer to "exclusion from tax.” . In Suburban Cable II, Suburban Cable contended that the City of Chester could not impose a business privilege tax assessment against it “because Section 2(4) of the LTEA [The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended'], 53 P.S. § 6902(4), prohibited local governments from taxing any privilege, act, or transaction related to the business of manufacturing or transportation of manufactured goods ...." Id. at 617. Although Suburban Cable II involved the manufacturing exemption under the LTEA, this Court also rejected the manufacturing argument. . In Commonwealth v. Lafferty, 426 Pa. 541, 548, 233 A.2d 256, 260 (1967), our Pennsylvania Supreme Court noted that "tax pyramiding” was "a tax on tax situation.” . Taxpayer hopes to persuade this Court to ignore the Public Utility Code’s definition of a “public utility” and directs the Court’s attention to the Department’s regulations. The term "public utility” is defined as “[a] person engaged in the performance of public utility service, as that term is defined in this section” and the term “public utility service” as ”[t]he performance of services for compensation for the general public, without discrimination, which is subject to regulation by a governmental agency rather than determined by contract with the person for whom the services are performed; provided that the services so performed shall be affected with a public interest.” 61 Pa.Code § 32.1. "Where there is a conflict between the statute and a regulation purporting to implement the provisions of that statute, the regulation must give way.” Department of Transportation, Bureau of Motor Vehicles v. Colonial Nissan, Inc., 691 A.2d 1005, 1009 (Pa.Cmwlth.1997), citing Heaton v. Commonwealth Department of Public Welfare, 96 Pa.Cmwlth. 195, 506 A.2d 1350 (1986). . Notably missing from Taxpayer’s argument is that the General Assembly specifically excluded Taxpayer as a public utility. As our Pennsylvania Supreme Court noted in Laffer ty, "the statutory exclusion ... was meant by the Legislature to apply only to Public Utility Code 'public utilities’ ” and that "the Legislature felt that the effects of such ‘pyramiding’ ... were not of such gravity to warrant the exclusion” to entities not qualifying as a public utility. Id. at 548, 233 A.2d at 259. . Taxpayer has also attempted to raise in the Argument section of its brief whether the denial of the requested exclusion violated the Uniformity Clause of the Pennsylvania Constitution because it treated CTS providers differently from electrical and conventional telephone (landline) service providers that are legislatively recognized as public utilities. Essentially, Taxpayer argues that it provides similar services to these recognized public utilities. Issues argued but not raised in the Statement of Questions Involved (Pa. R.A.P. 2116) are waived. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa.Cmwlth.1995). Assuming arguendo that this issue was preserved, this Court finds no merit to Taxpayer’s argument. Our Pennsylvania Supreme Court stated that "a classification for tax purposes is valid when it 'is based upon some legitimate distinction between the classes that provide a non-arbitrary and "reasonable and just” basis for the different treatment.' ” Leventhal v. City of Philadelphia, 518 Pa. 233, 239, 542 A.2d 1328, 1331 (1988), quoting Leonard v. Thornburgh, 507 Pa. 317, 321, 489 A.2d 1349, 1350 (1985) and Aldine Apartments v. Commonwealth, 493 Pa. 480, 426 A.2d 1118, 1121-22 (1981). In Lafferty, Lafferty Trucking Company, a contract carrier, raised a similar argument before our Pennsylvania Supreme Court that because it "performs services which can be equated with those of a genuine public utility, i.e., a common carrier, it ... is encompassed within the ambit of the exclusionary clause.” Id. at 545-56, 233 A.2d at 258. Our Pennsylvania Supreme Court rejected this argument and emphatically stated an entity must be a public utility to qualify for "the sales and use tax public utility service exclusion.” Id. at 547, 233 A.2d at 259. Like, the factual situation in Lafferty, a landline telephone service provider is a public utility and a telecommunication service provider is not. In effect, Taxpayer requests this Court to overrule Laf-ferty. This we cannot do. "The Supreme Court (a) shall be the highest Court of the Commonwealth and in this court shall be reposed the supreme judicial power of the Commonwealth .... ” Article 5, Section 2 of the Pennsylvania Constitution. In any event, there is a significant difference between electrical service providers and telecommunications service providers. The electrical service providers use fuel, water, steam or wind to operate turbine blades in electric generators. The turbine blades and the generator’s magnet rotate which causes current to flow within the wire coils. The wire coils located within the generating facility are connected by wire to consumer locations. To the contrary, the telecommunication service provider captures signals, amplifies the signals and combines them with other signals for transmission by wire, fiber optics or microwave. (This is a distillation of a very complex and technical procedure that is detailed at great length in the Partial Joint Stipulations of Fact at pages 10-17 and 25-27). The decision by the General Assembly not to classify a CTS as a public utility was based upon a legitimate distinction.

JOHNSON, J. ¶ 1 Where a defendant is convicted of delivery of a controlled substance and the Commonwealth seeks to apply the mandatory sentencing provisions of the drug-free school zone statute, do constitutional guarantees of due process, notice and jury trial require that only a jury may find beyond a reasonable doubt that delivery occurred within 1,000 feet of school property? We conclude that the fact of delivery within a school zone is not an element of the underlying offense of delivery of a controlled substance. We determine that due process does not require that the aggravating factor be submitted for finding by a jury. Accordingly, we affirm the judgment of sentence that resulted from the imposition of a mandatory minimum sentence based upon findings made by the trial judge. ¶ 2 On April 24, 2001, a jury convicted Zelda Jean Graham of possession of a controlled substance, possession with intent to deliver a controlled substance, and criminal conspiracy to deliver a controlled substance. See 35 P.S. §§ 780-113(a)(16), (30), and 18 