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ORDER PER CURIAM. AND NOW, this 14th day of September 2006, the Petition for Allowance of Appeal is granted limited to the following issues: Whether this honorable Court should grant the within Petition for Allowance of Appeal to review the Majority’s Panel of the Superior Court’s decision incorrectly interpreting 18 Pa.C.S.A. § 3301 (Arson), in a case of first impression, where [Petitioner] was unlawfully convicted of setting a person on fire. Justice EAKIN did not participate in the consideration or decision of this matter.

OPINION BY TAMILIA, J.: ¶ 1 Sean Saunders, father, appeals from the November 21, 2005 Order denying his request that the court deviate from support guidelines and order that mother, primary custodian, pay him child support, since her income is greater, for support of the parties’ three minor children. The Order further required father to pay $581.99 per month in child support to mother, $558 in support plus $23.99 for father’s eighteen percent share of all un-reimbursed medical expenses. We affirm. ¶ 2 The court set forth the factual and procedural history as follows: Alison D. Saunders (hereafter “Mother”) and Sean F. Saunders (hereafter “Father”) were married on October 10, 1988, and, divorced on March 3, 2005. The parties are the parents of three minor children: Charlotte Rose Saunders (d.o.b.4/13/1994), Christopher Robert Saunders (d.o.b.11/30/1995), and Mary Elizabeth Saunders (d.o.b.1/5/1998). Mother has primary physical custody of the parties’ children during the school year with Father having the children every other weekend from Friday at approximately 3:30 p.m. until Sunday at 8:00 p.m., every Thursday evening from approximately 3:30 p.m. until 8:00 p.m. and alternating holidays and seasonal breaks. During the summer, the parties share custody through a week on/week off arrangement. On July 6, 2001, Mother filed a Complaint for Support for the parties’ three minor children. On August 15, 2002, we entered an Order in Support awarding Mother child support in the amount of $622.99 per month effective as of July 6, 2001. From September 1, 2002 forward, we awarded Mother child support in the amount of $610.00 per month. We denied Father’s request for alimony pendente lite (hereafter “APL”). On September 24, 2002, in light of the Supreme Court’s August 20, 2002 ruling in Mascaro v. Mascaro, [569 Pa. 255,] 803 A.2d 1186 (Pa.2002) [holding the court should apply the Support Guidelines rather than a Melzer analysis when calculating spousal support or APL in cases in which the combined net income of the spouses exceeds $15,000 per month,] Father filed a petition for APL. On February 11, 2003, the Hearing Officer entered her Report and Recommended Order awarding Father $1,831.00 per month in APL. Offset by Father’s child support obligation of $610.00 per month, Mother owed Father a net APL award of $1,221.00 per month effective September 1, 2002 forward. On February 20, 2003, Mother filed timely Exceptions to the Recommended Order of the Hearing Officer asserting that the Hearing Officer erred in the application of the APL formula. On February 21, 2003, the Honorable Katherine J. Platt entered an Interim Order effectuating the Hearing Officer’s recommendations. On April 28, 2003, after consideration of Mother’s Exceptions to the Report and Recommended Order of the Hearing Officer, Judge Platt determined that Father owed $2,982.00 per month for support of the parties’ children. Offset by Mother’s APL obligation of $4,908.00 per month, Mother owed Father a net APL award of $1926.00 effective September 1, 2002 forward. On January 25, 2005, Mother filed a Petition to terminate APL and a Petition to Modify Child Support. On March 21, 2005, Father filed a Petition to Modify Child Support. On March 24, 2005, Father’s APL award was vacated effective March 3, 2005, the date of the entry of the parties’ Final Decree in Divorce. On November 2, 2005, [the court held a day-long] support hearing to determine the parties’ support claims. Trial Court Opinion, MacElree II, J., 11/21/05, at 1-2 (footnote omitted). ¶ 3 Before the court, father raised only one issue, the same issue raised in these appeals, whether, in light of our Supreme Court’s holding in Colonna v. Colonna, 581 Pa. 1, 855 A.2d 648 (2004), mother, as primary custodian, has an obligation to pay child support to father, as a deviation from Support Guidelines, when mother’s income is far greater than father’s. Specifically, mother’s gross annual income was stipulated to be $310,342, and her net monthly income, $18,534, while father’s was stipulated to be $67,000 and $4,060, respectively. After hearing all of the evidence, the court found father failed to meet his burden of proving he does not have the assets to provide the children with appropriate housing and amenities during his period of partial custody. Further, it found any lack of funds on his part was due to his poor financial planning and voluntary unemployment over a three and one-half year period. The court also concluded mother’s payment of child support to father was not in the best interests of the children. It thus entered the underlying Order denying his petition. These timely appeals followed, to which we apply the following principles: When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. In addition, we note that the duty to support one’s child is absolute, and the purpose of child support is to promote the child’s best interests. Samii v. Samii, 847 A.2d 691, 694 (Pa.Super.2004) (citations omitted). ¶ 4 In Colonna, our Supreme Court held that where the incomes of the parents differ significantly, it is an abuse of discretion for the trial court to fail to consider whether deviating from the support guidelines is appropriate, even where the result would be to order child support for a parent who is not the primary custodial parent. Colonna at 7, 855 A.2d at 652. The court must apply Pa.R.C.P. 1910.16-5, Support Guidelines. Deviation, (b) Factors, which provides, in relevant part: In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider: (1) unusual needs and unusual fixed obligation; (2) other support obligations of the parties; (3) other income in the household; (4) ages of the children; (5) assets of the parties; (6) medical expenses not covered by insurance; (7) standard of living of the parties and their children; (9) other relevant and appropriate factors, including the best interests of the child or children. Colonna at 8, 855 A.2d at 652 citing Pa. R.C.P. 1910.16—5(b). The court further directed, [i]n a case such as the instant matter, the trial court should inquire whether the non-custodial parent has sufficient assets to provide the children with appropriate housing and amenities during his or her period of partial custody. We specifically note that the term “appropriate” does not mean equal to the environment the children enjoy while in the custodial parent’s care, nor does it mean “merely adequate.” The determination of appropriateness is left to the discretion of the trial court, upon consideration of all relevant circumstances. Id. ¶ 5 Some of the pertinent, undisputed, evidence underlying the court’s de- cisión is as follows. Prior to his March 2001 lay off, father earned $120,000 per year. From that point until October 2005, he voluntarily remained unemployed and during that period, accrued $85,000 in credit card debt at an interest rate of 28%. Also during that time, he obtained a real estate license but he did not show many homes due to his alleged physical infirmities. Instead, he volunteered extensively, upwards of forty hours per week, for such charitable organizations as Meals on Wheels, the Boy Scouts, and the Great Valley Community Partnership for Healthy Youth. In its August 15, 2002 Support Order, the court determined father’s earning capacity to be $75,000 per year. The court further noted that as of the hearing, father lived in a home purchased by his girlfriend and in which he had no legal interest. Trial Court Opinion at 5-6. Father lives in the three-bedroom, two and one-half bath home with his girlfriend and her two daughters. During his periods of custody, one of the parties’ children sleeps in a bunk bed in his girlfriend’s daughter’s bedroom while his remaining two children sleep on the pull-out bed in father’s den. The children’s clothing is kept in a closet adjacent to the den in which there are three chests of drawers. Id. at 7-8. In mother’s five-bedroom, four and one-half bath home, each child has his/her own bedroom. Id. ¶ 6 Based upon the above evidence, inter alia, the court concluded the following: We find that Father has failed to meet his burden of proving that he does not have the assets to provide the children with appropriate housing and amenities during his period of partial custody. Although Mother undeniably has more assets to provide for her children, we find that Father has the ability to provide his children with appropriate, albeit not equal, housing and amenities during his period of partial custody if he exercises prudent financial planning and action. We note that Father remained voluntarily unemployed from March 2002 through October 2005. Father’s failure to gain employment squandered $250,000 of potential income. Father did not provide credible testimony or evidence that he made a concerted or sustained attempt to find employment during this period. In fact, Father testified that he did not even apply for a part-time job during this time of unemployment. Father was able, however, to volunteer for numerous organizations. As such, during this time of unemployment, Father most certainly had the ability to obtain additional assets through employment, yet he did not. In light of his ability to work during this time period, Father, in seeking support from Mother, is looking for Mother to underwrite his volunteer time and charitable donations. Further, Father has the ability to obtain additional assets to provide the children with appropriate housing and amenities in that he holds a current Real Estate license and is capable of selling homes and earning additional money. Finally, there is no evidence in the record that Father’s lack of income negatively impacts Father’s relationship with his children. Moreover, we find that Father has failed to demonstrate that ordering Mother to pay Father a certain sum of money per month is in the best interests of the parties’ children. See [Colonna at 7, 855 A.2d at 651-52] (noting that requiring children to [live] “vastly different lives depending upon which parent has custody” ... Clearly is not in the best interests of the children”). Father testified that if awarded child support, he would use the money to put an addition onto his girlfriend’s residence. We note that Father has no legal, ownership interest in the residence. Father testified that his girlfriend purchased the house with her individual funds and the house is in Father’s girlfriend’s name exclusively. Father, in effect, wants us to order Mother to finance improvements to Father’s girlfriend’s home. This is obviously inappropriate as there is no specific plan or budget for the improvement, nor is there any guarantee that Father’s children would ever benefit from the improvement. Father can be removed from the house on thirty days notice. Further, Father’s current debt and the 28% interest attached thereto is clearly the product of his own poor financial planning. Father would have us penalize Mother for his mishandling of his finances. Father should not be able to use his own poor planning as an affirmative sword against Mother using the Colonna analysis. Father wants Mother to underwrite his own financial failings and shortcomings. This is not support for the children and this is not in the children’s best interests, as the money would benefit Father and Father’s creditors and not Father’s children. CONCLUSION Father has failed to prove that he lacks the assets to provide adequate housing and amenities for his children during his period of partial, physical custody. Father’s lack of funds to date is due to Father’s poor financial planning and his voluntary lack of employment over a three and a half year period of time. Moreover, we do not believe that obligating Mother to pay Father child support would be in or further the best interests of the children. Therefore, we do not believe that Father has met his burden under Colonna to support a deviation from the Support Guidelines. Accordingly, the parties’ stipulation as to support will be entered as a Final Order in this matter. Trial Court Opinion at 9-11. ¶ 7 Appellant contends the court abused its discretion and misapplied the holding in Colonna. He contends “the thrust of the Colonna decision revolved around the disparity in the parties’ incomes” and argues that is the most important consideration in this case. Appellant’s brief at 10. He contends that because of this disparity in income, he “could never offer his children an environment which the children have been accustomed to living with Appellee ... [; thus,] Appellant should receive child support from Appellee.” Id. at 8. In sum, appellant contends “the trial court should have given consideration to the disparate incomes of the parties and awarded child support to Appellant.” Id. at 10. He also complains the court erred by focusing on appellant’s unemployment and argues the court’s calculation that he lost $250,000 of potential income during this period was speculative, but in any event, wife still earned four times that amount in the same period. Id. at 9. In addition, father’s volunteer work during that time provided him experience that led to his current employment. Id. Further, he contends the court’s emphasis on his debt was only one consideration and the court abused its discretion in placing such a strong emphasis on it. ¶ 8 Appellant misapprehends the holding of Colonna. He would have the courts of this Commonwealth simply grant a noncustodial parent child support any time there is a significant disparity in income such that the custodial parent earns more money. That is not the holding of Colon-na. The Colonna Court concluded “a parent with primary custody may be ordered to pay child support to a parent with partial custody!.]” Colonna at 9, 855 A.2d at 652 (emphasis supplied). The trial court has broad discretion and must consider “all relevant circumstances” in making this determination. Id. at 8, 855 A.2d at 652. ¶ 9 We find that here, the court committed no abuse of its very broad discretion and committed no error of law. First, we note the court, in determining whether it was appropriate to deviate from the support guidelines, noted it was required to consider, and did consider, the factors as set forth in Pa.R.C.P. 1910.16 — 5(b). See Trial Court Opinion at 4-9. Further, the court considered, as it also is required to do, whether father, as the non-custodial parent, has sufficient assets to provide the children with appropriate housing and amenities during his period of partial custody. Based on the evidence presented, evidence father does not dispute, the court concluded father has the ability to provide his children with appropriate assets and amenities, but to date has squandered many of his assets and opportunities to provide more for his children. It decided not to penalize mother for father’s shortcomings. Further, the court noted that if it were to grant father support, father’s intended use of the money might not even benefit the children. Employing our deferential standard of review, we find no abuse of discretion or error of law. ¶ 10 Order affirmed. . Three separate appeals, one from each lower court docket number, were filed in this matter. The appeals were consolidated and just one issue is before us for consideration. . We note that had Father worked for the 3ii years he was unemployed, at the assigned earning capacity of $75,000, he would have earned approximately $250,000 gross. . We note that Father's interest expense on his $85,000.00 credit card debt at 28% is $23,800.00 per year. This is more than double Mother’s vacation costs and undoubtedly could have been used towards housing or other amenities for the parties’ children had father aptly planned his finances.

OPINION BY JOHNSON, J.: ¶ 1 Leroy Thomas, a.k.a. John Wayne, (Thomas) appeals from the trial court’s order dismissing his ineffective assistance of counsel claims under the Post Conviction Relief Act (PCRA) without holding an evidentiary hearing. See 42 Pa.C.S. §§ 9541-46. Thomas contends that the trial court should have held a hearing and should have admitted as substantive evidence the Declaration/Affidavit of the late Raygina Fearon, who died while Thomas’s PCRA petition was pending. We find that Thomas’s claims are either waived or lack merit. Accordingly, we affirm the trial court’s order denying Thomas relief under the PCRA. ¶ 2 On May 16, 1995, a jury convicted Thomas of first degree murder and related charges for a shooting that occurred on Raygina Fearon’s front porch, located at 515 North 34th Street, Philadelphia. On June 10, 1998, this Court affirmed Thomas’s conviction and sentence. See Commonwealth v. Wayne, 723 A.2d 238 (Pa.Super.1998) (unpublished memorandum). Thomas filed a Petition for Allowance of Appeal, which our Supreme Court denied on February 3, 1999. See Commonwealth v. Wayne, 558 Pa. 608, 736 A.2d 604 (1999). On October 23, 1998, Thomas filed a pro se petition for collateral review of his conviction and sentence and requested that the trial court appoint him counsel. Thomas’s appointed counsel filed an amended petition under the PCRA which included a prayer for habeas corpus relief pursuant to Article I, Section 14 of the Pennsylvania Constitution. ¶ 3 In his amended petition, Thomas argued among other things that his trial counsel rendered ineffective assistance by failing to investigate and present the evidence of his innocence through the eyewitness testimony of Raygina Fearon. See Petition for Habeas Corpus and PCRA relief (Petition), 1/30/01, at 5-20. As part of his ineffective assistance of counsel argument, Thomas attached the affidavit/declaration of Fearon. See Petition, Exhibit D (Fearon’s Declaration). Fear-on’s Declaration states that after giving her statement to the police, she was not shown photographs, asked to view a lineup, questioned by the police again, visited by a defense attorney, or called to testify about what she saw. See Declaration, ¶¶2, 5. Fearon’s Declaration also states that after watching an episode of Crime Fighters, which featured a picture of Thomas as being wanted for the murder that occurred on her porch, she realized that Thomas was not the man that she saw shoot the victim. See Declaration, ¶ 4. ¶ 4 On January 28, 2002, the Commonwealth filed a Motion to Dismiss Thomas’s Petition. On December 19, 2002, the PCRA court dismissed Thomas’s Petition without holding an evidentiary hearing. Thomas filed an appeal to this Court on April 7, 2002. On October 8, 2003, this Court affirmed the PCRA court’s dismissal of all of Thomas’s claims except for his allegation that trial and appellate counsel were ineffective for failing to investigate Fearon as a witness. See Commonwealth v. Thomas, 839 A.2d 1164 (Pa.Super.2003) (unpublished memorandum). This Court remanded the ease back to the PCRA court so it could “conduct an evidentiary hearing to review disputed issues of fact relating to the effectiveness of Thomas’s trial and appellate counsel ... for failing to investigate how the testimony of [] Fearon might have aided his defense.” Id. at 16 (unpublished memorandum). However, on March 2, 2003, while Thomas’s appeal was pending in this Court, Fearon committed suicide. ¶ 5 On remand, the PCRA court scheduled an evidentiary hearing for September 2004. Thomas’s counsel informed the PCRA court that Fearon had died and asked to postpone the hearing while he prepared a memorandum of law requesting the court to admit Fearon’s Declaration as substantive evidence. On October 18, 2005, the PCRA court denied Thomas’s request and dismissed his petition on the ground that Fearon’s Declaration was hearsay and did not establish the reliability and trustworthiness necessary for admissibility. ¶ 6 Thomas appeals to this Court, raising the following questions for our review: 1. Did the [trial] court err in failing to hold an evidentiary hearing with respect to trial and appellate counsel’s ineffectiveness for fading to investigate and present the testimony of Raygina [FJearon? 2. Did the [trial] court err in failing to admit substantively the statement of the late Regina Fearon, who died during the pendency of Petitioner’s PCRA petition three years after Petitioner first sought an evidentiary hearing in order to present her exculpatory testimony, a request that was denied despite the fact that Ms. Fearon provided an affidavit stating she witnessed the murder and Petitioner was not the man who committed the killing on her front porch? 3. Did the [trial] court’s failure to hold an evidentiary hearing despite the fact Petitioner presented, as required by statute, an affidavit indicating disputed, material facts were at issue — i.e., whether Petitioner was wrongly convicted- — and such hearing was required as a matter of law, prejudice Petitioner in that the eyewitness has since died? 4. Did the court below err in its actions, rulings and treatment of this case prior to the entry of a final order? Did the lower court fail to comply with the applicable rales, case law and due process standards in its actions before entry of the final order and treatment of the case and claims throughout the proceedings, to and including the final order? Brief for Appellant at 5-6. ¶ 7 Preliminarily, we note that Thomas’s brief violates Appellate Rule of Procedure 2119 in that his one argument section does not correspond one-to-one with the four questions he raises. Compare Brief for Appellant at 5-6 and Brief for Appellant at 11. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions to be argued[.]”). Since Thomas’s one argument section is devoted entirely to his second question, his first, third and fourth questions are not properly “followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P 2119(a). Thus, Thomas’s first, third and fourth questions are waived, and we will only review his second question. See Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378, 1380 (1995) (stating that all of the issues set forth in the statement of ques tions involved that are not addressed in the argument section are waived). ¶ 8 Our standard of review following the denial of PCRA relief by a trial court “is limited to determining whether the court’s findings are supported by the record and otherwise free of legal error.” Commonwealth v. Jones, 408 Pa.Super. 337, 596 A.2d 885, 887 (1991). “[T]he findings of the PCRA court will not be disturbed unless they have no support in the record.” Id. ¶ 9 In his second question on appeal, Thomas argues that the PCRA court erred in failing to admit as substantive evidence the declaration of Fearon. Brief for Appellant at 11. Because Fearon was deceased at the time of the remand hearing, she was “unavailable” to testify. See Pa.R.E. 804(a)(4) (stating that declarant is unavailable when “unable to be present or to testify at the hearing because of death ... ”). “[Pjrior statements of unavailable witnesses are only admissible if they bear an adequate ‘indicia of reliability’, such as when the statement falls within a firmly rooted hearsay exception or is supported by a particularized guarantee of trustworthiness.” Commonwealth v. Thomas, 552 Pa. 621, 717 A.2d 468, 476 n. 6 (1998). ¶ 10 Here, Thomas concedes that Fear-on’s Declaration does not fit within a firmly rooted hearsay exception, but argues that it is “admissible as substantive evidence because it evinces overwhelming in-dicia of reliability and trustworthiness.” Brief for Appellant at 17. After review, we agree with the trial court that the statement of a witness taken by the defense under circumstances privy only to the defense does not establish the requisite trustworthiness that is necessary for admissibility. See Trial Court Opinion (T.C.O.), 11/28/05, at 2 (unnumbered). ¶ 11 “The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.” Commonwealth v. Bracero, 515 Pa. 355, 528 A.2d 936, 939 (1987) (citation omitted). “Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant’s word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury.” Id. (citations omitted). For these reasons, our Supreme Court “has long adhered to the principle that the use of hearsay evidence is to be discouraged, and [the] policy against its use is generally recognized as particularly strong.” Heddings v. Steele, 514 Pa. 569, 526 A.2d 349, 351 (1987) (footnote omitted). ¶ 12 In the case at bar, Fearon’s Declaration, though signed subject to the penalty of perjury under 18 Pa.C.S. section 4904, does not meet the requirements of an affidavit, because she did not swear her statements before an officer authorized to administer oaths. See 1 Pa.C.S. § 1991 (“Affidavit” is defined as “[a] statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth ...”); Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1188 n. 10 (2005) (concluding that statements appended to appellant’s brief had not been sworn to by the declarant before an officer authorized to administer oaths, and thus, could not be characterized as affidavits). Instead, Fearon’s Declaration was made before and in privy with the defense only. As a result, the accuracy and circumstances surrounding the execu tion of the Declaration are at issue, ie. whether Fearon did in fact make the assertions as written and whether she signed and adopted the statement as her own. See Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 532 (2005) (“The rule against admitting hearsay evidence stems from its presumed unreliability, because the declarant cannot be challenged regarding the accuracy of the statement.”) (citation omitted). Moreover, since Fear-on is unable to take the stand and testify, her credibility and demeanor cannot be assessed by the trier of fact. See Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591, 595 (1978) (“The principle reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed.”) (citation omitted). Finally, if the Declaration was admitted as substantive evidence, the Commonwealth would not have the opportunity to test Fearon’s eyewitness account of the incident and her identification of the man who murdered the victim as not being Thomas on cross-examination. See Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720, 721 (1956) (stating that without the hearsay rule, “there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment.”) In short, Fear-on’s Declaration was not made in “circumstances that impress the speaker with the solemnity” of her statements and is not “subject to cross-examination.” Bracero, 528 A.2d at 939 (citation omitted). Fearon is also unavailable to testify, and her “demeanor and credibility” cannot be assessed by the trier of fact. See id. Therefore, we conclude that Fearon’s out-of-court Declaration lacks the “conventional indicia of reliability” that is necessary for the admissibility of a hearsay statement. See id. ¶ 13 Thomas also argues that Fearon’s Declaration should be admitted as substantive evidence because a “miscarriage of justice” would occur if it is not. Brief for Appellant at 17, 21 n. 13. Specifically, Thomas asserts that his inability to present Fearon’s Declaration “stems solely” from the PCRA court’s and the Commonwealth’s “failure to follow the law.” Brief for Appellant at 16-17. The only case that Thomas cites to support his contention is Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). Brief for Appellant at 21, n. 13. However, we find Thomas’s reliance on Lawson to be misplaced. Lawson addressed the issue of an exception to the PCRA statute that allows the court to review a second or subsequent post-conviction petition when the appellant demonstrates that a miscarriage of justice may have occurred. See id. at 112. Laivson does not discuss, let alone hold, that hearsay evidence can be admitted upon a showing of a miscarriage of justice. Therefore, we find that Lawson is not implicated in the case at bar and conclude that its doctrine is not applicable to the facts now before us. ¶ 14 Alternatively, Thomas cites Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and contends that the due process clause of the Fourteenth Amendment requires Fearon’s Declaration to be admitted as substantive evidence. Brief for Appellant at 21. In Chambers, the Supreme Court of the United States stated: Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. Chambers, 410 U.S. at 302, 93 S.Ct. 1038. However, we do not find Chambers to be applicable to the case at bar. First, Chambers has been closely confined to its facts and circumstances, involving third-party confessions of guilt (declarations against penal interest) that would exculpate an accused. See, e.g., United States v. Scheffer, 523 U.S. 303, 316, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (“Chambers specifically confined its holding to the ‘facts and circumstances’ presented in that case; we thus stressed that the ruling did not ‘signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ ”) (citation omitted). Moreover, the third-party confession was admitted in Chambers because the “statements involved ... were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Chambers, 410 U.S. at 300, 93 S.Ct. 1038. The declarant in Chambers was also available to testify and could be cross-examined by the prosecution. See id. at 301, 93 S.Ct. 1038. Here, Fearon’s Declaration is not a third-party confession, was not made in circumstances that assure its reliability, and the declarant is unavailable to testify. Therefore, Chambers is inapplicable to the case at bar. ¶ 15 Because we find Fearon’s Declaration to be inadmissible hearsay, we conclude that the trial court did not commit legal error by not admitting Fearon’s Declaration as substantive evidence. Since Thomas offered no other evidence in support of his ineffective assistance of counsel claim, the trial court was also correct in dismissing Thomas’s PCRA petition without holding an evidentiary hearing, because “there are no genuine issues concerning any material fact ... and no legitimate purpose would be served by any further proceedings!)]” Pa.R.Crim.P. 909(B)(2). In view of the fact that Thomas’s second question lacks merit and his first, third and fourth questions are waived, we affirm the trial court’s order. ¶ 16 Order AFFIRMED.