Pa.C.S. § 903 (respectively). On July 5, 2001, the Honorable Norman D. Callan sentencéd Graham to serve a term of two to four years’ imprisonment. Graham now appeals from the judgment of sentence, and we affirm. ¶ 3 The facts leading to Graham’s conviction are not here in dispute, nor are they relevant to the sole issue raised on this appeal. Graham asks us to consider the following question: I. WHETHER 18 Pa.C.S. § 6317 IS UNCONSTITUTIONAL UNDER THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS IN THAT IT VIOLATES A DEFENDANT’S RIGHT TO HAVE A JURY FIND THAT A DRUG SALE WAS MADE WITHIN 1000 FEET OF A SCHOOL ON THE BASIS OF PROOF BEYOND A REASONABLE DOUBT? Brief for Appellant at 2. ¶ 4 Graham contends that the mandatory sentencing scheme created under 18 Pa.C.S. Section 6317 violates the due process clause of the Fifth Amendment to the United States Constitution, the notice and jury trial guarantees of the Sixth Amendment, and Article 1, Sections 1, 6, and 9 of the Pennsylvania Constitution. Brief for Appellant at 5. She bases this conclusion on her assertion that the essential element of the aggravating circumstance, i.e., delivery within 1,000 feet of school property, constitutes an element of the aggravated offense and therefore must be charged in the information and submitted to a jury and proved beyond a reasonable doubt. We reject this premise. Section 6317(b) expressly provides: § 6317. Drug-free school zones * * * * (b) Proof at sentencing. — The provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.... 18 Pa.C.S. § 6317(b). ¶ 5 Preliminarily, Graham claims that the criminal information was defective. Brief for Appellant at 7-9. Graham relies on Commonwealth v. Walters, 250 Pa.Super. 392, 378 A.2d 993 (1977). That case is inapposite. In Walters, this Court considered whether an indictment charging the offense of receiving stolen property (RSP) was defective because it did not include language referring to the element of knowledge that the property was stolen. See Walters, 378 A.2d at 994. The statute that sets forth the elements of RSP, 18 Pa.C.S. § 3925, provides that a person is guilty of the crime if that person receives property of another “knowing that it has been stolen.” Thus, knowledge is an essential element of the crime of receiving stolen property. See id.; see also Commonwealth v. Robbins, 436 Pa.Super. 177, 647 A.2d 555, 557 (1994) (holding Commonwealth must establish beyond a reasonable doubt that defendant knew or should have known property was stolen to obtain RSP conviction). The Walters court reversed the RSP conviction solely because the indictment failed to meet the provisions of former Pa.R.Crim.P. 213(a) (rescinded 8/12/93, effective 9/1/93) requiring the indictment to contain a “plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint.” That is not the case before us. ¶ 6 Here, a sale within 1,000 feet of a school is not an essential element for conviction of possession with intent to deliver a controlled substance. See 35 P.S. § 780-113(a)(30), (f). We conclude that the criminal information before us on this appeal was not defective because the fact that the sale occurred within 1000 feet of a school is not an essential element of the offense of possession with intent to deliver, the crime that was accurately alleged in the criminal complaint. See Pa.R.Crim.P. 560(B)(5) (substantially re-stating former Rule 213(a)). ¶ 7 Secondly, Graham asks this Court to apply the case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and conclude that Section 6317 cannot be applied constitutionally unless its elements are established at trial, to the trial fact-finder, based upon proof beyond a reasonable doubt. Brief for Appellant at 12. We decline the invitation. While Graham includes much of the reasoning of the dissenting Justices in her brief, she also correctly sets forth the narrow holding of the majority in that case: In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)]. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455 (emphasis added). In Apprendi, the United States Supreme Court reviewed a New Jersey statute that provided for an enhanced prison sentence of 10 to 20 years if a trial judge found, by a preponderance of the evidence, that a defendant committed a crime with a purpose to intimidate a person on the basis of specified characteristics including race. See id. at 469-70, 120 S.Ct. at 2352, 147 L.Ed.2d at 442. The fact of ethnic intimidation had not been referred to in the indictment. See id. The underlying offense for which Apprendi had been convicted, possession of a firearm for an unlawful purpose, is punishable by imprisonment for “between five years and 10 years.” Id. The “hate crime” statute permitted the maximum sentence to be increased from ten years to twenty years. The Supreme Court held that commission of a crime with a purpose of intimidation permitted an enhanced sentence to increase from a maximum of ten years’ to a new maximum of twenty years’ imprisonment and, therefore, had to be submitted to a jury and proven beyond a reasonable doubt. See id. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455. That is not the case on this appeal. ¶ 8 In this case, the court did not impose a sentence in excess of the statutory maximum. A jury convicted Graham of possession with intent to deliver a controlled substance. The maximum sentence authorized for violation of 18 P.S. § 780-113(a)(30) is fifteen years. See 35 P.S. §§ Y80 — 113(f)(1). The mandatory sentencing provision of Section 6317 merely requires a minimum sentence of at least two years, well within the fifteen-year maximum. See 18 Pa.C.S. § 6317(a). Judge Callan sentenced Graham to a term of twenty-four months’ to a maximum of forty-eight months’ imprisonment. As the two-to-four year sentence is not even half of the statutory maximum, this case could not implicate the holding laid down in Ap-prendi. ¶ 9 This case is controlled by our state Supreme Court’s decision in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) affirmed sub. nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In that case, our state law mandated a minimum five-year sentence if the trial court found, by a preponderance of the evidence, that the accused visibly possessed a firearm while committing a specified felony. See 42 Pa. C.S. § 9712. See Wright, 494 A.2d at 356. Five consolidated appeals were brought to our state Supreme Court to determine whether the fact of physical possession must be treated as an element of the underlying offense, thereby requiring that that fact be proved beyond a reasonable doubt. See id. at 357. Our Supreme Court also was asked to determine whether proof by a preponderance of the evidence satisfied the due process requirements. See id. Our Supreme Court held, without dissent, that the fact of visible possession of a firearm during commission of one of the specified crimes is not an element of the underlying crime, nor does it constitute a separate offense calling for a separate penalty. See id. at 363. The Court went on to hold that proof by a preponderance of the evidence satisfies due process and is an appropriate standard in establishing the fact required to be established through the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712. See id. ¶ 10 The defendants in four of the five consolidated cases appealed to the United States Supreme Court, and that Court affirmed. See generally McMillan v. Pennsylvania, 477 U.S. at 79, 106 S.Ct. 2411, 91 L.Ed.2d 67. The United States Supreme Court held that the Mandatory Minimum Sentencing Act did not violate the due process clause of the Fourteenth Amendment and due process did not require Pennsylvania to prove visible possession of a firearm beyond a reasonable doubt. See 477 U.S. at 85-86, 91-92, 106 S.Ct. at 2419, 91 L.Ed.2d at 76, 80. We find no meaningful distinction between the issues resolved in Wright and McMillan, and the issues Graham presents on this appeal. We conclude that the finding by a trial judge that a sale of a controlled substance took place within- 1000 feet of a school does not differ in any legally significant way from the finding by a trial judge, urider the Mandatory Minimum Sentencing Act, that a defendant visibly possessed a firearm during the commission of a specified offense. In either case, the fact found is not an element of the underlying offense. In neither case does due process require that the aggravating fact be submitted for finding by a jury. We discern no constitutional violation. Accordingly, we affirm the judgment of sentence from which Graham has brought this appeal. ¶ 11 Judgment of sentence AFFIRMED.

MILLER, P.J., ISSUE Is a dependent spouse entitled to alimony pendente lite in a divorce action that becomes stagnant, because of her desire to keep the marriage together and resultant unwillingness to allow the case to proceed and because the plaintiff does nothing further to advance the case, waiting for two years to pass since the date of final separation? BACKGROUND The plaintiff (husband) filed this divorce complaint on June 16, 1992. We granted the defendant (wife) alimony pendente lite in the amount of $200 per month for three months (October, November and December 1992). In addition she was receiving $970 per month spousal support pursuant to an order entered in the Domestic Relations Division. Furthermore, plaintiff makes some payment on automobile insurance covering the motor vehicle which the defendant drives. The defendant seeks additional alimony pendente lite. She seeks a reconciliation, does not want the divorce to proceed and, as a result, the plaintiff may well do nothing further in this case awaiting the passage of two years (23 Pa.C.S. §3301(d)). DISCUSSION The latest amendments to the Rules of Civil Procedure setting forth support guidelines contain an interesting note following Pa.R.C.P. 1910.16-l(a). That note provides that: “Orders for spousal support and alimony pendente lite shall not be in effect simultaneously.” A note following a rule does not change case law but does explain the rule that precedes it. The rule provides that child support, spousal support or alimony pendente lite shall be awarded pursuant to these rules. We view the note as an explanation for the use of the word “or” in this instance. Rather than to solely rely upon this analysis we look further to the purpose of alimony pendente lite. “In proper cases ... the court may allow a spouse reasonable alimony pendente lite.” 23 Pa.C.S. §3702. This lies solely within this court’s discretion. Kayian v. Kayian, 223 Pa. Super. 103, 297 A.2d 136 (1972). The purpose of temporary alimony is to provide a financially dependent spouse with income during the pendency of the divorce action so that the dependent spouse is not put at a financial disadvantage by reason of having to defend the action. The defendant should not be surrendering to the plaintiff’s control her right to defend herself or to secure redress. Wiegand v. Wiegand, 242 Pa. Super. 170, 363 A.2d 1215 (1976). It places the parties on an equal footing in defending or pursuing their rights. Wechsler v. Wechsler, 242 Pa. Super. 356, 363 A.2d 1307 (1976). Heretofore, a party could maintain both an action for support and temporary alimony. Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983); Prozzoly v. Prozzoly, 329 Pa. Super. 326, 475 A.2d 820 (1984). They were not identical. They address different interests. Spousal support is derived from the marital obligation and is designed to insure that the receiving party has a reasonable living allowance. Alimony pendente lite is designed to enable a dependent spouse to maintain or defend the litigation until all economic issues are resolved. Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983); Horn v. Horn, 388 Pa. Super. 486, 564 A.2d 995 (1989); McNulty v. McNulty, 347 Pa. 363, 500 A.2d 876 (1985). How long should a party receive temporary alimony? Since it is paid during the pendency of the case can it be ordered for the entire period of time the case remains unresolved and until a final decree is entered? Since temporary alimony may be so critical to a party it must be paid currently. It cannot be delayed until after the final decree is entered. Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984). We also know that temporary alimony can extend until an appeal is finally decided. Jack v. Jack, 253 Pa. Super. 538, 385 A.2d 469 (1978). There are limitations on the duration of a temporary alimony order. It is intended to cover only the period which the divorce proceedings may, with due diligence, be prosecuted to a conclusion. While the dependent spouse should not be forced to do something she does not want to do, solely because of economics, it is equally true that the defendant should not use the receipt of temporary alimony to cause her to delay the divorce proceedings. Orr v. Orr, 315 Pa. Super. 168, 461 A.2d 850 (1983); Belsky v. Belsky, 196 Pa. Super. 