OPINION BY Judge LEADBETTER. Edward McClean petitions this court for review of an Unemployment Compensation Board of Review (Board) order that dismissed his appeal as untimely pursuant to Section 502 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822. The Board found as follows. McClean filed for Unemployment Compensation (UC) benefits on November 20, 2005. The Department granted his request, and employer appealed. After a hearing, the referee denied benefits to McClean. A copy of this decision was mailed to McClean at his last known post office address, on the same day. A notice accompanying the decision advised that interested parties had fifteen days to file a valid appeal. The decision mailed to McClean was not returned as undeliverable by the postal authorities. McClean’s appeal from the referee’s decision had to have been filed on or before January 23, 2006, in order to be timely. McClean’s appeal was filed on January 24, 2006, by U.S. Mail. McClean attempted to file an appeal by e-mail on January 10, 2006, but there is no evidence that the e-mail was received until January 27, 2006. McClean was not misinformed or misled by the UC authorities regarding his right or the necessity to appeal. McClean’s filing of the late appeal was not caused by fraud or its equivalent by administrative authorities, a breakdown in the appellate system, or by non-negligent conduct. Findings of Fact Nos. 1-13, Board Decision (No. B-449541, dated March 27, 2006) at 1-2. The Board determined that not only did McClean fail to file a timely e-mail appeal, the appeal he filed by U.S. Mail was one day late. Accordingly, the Board determined it had “no jurisdiction to accept an appeal filed after the expiration of the statutory appeal period absent limited exceptions not relevant herein.” Id, at 2. On appeal here, McClean queries: (1) whether the Board applied a harsh interpretation of 34 Pa.Code § 101.82(b)(4), which interpretation was also contrary to the Pennsylvania Supreme Court’s interpretation of essentially similar language in Pennsylvania Rule of Civil Procedure No. 205.4(e), regarding electronic filing and service of legal papers; and, (2) in the alternative, whether the Board should have granted McClean an appeal nunc pro tunc, because there was good cause for his late-filed appeal. As previously noted, the controlling statute in this case is Section 502 of the Law. That section provides in pertinent part: The parties and them attorneys or other representatives of record and the department shall be duly notified of the time and place of a referee’s hearing and of the referee’s decision, and the reasons therefor, which shall be deemed the final decision of the board, unless an appeal is filed therefrom, within fifteen days after the date of such decision.... 43 P.S. § 822. Moreover, 34 Pa.Code § 101.82(b)(4) provides: Electronic transmission other than fax transmission. The date of filing is the receipt date recorded by the Department appeal office or the Board’s electronic transmission system, if the electronic record is in a form capable of being processed by that system. A par ty filing by electronic transmission shall comply with Department instructions concerning format. A party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed. (Emphasis in original and added). In the matter sub judice, McClean’s counsel asserts that, on January 10, 2006, he e-mailed to the UC authorities a timely appeal of the referee’s January 6, 2006, decision denying McClean benefits and also asked for a copy of the transcript of the hearing before the referee. Counsel maintains that the e-mail was not returned as undeliverable. He further asserts that, because he received no response, “as a precaution” he followed up on January 24, 2006, and mailed a letter to the UC Service Center in Harrisburg, enclosing a copy of the e-mail he had previously filed on McClean’s behalf. Counsel contends that, until the UC Appeals System Administrator sent him a letter dated February 2, 2006, indicating as such, he was unaware that the Board did not timely receive the e-mail appeal he sent on January 10. He complains that the Board, “in what appears to be a case of first impression dealing with the timeliness of an electronic appeal, applies a mechanical and harsh interpretation” of 34 Pa.Code § 101.82(b)(4). McClean’s brief at 8. In this regard, he maintains that there is nothing in the record to dispute a timely filing of the e-mail appeal on January 10. He also argues that the Explanatory Comment to Pa. R.C.P. No. 205.4(e)(2), which rule provides that “[t]he filing party accepts the risk that a document filed by means of electronic filing may not be properly or timely filed with the prothonota-ry[,]” indicates that this rule, and, by comparison, similarly worded 34 Pa.Code § 101.82(b)(4), were “never intended to punish a litigant or those acting on his or her behalf with the harsh result of outright dismissal of a litigant’s case if there was a failure of an electronic transmission.” McClean’s brief at 10. Rather, the relevant language relating to assumption of the risk was merely to discourage last-minute filing of appeals, which did not occur here. First, having reviewed the relevant documents, we are satisfied that there is record evidence to. support the Board’s position that McClean’s e-mail appeal was filed beyond the statutorily mandated fifteen-day period. As we explained in Shea v. Unemployment Compensation Board of Review, 898 A.2d 31, 33 (2006): “This fifteen-day time limit is mandatory; if an appeal is not timely filed within the specified time period, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter.” (Citation omitted). Second, the Explanatory Comment to Pa. R.C.P. No. 205.4(e)(2) certainly does not support McClean’s counsel’s suggestion that he should have been given more leeway in the application of 34 Pa.Code § 101.82(b)(4) to the facts of this case. We explained in Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1294 (Pa.Cmwlth.1996): “The Department, as authorized by the Legislature, has established strict, unambiguous requirements for filing an appeal with the Board or a referee.” Furthermore, “the Pennsylvania Rules of Civil Procedure ... do not apply to proceedings before administrative agencies and commissions.” McGlawn v. Human Relations Comm’n, 891 A.2d 757, 775 n. 22 (Pa.Cmwlth.2006) (citation omitted). Consequently, the Explanatory Comment to Pa. R.C.P. No. 205.4(e) has no bearing on the outcome of this unemployment matter and the Board’s interpretation of its own regulations. As to McClean’s alternative assertion that he should have been permitted to file an appeal nunc pro tunc, we note that “[a] nunc pro tunc appeal may be allowed where extraordinary circumstances involving fraud or some breakdown in the administrative process caused the delay in filing, or where non-negligent circumstances related to the appellant, his or her counsel or a third party caused the delay.” J.A. v. Dep’t of Pub. Welfare, 873 A.2d 782, 785 (Pa.Cmwlth.2005) [quoting Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, 671 A.2d 1130 (1996)]. Here, McCle-an’s counsel chose to file an e-mail appeal and, pursuant to the Board’s clearly worded regulations, in doing so, he “accept[ed] the risk that the appeal may not be properly or timely filed.” 34 Pa.Code § 101.82(b)(4). Assumption of this risk was even noted on the documentation providing how to file a further appeal, which accompanied the referee’s decision. While we sympathize with counsel, we believe that he should at least have attempted to ascertain whether the Board had received McClean’s e-mail appeal before, rather than after, the statutory time period for appealing the referee’s decision had passed. Because he failed to do so, the Board’s decision not to grant nunc pro tunc relief was proper. We affirm. ORDER AND NOW, this 27th day of September, 2006, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. . This Explanatory Comment provides in part: Most importantly, subdivision (e) expressly provides that a "filing party accepts the risk that a document filed by means of electronic filing may not be properly or timely filed with the prothonotary.” This latter provision is based upon the concern that the immediacy of the electronic transfer of legal papers may foster increased dependency upon last-minute preparation and filing, leaving insufficient time in which to remedy either a deficiency in the legal paper being filed or the inability to effectuate the filing. 1999 Explanatory Comment to Pa. R.C.P. No. 205.4(e). . By letter dated February 2, 2006, Edward P. Rawlings, the UC Appeals System Administrator, wrote McClean's counsel in pertinent part as follows: The Pennsylvania UC Law deems timely an appeal filed within fifteen (15) days after the date on which the referee's decision under appeal was mailed. From a review of the record, it appears that you filed an appeal on January 25, 2006. This was more than fifteen (15) days after the referee’s decision was mailed on January 6, 2006. Board Exhibit # 13. . This inherent assumption of the risk, as well as relevant case law on nunc pro tunc relief in UC cases, negates McClean's argument that 1 Pa.Code § 31.15(a)(1), providing for extensions of time to act where reasonable grounds have been demonstrated and there is no law to the contrary, applies to the facts of this case. . In fact, counsel for McClean apparently recognized. the need for such a precautionary measure when, on January 24, 2006, one day after the appeal period had expired, he mailed a letter to the Board, referencing McClean's earlier e-mail appeal.

ORDER PER CURIAM. Appeals dismissed as having been improvidently granted. Justice NEWMAN did not participate in the consideration or decision of this case.

OPINION BY Judge SMITH-RIBNER. The Delaware County Lodge No. 27, Fraternal Order of Police (FOP) appeals from an order of the Court of Common Pleas of Delaware County that denied the FOP’s petition to vacate a grievance arbi tration award under “Act 111.” The Arbitrator denied a grievance filed by the FOP and affirmed the discharge of Police Officer Michael Evans by the Township of Tinicum (Township). The FOP states the questions as whether Evans as a public employee was entitled to pre-termination due process, including adequate notice of the charges, notice of the underlying factual basis and a pre-termination hearing; whether Evans was denied procedural due process because the Arbitrator failed to limit the Township’s evidence to the statement of charges; and whether he exceeded his authority and violated Evans’ rights by shifting the burden to Evans through an adverse inference against him because he did not testify. The FOP also questions whether the Arbitrator permitted patent irregularities to occur. The Arbitrator found that Evans was first hired in June 1998, and he became a full-time officer in September. Robert T. Lythgoe, Jr., the Township’s Chief of Police, first heard rumors in October 1999 that Evans was engaged in an extramarital relationship with Karen Bingham, who lived in the Township. In February and April of 2000 a male friend of Bingham filed written complaints against Evans; the second was for making an obscene gesture while driving a car in uniform, which resulted in a two-day suspension. Evans, who lived outside the Township in Sharon Hill, filed a harassment complaint against Bingham with the Sharon Hill Police Department in May 2001, based on unwanted telephone calls. On August 15, 2001, Bingham came to the police station and tried to gain entry; she later followed Evans while he was on patrol until he met Sergeant Michael Burns. The officers contacted the Chief, who directed them to come to his home. They were outside talking when Bingham drove by; the Chief asked her to stop and she joined the conversation. Bingham said that Evans told her that he would leave his wife for her. The Chief told both of them that it was time for the relationship to end, and he orally ordered Evans to have no contact with Bingham, whether on or off duty. Later that night Bingham was subject to an involuntary mental health commitment, and on August 20, 2001 Bing-ham’s sister telephoned the Chief stating that Evans was calling Bingham at the crisis unit where she was a patient. The Chief investigated the matter. On October 2, 2001, Bingham was waiting outside with several of her relatives when Evans, his wife and children returned home from a family outing. A physical altercation developed involving Evans, his wife, Bingham and some of her relatives; Bingham sustained injury and bruises that she attributed to Evans. Sharon Hill Police responded and restored order. Bingham filed a harassment complaint against Evans with the Township police, and on October 4, 2001 the Chief conducted Bingham’s interview, which was taped and transcribed. The Chief asked Bingham if Evans had been to her house or initiated contact with her since August 15; she said that he had been to her home 10 to 12 times since then and had called her at home and visited her at work. The Chief received a written report from Evans on October 17 and in the Chiefs interview with Evans he stated that he had a love/sex addiction with Bingham and that he was receiving professional help. By letter dated October 12, 2001, the Chief placed Evans on paid administrative leave and directed that he undergo an independent psychological evaluation to determine if he was mentally fit for his duties. A psychologist examined Evans on October 18 and thereafter reported that he appeared to be free of psychological abnormalities. On November 19 the Chief sent a “Loudermill Notice” to Evans stating that he might be subject to discipline up to and including discharge; the purpose was to provide notice of the potential disciplinary action, to explain evidence obtained in the investigation and to permit Evans an opportunity to offer any and all information that might cause the Chief to reconsider. Chief Lythgoe received a letter from counsel for the FOP stating that Evans was unable to provide any further statement without an exact transcript of Bing-ham’s interview and requesting copies of any other interviews, statements or police reports from the investigation. The Township declined to provide all investigatory materials, and Evans declined to provide any further information. On January 21, 2002, the Chief met with the Board of Commissioners (Board), and they voted to terminate Evans. A termination notice was sent January 22 dismissing Evans for “[inefficiency, neglect, intemperance, disobedience of orders and/or conduct unbecoming an officer,” Ex. J-3; R.R. 77a, citing Section 644(4) of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, added by Section 20 of the Act of May 27,1949, P.L. 1955, 53 P.S. § 55644(4). Evans filed a grievance challenging the legality and legitimacy of the termination. At the first hearing on July 23, 2002, the Arbitrator directed that the transcript of Bingham’s interview and other investigatory materials be given to Evans. The Arbitrator stated the issues as whether the Township had just cause to dismiss Evans and, if not, what is the proper remedy and whether Evans engaged in conduct that would merit dismissal under 53 P.S. § 55644(4) and, if not, what is the proper remedy. Evans did not testify. The Arbitrator first addressed the FOP’s procedural claims that Evans was entitled to a “full-blown” due process hearing before the Board prior to his termination and that he was deprived of a fair opportunity to respond because the Township refused to provide access to statements relied on by the Chief in making his decision, based on its reading of Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and Pavonarius v. City of Allentown, 157 Pa.Cmwlth. 116, 629 A.2d 204 (1993). The Arbitrator did not consider Loudermill to mandate a pre-termination evidentiary hearing. He concluded that the notice sent to Evans complied with minimum due process requirements established in Loudermill: Evans was advised that he was in jeopardy of being dismissed and provided with reasons for the potential discipline and an opportunity to tell his side of the story. Further, in Pavonarius the Court held that Section 4408 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39408, and Section 553 of the Local Agency Law, 2 Pa.C.S. § 553, provided a full-blown adversarial hearing before dismissal; however, the present matter was covered by provisions of The First Class Township Code, which are different. The Arbitrator rejected Evans’ claim of lack of a fair opportunity to respond to the Loudermill Notice, reasoning that it put him on notice of possible disciplinary action and explained the events and basis for the potential discipline, acknowledging Evans’ October 17 statement. The Township had no obligation to turn over the Bing-ham transcript while it was still investigating. At the first hearing, the Arbitrator directed the Township to produce it immediately, and he offered to postpone the hearings to give the FOP more time to review but the offer was declined. The FOP had the transcript for 105 days before it had to put on its case. Evans could have subpoenaed Bingham, he could have asked questions of the Chief regarding the interview and he could have taken the stand himself but chose to do none of those things. The Arbitrator stated that any prejudice Evans may have suffered initially was remedied at the post-termination hearings. On the substantive issues, the Arbitrator stated that he would sustain the grievance if he looked solely at the contact on October 2, 2001, when Bingham was the aggressor and trespassed at Evans’ home and assaulted him and he was defending his family. However, he concluded based upon the evidence presented that Bingham came to the house not because Evans refused to have contact with her but because there was repeated contact with her after the August 2001 order. The Arbitrator had a healthy degree of skepticism regarding Bingham’s statement, but the fact that Evans did not testify to rebut any of her representations made it fair for the Arbitrator as the ultimate fact finder to draw an adverse inference from Evans’ silence. Testimony of Officers Ralph Slatten and Walter M. Davis, pursuant to subpoena, supported the finding that Evans had contact with Bingham after August 15. The Arbitrator decided that he should not interfere with the exercise of the Board’s discretion absent discipline that was arbitrary, discriminatory or an abuse of discretion. Evans presented no evidence of such, or of extenuating or mitigating circumstances. The trial court rejected the FOP’s arguments regarding pre-termination procedures and the scope of evidence. However, the trial court stated that the Arbitrator’s award was not clear as to the burden of proof, and it remanded for clarification. On remand the Arbitrator stated that the burden of proof was on the Township to establish just cause to dismiss and that dismissal was proper under the First Class Township Code. He cited to various statements in the award indicating that he placed the burden correctly, and he denied shifting it although he had authority to make an adverse inference based upon Evans’ silence. Moreover, the penalty was not excessive or unreasonable and the Township did not have to justify it. Also Evans was allowed an opportunity to present evidence of extenuating or mitigating circumstances, but that did not constitute shifting the burden. The trial court accepted these clarifications and in a second order denied the FOP’s petition. The FOP renews its contention that Evans was denied pre-termination due process because he was denied a full-blown evidentiary hearing as well as access to all information that he requested. In Louder-mill the Supreme Court stated: “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546, 105 S.Ct. 1487. The availability of post-termination procedures does not obviate pre-termination due process rights. The FOP disagrees that the Pavonarius requirement for a full hearing before termination applies only to cities of the Third Class. The Court there quoted Section 553 of the Local Agency Law, which provides: “No adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” The FOP further contends that the Arbitrator confused pre-termination and post-termination procedures when he stated that any prejudice Evans may have suffered by not having Bingham’s statement initially was cured in the hearings and noted that Evans did not request a pre-termination hearing. In Part D of its Argument the FOP maintains that the notice of charges provided to Evans was inadequate. The Court has held that a written statement of charges that must be furnished to a police officer within five days of filing must be sufficient to fully advise the person of the charges against him as well as the time when his conduct was in question. Danner v. Bristol Township Civil Service Commission, 64 Pa.Cmwlth. 470, 440 A.2d 702 (1982). In Cerceo v. Borough of Darby, 3 Pa.Cmwlth. 174, 281 A.2d 251 (1971), police officers were terminated without being provided a statutorily required written statement of charges. The Court held that proper and timely notice are aspects of due process in administrative proceedings and that withholding these rights, or a portion of them, invalidates adjudications. The FOP asserts that a fair reading of the Loudermill Notice and the termination notice is that the sole reason for the disciplinary action was the October 2, 2001 incident, but the Arbitrator stated that Evans did nothing wrong then. The Court rejects the FOP’s characterization of Loudermill and of Pavonarius. In Loudermill the Supreme Court clearly stated: [T]he pretermination “hearing,” though necessary, need not be elaborate .... ... Here, the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.... ... The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. Id., 470 U.S. at 545-546, 105 S.Ct. 1487. This description of a far from full-blown evidentiary hearing immediately preceded the statement of what a public employee is entitled to that is quoted by the FOP above. As the Township argues, in Pavo-narius the Court applied Section 4408 of The Third Class City Code, which provides for suspension without process but also specifies that civil service employees may be discharged by city council only after a hearing before council at which the employees may be represented by counsel. No such provision applies here. The Township refers to Jaruszewicz v. Department of Environmental Resources, 167 Pa.Cmwlth. 582, 648 A.2d 1285 (1994), which noted the Court’s statement in Pavonarius that a meeting with the employer or a written notice sent by the employer setting forth the reasons for the employee’s termination and requesting her to respond in writing is sufficient. The Loudermill Notice in the present case likewise is sufficient. The notice stated that the underlying events involved Evans’ relationship with Bingham and violation of direct orders for Evans not to have contact with her. The evidence included Bingham’s October 4, 2001 statement to Chief Lythgoe and Evans’ own October 17 statement. The FOP has never cited authority for the proposition that the “explanation of the employer’s evidence” under Louder-mill entitles the employee to complete access to the employer’s investigatory file, and the Court has found no such authority. In addition, the Loudermill Notice satisfied notice requirements. Evans was advised of the charges of violating the orders not to have contact with Bingham, and he knew when his conduct was questioned. The pre-termination procedures therefore were adequate. Next the FOP contends that the Arbitrator’s authority was limited to resolution of the issues presented by the grievance. Attached to the grievance was a copy of the notice of termination, which the FOP states was intended to provide the factual basis for the charges. The notice of termination stated that the underlying facts were as stated in the Loudermill Notice. During the hearing, the Arbitrator admitted evidence of events not listed in the Loudermill Notice, including such matters as the two complaints from 2000 and the discipline imposed then and the May 2001 harassment complaints. These events went beyond the events of October 2, 2001, which was the only incident specified in the notice. The Township responds, and the Court agrees, that the FOP’s position is based upon an incorrect assertion that the Loud-ermill Notice must be construed narrowly to encompass only the October 2, 2001 incident. As pointed out by the Township and as quoted above, see nl, the notice stated the underlying events, in other words a course of conduct rather than one specific incident. The Arbitrator expressly found that Bingham went to Evans’ house on October 2 because of repeated contact he had with her after the August 15 order to cease any contact. Because the notice encompassed a course of conduct, the Arbitrator did not exceed his authority in receiving evidence as to the totality of Evan’s relationship, his violation of the Chiefs order and the reasons for the October 2 incident. The FOP argues as well that the Arbitrator shifted the burden of proof by stating as reasons for denying the grievance that Evans did not subpoena Bingham to testify and that Evans did not testify and therefore was deemed not to contradict hearsay and other evidence. Even after remand from the trial court the Arbitrator still stated in his clarification that because the evidentiary hearing was labor arbitration and not a criminal trial, “it was within the scope of my authority to make an adverse inference from Officer Evans’ silence with respect to the Bingham transcript.” R.R. 194a. On the issue of penalty, the Arbitrator assertedly placed the burden on Evans to show that termination was not justified. No Township commissioner or official gave evidence concerning his service record. The Arbitrator concluded that the burden to justify the penalty would shift to the Township only if the penalty were excessive or unreasonable. In response the Township first asserts that the FOP waived this issue by not briefing it to the trial court, relying upon Pa. R.A.P. 802(a) (issues not raised in lower court are waived and cannot be raised for the first time on appeal). Assuming that the issue is not waived, the Township responds that the context of the Arbitrator’s statements regarding Evans’ silence is that once the Arbitrator credited Chief Lythgoe, who believed Bingham, the Arbitrator could then cite the lack of evidence from Evans or the FOP to bolster his findings. As for penalty, the Arbitrator properly considered whether the award was excessive or unreasonable. On this point he could consider the FOP’s failure to present evidence or to argue that the discipline was arbitrary, discriminatory or an abuse of discretion. Assuming that the trial court’s considering this issue and remanding and disposing of it preserved the issue for review, the Court rejects the contention that the Arbitrator impermissibly shifted the burden. The burden was on the Township to show just cause for discipline for “disobedience of orders” under Section 644(4) of The First Class Township Code, which it did. As for the penalty, the Arbitrator was well within his authority in concluding that the serious and ongoing infractions committed by Evans merited his dismissal, especially in the absence any mitigation. Reasonable adverse inferences on these points based on Evans’ failure to testify did not impermissibly shift the burden of proof. A party’s failure to testify in a civil proceeding raises an inference that the testimony would be unfavorable to him, even though he was available to either side. Fitzpatrick v. Philadelphia Newspapers, Inc., 389 Pa.Super. 438, 567 A.2d 684 (1989). The order of the trial court is therefore affirmed. ORDER AND NOW, this 13th day of June, 2006, the order of the Court of Common Pleas of Delaware County is affirmed. . The Act commonly known as Act 111, Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10. . The notice from the Chief stated in part: The underlying events for this potential action involves your relationship with a Karen BINGHAM, as well as your violation of direct orders from me that you no longer have any contact with Ms. BINGHAM. As you know, in April of 2000, I ordered you to have no further contact with Ms. BING-HAM while you were on duly. In addition, in August of 2001, I ordered you to cease all contact with Ms. BINGHAM, whether by phone or in person, on duty or off duty. Ex. T-5; R.R. 84a. The notice then described the events of October 2, 2001, stating that the impetus for it apparently was the fact that Evans indicated to Bingham that he was going to leave his wife and move in with her. Also, the Chief observed numerous bruises when he interviewed Bingham on October 4, and Evans admitted grabbing her and swinging her into a railing in the statement of October 17. The notice stated that Evans now had the opportunity to provide a written statement outlining any and all information that might cause the Chief to reconsider recommending disciplinary action or to modify the contemplated action. Id. at 84a-85a. . The trial court noted that judicial review of a grievance arbitration award is in the nature of narrow certiorari, which limits a court to considering only issues regarding (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s powers; and (4) a deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers’ Ass'n (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). This Court’s review is also narrow certiorari pursuant to Betancourt. Mere error of law is insufficient to warrant reversal under narrow certiorari review. Id.