374, 175 A.2d 348 (1961). The defendant should not be permitted to unreasonably prolong this action in order to continue to receive temporary alimony. Wargo v. Wargo, 190 Pa. Super. 356, 154 A.2d 339 (1959). All of this makes sense and requires the court to balance the rights and interests of the parties. The defendant should not suffer because she is dependent and she should be permitted to properly defend this action. She is not obligated to agree to a divorce under any circumstances. On the other hand, the purpose of alimony pendente lite is to permit her to defend the action. Where the action remains stagnant she does not have any economic outlay that is connected to the divorce action. Furthermore she cannot delay the proceedings to receive alimony pendente lite indefinitely. Where, as here, the divorce action may be totally stagnant, possibly due to the defendant’s unwillingness to consent to a divorce (which she has every right to do), she does not have any expenses or burdens in connection with the litigation. We don’t think alimony pendente lite should last very long. Entitlement to alimony pendente lite needs more than an action pending; it, by definition, requires that the action be proceeding with some degree of speed. It is true that, in some cases, the mere pendency of an action does deprive a spouse of the right to use marital assets that may be tied up, unusable, or incapable of being sold, while the action is pending. Alimony pendente lite in cases like that might be properly awarded even where the action remains dormant. Here the defendant does receive support, arising out of the marriage relationship. Even though she has difficulty supporting herself it cannot be said that that is caused by the pendency of the action. It is caused by the fact that the plaintiff no longer lives with her. She is in no worse shape than if he had left and never started a divorce action. In light of all of this we will deny the defendant’s request for additional alimony pendente lite.

STEVENS, J. ¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County following Appellant’s convictions for involuntary manslaughter, homicide by vehicle while driving under the influence, and two counts of driving while under the influence (DUI). On appeal, Appellant raises seven allegations of error. We affirm. ¶ 2 Appellant contends that the evidence was insufficient to support his convictions by the jury. “The law is settled in this Commonwealth that in reviewing the sufficiency of the evidence, the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, ... [as verdict winner].” Commonwealth v. Earnest, 386 Pa.Super. 461, 563 A.2d 158, 159 (1989) (citation omitted). “The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228, 1229 (1984) (citation omitted). Moreover, “it is clear that a jury may believe all or only a part of a witness’ testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.” Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821, 824 (1983) (citation omitted). ¶ 3 The facts and procedural history are as follows: On February 13, 1999, at approximately 12:50 a.m., Appellant was operating a Jeep Grand Cherokee northbound on Route 183 when he went into the southbound lane and struck a tractor-trailer head on. The tractor-trailer was stopped at a stop sign at the intersection of Route 183 and New Schaefferstown Road and was forty-five feet long with reflective strips along the bottom of the frame. The driver of the tractor-trailer dialed 911, and the police responded. ¶ 4 When the police and emergency personnel arrived at the scene, they discovered that the passenger in Appellant’s vehicle, Thomas Wise, was deceased as a result of the accident and that Appellant sustained several injuries. Emergency personnel placed Appellant in an ambulance, and Pennsylvania State Trooper Cory James Remp asked Appellant about the accident. During this time, Trooper Remp noticed that Appellant’s eyes were glassy and bloodshot, Appellant’s breath smelled of alcohol, and his speech was slurred. N.T. 8/4/99 at 25-26; N.T. 12/15/99 at 207-208. ¶ 5 Trooper Remp investigated the road and discovered that Appellant’s vehicle left no skid marks. He noted that the weather was clear and that the road was dry. N.T. 8/4/99 at 22. Believing that Appellant was driving while under the influence of alcohol, Trooper Remp asked his partner, Trooper James Marasco, to telephone the State Police in Reading so that a blood alcohol test would be performed on Appellant. Trooper Marasco did as he was asked. N.T. 8/4/99 at 48-44. ¶ 6 Appellant was eventually transported via helicopter to the Lehigh Valley Medical Hospital, and, at approximately 2:18 a.m, Craig A. Hanzl, an emergency room technician, drew samples of Appellant’s blood. N.T. 8/4/99 at 67-71. At approximately 2:30 a.m., Pennsylvania State Trooper Christopher T. Lengle asked the emergency room nurse to draw blood from Appellant for a blood alcohol test. The nurse informed Trooper Lengle that a sample had been taken twelve minutes before the trooper had arrived, and that the trooper would not be permitted to speak to Appellant until the doctors felt it was appropriate. N.T. 8/4/99 at 48. Trooper Lengle did not specifically request that another sample of blood be taken for chemical testing pursuant to 75 Pa.C.S.A. § 3755. ¶ 7 At approximately 4:20 a.m., Trooper Lengle spoke -with Appellant in the emergency room. Appellant told Trooper Len-gle that he believed he slid on a wet road, but that he had about three beers that evening. N.T. 8/4/99 at 55-56. Trooper Lengle told Appellant that he was going to obtain the results of a blood alcohol test, to which Appellant agreed. N.T. 8/4/99 at 54. Trooper Lengle then directed a nurse to fill out a form, which Trooper Lengle signed, requesting that Appellant’s blood be tested to determine a blood alcohol content and to obtain a copy of the test results. N.T. 8/4/99 at 60-61. ¶ 8 Appellant’s blood test revealed that his blood alcohol content was .17%, Appellant was arrested, and Appellant was charged with numerous crimes. On July 1,1999, Appellant filed a motion seeking to suppress the statements he made to Troopers Remp and Lengle and the results of his blood alcohol test. On August 4, 1999, a suppression hearing was held, and, on September 14, 1999, the trial court denied Appellant’s motion to suppress. ¶ 9 On November 24, 1999, Appellant filed a motion seeking to exclude several photographs taken at the scene of the accident and his blood alcohol test