OPINION BY TAMILIA, J.: ¶ 1 Christopher Leddington appeals from the August 17, 2005, amended judgment of sentence of 18 to 86 months imprisonment imposed as a result of his guilty plea, on January 7, 2002, to indecent assault and corruption of minors. The charges arose in connection with appellant’s alleged sexual assault upon an eleven-year-old, female family friend. Included in the amended judgment of sentence was a determination that appellant was a sexually violent predator (SVP). ¶2 Appellant originally was sentenced on May 6, 2002, but that sentence included only the 18 to 36 month term of imprisonment, the Commonwealth’s request for a hearing to determine whether appellant was an SVP having been denied due to then current constitutional challenges to Megan’s Law. The challenges ultimately were resolved in the Commonwealth’s favor on March 23, 2004, and, upon remand, the Commonwealth successfully petitioned for a hearing on appellant’s status as an SVP. See Record, No. 22, Order; No. 23, Order. At the May 25, 2005, hearing on the motion, the trial court determined the Commonwealth had satisfied its burden by clear and convincing evidence, and by Order entered August 17, 2005, appellant’s judgment of sentence was amended to include appellant’s classification as an SVP pursuant to Megan’s Law. That portion of the May 6, 2002, judgment of sentence imposing 18 to 36 months imprisonment, plus five years probation, appears to have remained intact. Post-sentence motions were denied by Order entered December 19, 2005, and this appeal followed. A recitation of the facts underlying this appeal follows. ¶ 3 On March 5, 2001, police in Bucks County were summoned to the home of the victim and were informed that appellant, a friend of the family, had sexually assaulted them daughter known herein as “J.W.” Record, No. 11, Investigation Report. J.W. told police that last year, following her birthday party, she had fallen asleep lying next to the appellant and had awakened to discover appellant touching her genital area and legs over top of her pajamas and sucking on her fingers. Id. She also told police appellant had threatened to kill her if she reported the incident. Id. These statements were corroborated by a friend of J.W.’s who also slept at the victim’s home on the night of the assault. Id. J.W. further explained to police that she had waited to come forward because she feared the appellant, and had come forward now, one year later, because the passing of another birthday had revived memories of the incident. Id. ¶ 4 On August 14, 2001, appellant reported to police headquarters for questioning and provided police with a written statement in which he admitted to sucking on J.W.’s fingers and inappropriately fondling her for a period of approximately five minutes. Record, No. 11, Investigation Report, Defendant’s Written Statement. Appellant was immediately placed into custody and charged with aggravated indecent assault, indecent assault, and corruption of a minor. Record, No. 11, Arrest Report. ¶ 5 On January 7, 2002, appellant pled guilty to indecent assault and corruption of minors, and prior to sentencing, the Commonwealth petitioned the court to determine whether appellant should be classified as an SVP. N.T., 1/7/02, at 6. On May 6, 2002, the court sentenced appellant to one and a half to three years imprisonment plus a consecutive term of five years probation, the court noting on the record that appellant recently had been convicted and incarcerated, and was currently on parole and being treated for repeatedly sexually assaulting his eight-year-old niece over a three year period. N.T., 5/6/02, at 10, 17-19; accord, N.T., 5/25/05, at 39-40. ¶ 6 As explained above, the Commonwealth’s petition for a hearing to determine whether appellant was an SVP was denied on the basis of a previous decision that the registration, notification, and counseling requirements of Megan’s Law were unconstitutional. Commonwealth v. Bannigan, 60 Pa. D. & C. 4th 55, 81 (Bucks Cty.2001). Thereafter, however, the Pennsylvania Supreme Court determined those provisions of Megan’s Law were constitutional and, hence, a hearing was scheduled on the Commonwealth’s petition. See Commonwealth v. Gomer Robert Williams, 574 Pa. 487, 832 A.2d 962, 986 (2003) (Williams II.) ¶ 7 On August 8, 2005, the trial court issued an Order designating appellant as an SVP and contemporaneously issued an Opinion outlining its rationale for doing so. Post-sentence motions were filed leveling constitutional challenges to Megan’s Law II and averring the Commonwealth had not provided sufficient evidence to sustain the trial court’s determination that appellant was an SVP. Record, No. 42. After a hearing, the court denied the motions by Order of December 16, 2005. Record, No. 47. The trial court then issued a second Opinion in the matter incorporating its first Opinion and its adjudication in Commonwealth v. Mullins, 70 Pa. D. & C.4th 462 (Bucks Cty.2005), affirmed 905 A.2d 1009 (Pa.Super.2006). Consequently, appellant perfected a timely appeal with this Court. ¶ 8 On appeal, appellant raises the following three issues for our review: A. Does a lack of judicial reviewability of [a] sexually violent predator find ing render Pennsylvania’s Megan’s Law II unconstitutionally overbroad and excessive? B. Is Megan’s Law II unconstitutionally vague? C. Did the trial court err in finding that the Commonwealth established by clear and convincing evidence that appellant meets the statutory criteria for classification as a sexually violent predator? Appellant’s brief at 5. ¶ 9 At the outset, we note that our standard of review when considering appellant’s constitutional challenges is plenary, as these challenges involve pure questions of law. See, e.g., Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.Super.2005), citing Amerikohl Mining Co. v. Peoples Natural Gas Co., 2004 PA Super 388, 860 A.2d 547, 549-550 (Pa.Super.2004) (additional citations omitted). ¶ 10 Megan’s Law I was enacted in 1995 with the stated purpose of protecting the safety and welfare of people of the Commonwealth by mandating sexually violent predators register with the proper authorities and that this registration be disseminated to the community. See 42 Pa.C.S.A. § 9791(b), Legislative findings and declaration of policy. In effectuating this purpose, Megan’s Law I contained provisions requiring sexually violent predators to register their whereabouts for life and submit to counseling. 42 Pa.C.S.A. § 9795.1(b)(3), Registration. As previously mentioned, our state Supreme Court has determined these requirements of Megan’s Law are non-punitive and constitutional and, consequently, these requirements have survived the subsequent enactment of Megan’s Law II and III. See Williams II, supra at 986. In making this determination, however, the Supreme Court noted the following: Still, one of the most troubling aspects of the statute is that the period of registration, notification, and counseling lasts for the sexually violent predator’s entire lifetime. A reasonable argument could be made that, to avoid excessiveness, the Legislature was required to provide some means for a sexually violent predator to invoke judicial review in an effort to demonstrate that he no longer poses a substantial risk to the community. This aspect of the statute may be particularly problematic if the definition of “sexually violent predator” is incapable of reasonably precise implementation, as explained below. Notably, however, the position that a means for subsequent judicial review is a necessary feature of any valid registration/notification scheme assumes that, given sufficient time and/or treatment, sexually violent predators can be fully cured of the “mental ab normality or personality disorder [making them] likely to engage in predatory sexually violent offenses.” Williams II, supra at 982-983, citing 42 Pa.C.S.A. § 9792 (emphasis added). ¶ 11 Seizing on this language, appellant initially contends that Megan’s Law II is unconstitutionally excessive because it fails to provide for subsequent judicial reconsideration of a trial court’s finding that a defendant should be deemed an SVP. In doing so, appellant contends the experts agree that the rate of recidivism for pedophiles decreases with age, that treatment reduces the risk of recidivism, and that a pedophile can be “managed” so that the threat of risk to the community is diminished. ¶ 12 In analyzing appellant’s constitutional challenges, we note the following: A statute will be found unconstitutional only if it clearly, palpably, and plainly violates constitutional rights. Under well-settled principles of law, there is a strong presumption that legislative enactments do not violate the constitution. Further, there is a heavy burden of persuasion upon one who questions the constitutionality of an Act. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (2000) (internal quotation marks and citations omitted). ¶ 13 In addressing appellant’s first constitutional challenge, we must first determine whether he has overcome the strong presumption of constitutionality by presenting evidence that pedophilia can be “fully cured.” See Williams II, supra at 982-983. Without establishing such a “cure” is available, the need for judicial review of the determination that a defendant is an SVP is clearly obviated. Furthermore, we feel it is equitable to apply a heightened standard of review as appellant is seeking review so that he does not have to comply with the Megan’s Law II registration and notification requirements, which our Supreme Court has held to be non-punitive and non-onerous in nature. See Williams II, supra at 986. ¶ 14 The medical evidence of record demonstrates appellant has been diagnosed with pedophilia, and the condition cannot be cured. Record, No. 13, Petition for Hearing to Determine Defendant’s Sexual Offender Classification, Attachment A. An expert from the Sexual Offenders Assessment Board testified: There’s no cure for pedophilia. It cannot be controlled by any means except internal resources and they have a lifetime course. That’s why someone who is considered to be a sexually violent predator is in lifetime treatment. N.T., 5/25/05, at 64-65. ¶ 15 Appellant himself admits: “The experts agree that there is no cure for pedophilia.” Appellant’s brief at 26. Inasmuch as we are constrained by the language of our Supreme Court in this matter, we find appellant has failed to demonstrate a cure exists for pedophilia, thereby giving rise to the need for judicial review over a court’s determination that a defendant is an SVP. Consequently, we conclude appellant’s first constitutional challenge fails. See also Commonwealth v. Haughvout, 837 A.2d 480, 489 (Pa.Super.2003) (dismissing an appellant’s due process challenge to the lack of judicial review over a sexually violent predator determination because the record was wholly void of any evidence demonstrating a cure was available for the unspecified “mental abnormality or personality disorder” the appellant was influenced by). ¶ 16 Turning to appellant’s “void for vagueness” challenge, appellant advances two arguments. First, he argues the term “sexually violent predator” is too vague and the words and phrases “personality disorder,” “mental abnormality,” “predatory,” and “likely,” used to define this term in Megan’s Law II, are so vague they give “fact finders unfettered leeway to make arbitrary decisions when categorizing an accused as a sexually violent predator.” Appellant’s brief at 35. Inasmuch as this Court has already determined the term “sexually violent predator” and the lesser included words and phrases contained therein are not unconstitutionally vague, we will not address the issue anew. Commonwealth v. Mullins, 905 A.2d 1009 (Pa.Super.2006), citing Commonwealth v. Howe, 842 A.2d 436, 445 (Pa.Super.2004) (holding the terms “sexually violent predator,” “personality disorder,” “mental abnormality,” “predatory,” and “likely” are not constitutionally vague); Commonwealth v. Kopicz, 840 A.2d 342, 348 (Pa.Super.2003) (concluding the term “sexually violent predator” is not unconstitutionally vague); and Commonwealth v. Rhoads, 836 A.2d 159, 162-163 (Pa.Super.2003). ¶ 17 Appellant’s second argument with regard to this issue is predicated on the following passage in Williams II, supra. As Appellees’ void for vagueness challenge was not addressed by the trial court, and the matter will be remanded for consideration of this claim, any imprecision in the Act’s provisions must presently be evaluated in terms of whether it renders the statute unconstitutionally punitive through ex- cessiveness. Primarily, if the Act’s imprecision is likely to result in individuals being deemed sexually violent predators who in fact do not pose the type of risk to the community that the General Assembly sought to guard against, then the Act’s provisions could be demonstrated to be excessive in relation to the remedial purposes served ... Appellees could establish that the offender assessment is so unreliable that there will be little correlation between those ultimately deemed sexually violent predators and the class of individuals who pose the greatest risk of predation ... [A]ny conclusion that an assessment of sexually violent predator status is so arbitrary that the consequences to the individual so adjudicated constitute punishment, would have to be grounded upon credible record evidence that the enumerated criteria were non-predictive, or that assessment pursuant to them was inherently unreliable. Id. at 988-984 (emphasis added). ¶ 18 As in Mullins, supra, appellant herein avers the enumerated criterion used to determine whether an accused is an SVP are non-predictive. See 42 Pa. C.S.A. § 9795.4(b), Assessments. Appellant does not aver that the assessment pursuant to these factors is inherently unreliable. In determining whether the Megan’s Law II factors are unconstitutional, we are mindful of the heavy presumption that Megan’s Law II is constitutional. See MacPherson, supra at 388. We are also mindful of the above passage where our Supreme Court explicitly stated that any finding that the factors contained in 42 Pa.C.S.A. § 9795.4(b) are unconstitutional must be premised upon, “credible record evidence that the enumerated criteria [are] non-predictive.” Williams II, supra at 984. ¶ 19 In arguing the enumerated criteria of 42 Pa.C.S.A. § 9795.4 are non-predictive, appellant relies solely on the same expert testimony as presented in Mullins, supra. N.T. 9/28/04; Appellant’s brief at 28-32. Appellant attacks the Megan’s Law II assessment criteria by arguing the Sexual Offender Assessment Board (SOAB) conducts its assessments at the least logical time, i.e., before an offender is incarcerated, and that the assessment itself is not properly aimed at “risk assessment.” He further argues the SOAB should be required to use actuarial instruments in arriving at its assessments and by arguing the factors are incomplete because they do not require the SOAB to interview an offender before making a determination. Appellant’s brief at 29-30. ¶20 Appellant’s arguments fail on a number of levels. First and foremost, appellant’s argument that assessment should be conducted upon release, rather than prior to sentencing, is inapposite in light of the fact that pedophilia cannot be cured. The SOAB’s function is to determine if an incurable and real risk exists, not to determine when the risk may have lessened a bit. Secondly, appellant’s argument that the assessment should be geared more towards quantifying “risk assessment” is wholly without merit as “risk assessment” is a clinical term used to de termine what percentage of people in a certain demographic is inclined to the specific type of behavior being studied, the method does not determine whether a particular offender himself is likely to engage in the behavior. N.T., 9/28/04, at 203. Third, appellant’s suggestions for improving assessments have little import on the issue of whether the assessment factors themselves have any predictive value. Finally, the expert on whom appellant relies — Dr. Timothy Foley — testified that the use of actuary tables would only lead to a small improvement over currently used methods and that he himself had diagnosed patients as pedophiles without personally interviewing them. N.T., at 156-160. Such evidence does not come near demonstrating that the Megan’s Law II assessment factors are “non-predictive.” See Williams II, supra at 984. Consequently, appellant’s void for vagueness challenge fails and as in Mullins, we conclude the Megan’s Law II assessment factors are constitutional. ¶21 Having determined the Megan’s Law II assessment factors are constitutional, we now review the trial court’s finding that appellant is an SVP. Our standard of review is as follows: The determination of a defendant’s SVP status may only be made after an assessment and hearing before the trial court. In order to affirm an SVP designation, we, as a reviewing court, must be able to conclude that the fact-finder found clear and convincing evidence that the individual is a sexually violent predator. Our review of a sufficiency of the evidence claim is plenary. As with any sufficiency claim, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court’s determination of SVP status only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied. Commonwealth v. Dengler, 843 A.2d 1241, 1246 (Pa.Super.2004) (internal citations and quotation marks omitted). ¶ 22 The term “sexually violent predator” is defined, in relevant part, as: A person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. 42 Pa.C.S.A. § 9792, Definitions. ¶23 There is no dispute that appellant pled guilty to and was convicted of a sexually violent offense. See 42 Pa.C.S.A. § 9795.1(b)(2) (providing that defendants convicted of indecent assault under 18 Pa. C.S.A. § 3125 will be subject to lifetime registration). There is also no dispute appellant has been diagnosed with pedophilia — a mental abnormality in the most decisive sense of the term. The only remaining question, therefore, is whether the trial court erred in finding that the SOAB properly applied the assessment factors in concluding appellant is an SVP. After careful review, we discern no error in this regard. ¶ 24 The trial court is required to examine a list of statutory factors in determining whether a defendant is an SVP. See 42 Pa.C.S.A. § 9795.4. These factors are arranged under four general headings — facts of the current offense, prior offense history, characteristics of the individual, and factors that are supported in a sexual of fender assessment field as criteria reasonably related to the risk of reoffense. Id. In finding appellant is an SVP, the trial court placed great emphasis on a number of salient facts. Under the heading of the facts of the current offense, the trial court noted appellant carefully cultivated a relationship with J.W.’s father to gain entry into the family home and then became close enough with J.W. whereby she permitted him to sleep with her on the couch. The court also credited testimony from an expert stating appellant has developed an age preference for young girls, as evinced by his assaults on an eight-year-old and a ten-year-old. Trial Court Opinion, Goldberg, J., 8/8/05, at 18-14. Under the heading of prior offense history, the trial court emphasized the fact that appellant had been convicted of assaulting two young girls in a three year span and was on probation and undergoing counseling when he committed the underlying offense. Id. at 14. Finally, as to individual’s characteristics, the trial court noted appellant had been diagnosed with incurable pedophilia and that he had carefully planned the assault on J.W. Id. at 14-15. ¶25 We conclude the trial court relied on overwhelming evidence in finding appellant to be an SVP. The evidence establishes appellant repeatedly committed sexual assaults upon two young girls. Additionally, normal restraints imposed by society have no affect on appellant’s desire to exert his deviant and degenerate sexual appetite. Appellant assaulted J.W. even though he was under probationary supervision for a previous assault of a young female. Apparently counseling had done nothing to mitigate the effects of appellant’s incurable condition. ¶ 26 We find the Commonwealth clearly and convincingly established appellant is a pedophile and repeat offender who is unappreciative of society’s attempts to rehabilitate him and who is eager to shed these perceived shackles by attacking other young children. See Dengler, supra at 1246. Inasmuch as Megan’s Law II does not violate the constitutional rights of sexually violent predators, we have no hesitancy in finding the trial court was correct in determining appellant should be required to adhere to Megan’s Law II, the requirements of which include local registration and notification for the rest of his natural life. ¶ 27 Judgment of sentence affirmed. . 18 Pa.C.S.A. § 3126(a)(7). . Id. § 6301(a). .42 Pa.C.S.A. §§ 9791-9799.7. . 18 Pa.C.S.A. § 3125(a)(7). . Id. at § 3126(a)(7). .Id. at§ 6301(a)(1). . These issues are identical to those presented to this Court in Commonwealth v. Mullins, 905 A.2d 1009 (Pa.Super.2006). Our Opinion in Mullins, rejecting the constitutional challenges to Megan's Law II and affirming the judgment of sentence, was filed on August 10, 2006. . Megan’s Law II was passed in 2002 in response to our Supreme Court's decision in Commonwealth v. Donald Francis Williams, 557 Pa. 285, 733 A.2d 593 (1999) (Williams I,) wherein the Court concluded certain provisions of Megan's Law I were, indeed, unconstitutional. Megan’s Law I contained a provision permitting judicial review over a sexually violent predator determination no sooner than one year after release from provision or in five-year intervals thereafter. 42 Pa.C.S.A. § 9794(f), repealed, P.L. 74, No. 18, § 3 (May 20, 2000). Although this provision was not at issue in Williams I, the legislature nevertheless deemed it prudent to delete the review provision from Megan’s Law II. . The trial court noted in Mullins, supra, which is incorporated into its Rule 1925(a) Opinion, that in order for a defendant to successfully challenge the constitutionality of Megan’s Law for the lack of review over a sexually violent predator determination he must show he no longer remains a "substantial risk to the community” by pointing to the passage in Commonwealth v. Gomer Robert Williams, 574 Pa. 487, 832 A.2d 962, 986 (2003) (Williams II) set forth supra. We disagree with this analysis. As the passage demonstrates, our Supreme Court stated unequivocally that judicial review would only be necessary if a cure for pedophilia (or any other "mental abnormality or personality disorder” outlined in Megan's Law) could be demonstrated, i.e., review is only necessary if it is assumed pedophilia can be cured. Only after the need for judicial review is established would the sexually violent predator be given the opportunity to demonstrate they no longer pose a "substantial risk to the community.” The inherent and apt assumption in the Court’s statement is that pedophilia is always a risk to the community — even if there is only a .0001% chance a pedophile will recidivate. If the condition cannot be cured, it is logically impossible for appellant to demonstrate he no longer poses a risk to the community and, consequently, there is no reason for applying a more lenient standard of review. Even if we were to accept the trial court’s notion of what the burden of proof should be, appellant has presented us with no evidence demonstrating he no longer is a risk to the community. As mentioned above, appellant argues that the progression of age reduces the risk of pedophilia, yet appellant is in his late twenties. He also argues treatment reduces the risk of recidivism, yet appellant committed the assault on J.W. while he was undergoing treatment. Thus, even assuming arguendo appellant’s contentions are apt, appellant still has failed to demonstrate these mitigating factors have any application to his situation. . The expert also diagnosed appellant with antisocial personality disorder and impulse control disorder. N.T., 5.25.05, at 65. The expert noted antisocial personality disorder "may become less evident or remit as the individual grows older ... ”, but he did not state the disorder could be cured. Id. at 103. The expert expressed no opinion as to whether impulse control disorder could be cured. He ¡further noted, impulse control disorder in of itself does not predispose an individual to the commission of sex crimes. Id. at 102. In summary, appellant’s failure to present evidence that these secondary conditions are curable does not help him in the matter sub judice. . The transcript of the September 28, 2004 hearing, relied upon by both parties and the trial court, is contained in the certified record in Mullins, supra. It was made available to the panel assigned to this appeal. . We note that appellant’s argument on this issue is identical to that presented in appellant's brief in Mullins, supra. Although we reach the same conclusion as the Mullins Court, we have chosen to address the issue with a somewhat different approach.

PER CURIAM. ORDER AND NOW, this 25th day of July, 2006, upon consideration of the Report and Recommendations of the Disciplinary Board dated April 5, 2006, it is hereby ORDERED that William Jeffrey Yates be and he is suspended from the Bar of this Commonwealth for a period of three months, followed by a period of probation for one year. During the period of probation, Respondent shall do the following: 1. Take the Bridge the Gap course through an accredited provider; 2. Take eight additional hours of continuing legal education credits in the area of ethics; and 3. At least ten days prior to the expiration of the period of probation, provide to the Board his Certificates of Attendance for the Bridge the Gap and ethics courses taken. It is further ORDERED that Respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA: Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania (“Board”) herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline. I. HISTORY OF PROCEEDINGS On March 24, 2005, Office of Disciplinary Counsel filed a Petition for Discipline against William Jeffrey Yates, Respon dent. Charge I of the Petition alleges that Respondent mishandled substantial escrow funds. Charge II alleges that Respondent engaged in neglect, failure to communicate, and a failure to promptly account for and return money in Respondent’s possession to which his client was entitled. Respondent filed an Answer to Petition for Discipline on May 11, 2005. A disciplinary hearing was held on July 21, 2005, before a District III Hearing Committee comprised of Chair David W. Reager, Esquire, and Members James D. Campbell, Esquire, and Philip J. Murren, Esquire. Respondent appeared pro se. Following the submission of briefs by the parties, the Hearing Committee filed a Report on November 15, 2005, finding that Respondent engaged in professional misconduct and recommending that he be suspended for one year with the suspension stayed in its entirety and one year of probation. No Briefs on Exception were filed by the parties. This matter was adjudicated by the Disciplinary Board at the meeting on February 1, 2006. II. FINDINGS OF FACT The Board makes the following findings of fact: 1. Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and 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, William Jeffrey Yates, was born in 1956 and was admitted to practice law in the Commonwealth in 1984. He maintains his office at 425 Market Street, Williamsport PA 17701. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court. 8. Respondent has no prior record of discipline. The Litz Matter 4. In October 1999, the home of Melvin and Peggie Litz, located at 217 Glover Street, Jersey Shore PA, was extensively damaged by fire. The Litzs filed a claim with their homeowner’s insurance company, Nationwide Insurance. 5. On February 9, 2000, Respondent filed a Complaint in Divorce on behalf of Peggie Litz, against her husband Melvin. 6. On April 3, 2000, Nationwide Insurance issued a check for $71,362 in connection with the loss related to the Litzs’ house. These proceeds were paid over to various creditors/mortgagees. 7. On May 3, 2000, Nationwide issued a check in the amount of $50,518.17 in connection with the Litzs’ personal property losses. 8. On May 25, 2000, the Litzs signed an Escrow Agreement concerning the proceeds from the second check, in that the disposition of these funds was an issue in the parties’ divorce. This Agreement was prepared by Frank Fina, Esquire, who was representing Mr. Litz. 9. Respondent was named in this Agreement as “escrow agent”. The Agreement provided that Respondent would hold the escrow funds and that he could make disbursement only in connection with the following specific debts or obligations, all of which related to the par ties’ fire-damaged house at 217 Glover Street, Jersey Shore, Pennsylvania: a) the outstanding balance, interest and penalties on the PHFA mortgage in the name of Husband and Wife; b) any outstanding principal, interest, and penalties on the Advanta Mortgage held by Banker’s Trust Company of California in the name of Husband and Wife; c) any outstanding water/sewer obligations; d) any outstanding property taxes. 10. The Escrow Agreement provided, at paragraph 4: “Except as specifically directed by the terms of the Agreement, no payments shall be made from said escrow funds without the express written consent of Husband and Wife.” 11. On June 6, 2000, Respondent opened an account at Sun Bank into which he deposited all proceeds from the May 2000 Nationwide Insurance check. 12. In June 2001, Ms. Litz hired new counsel, Ronald C. Travis, Esquire. 13. By letter dated June 28, 2001, Respondent advised Mr. Travis of the status of the funds he had been holding pursuant to the May 2000 Escrow Agreement. Respondent did not copy Frank Fina or Mr. Litz "with this letter. 14. On July 3, 2001, Attorney Travis formally entered his appearance on behalf of Ms. Litz and Respondent withdrew as counsel. 15. On December 3, 2001 and June 10, 2002, Master’s hearings were held in connection with the divorce case. Prior to the commencement of the Master’s hearings, the Lycoming County Court of Common Pleas issued an Order, dated September 24, 2001, directing that Respondent disclose documents and information primarily relating to his handling of the escrow funds. By letter dated November 23, 2001, Respondent provided this information to Attorneys Travis and Fina. 16. On March 19, 2002, Raymond J. Lobos, Esquire, entered his appearance on behalf of Mr. Litz. 17. The Master’s Report was filed in February 2003. 18. Attorney Lobos wrote to Respondent by letter dated May 13, 2003. Attorney Lobos stated his belief, based upon the case record and Master’s Report, that Respondent should be holding escrow funds in the amount of $41,119.22 ($50,518.17 less $9,398.95 in proper disbursement), and his belief that Respondent had made substantial improper disbursement. He demanded payment of his client’s 50% share of the escrowed funds, based upon the Master’s findings. 19. Respondent did not respond to this letter. 20. With the knowledge and consent of Mr. Litz and his counsel, Respondent properly made $9,398.95 in disbursements from the aforesaid insurance proceeds of $50,518.17, leaving a balance in the escrow account maintained by Respondent of $41,119.22 21. Without the knowledge or consent of Mr. Litz or his counsel, Respondent made 13 improper distributions totaling $43,104.23, between July 25, 2000 and March 18, 2002. 22. Ten of these disbursements were to Peggie Litz directly, or to a third party for her benefit, such as a car dealership for an automobile, Academy Collection Service, and Beneficial Financial. 23. A payment of $6,000 was made to Ronald C. Travis, Esquire. 24. Disbursements in the amount of $4,000.00 and $321.96 were made to Respondent. 25. In part, Respondent made up his overdraft of Litz funds in the amount of $1,985.02 by utilizing the net interest proceeds of $1,093.57. In addition, on December 13, 2000, Respondent deposited $12,213.65 in unrelated funds into his bank account. 26. By July 2001, he properly disbursed all of these funds, including fees to himself in the amount of $2,700, except for $891.45. 27. Respondent utilized the $891.45, together with the aforesaid net interest, to make up the $1,985.02 shortfall of Litz funds. 28. Mr. Litz filed a claim with the Lawyers Fund for Client Security, in June 2005, in an amount of $20,297.11. This was the amount that should have been paid to Mr. Litz from the funds held by Respondent, as determined in the Master’s Report. 29. With respect to the $6,000 payment by Respondent to Ms. Litz’s successor counsel, Ronald Travis, these funds were deposited in Attorney Travis’ trust account and disbursed as follows: a. $4,641.49 to unknown lender to prevent an automobile repossession, pursuant to the agreement of the parties. b. $1,358.51 to Raymond Lobos, Esquire, counsel for Mr. Litz. Attorney Lobos paid $267.51 to Mr. Litz and retained the balance of $1,091 as fees. 30. Respondent has paid no restitution to Mr. Litz, either directly or through his counsel, Raymond J. Lobos. Loner Matter 31. On April 11, 2002, Ms. Patricia Loner filed a District Justice complaint against her landlord, Ryan Monoski, seeking the return of her security deposit in the amount of $550. 32. Following a hearing on May 14, 2002, the District Justice entered a Notice of Judgment for Ms. Loner and against Defendant Monoski in the amount of $602. 33. On June 11, 2002, Mr. Monoski filed a Notice of Appeal from the judgment and a Praecipe to Issue a Rule on Ms. Loner to file a complaint. On the same day, the court entered a Rule on Ms. Loner to file a complaint. 34. On June 25, 2002, Ms. Loner met with Respondent at his office. He agreed to represent her. Respondent indicated it could take six to eight months to schedule an arbitration hearing. He suggested that she wait to hear from him. 35. On this date both Ms. Loner and Respondent executed a fee agreement. She agreed to pay a flat fee of $500 for Respondent’s services, including representation at an arbitration hearing. 36. As agreed, Ms. Loner subsequently paid Respondent’s fee in two installments of $250 each. 37. Respondent deposited these payments into his general office account at Sovereign Bank, rather than his trust account. 38. In January 2003, Ms. Loner stopped at Respondent’s office to check on the status of her case. Respondent was out of the office and the paralegal pulled her file and advised there was nothing new with her case. 39. Ms. Loner spoke to Respondent by telephone on May 21, 2003. Ms. Loner needed to refresh Respondent’s memory of the ease. 40. When Ms. Loner did not hear anything further from Respondent, she went to the Prothonotary’s office in June 2003 and discovered that Respondent had never filed a complaint. 41. Ms. Loner made a series of telephone calls to Respondent during the month of June 2008, which Respondent failed to return. 42. By certified letter to Respondent dated June 16, 2008, Ms. Loner notified Respondent of the circumstances and made a settlement demand for $1,472.10, based on Respondent’s alleged negligence. 43. Respondent failed to reply to this letter and did not pay or refund any money to Ms. Loner until he received communications from Office of Disciplinary Counsel about the matter in August through October 2003. 44. In November 2003 Respondent paid Ms. Loner $500 via check drawn on his general office account. 45. The only work performed in Ms. Loner’s case was the drafting of an Answer and Counterclaim, which was never filed. Relevant Background 46. Respondent was admitted to practice law in 1984. He opened a solo practice in Williamsport in January 1998, following employment over the years as an assistant district attorney and with the Attorney General’s Office. 47. Respondent’s present practice consists of a general practice including criminal law, family law, bankruptcies and some corporate work. He also served as a public defender during the time frame 2001— 2004. 48. Respondent is an adjunct professor at Penn College in the paralegal program. 49. Respondent has approximately 200 open files. 50. During the time frame 1999 through 2001, Respondent’s support staff consisted of a secretary. His present staff consists of two paralegals and a secretary. 51. Respondent’s office currently utilizes a software based financial record keeping system. He uses this system to segregate client money. 52. Following the commencement of Respondent’s representation of Peggie Litz, and his receipt of the insurance proceeds checks which were properly deposited, Ms. Litz repeatedly requested disbursements based upon her post-nuptial agreement. 53. The post-nuptial agreement provided that the marital home was Ms. Litz’s exclusively. 53. She requested disbursement for various reasons, including a lack of funds for housing, bail in connection with one of her children, funeral expenses for a grandchild, an automobile, and various other general living expense requests. 54. Respondent has acknowledged that such disbursements were improper, that he has learned a lot from this case, and he would never take such actions again. 55. Respondent fully cooperated with Petitioner’s investigation of this matter. III. CONCLUSIONS OF LAW By his conduct as set forth above in the Litz Matter, Respondent violated the following Rules of Professional Conduct: 1. RPC 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. 2. RPC 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. 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. 3. RPC 1.15(c) — When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. If a dispute arises concerning their respective interests the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. 4. RPC 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. By his conduct as set forth above in the Loner Matter, Respondent violated the following Rules of Professional Conduct: 1. RPC 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client. 2. RPC 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information. 3. RPC 1.4(b) A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation. 4. RPC 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. 5. RPC 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. 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. 6.RPC 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. IV. DISCUSSION This matter is before the Disciplinary Board for consideration of charges against Respondent alleging that, in the first matter, he improperly handled entrusted funds, and in the second matter, that he neglected his client’s case, failed to communicate with her, and failed to refund unearned fees. Respondent entered into comprehensive admissions of fact and law, thus rendering this matter a degree of discipline case. In order for the Board to properly assign discipline, we must review the facts of these two matters. In the Litz matter, Respondent received $50,518.17 of insurance proceeds generated by the destruction of his client’s marital home. Respondent had fiduciary duties pursuant to the Rules of Professional Conduct to properly handle this money. Respondent’s client, Ms. Litz, was going through divorce proceedings and the insurance proceeds were a subject of the proceedings. By order of January 6, 2004, the Divorce Master’s recommendation as to the disposition of these particular funds was approved by the Lycoming County Court of Common Pleas. The order awarded to each party 50% of the insurance proceeds. Mr. Litz was entitled to $20,297.11 of the funds. By this time these funds were long gone, having been disbursed by Respondent over a period of approximately one year. Respondent properly spent $9,398.05, leaving him in possession of funds in the approximate amount of $41,000. Respondent made disbursements of $43,104.23, or more than was contained in Litz funds. These disbursements were primarily to Ms. Litz or for her benefit, as Ms. Litz came to Respondent on various occasions complaining of a lack of funds to meet expenses. Respondent made up the shortfall with the funds of an unrelated client (Seacrist), plus interest that had been generated by the combined money of Litz and Seacrist. Respondent has not made any restitution, as he maintains that it is Ms. Litz who benefited most from the disbursement, and is thus responsible for making Mr. Litz whole. Nevertheless, Respondent stated he would consider personally negotiating a settlement with Mr. Litz. In the Loner Matter, Respondent began his representation of Patricia Loner in June 2002 in a landlord/ tenant dispute. Respondent agreed to file a complaint in the matter and called for a flat fee of $500, which Ms. Loner paid. A year long period of non-communication and inactivity followed the commencement of representation. Ms. Loner became increasingly frustrated in her attempts to communicate with Respondent, and finally went to the Prothonotary’s office, where she discovered Respondent had never filed a complaint on her behalf. Ms. Loner made a demand for the payment of her fees, as well as for the amount she had lost by virtue of his failure to file the complaint. Respondent eventually refunded Ms. Loner’s $500 in November 2003, after the involvement of Office of Disciplinary Counsel. Some mitigation exists in this case. With respect to his actions in the Litz matter, the record is clear that Respondent was not primarily motivated by greed. Virtually all of the improper disbursements were made to his client, because of her serious financial troubles. The client’s demand for the disbursements had some legal basis, albeit a weak one, in that she had signed a post-nuptial agreement with her husband, providing that the marital home was hers exclusively, and that by implication, the insurance proceeds generated by the home’s destruction were also hers. It was during this time frame that Respondent acceded to his client’s insistent demands that he disburse funds to her. Ultimately, friction between Respondent and Ms. Litz led her to retain new counsel. It was not until February 2003, when the Master’s Report was issued, that it became clear Ms. Litz’s reliance on her post-nuptial agreement was incorrect. Mr. Litz filed a claim with the Lawyers Fund for Client Security in June 2005. Additional mitigation exists in that Respondent has practiced law since 1984 and has no prior record of discipline. He cooperated with Petitioner in its investigation of these matters. Of the two cases involved herein, the Litz matter is the more serious. In matters involving mishandling of escrow funds in connection with which third parties had a claim, a wide range of discipline has been imposed, based in substantial part on the presence/absence of mitigating or aggravating factors. For instance, in the matter of In re Anonymous No. 7 D.B. 86 & 22 D.B. 87, 49 D. & C.3d 165 (1988), the respondent, who had a lengthy prior disciplinary history, improperly disbursed $1,500 to a client despite the interests of a third party. This misconduct was compounded by multiple misrepresentations made in a separate matter. This respondent was suspended for two years. In the matter of In re Anonymous, 5 Pa. D. & C.4th 259 (1989), an inexperienced practitioner who was the escrow holder spent $2,000 of escrow funds, but repaid it two months later. This respondent received a private reprimand from the Disciplinary Board. These cases, as well as other similar cases, may be distinguished on the facts in that Respondent’s mishandling of the Litz funds was for the benefit of a financially burdened client, as opposed to benefiting himself. The Board is persuaded, upon careful review of the record, that as Respondent’s motivation for the mishandling of the es-crowed funds was not based on greed, it is highly unlikely that such conduct will reoccur. Respondent acknowledged his wrongdoing and stated that he has learned from the circumstances, which suggests that he understands not to engage in such conduct in the future. Balancing the facts of the matter with the mitigating circumstances, the Board recommends that Respondent be suspended for three months, followed by a one year period of probation with conditions. As noted above, a claim was filed with the Lawyers Fund for Client Security by Melvin Litz. In the event an award is made to Mr. Litz, Respondent is required to repay the Fund in full. This restitution must be made prior to reinstatement to the bar. Pa.R.D.E. 581. V. RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the Respondent, William Jeffrey Yates, be suspended from the practice of law for a period of three months, followed by a period of probation for one year. During the period of probation, Respondent shall do the following: 1. Take the Bridge the Gap Course through an Accredited PA CLE Bridge the Gap Provider; 2. Take eight additional hours of PA Continuing Legal Education credits in the area of Ethics; and 3. At least ten (10) days prior to the expiration of the period of Probation, provide to the Board his Certificates of Attendance for the Bridge the Gap Course and Ethics courses taken. It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the Respondent. Respectfully submitted, THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA By:Francis X. O’Connor, Board Member Date: April 5, 2006 Board Members Rudnitsky, Gephart, Wright and Suh dissented and would recommend a one year suspension stayed in its entirety and that Respondent be placed on probation for a period of one year as recommended by the Hearing Committee.

OPINION BY Judge FRIEDMAN. Sharon Tube Company (Employer) petitions for review of the October 28, 2005, order of the Workers’ Compensation Appeal Board (WCAB), which reversed the decision of a workers’ compensation judge (WCJ) and granted the reinstatement petition filed by Daniel T. Buzard (Claimant). We affirm. Claimant suffered a work-related injury on November 13, 1995, and he received benefits pursuant to a WCJ’s award. On Monday, July 21, 2003, Claimant returned to work with a loss of wages, and Employer modified Claimant’s benefits to reflect his earned wages. Claimant’s treating physician, John G. Wassil, III, M.D., took Claimant off work the following Monday, July 28, 2003. On August 11, 2003, the parties executed a Supplemental Agreement (form LIBC-337) acknowledging a recurrence of Claimant’s total disability effective July 28, 2003. In pertinent part, the Supplemental Agreement states: Further matters agreed upon: : As of 7/28/2003, disability recurred total in character [and] compensation shall be payable to the said employee at the rate of $509.00 per week less 20% attorney fee. Temporary partial benefits were issued through 8/10/03, [and] an adjustment check has been sent to make up for the difference owed to both the employee [and] attorney. (R.R. at 49a-50a.) Thereafter, on October 8, 2003, Employer filed a modification petition, seeking a reduction of Claimant’s benefits effective July 21, 2003, based upon Claimant’s return to work. The petition indicated that Claimant had stopped working as of July 28, 2003, but alleged that “Claimant has earning capacity.” (R.R. at 2a-3a.) In his answer to Employer’s petition, Claimant asserted that, in the Supplemental Agreement, Employer admitted that Claimant again became totally disabled as of July 28, 2003, and, therefore, Employer was estopped from seeking modification for any period other than July 21-27, 2003. (R.R. at 4a-5a.) During the first hearing before the WCJ, Claimant moved to dismiss the modification petition, arguing that Employer was bound by the admission in the Supplemental Agreement that Claimant’s total disability had recurred on July 28, 2003. In response, Employer asserted that the Supplemental Agreement merely reflected Employer’s obligation to resume paying total disability benefits based on the fact that Claimant went off work. The WCJ initially agreed with Claimant, (R.R. at 9a), but, thereafter, he denied Claimant’s motion to dismiss by interlocutory order dated April 8, 2004. In support of its modification petition, Employer offered into evidence the deposition testimony of William M. Trachtman, M.D., who examined Claimant on July 16, 2003. Dr. Trachtman opined that Claimant was capable of performing sedentary work, with some restrictions, but he conceded that he could not comment on Claimant’s condition after July 16, 2003. (R.R. at 116a-28a.) Employer also introduced the deposition testimony of Jeffrey M. Moldovan, D.O., who examined Claimant most recently on June 12, 2003, and diagnosed Claimant with chronic neck pain. Dr. Moldovan testified that Claimant should have completely recovered from his work injury, and he stated that the basis for his June 2003 diagnosis was due to symptom magnification on Claimant’s part. (R.R. 146a-53a.) Claimant testified before the WCJ and described his brief return to work. Claimant stated that he continues to have pain, has trouble sleeping and does not believe he can return to work. Claimant also offered the deposition testimony of Dr. Wassil, who testified that his present diagnosis is cervical disk displacement with chronic bilateral C5-6 radiculopathy, cervical degenerative disk disease with spinal stenosis and cervical myofascial pain syndrome. Dr. Wassil opined with a reason able degree of medical certainty that Claimant is not capable of performing any work and that the cause of Claimant’s condition is the 1995 work injury. (R.R. at 72a-76a.) The WCJ rejected Claimant’s testimony, and he accepted the testimony of Drs. Trachtman and Moldovan as more credible and persuasive than that of Dr. Wassil. Based on these credibility determinations, the WCJ granted Employer’s modification petition. On appeal, the WCAB reversed. The WCAB reasoned that, contrary to Employer’s contention that it had issued the Supplemental Agreement solely to reflect the fact that Claimant had stopped working, Employer indicated in the Supplemental Agreement that Claimant’s benefits were being reinstated because Claimant’s total disability had recurred. The WCAB concluded that, because the parties executed the Supplemental Agreement acknowledging that Claimant was again totally disabled, and the Supplemental Agreement was not modified or set aside after its issuance, the Supplemental Agreement was binding. The WCAB further concluded that, in order for Employer to succeed on its modification petition, Employer was required to prove that Claimant had regained some or all of his earning capacity after July 28, 2003, the date Employer acknowledged that Claimant again became totally disabled, and that work was available within Claimant’s limitations. Noting that Employer failed to present medical evidence related to Claimant’s condition or evidence of available work after that date, the WCAB reversed the WCJ’s decision. On appeal to this court, Employer again argues that the Supplemental Agreement only reflected that Claimant stopped working as of July 28, 2003, i.e., that Employer no longer had a legal basis to withhold benefit payments to Claimant. Relying on Norris v. Workers’ Compensation Appeal Board (Hahnemann Hospital), 726 A.2d 1 (Pa.Cmwlth.), appeal denied, 560 Pa. 714, 743 A.2d 925 (1999), Employer asserts that the Supplemental Agreement does not preclude Employer from seeking to modify benefits payable prior to the date of the Supplemental Agreement. We disagree. Section 407 of the Act provides that all notices of compensation payable, agreements for compensation and supplemental agreements for the modification, suspension, reinstatement or termination of compensation “shall be valid and binding unless modified or set aside as hereinafter provided.” 77 P.S. § 731. Section 413(a) of the Act provides that a WCJ “may, at any time, modify ... an original or supplemental agreement ... upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased.... ” 77 P.S. § 772. Employer relies on the phrase “at any time” to argue that the WCJ is empowered to modify an agreement retroactively. However, in Beissel v. Workmen’s Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983), our Supreme Court explained: Under [section 413(a)], notices of compensation payable, agreements, and awards ... are all treated the same. We have held that under [section 413(a) ], the burden is on a petitioner to prove that an employe’s disability has increased or decreased after the date of a referee’s award. Likewise, in the case of an agreement or a notice of compensation payable, a petitioner has the burden of showing that the employe’s disability has changed after the date of the agreement or the notice of compensation payable. Id. at 182, 465 A.2d at 971 (citations omitted). Employer’s reliance on Norris is misplaced. In Norris, a claimant who- was receiving benefits pursuant to a notice of compensation payable (NCP) returned to work on June 9, 1994, at reduced hours. On June 17, 1994, the employer filed termination, suspension and modification petitions, alleging that the claimant had fully recovered from her work related injury as of March 29, 1994. On five occasions between September 1994 and February 1995, while the employer’s petitions were pending, the parties executed supplemental agreements modifying the NCP to reflect changes in the claimant’s earnings resulting from the increased hours she was able to work. Following hearings on the employer’s petitions, the WCJ concluded that the employer had met its burden of proving that the claimant had fully recovered from her work injury as of March 29,1994, and granted the employer’s termination petition. The WCAB affirmed that decision. The claimant appealed, arguing, inter alia, that the supplemental agreements issued during the pendency of the litigation precluded the employer from arguing that the claimant had fully recovered because, in the supplemental agreements, the parties had stipulated that the claimant was entitled to partial disability benefits based upon her return to work. Disagreeing, our court stated in Norris that, “Such a stipulation, in this case at least, was nothing more than an acknowledgment of an undisputed fact, entitling Claimant to partial disability benefits.” Norris, 726 A.2d at 3 (emphasis added). Contrary to Employer’s assertion, as reflected by the restrictive language emphasized above, the court in Norris did not hold that section 413(a) authorizes a WCJ to modify a supplemental agreement retroactively. Significantly, the employer in Norris executed supplemental agreements after filing a termination petition and during the course of litigation on the various petitions. Essentially, in Norris, the employer’s prior filing and continued litigation of its termination, suspension and modification petitions belied the claimant’s assertions that the supplemental agreements constituted stipulations of contrary facts. Here, however, after modifying Claimant’s benefits upon his return to work, Employer executed a Supplemental Agreement specifically acknowledging that Claimant’s total disability had recurred, and Employer waited almost two months before filing a petition for modification. Moreover, as noted by the WCAB, although Employer claimed that it issued the Supplemental Agreement solely to reflect the fact that Claimant had stopped working, Employer presented no evidence that it intended to reinstate Claimant’s benefits for that reason alone or that it contested Claimant’s entitlement to total disability benefits as of July 28, 2003. Employer contends that the WCAB’s holding renders section 413(a) of the Act meaningless; however, as previously stated, section 413(a) authorizes the WCJ to modify an agreement only upon proof that a claimant’s condition has changed since the date of the agreement. Beissel. Moreover, we conclude that adopting Employer’s argument would nullify the legislative intent expressly set forth in section 407 of the Act that all agreements for compensation, including supplemental agreements, shall be considered valid and binding until properly modified. Accordingly, we affirm. ORDER AND NOW, this 23rd day of June, 2006, the order of the Workers’ Compensation Appeal Board, dated October 28, 2005, is hereby affirmed. . No supplemental agreement was filed at the time benefits were modified. Section 413(b) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 774.1, provides in part that any insurer who decreases payments of compensation without submitting an agreement or supple mental agreement shall be subject to penalty as provided in section 435 of the Act, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 991. The record reflects that Employer sent Claimant a supplemental agreement, signed by Employer's representative and dated July 25, 2003, but Claimant did not sign that agreement. (R.R. at 8a-9a; 44a-47a.) . Our scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. . See, also, Mancini v. Workmen’s Compensation Appeal Board, 64 Pa.Cmwlth. 484, 440 A.2d 1275 (1982), which also involved a modification petition under section 413(a) of the Act and was cited with approval in Beissel. In Mancini, our court stated that a party seeking to modify an award or agreement "must produce competent evidence of a change in the [claimant's] physical condition occurring since the date of the award or agreement.” Id. at 1277 (emphasis added). We further stated that, in a modification petition, "the sole issue is whether the claimant’s condition has changed since the earlier award.” Id. at 1278 (emphasis added). . We note that the first paragraph of section 413(a) of the Act, 77 P.S. § 771, authorizes a WCJ to modify or set aside an agreement upon proof that the agreement was based upon a material mistake of fact or law. Anderson v. Workers’ Compensation Appeal Board (Pennsylvania Hospital), 830 A.2d 636 (Pa.Cmwlth.2003). Apparently, Employer mistakenly believed that executing the Supplemental Agreement was the exclusive legal method by which Employer could comply with its obligations under the Act and still preserve its right to pursue a modification of benefits. However, Employer does not argue that it is entitled to relief based on any mistake that existed at the time the Supplemental Agreement was executed. We note that section 413(d) of the Act, added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 774.3, permits an employer to modify compensation payments made during the time the claimant has returned to work at earnings less than his pre-injury wages upon written notification by the insurer to the employee and the department on a form prescribed by the department. Thus, Employer could have unilaterally modified compensation payments based upon Claimant’s return to work. After that, in order for total compensation payment to resume, Claimant would have had to contest Employer's notice of modification or file a reinstatement petition.