results, on the basis that the Commonwealth could not relate back Appellant’s blood alcohol content to the time of the accident. The trial court denied the motion. N.T. 12/14/99 at 227. ¶ 10 Appellant proceeded to a jury trial on December 14, 1999, and, on that same date, the Commonwealth filed a motion seeking to exclude evidence of prior accidents which occurred at the intersection at issue. The trial court denied the motion. See N.T. 12/15/99 at 212. Following the trial, the jury convicted Appellant of homicide by vehicle while under the influence of alcohol, involuntary manslaughter, and two counts of driving while under the influence of alcohol. The trial judge found Appellant guilty of reckless driving, careless driving, driving on the right side. of the highway, driving on roadways laned for traffic, and driving a vehicle at an unsafe speed. ¶ 11 On January 24, 2000, Appellant was sentenced to an aggregate of three years to seven years incarceration, and, on February 7, 2000, Appellant filed a post-sentence motion alleging, inter alia, that the verdict was against the weight of the evidence. The trial court denied the post-sentence motion, and; on March 1, 2000, Appellant filed a notice of appeal. The trial court ordered Appellant to file a statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), such a statement was filed, and the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a). ¶ 12 Appellant contends that (1) the evidence failed to show that Appellant acted in a reckless or grossly negligent manner as is required for involuntary manslaughter, (2) the evidence failed to prove that Mr. Wise’s death was caused by Appellant drinking while under the influence of alcohol as is required for homicide by vehicle while driving under the influence of alcohol, (3) the evidence failed to show that Appellant was guilty of unsafe driving under 75 Pa.C.S.A. § 3731(a)(1), and (4) Craig Hanzl, an emergency technician, was unable to identify Appellant as the person from whom blood was taken at 2:18 a.m., and, therefore, the evidence failed to establish that Appellant’s blood alcohol content was greater than .10% when he was driving the Jeep as is required under 75 Pa.C.S.A. § 3731(a)(4). ¶ 13 18 Pa.C.S.A. § 2504(a) provides that “[a] person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” “We have held that there is a difference between the term ‘negligently’ as set forth in 18 Pa.C.S. § 302(b)(4) and ‘recklessly’ as set forth in 18 Pa.C.S. § 302(b)(3). The latter definition encompasses gross negligence.” Commonwealth v. Comer, 552 Pa. 527, 534, 716 A.2d 593, 597 (1998) (citation omitted). 18 Pa.C.S.A. § 302(b)(3) defines ‘recklessly’ as follows: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. ¶ 14 75 Pa.C.S.A. § 3735(a) provides that “[a]ny person who unintentionally causes the death of another person as a result of the violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the second degree when the Violation is the cause of death .... ” (emphasis added). ¶ 15 With regard to DUI, 75 Pa.C.S.A. § 3731(a)(1) and (4) provides the following: (a) Offense defined. — A person shall not drive, operate, or be in actual physical control of the movement of a vehicle in any of the following circumstances: (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving; or (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater.... ¶ 16 We conclude that there was sufficient evidence to establish that Appellant acted with the recklessness contemplated by the involuntary manslaughter statute. For example, Nicholas Schwartz, the driver of the tractor-trailer, testified that he was stopped at a stop sign with his headlights on when Appellant ran directly into the tractor-trailer, without stopping, at approximately 12:50 a.m. N.T. 12/1-1/99 at 141-142, 144, 189. Mr. Schwartz testified that the weather was clear and the road was dry. N.T. 12/14/99 at 151. ¶ 17 Trooper Remp testified that he was one of the responding officers, and he questioned Appellant. Trooper Remp testified that Appellant smelled like beer, his eyes were bloodshot and glassy, and his speech was slurred. N.T. 12/14/99 at 207-208. Trooper Remp examined the accident scene and noted that the road was dry and the weather was clear. N.T. 12/14/99 at 202-203. Trooper Remp testified that the section of Route 183 at issue was straight and flat, N.T. 12/14/99 at 210, and that the turn Appellant should have taken was properly marked. N.T. 12/14/99 at 210. Trooper Remp testified that, in his opinion, Appellant was DUI at the time in question. N.T. 12/14/99 at 247. ¶ 18 Trooper David Gecelosky testified that he also responded to the accident and that he examined the tractor-trailer and Appellant’s Jeep. N.T. 12/14/99 at 291-292. Trooper Gecelosky found no violations with regard to the tractor-trailer or the Jeep. N.T. 12/14/99 at 291-293. Trooper Christopher Lengle testified that he went to the Lehigh Valley Hospital and questioned Appellant. Appellant admitted that he had three beers at approximately 9:00 p.m. on February 12, 1999, and that he was driving the Jeep. N.T. 12/14/99 at 317-318. ¶ 19 Craig A. Hanzl testified that he is an emergency department technician and that he was on duty at the Lehigh Valley Hospital at 2:18 a.m. on February 13,1999. N.T. 12/14/99 at 298-300, 302. While Mr. Hanzl could not remember whether he drew blood from Appellant, the chain of custody form entered into evidence revealed that Mr. Hanzl had completed, signed, and dated the form, thereby verifying that he did, in fact, draw Appellant’s blood. N.T. 12/14/99 at 301-304. Joann Sell, a laboratory technician, testified regarding the chain of custody of the blood and reported that Appellant’s blood alcohol content was .17%. N.T. 12/14/99 at 356. Finally, Margaret Freeman, M.D., testified that she performed an autopsy on Mr. Wise and that Mr. Wise died from internal bleeding, which was consistent with being in an automobile accident. N.T. 12/14/99 at 279. ¶20 Based on the aforementioned, the evidence was sufficient to support Appellant’s convictions. See Commonwealth v. Palmer, 751 A.2d 223 (Pa.Super.2000) (concluding that evidence was sufficient under 75 Pa.C.S.A. § 3731(a) where the appellant had glassy, bloodshot eyes, had difficulty walking, and failed field sobriety test); Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8 (1992) (holding that evidence was sufficient for involuntary manslaughter where the defendant’s vehicle crossed center line and his blood alcohol content was .15%); Commonwealth v. Eichelberger, 364 Pa.Super. 