OPINION Chief Justice CAPPY. This appeal concerns Pa.R.C.P. No. 1042.3, which requires that a certificate of merit (“COM”) be filed in any professional liability action in which it is alleged that a licensed professional deviated from the acceptable standard of care. Presently, we consider whether the Superior Court correctly reversed the trial court’s order denying Appellee Garth Womer (“Womer”) relief from the judgment of non pros that was entered against him due to his failure to file a COM. For all of the reasons that follow, the order of the Superior Court is reversed. The relevant facts and procedural history are straightforward. On June 25, 2003, Womer commenced a civil action against Appellant Jan K. Hilliker, M.D. (“Hilliker”) by filing a praecipe for issuance of a writ of summons. On August 18, 2008, Womer filed a two-count complaint against Hilliker for negligence and lack of informed consent. In his complaint, Womer alleged that Hilliker is a practicing optho-mologist whose services were engaged to perform corrective surgery on Womer’s eyes; that Hilliker performed the surgery on June 7, 2001; that Hilliker failed to warn Womer of the risks, use the proper procedure, take the proper precautions, and treat the surgery’s complications; and that as a result of Hilliker’s actions, Womer suffers from permanent visual limitations, which have caused him to sustain a variety of losses. Womer did not file a COM with his complaint nor did he file a COM within sixty days of its filing, as is required under Pa.R.C.P. No. 1042.3(a). In addition, Womer did not file a motion to extend the time for the filing of a COM, as is allowed under Pa.R.C.P. No. 1042.3(d). On October 20, 2003, Hilliker filed a Praecipe for Entry of Judgment of Non Pros Pursuant to Pa.R.C.P. No. 1042.6 for failure to file a COM. On that same day, the Prothonotary entered a judgment of non pros in Hilliker’s favor. On October 22, 2003, Womer filed a Motion to Open Judgment of Non Pros and Allow the Filing of a Certificate Nunc Pro Tunc (“Motion”). In the Motion, Womer sought relief from the judgment, alleging that he served an expert report on Hilliker in discovery before Pa.R.C.P. No. 1042.3’s time limit expired; that the information he provided to Hilliker included all of the information that Pa.R.C.P. No. 1042.3 requires; that his failure to file the required COM was due to his counsel’s oversight or mistake; that he was not notified of Hilliker’s intent to secure the judgment of non pros; that Hilliker would not be prejudiced by the granting of the Motion; that the purpose of Pa.R.C.P. No. 1042.3 had been served; that he promptly took steps to open the judgment upon learning of its entry; and that he possessed a meritorious case. One of the exhibits attached to the Motion included the curriculum vitae of an optometrist, Dr. Keith S. Hillard (“Hillard”), and a report (“Report”) that Hillard authored. The Report described Hillard’s consultation with Womer on June 5, 2002 regarding Womer’s visual status. In the Report, Hillard opined that Womer was not a good candidate for the particular surgical procedure that Hilliker used; that due to Womer’s myopia and pupil size, he was exposed to a higher risk of harm than are others; and that following the surgery, Hilliker did not treat a manageable complication promptly. Another exhibit attached to the Motion was a COM as to Hilliker dated October 21, 2003. In response to the New Matter included in Hilliker’s Answer to the Motion, Womer further alleged that if relief from a judgment of non pros secured under Pa. R.C.P. No. 1042.6 is governed by Pa. R.C.P. No. 3051, then Rule 3051(b)(2)’s requirement that he provide a reasonable explanation for his inactivity was satisfied inasmuch as he was under the belief that providing the Report to Hilliker met the requirements of Pa.R.C.P. No. 1042.3. In the alternative, Womer contended that Pa. R.C.P. No. 237.1, and not Pa.R.CJP. No. 3051, applies to the opening of such a judgment. Referring to Pa.R.Civ.P. No. 126, Womer also alleged that a trial court’s strict adherence to Rule 1042.3 in his case would undermine this Court’s intent in adopting the Rule, which was to eliminate the filing of non-meritorious professional liability actions and that the en try of a judgment of non pros, which would put him permanently out of court for a technical violation of Rule 1042.3, was too drastic a result in light of his substantial compliance. The trial court denied Womer’s Motion. The trial court first rejected Womer’s argument that the discovery materials he served on Hilliker complied with the terms of Pa.R.C.P. No. 1042.3, concluding that such an argument contradicted the rule’s plain language. Next, the trial court determined that Womer was incorrect that his Motion should be evaluated under Pa. R.C.P. No.237.1, and held that Womer’s entitlement to relief from the judgment of non pros was to be assessed under Pa. R.C.P. No. 3051. The trial court then considered whether Womer’s belief that his discovery responses satisfied Rule 1042.3’s requirements provided a reasonable explanation under Rule 3051(b)(2) for his failure to file a COM, and concluded that Womer’s belief was insufficient. In this regard, the trial court was of the view that discovery responses, particularly information not of record, neither substituted for a Rule 1042.3 COM nor explained why Womer neglected to request an extension of time under Pa.R.C.P. No. 1042.3(d) within which to secure a COM. Finally, the trial court determined that Womer’s assertions that Pa.R.C.P. No. 126 should excuse him were inappropriate since Rule 126’s application in the present circumstances would effectively nullify the terms of Pa. R.C.P. No. 1042.3. Accordingly, the trial court entered an order dated December 3, 2003, denying Womer’s Motion requesting that the judgment of non pros be opened, and denied the Motion for Reconsideration he filed thereafter by order dated December 15, 2003. Womer filed a timely appeal. In the Superior Court, Womer abandoned his argument that Pa.R.C.P. No. 237.1 governed his request for relief from the judgment of non pros, and argued his entitlement to relief from the judgment under Pa.R.C.P. No. 3051. Womer made all the same assertions in support of his Motion in the Superior Court that he made in the trial court, and added to his arguments in his Superior Court brief by stating that the judgment of non pros should be opened because Pa.R.C.P. No. 1042.3 was newly promulgated and the statute of limitations had run on his cause of action as of the date the judgment was entered. In an unpublished opinion, the Superior Court applied Pa.R.C.P. No. 3051 to Womer’s Motion, and concluded that Womer satisfied Rule 3051(b)(1) and (3), by acting promptly and having a cause of action to file, and Pa.R.C.P. No. 3051(b)(2), by providing a reasonable explanation for his lack of compliance with Pa.R.C.P. No. 1042.3. As to the latter, the Superior Court focused on Womer’s contention that he did not file a COM because he believed that by giving Hilliker the Report he substantially complied with Pa.R.C.P. No. 1043.2, and found Womer’s belief “not wholly unreasonable” due to the lack of case law on the issue. The Superior Court stated: [W]e conclude that given the instant circumstances a legitimate excuse for the failure to comply with Rule 1042.3 exists. This includes the lack of decisional law at the time of the lawsuit; the fact that plaintiff supplied defendant with more information than Rule 1042.3 requires, i.e., a copy of the report instead of a certification that he has such a report; and the fact that [plaintiff] appellant is out of court on his claim if the non pros is affirmed. It is true that Rule 1042.3 allows for a generous period before the filing of a certifícate and that the rule provides for unlimited extensions of the sixty day period pursuant to timely requests. However, in the context of the case, it was not wholly unreasonable for a litigant to have concluded that this transmittal of an expert report represented substantial compliance with Rule 1042.3. (Superior Court Memorandum Opinion at 5.) The Superior Court also observed that even though it did not disagree with the trial court’s opinion espousing a literal interpretation of Pa.R.C.P. No. 1042.3, it disagreed with the trial court’s result for several reasons. The reasons the Superior Court listed without discussion were: equitable principles; the statute of limitations; the recent promulgation of Rule 1042.3; the sparseness of decisions regarding the permissibility of substantial compliance as a substitute for a COM; and the existence of Pa.R.C.P. No. 126. Accordingly, the Superior Court reversed the trial court’s order and remanded the case to the trial court. On remand, the trial court was to obtain proof of facts by evidence or stipulation that Womer supplied the Report to Hilliker and, if shown, to enter an order vacating the judgment of non pros and consider the objection that Hilliker raised to Hillard’s qualifications under Pa.R.C.P. No. 1042.1 to supply the statement Pa. R.C.P. No. 1042.3(a)(1) requires. See supra n. 3. Hilliker filed a Petition for Allowance of Appeal. This Court granted review, limited to whether the Superior Court erred in concluding that Womer alleged sufficient facts to warrant the opening of the judgment of non pros, and directed the parties to address whether Pa.R.C.P. No. 1042.3 should be deemed subject to equitable exceptions. Womer v. Hilliker, 582 Pa. 92, 869 A.2d 482 (2005) (per curiam). By way of background, we begin with the circumstances of Pa.R.C.P. No. 1042.3’s adoption. Pa.R.C.P. No. 1042.3 is one in a series of rules that “govern procedure in a civil action in which a professional liability claim is asserted against a licensed professional.” Pa.R.C.P. No. 1042.1(a). See Pa.R.C.P. Nos. 1042.1-1042.8. We adopted these rules in January of 2003, having determined that malpractice actions were being commenced in the Pennsylvania courts more frequently. We were concerned that this trend would lead to an increase in the filing of malpractice claims of questionable merit, and sought to avoid the burdens that such claims impose upon litigants and the courts. Therefore, we exercised our rule-making authority to devise an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly. See pa Const. art.V, § 10(c); 42 Pa.C.S. § 1722. The procedure we provided in the professional liability action rules centers on the filing of a COM. On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. See Pa.R.C.P. No. 1042.4, Pa.R.C.P. No. 1042.5. On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit’s termination. See Pa.R.C.P. No. 1042.6. In this appeal, our primary focus is on Pa.R.C.P. No. 1042.S and whether it is subject to equitable exceptions. We first observe that the Pa.R.C.P. No. 1042.3 itself sets forth no exceptions, equitable or otherwise, to its terms. See supra n. 1. Therefore, in this regard, we focus, as did the lower courts and the parties, on Pa. R.C.P. No.126, and consider whether the Superior Court should have allowed Rule 126 to play any part in excusing Womers’ failure to file a Rule 1042.3 COM. It is self-evident that our Rules of Civil Procedure are essential to the orderly administration and efficient functioning of the courts. Accordingly, we expect that litigants will adhere to procedural rules as they are written, and take a dim view of litigants who flout them. See Wood v. Garrett, 353 Pa. 631, 46 A.2d 321, 323 (1946). That said, we have always understood that procedural rules are not ends in themselves, and that the rigid application of our rules does not always serve the interests of fairness and justice. Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280, 1281 (1978). It is for this reason that we adopted Rule 126, which provides in pertinent part that “[t]he court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. No. 126. With this language, we incorporated equitable considerations in the form of a doctrine of substantial compliance into Rule 126, giving the trial courts the latitude to overlook any “procedural defect” that does not prejudice a party’s rights. Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996, 1001 (2001) (quoting Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804, 806 (1989) (emphasis in original)); Pomerantz, 387 A.2d at 1281. Thus, while we look for full compliance with the terms of our rules, we provide a limited exception under Rule 126 to those who commit a misstep when attempting to do what any particular rule requires. Moreover, we made Rule 126 a rule of universal application, such that the trial court may disregard any such procedural defect or error at every stage of any action or proceeding to which the civil procedural rules apply. See id. Therefore, as a general proposition, Rule 126 is available in professional liability actions and may be applied to Pa.R.C.P. No. 1042.3, as long as its requirements, as we have articulated them, are met. As to the parameters of the substantial compliance doctrine that is reflected in Pa.R.C.P. No. 126, two of our cases are instructive. In Pomerantz, we determined that the error the defendant committed under former Pa.R.C.P. No. 1038(d) was the sort of procedural defect that could be overlooked under Rule 126. Following an adverse decision in a non-jury trial, the defendant filed “Defendant’s Motions for New Trial” even though Pa.R.C.P. No. 1038(d) stated that within twenty days after notice of the filing of the trial court’s decision “exceptions” that “set forth a specific objection precisely and without discussion” were be filed to rulings on objections or to any other matters that occurred during trial. Pomerantz, 387 A.2d at 1280. The plaintiffs filed a motion to dismiss the defendant’s motion, asserting that former Rule 1088(d) did not permit the filing of a motion for a new trial, but instead only-permitted a party to file exceptions to the trial court’s decision. In response, the defendant countered that but for the title on his pleading, he complied with the former rule. The trial court granted the plaintiffs’ motion to dismiss, and the Superior Court affirmed the judgment. We, however, reversed the order of the Superior Court, vacated the trial court’s order, and remanded the case to the trial court to consider the defendant’s motion as properly-filed exceptions and to enter a final disposition thereon. Id. at 1282. We observed that the defendant’s pleading was filed in a timely fashion; that the objections it contained were set forth just as the rule required; and that had the pleading been properly titled, it would have been disposed of on the merits, rather than upon the erroneous caption. Id. at 1281. In reaching our decision, we stated that it was our policy to overlook such procedural errors when a party had substantially complied with the requirements of a rule and no prejudice would result, and cited Rule 126 as the source of our authority to disregard procedural errors that do not affect substantial rights. Id. at 1282. By contrast, in Sahutsky, we determined that the plaintiffs’ failure to take any steps to comply with the terms of Pa.R.C.P. No.8051 was not the sort of default that Pa.R.C.P. No. 126 was meant to cover. In Sahutsky, when the plaintiffs neglected to pursue their action, the defendant filed a motion for a judgment of non pros. The trial court granted the defendant’s motion, entering the judgment of non pros and dismissing the plaintiffs’ complaint with prejudice. The plaintiffs did not file a petition to open the judgment of non pros under Pa.R.C.P. No. 3051. but rather, filed a direct appeal from the judgment in the Superior Court. On appeal, the defendant argued that Rule 3051’s clear language required the plaintiffs to file a petition to open in the trial court, and that their failure to file such a petition was fatal to their appeal, operating as a waiver of the issues they raised. Based on its prior cases, the Superior Court rejected the defendant’s argument, reasoning that the trial court’s order, which included a judgment and dismissal, could be considered final and directly appealable. Accordingly, the Superior Court reversed the trial court’s order, and remanded to the trial court for reconsideration of the judgment of non pros it entered. This Court reversed the Superior Court. We concluded that the terms of Pa.R.C.P. No. 3051 clearly directed that a petition to open be filed initially with the trial court, and that plaintiffs’ failure to do so operated as a waiver of any of the claims of error concerning the judgment of non pros entered by the trial court. 782 A.2d at 998-1000. With respect to the plaintiffs’ arguments that such a result was unacceptably harsh, especially in light of the fact that the Superior Court followed its own precedent, and that the equities involved in their particular case should cause us to ignore Pa.R.C.P. No. 3051’s clear language, we observed that the plaintiffs failed to file even a procedurally flawed Rule 3051 petition, and reiterated that Pa.R.C.P. No. 126 was not meant to excuse non-compliance with our rules when a party had made no attempt to conform. Id. at 1000-01. Turning to Pa.R.C.P. No. 126’s application in the instant action, Hilliker argues that since Womer did not file a COM, even one that was defective, the trial court correctly determined that this was a situation of a party’s non-compliance and that therefore, Pa.R.C.P. No. 126 should not be considered. Womer counters that since the Report he gave to Hilliker set forth the information that a COM would have provided and fulfilled Pa.R.C.P. No. 1043’s purpose to show that he had a meritorious claim, he demonstrated substantial compliance, such that the Superior Court properly overlooked his failure to file a COM under Pa.R.C.P. No. 126, given the equities he presented. In our view, Hilliker’s position is the correct one, since Womer took no steps to comply with Pa.R.C.P. No. 1042.3. Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiffs claim must be filed in the official record in a document called a “certificate of merit” at the time the complaint is filed or within sixty days thereafter. Pa.R.C.P. No. 1042.3(a). Pa.R.C.P. No. 1042.8 provides that “the certificate required for filing by Rule 1042.3(a) shall be substantially in the following form ....,” and displays a sample COM that shows precisely what Rule 1042.3 requires. Moreover, Pa. R.C.P. No. 1042.3(d), which allows for the filing and granting upon good cause shown of a motion to extend the time for filing a COM, sets forth the one and only step that a plaintiff is to take if he finds himself unable to secure a COM and desires to avoid the consequences of not satisfying Rule 1042.3(a)’s COM filing requirement in a timely fashion. Womer, however, did nothing of the sort. Rather, he served discovery materials on Hilliker, which included an expert report. In our view, this was no procedural misstep within the meaning of Pa.R.C.P.No. 126. It was instead, a wholesale failure to take any of the actions that one of our rules requires, of the type that we have heretofore refused to overlook under Rule 126. See Sahutsky, 782 A.2d at 1001. In contending that even though he made no effort to follow Pa.R.C.P. No. 1042.3’s requirements, Rule 126 can apply in his circumstances because he fulfilled Rule 1042.3’s purpose, Womer is essentially arguing that the doctrine of substantial compliance in Rule 126 not only excuses a party who commits a procedural misstep in attempting to do that which a rule instructs, but also excuses a party who does nothing that a rule requires, but whose actions are consistent with the objectives he believes the rule serves. This is simply not so. The equitable doctrine we incorporated into Rule 126 is one of substantial compliance, not one of no compliance. We reiterate what our case law has taught: Rule 126 is available to a party who makes a substantial attempt to conform, and not to a party who disregards the terms of a rule in their entirety and determines for himself the steps he can take to satisfy the procedure that we have adopted to enhance the functioning of the trial courts. See Sahutsky, 782 A.2d at 1001; Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125, 127 (1993). Therefore, we conclude that Womer did not substantially comply with Pa.R.C.P. No. 1042.3 for purposes of Pa. R.C.P. No. 126’s application, and hold that the Superior Court erred in including Pa. R.C.P. No. 126 as a factor in its analysis as to whether the trial court correctly denied Womer’s request that the judgment of non pros be opened. This does not mean, however, that a plaintiff who, like Womer, fails to file a Rule 1042.3 COM and against whom a Rule 1042.6 judgment of non pros is entered, has no avenue by which to save his action. Under Pa.R.C.P. No.3051, which allows a trial court to grant relief from a judgment of non pros, such a plaintiff has the opportunity to demonstrate that his failure to follow Pa.R.C.P. No. 1042.3 should be excused. In that the nature of an appeal under Pa.R.C.P. No. 3051 is equitable, and is a matter of grace and not of right, Pa.R.C.P. No. 3051 is then, yet another means by which Pa.R.C.P. No. 1042.3 is subject to equitable considerations. See Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63, 65 (1962). At this point, we observe that it has been held that a Pa.R.C.P. No. 1042.6 judgment of non pros may not be opened under Pa.R.C.P. No. 3051. See Hoover v. Davila, 64 Pa. D. & C.4th 449 (Lawrence County 2003), aff'd on other grounds, 862 A.2d 591 (Pa.Super.Ct.2004). The language of Rules 1042.6 and 3051, however, do not support this holding. In addition, the rules’ respective Notes and Explanatory Comments, which we consult in rule construction, show otherwise. See Pa. R.C.P. No. 127(e) (“A note to a rule or an explanatory comment is not part of the rule but may be used in construing the rule.”). The Note that follows Pa.R.C.P. No. 1042.6 states specifically that “Rule 237.1 does not apply to a judgment of non pros entered under this rule.” Pa.R.C.P. No. 1042.6 (Note). Significantly, the Note does not also state that Pa.R.C.P. No. 3051 is inapplicable. Further, the Explanatory Comment to Pa.R.C.P. No. 3051 clarifies that the rule’s application is universal, stating that “[t]he rule adopts a uniform procedure [and] will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing.” Pa.R.C.P. No. 3051 (1991 Explanatory Comment) (emphasis added). Therefore, we hold that a Pa.R.C.P. No. 1042.6 judgment of non pros is subject to a Pa.R.C.P. No. 3051 petition, and disapprove of any decision, like Hoover, that holds to the contrary. As to the merits of the Superior Court’s decision that the trial court erred in refusing to open the judgment of non pros entered in HiUiker’s favor under Pa. R.C.P. No. 3051, we begin with the standard of review that applies in such a matter. It is well-settled that the ruling that a trial court makes under Pa.R.C.P. No. 3051 is reviewed on appeal for an abuse of discretion. Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386, 1387 (1991). This means that the trial court’s decision will be overturned only if reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. See Grady v. Frito-Lay Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003). In the instant case, the Superior Court determined that given the relatively recent adoption of Pa.R.C.P. No. 1042.3 and the resulting lack of decisional law, the trial court abused its discretion in rejecting as reasonable the excuse Womer gave under Pa.R.C.P. No. 3051 for not filing a COM— his belief that he did not need to do so since he substantially complied with Pa. R.C.P. No. 1042.3 by giving Hilliker the Report. Presently, Womer argues that the Superior Court should be upheld because his belief was honestly held and the equities demand it. Hilliker counters that it is the trial court that should be upheld because it did not abuse its discretion in its application of Pa.R.C.P. No. 3051. Here too, we conclude that Hilliker is correct. The fact upon which the Superior Court relied to legitimize Womer’s position — that Pa.R.C.P. No. 1042.3 was not adopted until January of 2003 — is irrelevant. The principle that demonstrates the correctness of the trial court’s determination, that is, that Pa.R.C.P. No. 126 reflects a doctrine of substantial compliance and does not excuse a party’s non-compliance, see supra pp. 9-12, was not new or novel when Womer filed his complaint in August of 2003. Further, this principle was fully available in our case law for Womer to consult at that time, as was, of course, Pa.R.C.P. No. 1042.3, which sets forth its requirements unambiguously and clearly. Accordingly, we have no hesitation in concluding that the trial court acted well within its discretion in finding that Womer did not provide a reasonable excuse under Pa.R.C.P. No. 3051 for not filing a COM. Indeed, in light of the foregoing, we conclude that it would be manifestly unreasonable and therefore, an abuse of discretion, see Grady, 839 A.2d at 1046, for a trial court to conclude that a plaintiff in Womer’s circumstances, making the same arguments, presents a reasonable explanation or legitimate excuse for his failure to file a COM. Therefore, we hold that the Superior Court erred in reversing the trial court’s order denying Womer’s Motion. For all of these reasons, the order of the Superior Court is reversed. Further, this matter is remanded to the Superior Court to remand it to the trial court with instructions to reinstate the order denying Womer’s Motion. Justice NEWMAN and Justice SAYLOR and EAKIN join in this opinion. Former Justice NIGRO did not participate in the consideration or decision of this matter. Justice BAER files a dissenting opinion in which Justice CASTILLE joins. . Rule 1042.3 provides in relevant part: Rule 1042.3. Certificate of Merit (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that ... (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.... (d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. Pa.R.C.P. No. 1042.3(a)(1),(d). . Pa.R.C.P. No. 1042.6 states in pertinent part: Rule 1042.6. Entry of Judgment of Non Pros for Failure to File Certification (a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate. Pa.R.C.P. No. 1042.6. . In New Matter, Hilliker alleged that if Womer relied on a written statement from Hillard to file a COM, the COM would be insufficient under Pa.R.C.P. No. 1042.3 because an optometrist is not an "appropriate licensed professional" under Pa.R.C.P. No. 1041.2(b)(1) who is authorized to supply the statement that Pa.R.C.P. No. 1042.3(a)(1) requires concerning the treatment that an ophthalmologist, like Hilliker, provides. Given the questions before us in this case and our resolution of them, we do not address this issue. . Pa.R.C.P. No. 3051 provides: Rule 3051. Relief from Judgment of Non Pros (a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. No. 3051. .Pa.R.C.P. No. 126 states: Rule 126. Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. No. 126. . The trial court also determined that because a judgment was actually entered against Womer, it would not reach the question as to whether Womer could have requested leave to file the COM as to Hilliker that was attached to the Motion nunc pro tunc. Due to our resolution, there is no issue for us to decide in this regard. . Under Pa.R.C.P. No. 1042.4, a defendant against whom a professional liability action is asserted is to file a responsive pleading within the time required under Pa.R.C.P. No. 1026 or within twenty days after the COM is served, whichever is later. Under Pa.R.C.P. No. 1042.5, only limited discovery is allowed without leave of court before the COM is filed. . This issue raises a question of law, and thus, our standard of review is de novo. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa.366, 888 A.2d 758, 761 n. 4 (2005). . As we noted, we do not address whether the Report set forth the information that a Rule 1042.3 COM would have provided. See supra n. 3. Likewise, given our resolution, we take no position as to Womer’s contention that the Report fulfilled Pa.R.C.P. No. 1042.3’s purpose. . We disapprove of any decision to the extent that it holds that a plaintiff substantially complied with Pa.R.C.P. No. 1042.3 by pro viding an expert report to a defendant or that Pa.R.C.P. No. 126 may be applied in such circumstances. See, e.g., Harris v. Neuburger, 877 A.2d 1275 (Pa.Super.2005). . It is not disputed that Womer satisfied prongs one and three of Pa.R.C.P. No. 305 l's requirements. The present case hinges upon the rule's second prong — whether or not there was a reasonable explanation or legitimate excuse for Womer’s default under Pa.R.C.P. 1042.3. See Pa.R.C.P. 3051; supra n. 4. . We disapprove of any decision to the extent that it sets forth such a conclusion. See, e.g., Harris v. Neuburger, 877 A.2d at 1275.