425, 528 A.2d 230 (1987) (holding that where defendant crossed center line, ran into oncoming ve- hides, and had blood alcohol content of .09%, the evidence supported conviction for homicide by vehicle). ¶ 21 Appellant next contends that the verdict was against the weight of the evidence. We find this issue to be waived. ¶ 22 In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the Pennsylvania Supreme Court held that issues not included in a Pa.R.A.P.1925(b) statement are deemed waived on appeal. The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process. Lord, 553 Pa. at 417, 719 A.2d at 308. “When the trial court has to guess what issues an appellant is appealing, that is not enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.2001). ‘When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.” In re Estate of Daubert, 757 A.2d 962, 963 (Pa.Super.2000). “In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.” Dowling, 778 A.2d at 686. ¶ 23 In the case sub judice, Appellant’s weight of the evidence issues are too vague to permit review. In his brief, Appellant raises six specific reasons why he believes the verdict was against the weight of the evidence. However, in his Pa.R.A.P. 1925(b) statement, Appellant merely stated that “[t]he verdict of the jury was against the weight of the credible evidence as to all of the charges.” In its opinion, the trial court summarily dismissed Appellant’s weight of the evidence claim by concluding that the verdict was not so contrary to the evidence as to require a new trial. No specific weight of the evidence issue was discussed. As such, under Dowling, supra, we find Appellant’s weight of the evidence issues to be waived. ¶ 24 Appellant next contends that the suppression court erred (1) in failing to suppress the results of Appellant’s blood alcohol test, and (2) in failing to suppress statements Appellant made to the police. ¶ 25 As a reviewing court, 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 these factual findings. 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. Albert, 767 A.2d 549, 551-552 (Pa.Super.2001) (citations and quotation omitted). ¶ 26 With regard to Appellant’s blood alcohol test, Appellant claims that the results should have been suppressed because (1) there is no evidence that the blood at issue was drawn for 75 Pa.C.S.A. § 1547 purposes since no officer requested that the blood be drawn, and (2) there is no evidence that emergency personnel decided that there was probable cause that Appellant was DUI, thus permitting the drawing of blood under 75 Pa.C.SA. § 3755. ¶ 27 In cases such as this, the search of a driver’s blood and the search of the driver’s medical records containing the results of the first search may occur. Commonwealth v. Shaffer, 714 A.2d 1035 (Pa.Super.1998), affirmed, 566 Pa. 592, 782 A.2d 996 (2001). Here, the first search of Appellant occurred when the hospital took blood samples. However, because the hospital did not withdraw Appellant’s blood at the direction of Trooper Lengle, this search did not implicate Appellant’s Fourth Amendment rights. Rather, the hospital withdrew Appellant’s blood on its own initiative for its own purposes. Commonwealth v. Riedel, 539 Pa. 172, 177, 651 A.2d 135, 138 (1994) (citations omitted). ¶ 28 The remaining searches occurred when Trooper Lengle specifically requested that Appellant’s blood be tested to determine Appellant’s blood alcohol content and requested Appellant’s medical records with regard thereto. The hospital, in complying with the trooper’s requests, acted as an agent of the government: the purpose of the searches] was to obtain [Appellant’s blood test results for use in [Appellant’s] subsequent prosecution, police initiated the search, and the Commonwealth ratified the search by using the test results to convict [Appellant. Consequently, the search implicated [Appellant’s Fourth Amendment rights, and we must determine whether [Appellant had a reasonable expectation of privacy in [the specific tests performed on his blood and] medical records. Riedel, 539 Pa. at 178, 651 A.2d at 138 (citations and quotations omitted). ¶ 29 The Courts of this Commonwealth as well as the Third Circuit have always recognized “that an individual has a substantial privacy interest in his or her medical records.” Riedel, 539 Pa. at 178, 651 A.2d at 138 (citations and quotations omitted). We conclude that the same is true with regard to the tests performed on one’s blood. See Commonwealth v. Franz, 430 Pa.Super. 394, 634 A.2d 662 (1993). Generally, a ‘search and seizure is not reasonable unless conducted pursuant to a valid search warrant upon a showing of probable cause.’ However, exceptions to the warrant requirement do exist. For example, actual consent, implied consent, search incident to an arrest, and exigent circumstances may negate the necessity of obtaining a warrant before conducting a search. Riedel, 539 Pa. at 178, 651 A.2d at 138 (citations and quotation omitted). ¶ 30 Here, Appellant fails to raise any specific argument regarding whether Trooper Lengle had probable cause to request and obtain the blood test results. As such, we are bound by the trial court’s conclusion that probable cause existed. At issue is whether an exception to the warrant requirement exists under Section 1547 or 3755. Section 1547 provides, in relevant part, the following: (a) General rule. — Any person who drivers operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (1) while under the influence of alcohol; (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. Section 3755 provides, in relevant part, the following: (a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving while under the influence) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transit them within 24 hours for testing to the Department of Health and specifically designated for this purpose. Our courts have found that, together, sections 1547 and 3755 comprise a statutory scheme which, under particular circumstances, not only imply the consent of a driver to undergo chemical or blood tests, but also require hospital personnel to withdraw blood from a person, and release the test results, at the request of a.police officer who has probable cause to believe the person was operating a vehicle while under the influence. Commonwealth v. Shaffer, 714 A.2d 1035, 1037 (Pa.Super.1998) (quotations and quotation marks omitted). ¶ 31 “Under the Pennsylvania implied consent statute, once an officer determines there is probable cause to believe a person operated a motor vehicle under the influence of alcohol and requests that the hospital personnel withdraw blood, the officer is entitled to the release of the test results.” Commonwealth v. Barton, 456 Pa.Super. 