OPINION Chief Justice CAPPY. In this insurance coverage dispute, Appellant National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”) appeals from the Superior Court’s April 16, 2003 order, which reversed the trial court’s order granting National Union’s motion for summary judgment and remanded the case for additional proceedings to determine whether National Union was responsible for defending and indemnifying Appellee Kvaer-ner Metals Division of U.S., Inc., and other related companies (collectively, “Kvaer-ner”) in an action brought by Bethlehem Steel Corporation (“Bethlehem”). Because we find that National Union has no duty under its policies to defend or indem nify Kvaerner in this case, the order of the Superior Court is reversed. In June 1997, Bethlehem brought an action against Kvaerner asserting claims of breach of contract and breach of warranty. In its complaint, Bethlehem alleged that it entered into a contract with Kvaerner (the “Contract”) pursuant to which Kvaerner agreed to design and construct a coke oven battery (the “Battery”) for Bethlehem. According to Bethlehem, under the contract Kvaerner (1) agreed to build the Battery according to certain “plans and specifications that were made a part of the [Contract],” (2) warranted that its materials, equipment, and work would be free from defect, and (3) agreed to repair or replace any defective work or materials. Bethlehem then contended that based on these facts, Kvaerner breached the above Contract terms because the Battery built by Kvaerner was “damaged” and “did not meet the contract specifications and warranties, or the applicable industry standards for construction ...” Bethlehem further alleged that although it sent Kvaerner a “non-performance list” detailing the Battery’s “damages and breaches,” Kvaerner had failed to remedy the Battery’s problems. Moreover, Bethlehem incorporated by reference the “damages and breaches” listed in the non-performance list, which enumerated numerous problems with the Battery, including the following: (1) “100% of the ovens have cracked paver bricks”; (2) “[s]hifting brickwork has caused maximum deviation of cen-terlines of flue inspection ports”; (8) “[t]he larry car rails are introducing eccentric loads on the oven walls”; (4) “[d]ue to displacement of oven top brick and appurtenances (e.g. larry car rail chairs) the chairs are not directly above the centerline of the heating walls”; (5) “[t]he non-uniform shifting of brickwork in the oven roof resulted in a tilted configuration of the flue inspection ports”; (6) “[s]heared/open joints are present in the horizontal plane of roof brick and there are open joints in the vertical plane of roof brick,” causing the migration of gas; (7) “[s]ections of seven lintel blocks [have subsided] and the outer blocks of two ovens are completely broken or shattered”; (8) the centerlines of the Battery’s ovens are displaced, causing multiple door jams; (9) there are sheared/open joints between the silica and fireclay in the Battery; (10) the oven walls are not plumb and are distorted, causing them to experience compressive stress orders of a magnitude greater than design; (11) the oven walls are spalling; (12) certain braces deviate from the Contract design specifications; (13) the spring adjustments are inadequate; (14) the tie rod housings are bowed; (15) the buckstays do not comply with the erection tolerances; and (16) water is penetrating the coke side bench. Bethlehem’s Non-Performance List, attached to May 15, 1997 Letter of Final Notification of Contract Non-Performance (“Non-Performance List”), Exh. 3 to Kvaerner’s Motion for Reconsideration, at 1-14 (incorporated by reference in Bethlehem Complaint, Exh. A to Kvaerner Complaint, at 8-9). As a result of these damages to the Battery, Bethlehem asserted that Kvaerner was liable to it for either “the amount that it will cost to replace the Coke Oven Battery, or the difference in value between the defective Coke Oven Battery that it received and the Coke Oven Battery that [Kvaerner] warranted that it would deliver.” Id. at 10. After being served with Bethlehem’s complaint, Kvaerner notified its insurer, National Union, of the suit, seeking defense and indemnity pursuant to two commercial general liability (“CGL”) policies (collectively, the “Policies”). The first policy was a “claims made” policy for the period of September 30, 1995 to September 30, 1996 (the “1996 Policy”) whereas the second policy was an “occurrence” policy for the period of April 1, 1997 to December 31, 1997 (the “1997 Policy”). National Union subsequently notified Kvaerner that it was disclaiming “coverage, defense, and indemnity for all allegations contained in [the] complaint” based on its conclusion that Bethlehem’s claims did not fall within the coverage provisions of the Policies. August 29, 1997 Letter from AIG Claim Services, Inc. to National Union, Exh. H of Index of Exhibits in Support of National Union’s Motion for Summary Judgment, at 6. Due to National Union’s refusal to provide coverage, Kvaerner commenced the instant action in the Court of Common Pleas of Northampton County against National Union, seeking, inter alia, a declaratory judgment that National Union has a duty to defend and indemnify it pursuant to the Policies. National Union responded by filing an answer and a new matter, raising numerous affirmative defenses. The parties engaged in discovery and in September 2000 National Union filed a motion for summary judgment, arguing that judgment must be entered in its favor because (1) the Policies only permitted coverage for allegations of “property damage” caused by an “occurrence,” which was defined by the Policies as an accident, and Bethlehem had not alleged that the Battery was damaged by such an occurrence, and (2) even if Bethlehem alleged property damage caused by an occurrence, such damages were excluded under various “business risk/work product” exclusions in the Policies. Kvaerner filed a brief in opposition to National Union’s motion for summary judgment as well as a cross-motion for summary judgment, asserting that National Union was responsible for defending and indemnifying it under the Policies because the Battery’s damages were caused by an occurrence, which it deemed to be an unintended and unexpected event. According to Kvaerner, the Battery was damaged because of “longitudinal movement of the roof,” which was caused because the bricks in the Battery’s roof were “grouted” too early and because of heavy rains that occurred on October 31, 1994. Kvaerner’s Bf. in Opposition to National Union’s Motion for Summary Judgment, at 6, 24. In support of this claim, Kvaerner submitted a report from two experts in which they collectively opined that the damages to the Battery were caused from displacement and movement of the Battery’s roof, which occurred because Kvaerner grouted the bricks earlier than had been scheduled. See Expert Report of Mr. Chuck Beechan and Dr. Clayton Liu, Exh. 8 to Appendix to Kvaerner’s Responses in Opposition to the Motions for Summary Judgment of Commercial Union and National Union and in Support of its Cross-Motion for Summary Judgment. The experts further opined, however, that “the heavy ‘monsoon-type’ rain which occurred on October 31 could have damaged the joints in the roof.” Id. at 3. Kvaerner then explained that because it did not intend or expect the early grouting of the Battery’s bricks or the October 31 rains to cause the movement in the Battery’s roof and thereby damage the Battery, the Battery’s damages were caused by an “accident” for purposes of the Policies. See Kvaerner’s Bf. in Opposition to National Union’s Motion for Summary Judgment, at 23-24. Kvaerner further asserted that the Policies included “Completed Operations Coverage,” which, according to Kvaerner, meant that National Union would provide coverage for damages to Kvaerner’s completed work product in certain circumstances, such as where the damages were the result of improper work performed by its subcontractor, Thyssen Still Otto Anla-genteenick (“Thyssen”). According to Kvaerner, it was entitled to coverage under the above provisions because the damages to the Battery occurred after it was completed by Kvaerner and were the result of Thyssen’s decision to permit Kvaer-ner to grout the bricks on the Battery’s roof earlier than scheduled. Finally, Kvaerner claimed that National Union was not entitled to summary judgment based on the exclusions relied upon by National Union because they were inapplicable. On February 9, 2001, the trial court entered an opinion and order granting National Union’s motion for summary judgment and denying Kvaerner’s cross-motion. The trial court initially reviewed the Policies and agreed with National Union that it was only required to provide coverage for property damage caused by an occurrence or accident. The trial court then found, relying largely on the Superior Court’s en banc decision in Redevelopment Auth. of Cambria County v. International Ins. Co., 454 Pa.Super. 374, 685 A.2d 581 (1996), that because the Policies were only meant to cover “accidental” damages National Union was not required to defend or indemnify an insured for breach of contract claims, presumably because damages resulting from a party’s breach of contract could never be classified as “accidental.” With that premise in mind, the trial court examined Bethlehem’s complaint to determine whether it was covered by the Policies. After finding that Bethlehem was solely seeking damages for Kvaerner’s breach of the Contract, rather than damages caused by an accident, the trial court concluded that Bethlehem’s Complaint did not trigger coverage under the Policies. See Kvaerner Metals Division of Kvaerner U.S., Inc., et al. v. Commercial Union Ins. Co., et al., Pa. C. Northampton, No. 1998-C-9531, at 11 (Feb. 9, 2001) (“The design specifications are duties imposed on Insured, not by public policy, but by the Contract; therefore, [Bethlehem’s] allegations lie in breach of contract.”). In spite of this conclusion, the trial court went on to consider Kvaerner’s claim that it was entitled to coverage under the “Completed Operations Coverage” provisions in the Policies. While the trial court agreed with Kvaerner that these provisions provided coverage for property damage to an insured’s completed work product when such damage was caused by the insured’s subcontractor, it found that these provisions did not “obviate the [Policies’] requirement ... that the property damage [be caused by an accident].” Id. at 14. Thus, as it had already found that Bethlehem was not seeking accidental damages, the trial court concluded that National Union did not have to defend or indemnify Kvaerner pursuant to the “Completed Operations Coverage” provisions. Kvaerner appealed to the Superior Court, which entered an opinion and order on April 16, 2003, reversing the trial court’s order and remanding the case back to that court for further proceedings. See Kvaerner Metals Division of Kvaerner U.S., Inc., et al. v. Commercial Union Ins. Co., et al., 825 A.2d 641 (Pa.Super.2003). The Superior Court first found that it was unable to agree with the trial court’s conclusion that National Union did not have a duty to defend or indemnify Kvaerner because Bethlehem had not alleged that the Battery’s damages were caused by an accident. While the Superior Court acknowledged that case law from this Court indicated that an insurer’s duty to defend and indemnify was dependant on “whether the third-party’s complaint triggers coverage,” Kvaerner, 825 A.2d at 650 (emphasis in original) (quoting Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999)), the court found that it could look outside of Bethlehem’s Complaint in the instant case because there was “no requirement in the [Policies] that a civil complaint be filed to trigger coverage.... ” Id. at 652 (emphasis in original). Therefore, looking beyond the allegations in Bethlehem’s Complaint to the expert report submitted by Kvaerner with its cross-motion for summary judgment, see, supra p. -, 908 A.2d at pp. 892-93, the Superi- or Court observed that the Battery’s damages may have been caused by various events, including the “torrential rains” on October 31, which would have clearly constituted an occurrence under the Policy. Kvaerner, 825 A.2d at 654. In light of this uncertainty, the Superior Court found that there was a genuine issue of material fact regarding the causes of the Battery’s damages and therefore concluded that “summary judgment was improperly entered against Kvaerner on the basis that there had been no ‘occurrence’ as required by the terms of the policy.” Id. at 654-55. The Superior Court next considered whether National Union was entitled to summary judgment based on the Policies’ “business risk/work product” exclusions, which National Union also relied upon in its summary judgment motion. The Superior Court found that these exclusions may have precluded coverage for the Bethlehem lawsuit if an endorsement had not been added to the 1997 Policy, changing the effect of the exclusions. The court explained that while the “business risk/ work product exclusions” generally barred coverage for damages caused by work performed by the insured or the insured’s subcontractor, endorsement 16, which was added to the 1997 Policy in March 1997, altered the exclusions by permitting coverage for property damage caused by the insured’s subcontractor. Given this endorsement, the Superior Court found that it could not conclude as a matter of law that the “business risk/work product” exclusions precluded coverage in the instant case until findings of fact were made regarding the amount of work performed by Kvaemer’s subcontractors and whether any of that work caused the Battery’s damages. Thus, the Superior Court remanded the case to the trial court to make the necessary findings of fact to determine whether any of the Battery’s damages were covered because they were caused by the work of Kvaerner’s subcontractors. National Union subsequently filed a petition for allowance of appeal with this Court and we granted allocatur to consider whether the Superior Court erred by, inter alia, (1) looking beyond Bethlehem’s Complaint to find that National Union may have a duty to defend Kvaerner, (2) finding that the Battery may have been damaged by an “occurrence,” and (3) finding that the “business risk/work product” exclusions did not exclude coverage for Bethlehem’s claims. We now conclude that the Superior Court did in fact err in looking beyond the allegations raised in Bethlehem’s complaint to determine whether National Union had a duty to defend Kvaerner and in finding that the Battery’s damages may have been the result of an “occurrence.” In analyzing the order of the trial court that granted summary judgment to National Union, our scope of review is plenary. Mountain Village v. Board of Supervisors, 582 Pa. 605, 874 A.2d 1, 5 (2005). The standard of review is clear; we will reverse the order of the trial court only when the court committed an error of law or abused its discretion. Mountain Village, 874 A.2d at 5. Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Id. at 5-6. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment. Id. at 6. It is well established that an insurer’s duties under an insurance policy are triggered by the language of the complaint against the insured. In Mutual Benefit Insurance Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999), we stated; A carrier’s duty to defend and indemnify an insured in a suit brought by a third party depends upon a determination of whether the third party’s complaint triggers coverage. Id., citing General Accident Insurance Co. v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997). This principle has been long held in this Commonwealth as well as in other jurisdictions. In Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304, 307 (1954), we explained: [T]he rule everywhere is that the obligation of a casualty insurance company to defend an action brought against the insured is to be determined solely by the allegations of the complaint in the action Id. (Emphasis supplied). In this case, the Superior Court looked to information not contained in the underlying complaint in its determination that coverage might exist under the National Union policies. It claimed that it could do so because the Policies do not require that a Complaint be filed in order to trigger coverage. The Superior Court premised its coverage determination on reports submitted by two experts on behalf of Kvaerner stating that torrential rains may have caused the damages complained of by Bethlehem. The court held that these reports create uncertainty as to the cause of the damage and perhaps set forth an “occurrence” as required by the policies to trigger coverage, thus making summary judgment improper. The Superior Court erred in looking beyond the allegations raised in Bethlehem’s Complaint to determine whether National Union had a duty to defend Kvaerner and in finding that the Battery’s damages may have been the result of an “occurrence.” In doing so, it departed from the well-established precedent of this Court requiring that an insurer’s duty to defend and indemnify be determined solely from the language of the complaint against the insured. Haver, 725 A.2d at 745; Allen, 692 A.2d at 1095; Wilson, 105 A.2d at 307. We find no reason to expand upon the well-reasoned and longstanding rule that an insurer’s duty to defend is triggered, if at all, by the factual averments contained in the complaint itself. Thus, we hold that the Superior Court’s approach in looking beyond the Bethlehem complaint was in error. Instead, we will look to the language of the policies them selves to determine in which instances they will provide coverage, and then examine Bethlehem’s complaint to determine whether the allegations set forth therein constitute the type of instances that will trigger coverage. The interpretation of an insurance policy is a question of law that we will review de novo. See 401 Fourth Street v. Investors Insurance Co., 583 Pa. 445, 879 A.2d 166, 170 (2005). Our primary goal in interpreting a policy, as with interpreting any contract, is to ascertain the parties’ intentions as manifested by the policy’s terms. 401 Fourth Street, 879 A.2d at 170. “When the language of the policy is clear and unambiguous, [we must] give effect to that language.” Id. Alternatively, when a provision in the policy is ambiguous, “the policy is to be construed in favor of the insured to further the contract’s prime purpose of indemnification and against the insurei’, as the insurer drafts the policy, and controls coverage.” Id. With these principles in mind, we shall review the terms of the Policies to determine when they required National Union to defend Kvaerner. The pertinent portions of the National Union CGL policies under which Kvaerner claims coverage state; COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or -“property damage” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages.... b. This insurance applies to “bodily injury” or “property damage” only if: (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory;” 1996 Policy, National Union’s Bf., at E2; 1997 Policy, id. at F2 (emphasis added). The Policies defined “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property.” 1996 Policy, id. at E9-E10; 1997 Policy, id. at F9. An “occurrence” was defined as “an accident, including continuous or repeated exposure to substantially the same or general harmful conditions.” 1996 Policy, id. at E9; 1997 Policy, id. at F8. The Policies also defined a “suit” as “a civil proceeding in which damages because of ‘bodily injury’, ‘property damage,’ ‘personal injury,’ or ‘advertising injury’ to which this insurance applies are alleged.” 1996 Policy, id. at E10; 1997 Policy, id. at F9 (emphasis added). Thus, National Union contracted to defend Kvaerner only when a “suit” or “proceeding” was brought against Kvaerner seeking or alleging damages for inter alia, property damage which is a result of an “occurrence.” An “occurrence,” in turn, is an accident. It is necessary, then, to examine whether the damage that is the impetus of this suit was caused by an accident, so as to constitute an occurrence under the policy. We must, then, examine what constitutes an accident under the policy. The National Union CGL policies do not provide a definition for “accident.” Words of common usage in an insurance policy are construed according to their natural, plain, and ordinary sense. Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 735 A.2d 100, 108 (1999). We may consult the dictionary definition of a word to determine its ordinary usage. Id. Webster’s II New College Dictionary 6 (2001) defines “accident” as “[a]n unexpected and undesirable event,” or “something that occurs unexpectedly or unintentionally.” The key term in the ordinary definition of “accident” is “unexpected.” This implies a degree of fortuity that is not present in a claim for faulty workmanship. Other courts have reached similar conclusions in the construction of the word ‘accident’ for purposes of insurance coverage. In Snyder Heating v. Pennsylvania Manufacturers’ Association Insurance Co., 715 A.2d 483 (Pa.Super.1998), the insured sought a declaratory judgment that insurer’s CGL policy covered alleged liability for a breach of its agreement to maintain burners and boilers at a school’s physical plant. The relevant language of the policy was the same as that in this case. Snyder, 715 A.2d at 485-86. The school allegedly suffered damage to its boilers due to insured’s failure to maintain them properly. The court held that there was no coverage under the language- of the CGL policy because the complaint set forth solely claims for breach of contract. Id. at 487. The court explained, “[pjrovi-sions of a general liability policy provide coverage ... if the insured work or product actively malfunctions, causing injury to an individual or damage to another’s property.” Id. (Emphasis original). Contractual claims of poor workmanship did not constitute the active malfunction needed to establish coverage under the policy. In McAllister v. Peerless Ins. Co., 124 N.H. 676, 474 A.2d 1033 (1984), the New Hampshire Supreme Court held that claims for poor workmanship were not covered by the insured landscaper’s CGL policy. It stated, “[t]he fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship.” McAllister, 474 A.2d at 1036. emphasis added. Thus, the Court found that because the only damage alleged was caused by faulty workmanship to the work product itself, there was not an “accident” as required to trigger coverage. Id. at 1035. The recent decision of the Supreme Court of South Carolina, L-J, Inc. v. Bituminous Fire and Marine Ins. Co., 366 S.C. 117, 621 S.E.2d 33 (2005), is instructive in our analysis. L-J Inc. contracted to build roads for a real estate developer. Within four years of completion the roads had deteriorated and the developer brought an action against L-J Inc. asserting breach of contract, breach of warranty, and negligence. L-J Inc.' brought a declaratory judgment action against Bituminous, seeking coverage under its CGL policy. The trial court and intermediate appellate court found that coverage existed under the policy. On appeal, the Supreme Court of South Carolina reversed. It held that the deterioration of the road could not constitute an “occurrence” under the terms of the policy. The Court explained that all of the allegations raised in the complaint against L-J Inc., including the negligence claims, were based on faulty workmanship. L-J, Inc., 621 S.E.2d at 36. Faulty workmanship, the Court held, does not constitute an “accident” as required to establish an “occurrence” under the policies. Thus, coverage was denied. The Court stated that a CGL policy may provide coverage where'faulty workman ship caused bodily injury or damage to another property, but not in cases where faulty workmanship damages the work product alone. Id. at 36 n. 4. To permit coverage in such instances would convert CGL policies into performance bonds, which guarantee the work, rather than like an insurance policy, which is intended to insure against accidents. Id. at 36-37. See also Hotel Roanoke Conference Center Commission v. Cincinnati Insurance Co., 303 F.Supp.2d. 784, 788 (W.D.Va.2004), (“[T]he word ‘accident’ as used in the definition of occurrence involves a degree of fortuity not present when the insured’s defective performance of a contract causes injury to the insured’s own work or product.”); Norwalk Ready Mixed Concrete v. Travelers Insurance Companies, 246 F.3d 1132, 1137 (8th Cir.2001),(holding that defective workmanship cannot be characterized as an accident under Iowa law), Auto-Owners Insurance Co. v. Home Pride Companies, Inc., 268 Neb. 528, 684 N.W.2d 571, 578 (2004) (A CGL policy does not provide coverage for faulty workmanship that damages only the resulting work product.) We hold that the definition of “accident” required to establish an “occurrence” under the policies cannot be satisfied by claims based upon faulty workmanship. Such claims simply do not present the degree of fortuity contemplated by the ordinary definition of “accident” or its common judicial construction in this context. To hold otherwise would be to convert a policy for insurance into a performance bond. We are unwilling to do so, especially since such protections are already readily available for the protection of contractors. The underlying suit in this case avers only property damage from poor workmanship to the work product itself. In its complaint, Bethlehem alleged that the construction of the coke battery “did not meet the contract specifications and warranties, or the applicable industry standards for construction, and accordingly was in breach of the Contract and its warranties.” Bethlehem Complaint at 8. Bethlehem incorporated by reference into its complaint a non-performance list, specifying the damages and breaches that it alleged. See Page-, 908 A.2d at 891, supra. The list details construction defects and a series of workmanship related irregularities. As faulty workmanship does not constitute an “accident” as required to set forth an occurrence under the CGL policies, we hold that National Union had no duty to defend or indemnify Kvaerner in the action brought by Bethlehem. Given this conclusion, it is not necessary for us to consider whether the business risk/work product , exclusions also preclude coverage here. The Superior Court erred, therefore, in vacating the trial court’s grant of summary judgment to National Union. As such, the Superior Court’s order is reversed. Justices CASTILLE, SAYLOR, EAKIN and BAER join this opinion. Former Justice NIGRO and Justice NEWMAN did not participate in the decision of this case. . "An ‘occurrence’ policy protects the policyholder from liability for any act done while the policy is in effect, whereas a 'claims made’ policy protects the holder only against claims made during the life of the policy.” See Consulting Engineers Inc., v. Ins. Co. of North America, 710 A.2d 82, 85 (Pa.Super.1998), citing St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 535, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978). Thus, even though the Policies contained the same general terms and conditions, they differed in the sense that the 1996 Policy only covered claims made between September 30, 1995 and September 30, 1996, and the 1997 Policy only covered acts that took place between April 1, 1997 and December 31, 1997. See 1996 Policy, National Union's Bf., at E2; 1997 Policy, id. at F2. In all other respects, the policies were identical; thus, for purposes of this appeal only a single analysis is necessary. . National Union claimed that it did not have a duly to defend or indemnify Kvaerner under the Policies for numerous reasons, including the following: (1) Bethlehem’s claims against Kvaerner did not involve "property damage” arising from an "occurrence” as required by the Policies; (2) the Battery’s damages did not take place during the effective time periods of the Policies; (3) the Battery’s damages were a loss in progress or known loss when the Policies were issued; (4) the Battery’s damages were excluded under different "business risk/work product” exclusions in the Policies; and (5) the Battery’s damages were based on the rendering of or failure to render professional services and the Policies excluded coverage for such harm. See Answer of National Union with New Matter and New Matter Under Pa.R.C.P. 2252. . Shortly after the trial court entered its decision, the Bethlehem lawsuit was settled and consequently, discontinued with prejudice. . The Superior Court in Redevelopment Auth. concluded that a CGL insurer was not responsible for defending the Redevelopment Authority of Cambria County for a breach of contract action filed against it by Barr Township because the CGL policy did not cover such actions. 685 A.2d at 589-90. The court explained: Erie correctly asserts that it has no duty to defend or indemnify the Authority since the underlying suit arises out of a breach of contract which is not an accident or occurrence contemplated or covered by the provisions of the general liability insurance policy. Id. at 589. . As the trial court concluded that National Union was entitled to summary judgment because Bethlehem had not alleged that the Battery’s damages were the result of an accident, it did not consider whether coverage was precluded based on the Policies’ exclusions also relied on by National Union in its summary judgment motion. . In our order granting allocatur, we also directed the parties to "address the appropriate test or inquiry in ascertaining whether an underlying claim sounds in contract or tort for purposes of insurance coverage.” Kvaerner Metals Div. of Kvaerner U.S., Inc., et al. v. Commercial Union Ins. Co., et al., 577 Pa. 667, 848 A.2d 925 (2004). We further consolidated the case with Freestone v. New England Log Homes, Inc., 77 WAL 2003, in which the Superior Court directly considered this issue. See Kvaerner Metals Div., 577 Pa. 667, 848 A.2d 925 (2003); Freestone v. New England Log Homes, Inc., 577 Pa. 735, 848 A.2d 929 (2004); Freestone v. New England Log Homes, Inc., 819 A.2d 550, 553-54 (Pa.Super.Ct.2003). The Freestone case, however, was dismissed prior to oral argument. Given these circumstances, we see no need to address this issue and shall therefore leave it for another day. See Gulnac by Gulnac v. South Butler County School Dist., 526 Pa. 483, 587 A.2d 699, 701 (1991) (opining that this Court should only consider issues over which there "is a real controversy”). . Kvaerner claims that National Union owed it a duty to defend as well as a duty to indemnify. As this Court has explained, a duty to defend is broader than the duty to indemnify. General Accident Insurance Co. v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997). Further, the Superior Court has explained that because the duty to defend is broader, a finding that it is not present will also preclude a duty to indemnify. Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602, 605 (Pa.Super.1997). Although, however, the duty to defend is separate from and broader than the duty to indemnify, both duties flow from a determination that the complaint triggers coverage. Allen, 692 A.2d at 1095. Thus, if National Union does not have a duty to defend Kvaerner in this suit, neither does it have the duty to indemnify. . The school’s complaint specified the following alleged causes for its damages; (1) Failure to seal and close the boilers; (2) failure to properly test and inspect the boilers; (3) failure to timely inspect the boilers and report noted deficiencies; (4) failure to install new hardware as needed in the boilers; (5) failure to start the boilers in accordance with specifications; (6) failure to properly clean the boilers; (7) failure to properly secure the boiler doors; (8) failure to otherwise perform its obligations. Snyder, 715 A.2d at 486. . While the majority of Courts have held that coverage under a CGL policy is not triggered by poor workmanship which causes injury to the work product itself, a minority of jurisdictions have held that faulty or negligent workmanship constitutes an accident so long as the insured did not intend for the damage to occur. American Family Mutual Insurance Co. v. American Girl, Inc., 268 Wis.2d 16, 673 N.W.2d 65 (2004), Fidelity & Deposit of Maryland v. Hartford Cas., 189 F.Supp.2d 1212 (D.Kan.2002), Joe Banks Drywall v. Transcontinental Ins. Co., 753 So.2d 980 (La.App.2000), Erie Insurance Exchange v. Colony Development Corp., 136 Ohio App.3d 406, 736 N.E.2d 941 (1999). We believe that this is an overly broad interpretation of accident, as the situation is rare indeed in which a contractor intends that the work product suffer injury. Because we believe that CGL policies are not the proper means to protect against such risks, we concur with the majority of Courts and decline to apply coverage in such cases. . The application and limitations of CGL policies were aptly explained in a seminal law review article by Roger C. Henderson; The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished and completed, will cause bodily injury or damage to property other than to the completed work itself and for which the insured by be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient work or product. This liability, however, is not what the coverages in question are designed to protect against. The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained. Insurance Protection for Products Liability and Completed Operations; What Every Lawyer Should Know, 50 Neb. L.Rev. 415, 441 (1971). .In this case Kvaerner was covered by a Builder’s Risk Policy, providing coverage for property constructed by Kvaerner under the Contract, and a Professional Liability Policy, covering alleged negligent acts, errors, or omissions by Kvaerner or its subcontractors. Kvaerner has recovered monies under both policies.