290, 690 A.2d 293, 298 (1997) (citation omitted). This is true even if medical staff previously drew the blood and a request by the police for a driver’s BAC came after the blood was drawn. See Barton, supra. In this case, requiring another vial of blood to be drawn in order to facilitate Officer Lengle’s request would unnecessarily narrow Sections 3755 and 1547. Rather, since the hospital previously, without police direction, drew samples of Appellant’s blood, Officer Len-gle’s request for a BAC was properly performed on the previously drawn sample. See Barton, supra. We specifically note that Appellant does not dispute that, had the blood sample been drawn at Officer Lengle’s request, he would have been entitled to the results. The fact that the Trooper made the request after the blood was drawn does not require a different outcome in this case. See Barton, supra. ¶ 32 Moreover, aside from the implied consent provisions of Sections 3755 and 1547, we conclude that Appellant expressly consented to Trooper Lengle receiving the results of his blood alcohol test. Trooper Lengle specifically told Appellant that he was going to obtain the results of a blood alcohol test, and Appellant agreed. N.T. 8/4/99 at 54. As such, we conclude that the suppression court did not err in failing to suppress Appellant’s blood test results. ¶ 33 Appellant next contends that various statements he made to the police should have been suppressed since he was interrogated while in custody without having received his Miranda warnings. In his brief, Appellant points to various specific statements. We find the issue to be waived. ¶ 34 As indicated supra, raising issues vaguely in a Pa.R.A .P.1925(b) statement is equivalent to not raising the issues at all. Dowling, supra. Here, Appellant stated the following in his Pa.R.A.P.1925(b) statement: The court erred in failing to suppress the statements made by [Appellant] to the police on the night of the accident in that he was in custody when th[e statements] were made and he was not advised of his Miranda rights or he had already exercised his right to remain silent prior to being questioned at the hospital. ¶ 35 Noticeably absent from Appellant’s Pa.R.A.P.1925(b) statement is reference to any particular statement he made to the police. Rather, Appellant seems to indicate that all statements he made to the police on the night of the accident should have been suppressed. In addressing Appellant’s issue in its Pa.R.A.P.1925(a) opinion, the trial court also did not point to any specific statement, but concluded generally that Appellant was not subject to custodial interrogation during the night in question. Since Appellant failed to identify the precise statements at issue, we conclude that his Pa.R.A.P.1925(b) statement was too vague to identify the precise issue for the trial court, and we find the issue to be waived. ¶ 36 Appellant next contends that the trial court should have granted Appellant’s request for a mistrial since the district attorney made several references in his opening statement to Appellant exercising his right to speak to an attorney and remain silent. Specifically, Appellant challenges the following comments made by the prosecutor: (1) Trooper Remp asked [Appellant] where were you coming from? And [Appellant] said Reading. And [Trooper Remp] said where in Reading. And [Appellant] refused to answer. N.T. 12/14/99 at 102. (2) Trooper Lengle also asked [Appellant] where he was that night. And as before, [Appellant] said Reading. And when Trooper Lengle asked where in Reading, [Appellant] refused to answer. N.T. 12/14/99 at 105. (3) After [Appellant] refused to say where he was coming from in Reading, Trooper Remp followed that question up. And he said how much did you have to drink tonight? And [Appellant] said I better talk to a lawyer before I answer that question. N.T. 12/14/99 at 103-104. ¶ 37 Initially, we note that “Reference to an accused’s silence can be harmless error if corrected by adequate cautionary instructions.... ” Commonwealth v. McEnany, 446 Pa.Super. 609, 667 A.2d 1143, 1150 n. 4 (1995) (citation omitted). See Commonwealth v. Redel, 335 Pa.Super. 354, 484 A.2d 171 (1984). Here, Appellant indicated that he did not want a cautionary instruction, but wanted a mistrial only. N.T. 12/14/99 at 103, 107. However, as to all three statements, the trial court informed the jury that the district attorney’s closing argument was not evidence. N.T. 12/17/99 at 671. See Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711 (1998) (noting that a prosecutor’s comments do not constitute evidence). ¶ 38 Moreover, assuming, arguendo, that the trial court erred in failing to grant Appellant’s request for a mistrial, we find the error to be harmless on another basis. See Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993) (indicating that, in context of a trial, reference to fifth amendment rights may be analyzed under harmless error standard); Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d. 192 (1993) (holding that harmless error is applicable where reference is made to a defendant’s right to remain silent); Commonwealth v. Redel, 335 Pa.Super. 354, 484 A.2d 171 (1984) (holding that harmless error is used where prosecutor comments on a defendant’s right to remain silent). [A]n error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error would not have contributed to the verdict. Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimus; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by properly admitted and uncontradicted evidence that the prejudicial effect was so insignificant by comparison to the verdict. Commonwealth v. Nolen, 535 Pa. 77, 85, 634 A.2d 192, 195 (1993) (citations and footnote omitted). ¶ 39 We conclude that the evidence of Appellant’s guilt was so overwhelming that the trial court’s refusal to grant Appellant’s request for a mistrial was, at most, harmless error. Even if the prosecutor erred in telling the jury that Appellant refused to tell the officers where he was coming from and invoked his right to an attorney with regard to questioning by Trooper Remp concerning consumption of beer, the evidence of Appellant’s DUI offenses was overwhelming. See Commonwealth v. Weir, 738 A.2d 467 (Pa.Super.1999) (discussing harmless error with regard to DUI offenses). As discussed previously, an eyewitness, three police officers, an emergency medical technician, and a laboratory technician established that Appellant committed the crimes for which he was convicted. ¶ 40 Appellant next contends that the trial court abused its discretion in permitting the Commonwealth to introduce into evidence Appellant’s address, and a diagram depicting the distance of Appellant’s address to the accident scene, as circumstantial evidence that Appellant was familiar with the intersection where the accident occurred. Specifically; Appellant contends that the evidence was irrelevant. Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and we will not reverse the court’s decision absent a clear abuse of discretion. Rule 401 of the Pennsylvania Rules of Evidence states, ‘[rjelevant evidence’ means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 403 states, ‘[ajlthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Commonwealth v. L.N., 787 A.2d 1064, 2001 WL 1580132 *2 (Pa.Super. filed 12/12/01) (citations and quotations omitted). ¶ 41 The record reflects that, during opening argument, defense counsel indicated several times that the accident at issue occurred because Appellant was not from Reading and was unfamiliar with Route 183. N.T. 12/14/99 at 110-116. As such, defense counsel argued, Appellant went the wrong way when he approached the intersection at issue, which caused the accident. N.T. 12/14/99 at 112. A continued defense theory was that the accident occurred because Appellant was unfamiliar with Route 183 and had made a mistake at the intersection at issue. N.T. 12/14/99 at 184. ¶ 42 The Commonwealth introduced the diagram to show that Appellant’s present address was only 9.6 miles away from the intersection at issue and that his former address was only 11 miles away from the intersection. N.T. 12/14/99 at 242-244. We conclude that this evidence was relevant to show whether Appellant was familiar with Route 183. Also, we note that defense counsel “opened the door” concerning Appellant’s familiarity with Route 183. As such, the Commonwealth properly responded to the argument with evidence concerning the proximity of Appellant’s residence to the accident scene. See Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492 (1997) (holding that where defense opens the door on the topic, the prosecutor may properly respond). ¶ 43 Finally, Appellant contends that the trial court erred in excluding evidence of other accidents, which occurred at the intersection of New Schaefferstown Road and Route 183. Specifically, Appellant contends that the evidence was relevant as to whether his DUI caused the accident at issue. ¶ 44 This Court has held that: ‘An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule.’ Once it is determined that the proffered evidence was relevant, due process requires its admission. ‘Even the most myopic interpretation of [Article I, Section 9 of the Pennsylvania Constitution] would necessarily concede the right to offer relevant evidence to challenge a material issue of fact.’ ‘Causation is an issue of fact for the jury.’ Commonwealth v. Bartolacci, 409 Pa.Super. 456, 598 A.2d 287, 289 (1991) (quotation omitted). In Bartolacci this Court specifically held that proof of similar accidents may be introduced to show that the dangerous condition of the roadway caused an accident and death, instead of a defendant’s driving while intoxicated. ¶ 45 In the case sub judice, the trial court permitted Appellant to introduce evidence of automobile accidents which occurred northbound on Route 183 at the intersection of New Schaefferstown Road, which is the direction Appellant was traveling at the time of the accident. Specifically, the trial court permitted testimony from Charles Nutter, the chief of the Bernville Community Fire Company. Mr. Nutter testified that “there [are] a lot of accidents at this intersection,” N.T. 12/14/99 at 179, and that the fire company had documented forty-four accidents at the intersection since 1986. N.T. 12/14/99 at 185. Mr. Nutter testified that the forty-four accidents encompassed accidents from all directions. N.T. 12/14/99 at 185-186. He further testified that it was a common occurrence for drivers to miss the northbound turn, as Appellant alleged he did, and hit oncoming traffic or nearby houses. N.T. 12/14/99 at 186. ¶ 46 The trial court also permitted testimony from Thelma Hoffman, who testified that she lived at the intersection at issue and that motorists often drive into her yard because they miss the turn for Route 183. N.T. 12/14/99 at 395-396, 401-403. She testified that at least three fatalities have occurred at the intersection since she has lived in the area. N.T. 12/14/99 at 401. Appellant was also permitted to introduce the expert testimony of Kevin O’Connor, a licensed engineer, who testified that he believed the intersection at issue was dangerous and the cause of the accident at issue. N.T. 12/14/99 at 453-454. ¶ 47 Based on all of the aforementioned, we conclude that the trial court properly permitted Appellant to introduce evidence of other accidents which occurred at the intersection at issue. While -Appellant suggests that the trial court limited his evidence to that of accidents occurring northbound only, we find this issue to be meritless. Mr. Nutter testified that forty-four accidents occurred from all directions. Any error the trial court made in excluding additional evidence would be harmless error since the evidence would be cumulative. See Nolen, supra. As such, we find no relief is due on this basis. ¶ 48 Affirmed. . We have renumbered Appellant’s issues for the sake of effective appellate review. ."Because a determination that the evidence was insufficient to support á conviction results in discharge, we shall begin by addressing th[e] [sufficiency of the evidence] claim.” Commonwealth v. Petroll, 696 A.2d 817, 823 (Pa.Super.1997) (citation omitted). . Appellant also asked that the trial court order discovery, which the trial court granted. . Notwithstanding the exceptions, the search still must be based on probable cause to believe that the person to be searched has violated the law. See Riedel, supra. . “Reasonable grounds” has been interpreted to mean "probable cause.” Commonwealth v. Shaffer, 714 A.2d 1035 (Pa.Super.1998), affirmed, 566 Pa. 592, 782 A.2d 996 (2001).