OPINION BY Judge PELLEGRINI. The single question presented by this appeal is whether the Pennsylvania Workers’ Compensation Act (Act) applies to an injury incurred by a claimant working on a ship in dry dock even though that injury also falls within the coverage of the Long-shore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. 901-950 (2000). Daniel McElheney (Claimant) worked at the Philadelphia Navy Yard employed by Kvaerner Philadelphia Ship Yard (Employer) as a pipe fitter welder. While working on a ship in dry dock, Claimant tripped and fell, injuring his right knee, right shoulder and right foot. Claimant was initially paid benefits under the LHWCA from February 1, 2003, until June 11, 2004, when those benefits ended. Because his work-related injuries which were previously compensated under the LHWCA purportedly still prevented him from returning to work, Claimant filed a Claim Petition seeking Pennsylvania workers’ compensation. Employer denied all of the allegations and also contested whether Pennsylvania workers’ compensation benefits were even available because his injury occurred while repairing a ship in dry dock making the LHWCA his sole source of benefits. Because it was a threshold issue, the parties agreed that the Workers’ Compensation Judge (WCJ) would decide whether Claimant was entitled to compensation under the Pennsylvania Workers’ Compensation Act. In Pennsylvania, whether a maritime worker, who is not a seaman, has access to the state workers’ compensation system is determined by whether a claimant’s job duties are sufficiently land-based or those job duties are not primarily maritime in nature. (See discussion, infra). Before the WCJ, Claimant contended that his job was land-based because the ship was not on navigable waters as it was not afloat, but in dry dock when the injury occurred, entitling him to access to the Pennsylvania workers’ compensation system. Employer argued that Claimant’s work was not land-based because working on a ship in dry dock was a traditional maritime activity occurring on “navigable waters,” making the LHWCA the exclusive remedy for his work-related injuries. Agreeing with Employer’s reasoning and relying on our Supreme Court’s decision in Wellsville Terminals Company v. Workmen’s Compensation Appeal Board (Zacharias), 534 Pa. 333, 632 A.2d 1305 (1993), the WCJ found that Claimant’s exclusive remedy was under the LHWCA because he was working on a ship in dry dock which was a traditional maritime activity precluding access to Pennsylvania workers’ compensation benefits. Claimant appealed to the Board, which affirmed, and this appeal followed. Relying on the United States Supreme Court’s decision Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), Claimant argues that he is entitled to benefits under both the Act and the LHWCA where his injuries were land-based. While he was working on a ship, he contends that it was land-based because it was sitting in dry dock and not afloat or over water. Employer contends that under Wellsville, our Supreme Court determined that Claimant’s work was not land-based and his work was a traditional maritime activity making the LHWCA his sole remedy. To better understand those cases, a brief history of the LHWCA and when it preempts state workers’ compensation laws is necessary. In 1917, at a time where there was no federal legislation providing for compensation of injured workers, the United States Supreme in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), created a line at the water’s edge beyond which states were barred by the admiralty clause of the United States Constitution from applying their workers’ compensation schemes to maritime workers. It reasoned that in the national interest of promoting uniformity in the national maritime law, all injuries to maritime workers occurring seaward of the water’s edge were required to be addressed only under federal law. Although Jensen has never been explicitly overruled, its holding over the years has been narrowed considerably. One of those cases that narrowed Jensen and allowed injured maritime employees to be eligible for state workers’ compensation benefits was Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921). In that case, the United States Supreme Court held that it was constitutionally permissible to apply state workers’ compensation laws to employees even where the employment in issue was “maritime” if the employment was “local” in character. In such cases, it was reasoned that application of state law would not imperil the uniformity of the national maritime law. Western Fuel Co., 251 U.S. at 242, 42 S.Ct. 89; see also Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922) (holding that a proceeding in admiralty would not lie to recover damages for an injury on Oregon’s navigable waters because the employee was restricted to a remedy under Oregon’s workers’ compensation law). If employment could not be described as “maritime but local,” however, no compensation was available to injured maritime workers under the state compensation systems. Congress twice attempted to deal with this decision by legislation expressly allowing state compensation programs to apply to maritime activities, but the Court struck down both statutes as unconstitutional interferences with the harmony and uniformity of maritime law. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); see also Washington v. W.C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). Congress then enacted the LHWCA in 1927, extending some level of protection to maritime workers by providing compensation for injuries occurring upon the navigable waters of the United States. The LHWCA provided compensation coverage to maritime workers injured on navigable waters “if recovery ... through workmen’s compensation proceedings may not validly be provided by State law.” 33 U.S.C. § 903(a) (1927). Passage of the LHWCA did not serve, however, to erase confusion whether the employment was “maritime but local” that determined whether the federal law applied or claimants had to seek access to the state workers’ compensation system. In 1942, in Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the United States Supreme Court examined whether a state workers’ compensation program applied to workers who were injured in navigable waters, but who were performing duties that were not traditionally maritime. In that case, a structural steelworker drowned in a river while dismantling an abandoned drawbridge. The deceased’s duty was to examine the steel after it was lowered to a barge, and, when necessary, to cut the pieces to proper lengths. The deceased had helped to cut some steel from the bridge, and at the time of the accident, was working on the barge that was being loaded with the steel. If his employment were deemed “maritime but local” his remedy would have been through the state workers’ compensation program and remedies would not have been available under the LHWCA. His dependents sought compensation under the state workers’ compensation act and the Supreme Court in Davis held that it would apply. As explained in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 128, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), Davis, “was not predicated on the ground that the employment was ‘maritime but local,’ and so outside the coverage of the Longshoremen’s Act. Rather the Court viewed the case as in a ‘twilight zone’ where the applicability of state law was ‘extremely difficult’ to determine, and resolved the doubt, of course, in favor of the constitutionality of the application of state law. At the same time, the Court indicated that compensation might also have been sought under the Longshoremen’s Act and that an award under that Act in the very same circumstances would have been supportable ...” After Davis there was a “twilight zone” in which there was concurrent jurisdiction between the state workers’ compensation system and the LHWCA. With its decision in Calbeck however, the Supreme Court removed that “twilight zone” when it held that the LHWCA was applicable to all injuries on navigable waters, regardless of whether they were “maritime but local” and irrespective of whether state compensation schemes could also constitutionally apply. Id. at 126-127, 82 S.Ct. 1196. Calbeck established that the LHWCA would apply to all injuries on navigable waters and that a state workers’ compensation system would also apply if the job was “maritime but local.” Id. at 126, 82 S.Ct. 1196. It was clear, though, that the LHWCA did not cover injuries when they happened to occur on land, even to workers in such traditional maritime occupations such as longshoremen. Before 1972 then, a worker who sustained a maritime-related injury would be entitled to seek compensation from the following sources: If the injury occurred on navigable waters and the employment was not “local” in nature, Jensen controlled and the LHWCA was the exclusive source of compensation. “Maritime but local” injuries “upon the navigable waters of the United States,” 83 U.S.C. 903(a) (1970), could be compensated under both the LHWCA and state workers’ compensation. Davis. Injuries suffered beyond navigable waters-albeit within the range of federal admiralty jurisdiction were remediable only under state law. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 220-221, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). In 1972, Congress amended the LHWCA to extend the list of activities eligible for compensation under the LHWCA to include those activities that were land-based, but at the “waters edge.” Sun Shipbuilding and Dry Dock Co. v. Workmen’s Compensation Appeal Board, 41 Pa.Cmwlth. 302, 398 A.2d 1111, 1114 (1979). ' Addressing the 1972 Amendments, the United States Supreme Court, in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), the case relied on by Claimant, held that only federal jurisdiction was extended by the 1972 amendments to the LHWCA to Zcmd-based maritime injuries that are also covered under state workers’ compensation systems. Because the 1972 amendments supplemented, rather than supplanted, state workers’ compensation law, concurrent federal and state jurisdiction exists for land-based injuries sustained by shipyard workers. The Supreme Court reasoned that this was consistent with the thrust of the 1972 amendments to “upgrade the benefits” for maritime workers and that concurrent jurisdiction for state and federal compensation laws was in no way inconsistent with this policy. Id. at 723-724, 100 S.Ct. 2432. Because the 1972 amendments supplemented not supplanted state workers’ compensation schemes, to obtain state worker’s compensation benefits, it was not necessary for land-based maritime employees to establish that the work was “maritime but local,” but only that they were injured. In summary, after the 1972 amendments and Sun Ship, a maritime worker could seek compensation for injuries as follows: • Injuries on navigable waters to maritime employees whose employment was not “local” in nature are covered exclusively under the LHWCA. • “Maritime but local” injuries on navigable waters, could be compensated either under the LHWCA or through the state workers’ compensation system. • Injuries to maritime workers occurring on land could be compensated either under the LHWCA or through the state workers’ compensation system. With regard to whether an injury on navigable waters was “maritime but local,” thereby giving workers access to the state workers’ compensation system, Pennsylvania and some other states focused on the nature of the work in making that determination. If the work was traditional maritime work and was not land-based, state workers’ compensation benefits were not available. In Wellsville, supra, a welder was injured on navigable waters in the course of his employment with a company that repaired barges floating on a river. His work was held not to be “maritime but local” because it was traditional maritime work. The Pennsylvania Supreme Court recognized that Jensen had been narrowed, but held that “maritime employees who are performing traditionally maritime functions and are injured over navigable waters, under Jensen, are constitutionally barred from recovering under any state workmen’s compensation law.” Wellsville, 534 Pa. at 337, 632 A.2d at 1307. In our Supreme Court’s view, Sun Ship’s recognition of concurrent jurisdiction over land-based injuries within the LHWCA “applied only to that part of the LHWCA which had been extended onto land by the ‘land-based’ amendments.” Id. at 337, 632 A.2d at 1307-08. Our Supreme Court’s adherence to the strict locality principle is evident from the following passage: “The Jensen doctrine, which protects a uniform maritime law and does not deal with land-based activities, was completely unaffected by the Sun Ship decision. Under Jensen, an injury over navigable waters still falls within the exclusive jurisdiction of the LHWCA.” Id. at 338, 632 A.2d at 1308. Because the barge upon which the claimant was injured was floating in the river, the claimant’s repair activities were on navigable waters and injuries were incurred performing a traditional maritime activity, his work was held not to be “maritime but local”; thus, Pennsylvania workers’ compensation benefits were not available because the claimant had engaged in traditional maritime work thereby making the LHWCA his sole source of compensation. If a claimant sustains an injury while engaged in a traditional maritime activity on navigable waters, the LHWCA has exclusive jurisdiction over that claim. If Wellsville applied, Claimant in this case would not meet the “maritime but local” test and would be ineligible for Pennsylvania workers’ compensation benefits. Claimant contends that since he was injured while working on a ship sitting in a dry dock that was not afloat or over water, his injury was land-based, thereby making him eligible for Pennsylvania workers’ compensation benefits. The question then becomes whether the nature of the dry dock makes any difference. There appear to be three different types of dry docks recognized by Section 3(a) of the LHWCA: “(1) A floating dry dock, as its name makes clear, floats on the water, the vessel resting on the bottom of the dry dock after the water has been removed. (2) A graven dry dock is dug into the land. The vessel floats in but rests on land once the water has been pumped out. (3) Finally there is the marine railway, on which the vessel is drawn out of the water, instead of the water being drawn away from the vessel. A ship is no more and no less on land when it rests in a graven dry dock than when it rests on a marine railway.” Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 367, 74 S.Ct. 100, 98 L.Ed. 77 (1953) (Burton, J., concurring). Wellsville holds that a worker employed in a maritime capacity on a floating dry dock is precluded under Jensen from receiving state workers’ compensation. With regard to a marine railway dry dock, the United States Supreme Court in Calbeck, in discussing Avondale Marine Ways, commented that a worker injured on a marine railway dry dock was eligible for state workers’ compensation because the ship was located on land stating: The issue in Avondale Marine Ways v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, was whether compensation was available under the Longshoremen’s Act for the death of an employee killed while engaged in the repair of a vessel which was then physically located on land, but on a marine railway. Since a marine railway was considered to be a ‘dry dock,’ the injury satisfied [section] 3(a)’s requirement that it occur ‘uponna-vigable waters,’ defined in [section] 3 as ‘including any dry dock.’ At the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it. See State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933. Calbeck, 370 U.S. at 129, 82 S.Ct. 1196; see also Lisenby v. Texas Employers’ Insurance Association, 487 S.W.2d 366 (Tex.Civ.App.1972). While no case can be found that addresses whether a claimant injured while repairing a ship in a graven dry dock is precluded from seeking state workers’ compensation benefits, Calbeck teaches us that what matters in making a determination is that if “the injury did, in a physical sense, occur on land, ” then Jensen would not preclude jurisdiction of the state workers’ compensation system. Because we agree with Justice Burton’s comments in Avondale Marine Ways that: “[a] ship is no more and no less on land when it rests in a graven dry dock than when it rests on a marine railway,” an injury that occurs in a graven dry dock while the ship is not afloat is “in a physical sense” on land. Because Claimant was injured in a graven dry dock while the ship was not afloat, Claimant has access to both LHWCA and Pennsylvania workers’ compensation benefits. Accordingly, we reverse the decision of the WCJ and the Board finding that the Act does not apply and remand for a determination as to whether Claimant is entitled to benefits. ORDER AND NOW, this 27th day of September, 2006, the order of the Workers’ Compensation Appeal Board, dated March 30, 2006, at No. A05-1193, is reversed and the matter is remanded for a determination as to whether Petitioner is entitled to benefits under the provisions of the Pennsylvania Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. Jurisdiction relinquished. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. . The parties submitted the following documentation as joint exhibits which were relevant to the Claimant's receipt of benefits under the LHWCA: U.S. Department of Labor Payment of Compensation Without Award Form (2/26/03); Notice of Controversion of Right to Compensation Form (3/17/03); Notice of Final Payment or Suspension of Compensation Payment Form (1/28/04); Notice of Conversion of Right to Compensation Form (1/28/04); Notice of Final Payment or Suspension of Compensation Payments (6/11/04); November 29, 2004 letter from Ms. Earline Wiseman (Wiseman), Claims Examiner, U.S. Department of Labor addressed to Claimant; and December 7, 2004 reply letter from Claimant's counsel addressed to the U.S. Department of Labor. . The November 29, 2004 letter from U.S. Department of Labor Claims Examiner Wise-man stated that Claimant’s LHWCA benefits were stopped by Employer’s insurance carrier because: ‘You sustained a permanent partial disability equivalent to 20% of the right foot, have reached maximum medical improvement and have the ability to return to work.” In response, Claimant’s counsel sent the December 7, 2004 letter disagreeing with Wise-man’s partial disability of 20% of the right foot. The letter also noted that Claimant had suffered knee and shoulder injuries, which had prevented him from returning to his pre-injuiy employment and that was the reason why he filed a Pennsylvania workers’ compensation claim. .Our scope of review of the Board’s order is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Nevin Trucking v. Workmen’s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa.Cmwlth.1995). . The 1927 version of Section 3(a) of the LHWCA reads as follows: .(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of— (1) A master or member of a crew of any vessel, nor any person engaged by the mas ter to load or unload or repair any small vessel under eighteen tons net; or (2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof. .The 1972 version of Section 3(a) of the LHWCA stated as follows: Compensation shall be payable under this chapter in respect of disability or death ... if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). . There is no possibility of double recovery because benefits under either scheme were credited against each other. . See Wells v. Industrial Commission, 277 Ill.App.3d 379, 214 Ill.Dec. 38, 660 N.E.2d 229 (1995); see also Indiana & Michigan Electric Co. v. Workers’ Compensation Commissioner, 184 W.Va. 673, 403 S.E.2d 416 (1991). . Other states in determining if the work is "maritime but local” focus on the relationship and contacts that the employer and employee have to the state in which the injury occurs. In Norfolk Shipbuilding & Drydock Corp. v. Duke, 14 Va.App. 1027, 420 S.E.2d 528 (1992), an employee was injured on navigable waters in the course of his employment with a shipbuilder. The employment was held to be "maritime but local” because both the injured employee and the corporate employer were Virginia citizens, the work was performed in Virginia waters and resulted from a local employment contract, and the employer-employee relationship was a proper subject of state interest and control. See also Beverly v. Action Marine Services, Inc., 433 So.2d 139 (La.1983); AllSouth Stevedoring Co. v. Wilson, 220 Ga.App. 205, 469 S.E.2d 348 (1996).

ORDER PER CURIAM. AND NOW, this 24th day of October, 2006, the Order of the Superior Court is REVERSED, appellant’s appeal is REINSTATED and this matter is REMANDED to the Superior Court for consideration on the merits. The Superior Court panel erred in raising the issue of appellant’s standing to appeal sua sponte, and then quashing the appeal upon that ground. See, e.g., In re Nomination Petition of deYoung, 903 A.2d 1164 (2006) (a court is prohibited from raising the issue of standing sua sponte). Furthermore, we note that the Commonwealth agreed with appellant that he has standing to appeal in this case. Jurisdiction relinquished.

OPINION BY COLVILLE, J.: ¶ 1 This is an appeal from the trial court order requiring Appellant Father to contribute to the parochial school tuition of the parties’ minor daughter (“S.K”) in proportion to his net income. Father presents the following issues for our review: (1) whether the trial court erred in requiring Father to pay support for private schooling because private schooling was not consistent with the standard of living and station of life of the parties prior to separation; and (2) whether the trial court violated Father’s right of conscience under Article I, Section 3 of the Pennsylvania Constitution in requiring Father to financially contribute to a Roman Catholic School. We affirm. ¶2 We view Appellant’s claims with the following consideration: When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. In addition, we note that the duty to support one’s child is absolute, and the purpose of child support is to promote the child’s best interests. Samii v. Samii 847 A.2d 691, 694 (Pa.Super.2004) (citations omitted). ¶3 The relevant facts are as follows. Mother and Father were married in 1990 and lived in York County, Pennsylvania, during the duration of their marriage. The parties’ union produced two children: S.K., born May 19, 1998, and K.K., born February 6, 1995. The parties separated in April 1997, at which time Mother moved to Maryland to be near her extended family who resided there. At the time the parties separated, S.K. was four years old and K.K. was two. Neither child was of school age, although S.K. had briefly attended a preschool at a Methodist church near the parties’ residence in Pennsylvania. The parties divorced on or about October 30,1997. ¶ 4 When S.K. began attending school, she attended public school in Queen Anne’s County, Maryland. In 2002, upon Mother’s remarriage to her current husband, Mother and children moved into Mother’s husband’s house which was located in a different school district than that which S.K. was currently attending. Thus, S.K. was required to transfer to the public elementary school in Anne Arundel County, Maryland, in the third grade. S.K. then attended sixth grade at Wiley H. Bates Middle School (“Bates”), the public middle school in Anne Arundel County, Maryland. Due to Mother’s concerns that S.K. was threatened while attending sixth grade at the middle school, that the environment at the school was not conducive to learning, that the teachers lacked control in the classrooms, as well as the regular occurrence of fights in the hallways, Mother enrolled S.K. in St. Mary’s Elementary School (“St. Mary’s”), a private Catholic school located in Annapolis, Maryland. The tuition at St. Mary’s is approximately $6,230.00 per year. At the time of the March 9, 2006, opinion and order of the trial court, S.K. was attending seventh grade at St. Mary’s. ¶ 5 Approximately two years after the parties’ divorce, on November 17, 1999, a domestic relations order was entered directing Father to pay Mother for the support of the parties’ two children. The November 17, 1999, support order was not revised until Mother filed a petition for modification on October 3, 2005, requesting recalculation of the child support after adjusting for Father’s increase in income and specifically requesting contribution from Father for private school tuition. Thereafter, at a conference before a hearing officer on December 7, 2005, Father was directed to pay support to Mother for the parties’ two children in the amount of $1,857.00 per month plus an additional $264.79 per month toward parochial school tuition of S.K. The hearing officer apportioned the tuition among the parties equally. Father requested a de novo hearing of the hearing officer’s decision that he be directed to contribute toward the parochial school tuition of S.K. for the same reasons that form the basis for the instant appeal. Mother requested a de novo hearing on the basis that the hearing officer erred in the calculation of the amount of tuition for private school by allocating the tuition equally between the parties instead of based on the parties’ proportionate share. After a hearing with respect to these issues, on March 9, 2006, the trial court ordered Father to contribute to S.K’s parochial school tuition and that the tuition must be allocated between the parties in proportion to their net incomes. Father’s appeal of this order followed. ¶ 6 Father first argues that the trial court erred in requiring him to pay support for private school because private schooling is not consistent with the standard of living and station of life of the parties prior to separation. Father also asserts in his appellate brief that S.K. will not benefit from attending private school. ¶ 7 In Knapp v. Knapp, 758 A.2d 1205 (Pa.Super.2000), this Court, in upholding an order requiring the appellant to pay tuition for a parochial school, concluded that parochial schools fall within the definition of a private academic school and, therefore, within the purview of Pa.R.C.P. 1910.16-6(d) of the Pennsylvania Child Support Guidelines. Pa.R.C.P.1910.16-6(d) provides: Private School Tuition. Summer Camp. Other Needs. The support schedule does not take into consideration expenditures for private school tuition or other needs of a child which are not specifically addressed by the guidelines. If the court determines that one or more such needs are reasonable, the expense thereof shall be allocated between the parties in proportion to their net incomes. The obligor’s share may be added to his or her basic support obligation. Pa.R.C.P.1910.16-6(d). Thus, the Support Guidelines allow the court to include private school tuition in the support amount if the court determines that the need for private school is a reasonable one. In determining whether a need is reasonable, this Court has stated: A private school education may be a reasonable need for a child if it is demonstrated that the child will benefit from such and if private schooling is consistent with the family’s standard of living and station in life before the separation. If these factors are proved, a court may order a parent to provide financial support for the private schooling of a minor child. Pellish v. Gerhart, 701 A.2d 594, 596 (Pa.Super.1997) (quoting Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382, 395 (1996)). In Francis v. Francis, 358 Pa.Super. 391, 517 A.2d 997 (1986), this Court found no abuse of the trial court’s discretion in ordering the husband to pay for his daughter’s private school based on the record evidence of the advantages to the child, the family’s social status, as well as the income and earning potential of the father. ¶ 8 After hearing the evidence, the trial court determined that the need for S.K. to attend St. Mary’s is a reasonable one. In rendering its decision, the trial court first determined that S.K. is benefiting from her enrollment at St. Mary’s. The trial court found that: While attending sixth grade at Bates, [S.K.] encountered many disruptions from learning. In fact, Laura Lane, a current teacher at St. Mary’s who had previously taught at Bates for three years, testified that police officers were commonplace at Bates for disciplinary reasons and that physical as well as verbal altercations erupted frequently. Furthermore, Ms. Lane listed some of the usual disruptions from educational instruction, including students talking back to teachers, arguing and fighting with each other, wandering around the classroom, and yelling across the room. In contrast, [S.K.] does not encounter said disruptions at St. Mary’s. Regarding the learning environment of St. Mary’s, Ms. Lane testified that the students are respectful and polite and know the routine, meaning that they enter the classroom, are seated, and immediately begin their work, allowing the teacher to complete the lesson without disruption. Furthermore, [S.K.] testified that she felt unsafe almost every day while attending Bates and was worried about receiving injuries if a student commenced a fight with her. On the other hand, [S.K.] testified that she feels safe at St. Mary’s due to the lack of physical and verbal altercations. [S.K.] also indicated that St. Mary’s challenges her intellect without constant distractions, she is happier there since she learns more, it is a friendly environment, and she receives academic assistance from teachers during lunch and recess. With regard to academia, Ms. Lane testified that as a sixth grade Social Studies teacher at Bates, many of her students were reading on a second or third grade level. In fact, Ms. Lane stated that she could not utilize the textbooks provided by the County since the students could not read them. On the other hand, as an eighth grade Language Arts teacher at St. Mary’s, Ms. Lane testified that of her 101 students, approximately 99 of them are reading on an eighth grade level or above. Furthermore, although Father argues that [S.K.] is not benefiting from private school education as evidenced by her plummeting grades, Mother testified that [S.K.] has been working with St. Mary’s staff to address how to effectively study for their tests and to better acquaint herself with St. Mary’s form of note taking and study habits. Moreover, Margaret Dammeyer, the Principal of St. Mary’s, testified that an adjustment period is normal for a new student at St. Mary’s, including learning how to use copybooks which are an integral part of daily educational activity at St. Mary’s. Thus, when the Court considers the information presented, the Court believes that [S.K.] is benefiting from attending St. Mary’s. Trial Court Opinion, 3/9/06, at 6-8. As the factual findings of the trial court are supported in the record, we find no reason to disagree with the conclusion of the trial court that S.K. is benefiting from private school. ¶ 9 Father asserts that even if the trial court could reasonably believe that S.K. benefits from private school, the trial court erred in determining that private schooling is consistent with the family’s standard of living and station in life before the separation because the children have a history of attending public school. Specifically, Father asserts that standard of living and station of life is a lifestyle choice requiring the court to consider non-economic factors with little regard to the income and wealth of a party. ¶ 10 While there are no cases in this jurisdiction directly on point as to whether non-economic circumstances impact the standard of living and station in life in private school tuition cases, an analysis of ordinary support cases demonstrates that standard of living is largely determined by economic factors. This Court in Karp v. Karp, 455 Pa.Super. 21, 686 A.2d 1325, 1328 (1996) explained the factors to be used in determining standard of living for purposes of a support order. In Karp, this Court, in affirming an award of alimony pendente lite and child support to wife, stated: “[T]he critical factor in determining the standard of living is clearly the financial circumstances of the obligee, not his philosophical position on the precise limits of the good life — what he can afford is the question, not what he is willing to pay for.” Id. The Karp Court held that in determining standard of living, one must look to available income and the lifestyle that the income would support. Id. This case is consistent with other decisions in this jurisdiction that have defined standard of living and station in life in terms of economic factors. See Nischal v. Nischal, 879 A.2d 813, 815 n. 3 (Pa.Super.2005), (stating, in the context of an appeal of a child support order, that “[ajccording to the American Heritage Dictionary of the English Language, the term ‘standard of living’ refers to the ‘level of material comfort as measured by the goods, services, and luxuries available to an individual, group, or nation.’ ”); Edelstein v. Edelstein, 399 Pa.Super. 536, 582 A.2d 1074, 1077 (1990) (stating, in upholding an award of alimony to wife, that the standard of living to which a wife was entitled was one reasonably supportable by the income and station in life of the parties, irrespective of the fact that the parties lived below their means while they were married); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508, 510 (1987) (stating child is entitled to reasonable standard of living based upon social station, fortune and financial achievements of parents); Branch v. Jackson, 427 Pa.Super. 417, 629 A.2d 170, 171 (1993) (stating that both the Supreme and Superior Courts have consistently held that a child is entitled to support in an amount commensurate with his parents’ station in life). We further find that both standard of living and station in life have been used interchangeably by Pennsylvania courts. See Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985) (stating, in the context of a support action by wife, that husband is under a duty, to the extent he is able, to maintain his family’s standard of living at a level consistent with their station in life before the separation.) ¶ 11 Father cites to Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382 (1996), and Pellish v. Gerhart, 701 A.2d 594 (Pa.Super.1997), to support his assertion that “[i]n every case where the Superior Court has addressed the issue of private school tuition the Court looked at the family history with respect to private school.” Father’s Brief at 11. Father asks us to find that where there is no family history of attending private school, a court cannot find that private school tuition is a reasonable need and order a parent to provide financial support for private school. This we decline to do. The Litmans case dealt with the issue of private school tuition for children who were already attending private school prior to the parties’ separation and continued to attend private school post-separation. This case is distinguishable factually from the instant case as S.K. was not in school prior to the parties’ separation. Moreover, the Litmans court never addressed the issue of the reasonableness of private school tuition but upheld the lower court’s decision denying the husband credit for the tuition expenses he claimed because the husband did not provide sufficient documentation of the tuition expense and the wife contributed substantial support to the children’s education. We do not agree that because the Litmans court noted that the parties’ children continued to attend private school after the parents separated, this means that a court is restricted to awarding private school tuition only in those instances where there is a family history of attending private school. ¶ 12 In Pellish, this Court was called upon to determine whether the lower court erred by requiring the father, the noncustodial parent, to contribute to his minor child’s private school tuition after the child was removed from a public school and enrolled in a private school. The Pellish court found that the lower court did not abuse its discretion in finding that the child would benefit by remaining in private school, as the child was harassed by his classmates at public school and, as a result, felt depressed and isolated and experienced asthma attacks aggravated by the stress, compared with having benefited socially, mentally and physically by transferring to private school. This Court also found that “the lower court did not err in concluding that private schooling for [the child] is consistent with the family’s standard of living and station in life before the parties’ separation.” Pellish, 701 A.2d at 597. The Court stated: Prior to the separation, [], the parties’ other child who was a minor at the time, transferred from a public school to a private school when he experienced difficulties at school. He also attended a preparatory school during the summer and an exclusive camp in Cody, Wyoming. The parties expended several thousand of dollars to enable [the older child] to attend private school, preparatory school and summer camp. It is consistent for the lower court to require [fjather to do the same for [the younger child] in this case. Id. The Pellish court required the father to contribute toward his child’s private school tuition because private schooling was consistent with the family’s standard of living and because the father’s other child attended private school. Consideration of the fact that the older child attended private school prior to the parties’ separation was independent of the determination that private school was consistent with the standard of living of the parties and was relevant to counter the father’s assertion that private school was not a reasonable expense for his younger child. ¶ 13 We disagree with Father’s position with regard to his reliance on hit-mans and Pettish. Neither case stands for the proposition that a determination of whether private schooling is consistent with the standard of living of the parties requires an inquiry into the family history of private schooling or that the standard of living and station in life of the parties cannot be determined by economic factors. In addition, neither case precludes a court from awarding private school tuition for children who have a history of attending public school. Rather, evidence of a family’s history of attending private school, while relevant to refute an argument that private schooling is not a reasonable need, is not required in order for a court to conclude that private schooling is consistent with the standard of living and station in life of the parties. ¶ 14 In Fitzgerald v. Kempf, 805 A.2d 529 (Pa.Super.2002), this Court was confronted with the question of whether to uphold an award of private school tuition where the parties’ children were not yet attending school at the time of separation and, consequently, there was no history of the children attending private school prior to the separation. The Fitzgerald court noted that as the children were not of school age at the time of separation it was unclear whether private schooling was consistent with the parties’ standard of living prior to the separation. The Court stated that it agreed with the trial court that “ ‘private schooling was preferred by mother and accepted by father except for the reservation that he would not want to be financially responsible.’ ” Id. at 533. The Court upheld the order awarding private school tuition, but remanded the case on several issues including a reevaluation of the percentage of tuition the father was required to pay in light of his actual monthly income, which was calculated incorrectly by the trial court. Thus, this Court has awarded private school tuition where there is no history of attending private school prior to separation. ¶ 15 In the instant case, prior to the separation of the parties and Mother’s relocation to Maryland, S.K. was not of school age. Upon moving to Maryland, S.K. attended public school until Mother had concerns about the public school she was attending and decided to enroll her in a parochial school, St. Mary’s. We have already determined that the trial court’s finding that S.K. is benefiting from attending St. Mary’s was not an abuse of discretion. S.K. should not be penalized because the need for her to attend private school did not arise prior to the parties’ separation. ¶ 16 The trial court determined that the parochial school tuition of $6,230.00 per year is consistent with the parties’ standard of living and station in life prior to separation and, thus, is a reasonable need for S.K. The court also determined that S.K.’s parochial school tuition is consistent with Father’s income of $133,000 for 2005. The trial court further found that consistent with Pennsylvania Support Guidelines, the tuition must be allocated between the parties in proportion to their net incomes. Pa.R.C.P.1910.16-6(d). We agree. Although the trial court determined that private school tuition is consistent with the parties’ standard of living and station in life based solely on economic factors, we find that its decision is consistent with Pennsylvania law. ¶ 17 Lastly, Father argues that the trial court violated his right of conscience under Article I, Section 3 of the Pennsylvania Constitution in requiring Father to financially contribute to a Roman Catholic school. This issue was addressed by the Superior Court in Knapp v. Knapp, 758 A.2d 1205 (Pa.Super.2000). The father in Knapp, similar to Father in the instant case, argued that the trial court violated his constitutional right of conscience when it ordered him to pay tuition to a parochial school. This Court concluded that parochial schools fall within the statutory definition of a private academic school and, therefore, within the purview of the Pennsylvania Support Guidelines. This Court further stated that even if it had determined that a parochial school does not fall within the ambit of the statute, the father’s prior acquiescence to payment for parochial school and failure to contest a court order to that effect, supported the determination that the trial court did not err in its determination. In rendering its decision, the Superior Court stated, ‘We note that the requirement that Appellant pay for the children’s parochial school tuition does not per se amount to a requirement that he support such a place of worship, as defined within the Constitution. Therefore, the applicability of the right of conscience under the facts of this case is questionable.” Knapp, 758 A.2d at 1206 n. 1. This Court then turned its inquiry to whether the payment to a private institution is a reasonable need for the child. The Knapp court concluded that the trial court did not abuse its discretion in ordering support for private school based on the evidence of record that the children previously attended parochial school and after consideration of the “family’s income and earning potential.” Id. at 1207. Following this rationale, we do not find that the order that Father contribute to a portion of his daughter’s parochial school tuition amounts to a requirement that he support a place of worship as set forth in the Pennsylvania Constitution so as to violate his right of conscience. Thus, Father’s claim must fail. ¶ 18 We find no error in the trial court’s conclusions which are adequately supported by the record and thoroughly explained by the trial court in its opinion. Moreover, we find no error in the trial court’s application of the law to these facts in concluding that the evidence in the case supports the trial court’s order to include private school tuition in the support amount awarded on behalf of S.K. We, therefore, hold that the trial court did not abuse its discretion in ordering Father to contribute to the parochial school tuition of S.K. in proportion to his net income. ¶ 19 Order affirmed. . At the time of the trial court's March 9, 2006, opinion and order, S.K. was twelve years old and K.K. was eleven. . S.K. is being raised a Methodist. . The trial court remanded the matter to the domestic relations office to recalculate Father's support to include his proportional share of S.K.'s parochial school tuition. On March 15, 2006, a modified domestic relations order was entered in accordance with the trial court opinion and order dated March 9, 2006, dividing the tuition expense for S.K. proportionate to the parties’ incomes. . The assertion that S.K. will not benefit from attending private school, although not specifically set forth by Father as one of the questions presented on appeal, is argued by Father in his appellate brief. Because both a determination of the benefit of private school as well as whether it is consistent with the standard of living and station of life of the parties are considered by the court in determining whether private school is a reasonable expense, we will address on the merits the issue of the benefit of private schooling to S.K. . Father’s income at the time of the parties’ separation in 1997 was $94,136.00.

OPINION BY KLEIN, J.: If 1 Yi De Zheng appeals from the judgment of sentence following his conviction for Endangering the Welfare of Children (EWOC). We reverse. ¶ 2 Zheng was also charged with Rape, Contact with a Minor, Sexual Assault, Statutory Sexual Assault, and Indecent Assault, but the trial judge, following a non-jury trial, found that those crimes were not made out beyond a reasonable doubt. The trial judge concluded that the child, L.L., was not telling the truth when she claimed Zheng had sexually abused her for more than two years when she was approximately twelve to fourteen years old. While not stated on the trial record, according to his Pa.R.A.P. 1925(a) opinion, the trial judge based his finding of guilt of EWOC on the fact that L.L. stayed out late at night and was not properly fed. Because the facts of record do not support this conclusion, we are constrained to reverse. Also, Zheng claims that he was not given proper notice of the reasons upon which the trial judge found him guilty of EWOC. The Commonwealth argues that this claim was not raised in Zheng’s Rule 1925(b) statement. We disagree. Since the trial judge was vague as to why he found the defendant guilty at the time he announced his verdict, Zheng did not know that the reasons were that Zheng purportedly let L.L. stay out late and did not provide food. When the finding of the trial judge is vague, a general Rule 1925(a) statement is all that an appellant can supply. Counsel did as well as he could in crafting the Rule 1925(a) statement. Facts and Procedure ¶ 3 Zheng took the child, L.L., into his custody in the United States because she was the second daughter born to a friend in China, contrary to the “one child” rule in China. She admitted that she was not complying with the rules of the house and staying out late. She left the house to move to Virginia and then came back and stayed in Voyage House, a temporary youth shelter for runaway and homeless youth, and at that point made her complaints of prior sexual assaults by Zheng. ¶ 4 The trial judge acquitted Zheng on all the sexual charges. What he said with regard to EWOC was the following: I can find, beyond a reasonable doubt, that he is guilty of endangering the welfare of a child; that is, by allowing this child to, more or less, go on her way and do all of the things she was doing, and so forth and so on. He put her in a jeopardizing position. That is about all I can find him guilty of ¶ 5 As the trial judge rejected the sexual allegations, it is difficult to see how the trial judge found Zheng guilty of EWOC. All counsel had for a basis for the conviction was this somewhat cryptic statement of the judge when he pronounced sentence. Discussion 1. The claim of a Rule 1925(b) violation. ¶ 6 The Commonwealth complains that the Rule 1925(b) statement is not specific enough to include the claim that Zheng was not charged with the facts that served as the basis for the EWOC conviction. ¶ 7 However, when the appellant cannot readily ascertain the reason for a ruling, the Rule 1925(a) statement will of necessity explain in general terms why a ruling is alleged to be in error. The judge knows better than appellant why he found the defendant guilty, and therefore is in a better position to explain the details. In such circumstances, a general Rule 1925(a) statement does give the trial judge sufficient guidance to draft a Rule 1925(a) opinion and will not constitute waiver. ¶ 8 Appellant’s Rule 1925(b) statement claimed: (1) that the court erred in denying the defense motion to dismiss; (2) that the verdict was insufficient; (3) that the court should have granted the motion for judgment of acquittal made immediately prior to sentencing; and (4) that the verdict was against the weight of the evidence and that a new trial was required. ¶ 9 Under the circumstances, that is all that Zheng could say. The judge did not issue findings of fact and conclusions of law. The entire thrust of the trial was that Zheng sexually abused L.L. The trial judge obviously concluded that the Commonwealth did not prove this beyond a reasonable doubt. That was what the defense was geared up to defend, and they did defend this successfully. ¶ 10 There was no indication from the number of charges filed, all relating to sexual conduct, that non-sexual conduct was going to be the basis of a conviction. In its opening statement and thereafter, the Commonwealth only talked about the sexual abuse charges. The vague language in the Information that there was merely some “course of conduct” did not indicate any charges for non-sexual conduct. There was little help in the vague statement of the Court that he was convicting Zheng because he allowed L.L. “to, more or less, go on her way and do all of the things she was doing, and so forth and so on. He put her in a jeopardizing position.” That language does not explain exactly why the trial judge convicted Zheng of EWOC. Although post-sentence motions were filed, they were denied by operation of law because the trial judge did not rule on them, so there was no indication in any ruling on post-verdict motions why the judge convicted Zheng. The reasoning of the court was spelled out somewhat in the Rule 1925(a) opinion only after the Rule 1925(b) statement was submitted. ¶ 11 If the reasons for the ruling of the Court are vague, then an appellant is forced to file an incomplete Rule 1925(b) statement and there is no violation of Rule 1925(b). Just as the trial judge cannot be made to guess what an appellant is complaining of on appeal, an appellant cannot be made to guess what the trial judge is thinking in his or her ruling. Counsel then can only do his or her best to identify appellant’s complaints. Counsel in this case could only state what he was appealing, since the trial judge never made it clear to him why Zheng was found guilty. ¶ 12 Since Zheng could not ascertain that he was being convicted for letting L.L. stay out late and not giving her meals, there was no way, prior to seeing the trial court’s Rule 1925(a) opinion, that he could complain that this was not charged. The trial judge was the only one who knew the basis for the conviction. It is impossible to file a Rule 1925(b) statement with particular objections to a ruling if the appellant has no way of knowing the trial judge’s reasons for the ruling. ¶ 13 As noted, if the trial ruling is vague, we cannot find waiver for failure to include an issue in the Rule 1925(b) statement that could not be known until clarification is made in the Rule 1925(a) opinion. Justice requires such a result. Therefore, we will address the merits. 2. The sufficiency of the evidence. ¶ 14 Perhaps if the judge had just said “guilty” of EWOC, the conviction might stand. But we know that the sexual abuse was not believed beyond a reasonable doubt and Zheng was convicted because of other actions dealing with the child. This is the equivalent of a specific finding of fact. We know the trial judge found as a fact that the evidence did not justify a conclusion that there were sexual assaults on L.L. ¶ 15 Absent the sexual allegations, a thorough review of the record does not support a conviction of EWOC on the grounds stated by the trial judge in the Rule 1925(a) opinion nor on any other grounds. The record shows that Zheng did do what he could to keep L.L. from staying out late at night. L.L. admitted she was becoming a disciplinary problem. One does not convict parents merely because their teenage charges are disobedient if the parents act reasonably to try to cope with the problem. Zheng went to L.L.’s confidant, Ms. Tsang, her English tutor, for help with the discipline problem. He spoke to her mother in China. At one point, L.L. went back to China and, after some time, her biological mother relayed that L.L. would change and “follow our rules or do her chores.” (N.T. Waiver Trial, 4/26/05, at 181). Zheng also went to stay with her to cousins in Virginia, on two occasions, in an attempt to discipline her. Id, at 182. After one visit, she came back in a day and then ran away from home. Id. at 183-184. ¶ 16 Likewise, there is no evidence that Zheng deprived L.L. of food. Zheng and his wife worked in a restaurant until late hours. L.L. frequently did not come home at the time she was supposed to for dinner. Both Zheng’s sons and L.L. were able to either prepare food or order food. When Zheng’s work allowed him to be home for dinner, they would eat together, assuming L.L. bothered to come home. There was one occasion when L.L. came in very late for dinner and was told there was nothing left. Certainly not providing a rebellious teenager with dinner on one occasion when she comes home late is not endangering the welfare of a child. In fact, this was an effort to discipline her, which the trial judge says should have been done. None of the acts cited by the trial judge show that L.L.’s welfare was endangered by Zheng at any time. ¶ 17 Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, we cannot conclude that the evidence established beyond a reasonable doubt that Zheng violated a duty of protection, care or support. Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958 (2001). 3. The conviction was based on actions not listed in the Information. ¶ 18 If the evidence were believed concerning the sexual abuse, there would be sufficient evidence to convict of EWOC. However, the Court did not find sufficient evidence to convict for any of the sexual charges. ¶ 19 As noted, the Bill of Information was vague. It was connected with the multiple sexual abuse charges, so all that Zheng was on notice of was that he had to defend against the charges that he had sexually abused L.L. over a period of time. If the Bill of Information was merely for EWOC, it might be sufficient. However, it was filed in connection with all the sexual assault charges. Further, in its opening statement, the Commonwealth only talked about the sexual abuse charges. There was no possible way Zheng could anticipate a conviction based on L.L.’s late hours and the fact that while he was working, his sons and L.L. either made or ordered in their meals. It was only at the end of the trial that Zheng could have even had an inkling that he was convicted because he “let” L.L. stay out late and did not provide her food, and he could not know of the details of the ruling until after the trial judge filed a Buie 1925(a) opinion. ¶ 20 Under Pa.B.Crim.P. 560, an information should contain the essential elements cognate to the offense. Looking at the charges, it is only in the context of the sexual assault charges that EWOC could be established. There was nothing in the information or otherwise that would lead Zheng to anticipate that the late hours and mealtime situation would be considered a criminal violation. ¶ 21 Because of the violation of Pa. R.Crim.P. 560, as well as the lack of focus by the Commonwealth on facts other than the charges of sexual misconduct, it was improper for the trial judge to base a conviction on these acts. The conviction should be reversed for this reason as well. ❖ *. % # ¶22 Judgment of sentence reversed. Defendant is discharged. ¶ 23 P.J.E. McEWEN concurs in the result. . The crime of endangering the welfare of children is defined as follows: (a) Offense defmed.-A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. 18 Pa.C.S.A. § 4304. . N.T. 4/28/05, p. 19. . The Bill of Information with respect to EWOC provides as follows: The District Attorney of Philadelphia by this information charges that on diverse dates from 1/1/02 to 12/31/02 [handwritten notation 7-24-00 to 9-30-03] in Philadelphia, Yi De Zheng 1. Being a parent, guardian, or other person supervising the welfare of a child under 18 years of age, knowingly endangered the welfare of the child by violating a duty of care, protection or support. 2. Furthermore, there was a course of conduct of endangerment of the child’s welfare. Child — L.L. [real name deleted for this opinion] Age of child — 15 years old and as a course of conduct. No. of Counts — 1

ORDER PER CURIAM. AND NOW, this 6th day of September, 2006, the Petition for Allowance of Appeal is hereby GRANTED, limited to the following: a. Did the Superior Court misapply the law of election of remedies and therefore incorrectly hold that the trial court misapplied the law when it held that the Plaintiffs were not entitled to rescission because they had effectively affirmed the contract? b. Did the Superior Court err in holding that proof of fraud alone, without more, is sufficient for a court to award treble damages under the UTPCPL?

OPINION BY Senior Judge KELLEY. On August 3, 2006, this Court heard arguments on a Motion for Preliminary Injunction filed by Anthony William Olivi-erio, Dennis Underwood, and Katherine White (Petitioners) and a Motion to Quash Subpoenas filed by Debora Romaniello and Daniel Romaniello (collectively, Romaniel-los). By order dated August 4, 2006, this Court denied the Petitioners’ Motion for Preliminary Injunction and granted the Romaniellos’ Motion to Quash Subpoenas. This opinion now follows. The Petitioners are residents, registered Republicans and qualified electors of the 22nd Legislative District, Allegheny County. With this motion, the Petitioners seek to enjoin the Secretary of the Commonwealth and the Alegheny County Board of Elections from certifying Michael Diven (Diven) as a candidate for the Office of Representative in the General Assembly from the 22nd Legislative District in the November 2006 general election. Prior to this action, the Petitioners filed with this Court a petition to set aside the nomination petition of Diven seeking nomination as the Republican candidate for the Office of Representative in the General Assembly from the 22nd Legislative District in the May 2006 primary election at docket number 176 M.D.2006. Therein, the Petitioners alleged that Diven’s nomination petition should be set aside on the basis that signatures contained in his petition were obtained fraudulently. A hearing on the petition to set aside was set for March 29, 2006. On March 28, 2006, Diven filed a petition to withdraw his nomination petition at docket number 207 M.D.2006. Diven’s petition to withdraw was granted. By order of this Court dated March 28, 2006, the Secretary of the Commonwealth was directed not to certify the name of Michael Diven as a Republican candidate in the May 16, 2006 primary election as a candidate for the Office of Representative in General Assembly from the 22nd Legislative District. Consequently, the March 29, 2006 hearing at docket number 176 M.D. 2006 was cancelled and the case was dismissed as moot. Thereafter, Diven launched a write-in campaign. As stipulated to by the parties, at the primary election held on May 16, 2006, Diven won the Republican nomination for the Office of Representative in the General Assembly from the 22nd Legislative District by receiving 680 write-in votes. The Petitioners then filed a Petition for Review with this Court followed by the instant Motion for Preliminary Injunction, docketed at 380 M.D.2006. The Petitioners allege that if Diven is certified as the Republican candidate, the Petitioners will suffer irreparable harm because Diven’s certification will be contrary to this Court’s order of March 28, 2006, Republican voters of the 22nd Legislative District will be disenfranchised, the anti-fraud provisions of the Pennsylvania Election Code will be nullified, and Diven and his staff will be allowed to unjustly benefit from their unlawful acts. The Petitioners allege that there is no adequate remedy at law and that preliminary injunction is reasonably suited to abate Diven’s unlawful acts. Both the Secretary of the Commonwealth and Diven timely responded to the motion. The Secretary and Diven both assert that the Petitioners have failed to establish the requisite elements for injunc-tive relief. Additionally, Diven contends that the Petitioners lack standing to contest certification of the May 16, 2006 primary election. This Court shall first address the issue of standing. STANDING Diven asserts that the Petitioners do not have standing having failed to establish a substantial interest in the claim sought to be litigated that surpasses the common interest of all citizens in procuring obedience to the law. Diven further asserts that the Petitioners have not established a direct and immediate connection between the interest they seek to protect and the alleged harm. The “purpose of the requirement of standing is to protect against improper plaintiffs.” Application of Biester v. Thornburgh, 487 Pa. 438, 442-43, 409 A.2d 848, 851 (1979). In order to meet this requirement, a plaintiff must allege and prove an interest in the outcome of the suit which surpasses “the common interest of all citizens in procuring obedience to the law.” Id. (quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975)). To surpass the common interest of all citizens, the interest must be substantial, direct, and immediate. Id. Additionally, where a citizen challenges an action that would otherwise go unchallenged in the courts, standing may be found. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). This legal precept is often applied where plaintiffs assert standing on the basis that they áre taxpayers and, thus, have an interest in public fiscal expenditures. Id. Here, there is no dispute that the Petitioners, as registered Republicans and qualified electors of the 22nd Legislative District, had standing to challenge the nomination petition of Diven. The question is whether they continue to have standing to challenge the Secretary’s certification of Diven as the Republican nominee for the office of Representative in the General Assembly from the 22nd Legislative District in the general election. The Petitioners argue that Diven would not be the nominee if their objection to the nomination petition had been heard by this Court. The Petitioners argue that because Diven withdrew his nomination petition and the hearing was cancelled, they were never granted their day in court and are uniquely aggrieved in this regard. The Petitioners further assert that the order issued in the case docketed at 207 M.D.2006 prevents the Secretary from certifying Diven as the Republican nominee. By virtue of the Petitioners’ involvement in the prior proceeding and the fact that them present claims are directly and uniquely related to the prior proceeding, which were never heard due to Diven’s withdrawal, this Court finds that the Petitioners have established an interest in the outcome of this suit which surpasses “the common interest of all citizens in procuring obedience to the law.” The Petitioners seek to protect the integrity of the election process and the interests of the Republican Party by ensuring that the nominee of their party is qualified for office. In this case of first impression, this Court finds that the Petitioners have standing to challenge the Secretary’s certification of Diven. PRELIMINARY INJUNCTION Having determined that the Petitioners have standing to proceed, the Court shall next address whether the Petitioners have established entitlement to preliminary injunction. A preliminary injunction is intended to preserve the status quo and prevent imminent and irreparable harm that might occur before the merits of the case can be heard and determined. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987). It is considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought. T.W. Phillips Gas and Oil Co. v. Peoples Natural Gas Co., 89 Pa.Cmwlth. 377, 492 A.2d 776 (1985). A court may grant a preliminary injunction only where the moving party establishes the following elements: (1) the relief is necessary to prevent irreparable harm to the movant; (2) the injunction would restore the parties to the status quo as it existed before the alleged wrongful act; (3) greater injury would result from a refusal to grant the injunction than from granting the injunction; and (4) the movant’s right to relief is clear. Id., 492 A.2d at 780. To establish a clear right to relief, the moving party must be able to show that he has a reasonable likelihood of success on the merits. Id. Our Supreme Court has illustrated the “clear right” requirement as follows: Where the threat of immediate and irreparable harm to the petitioning party is evident, that the injunction does no more than restore the status quo and the greater injury would result by refusing the requested injunction than granting it, an injunction may properly be granted where substantial legal questions must be resolved to determine the rights of the respective parties. Fischer v. Department of Public Welfare, 497 Pa. 267, 271, 439 A.2d 1172, 1174 (1982). Clear Right to Relief The Petitioners assert that Diven’s certification will be contrary to this Court’s order of March 28, 2006. The order clearly provides: The Secretary of the Commonwealth is directed NOT to certify the name of MICHAEL DIVEN as a republican candidate in the May 16, 2006 primary election as a candidate for the office of Pennsylvania General Assembly from the 22nd Legislative District. (Emphasis in original). The Secretary fully complied with this directive and did not certify Diven’s name as a Republican candidate in the primary election. The order relates only to the primary election. Contrary to the Petitioners’ assertions, the order does not preclude the Secretary from certifying Diven as the duly-elected Republican nominee in the general election. The Petitioners further assert that this Court should enjoin the Secretary from certifying Diven pursuant to Sections 951(b), 909 and 977 of the Pennsylvania Election Code, 25 P.S. §§ 2911(b), 2869 and 2937. However, these sections do not apply to the instant case. Section 951 pertains to nominations by political bodies. Diven was not nominated by a political body, but won the nomination of the Republican Party in the primary election by garnering the most votes. Likewise, Sections 909 and 977 are inapplicable as both refer to the pre-primary election process prescribed for gaming a place on the primary election ballot through the nomination petition process. Having withdrawn his nomination petition, Diven chose not to participate in the process that would have enabled him to have his name printed on the primary election ballot as a Republican candidate for office. The Petitioners further assert that Diven’s' untimely withdrawal of his nomination petition violated the Election Code. The time period within which one can withdraw his or her name as a candidate from a primary election is set by statute. Section 914 of the Election Code, 25 P.S. § 2874, provides: Any of the candidates for nomination or election at any primary may withdraw his name as a candidate by a request in writing, signed by him and acknowledged before an officer empowered to administer oaths, and filed in the office in which his nomination petition was filed. Such withdrawals, to be effective, must be received in the office of the Secretary of the Commonwealth not later than 5 o’clock P.M. on the fifteenth day next succeeding the last day for filing nomination petitions in said office, and in the office of any county board of elections, not later than the ordinary closing hour of said office on the fifteenth day next succeeding the last day for filing nomination petitions in said office. No name so withdrawn shall be printed on the ballot or ballot labels. No candidate may withdraw any withdrawal notice already received and filed, and thereby reinstate his nomination petition. However, once this statutory time period expires, a candidate for nomination can still withdraw his or her name as a candidate. Section 978.4 of the Election Code, 25 P.S. § 2938.4; In re Petition of Dietterick, 136 Pa.Cmwlth. 66, 583 A.2d 1258 (1990). After this statutory time period has lapsed, Section 978.4 of the Election Code provides that a candidate for nomination can petition the court of common pleas, or the Commonwealth Court, when a court of common pleas is without jurisdiction, to withdraw. The court shall order the withdrawal of said candidate’s name for nomination or election, except upon a showing of special circumstances. Id. Herein, as the primary ballots had not yet been printed and no special circumstances were shown, this Court granted Diven’s petition to withdraw his nomination petition. The Petitioners correctly state that a nomination petition once withdrawn cannot be refiled or reinstated, but that did not occur here. Diven’s name remained off the ballot. In full compliance with this Court’s order, the Secretary of the Commonwealth did not certify Diven’s name as a Republican candidate for the primary election. The Petitioners further contend that Diven’s withdrawal should preclude him from continuing to participate in the election cycle. In support of this contention, the Petitioners rely upon Lachina v. Berks County Board of Elections, 887 A.2d 326 (Pa.Cmwlth.), aff'd, 584 Pa. 493, 884 A.2d 867 (2005). However, the Petitioners’ reb-anee on Lachina is misplaced. In Lachina, the prospective candidate filed Democratic and Republican nomination petitions seeking the primary nomination of both parties for the office of Magisterial District Judge. Due to defects in both nomination petitions, the nomination petitions were struck and the candidate’s name did not appear on the primary ballot as a candidate for either party. Lachina. Thereafter, the candidate attempted to refile nomination papers as a candidate of a political body. Id. This Court held that since the candidate had not voluntarily withdrawn from the primary process, but instead was stricken from the ballot due to defects in her nomination petitions, she was precluded from subsequently fibng nomination papers as the candidate of a political body. Id., 887 A.2d at 329. We opined that Section 976 of the Code, 25 P.S. 2936, requires the Secretary to reject the nomination paper of any candidate who has filed a petition for, or who has actually participated in, that primary election in which he seeks a ballot position. Id. Lachina and “sore loser” provisions of the Election Code stand for the proposition that once a candidate’s name has been stricken from the primary ballot or the candidate loses his party’s nomination in the primary, the candidate is then precluded from fifing nomination papers for the general election. Id. They are not applicable here as Diven’s name was not “stricken” from the ballot and Diven did not “lose” the primary. Rather, Diven withdrew his nomination petition and voluntarily chose not to participate in the primary process. In doing so, Diven’s voluntary withdrawal “undid” ab initio his nomination petition. Once Diven withdrew his nomination petition, his name did not appear on the ballot as a candidate for the Republican Party in the primary election. Notwithstanding the fact that Diven’s name did not appear on the ballot, the Republican electorate for the 22nd Legislative District wrote-in Diven’s name on the ballot. Having received the majority of the votes cast, Diven has rightfully earned the Republican Party’s nomination for the Office of Representative in the General Assembly from the 22nd Legislative District and is now entitled to have his name appear on the general election ballot as the Republican Party’s nominee. The Petitioners assert that since Diven withdrew his nomination petition, they have been denied their day in court and have no adequate remedy at law to redress the harm and injury that will be caused by Diven’s alleged violations of the Election Code. Assuming arguendo that the Petitioners’ allegations of fraud and other violations of the Election Code are true, the Election Code provides an adequate remedy after a finding of guilt in a proper forum. Section 1851 of the Election Code, 25 P.S. § 3551, provides “Any person who shall, while a candidate for office, be guilty of bribery, fraud or willful violation of any provision of this act, shall be forever disqualified from holding said office or any other office of trust or profit in this Commonwealth.” The Petitioners have begun the process that could lead to Diven’s disqualification from office if elected by filing a complaint with the Department of Law of Allegheny County and, according to the parties, an investigation is currently underway. As of this date, Diven has not been charged with fraud, let alone been found guilty of fraud, and therefore the Petitioners’ instant action in equity is premature. Additionally, the Petitioners’ allegations of fraud and violations of the Election Code relate only to Diven’s nomination petition. Their objections ended when Diven withdrew his nomination petition and are irrelevant to the certification of a candidate for the general election. The Petitioners do not allege fraud or violations of the Election Code in connection with the primary election. Nor do the Petitioners assert that Diven did not receive the majority of votes in the May 16, 2006 Republican primary. Diven succeeded in winning the nomination because Republican voters of the 22nd Legislative District wrote-in Diven’s name on the ballot as permitted by Section 1112-A of the Election Code, 25 P.S. § 3031.12(b)(2). Consequently, Diven is the duly-elected nominee for the Office of Representative in the General Assembly from the 22nd Legislative District. In Butcher v. Trimarchi, 28 Pa. D. & C.2d 537 (1962), the plaintiffs filed a motion for injunctive relief seeking to have statutes pertaining to senatorial and representative districts declared unconstitutional. The Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, opined that relief sought would result in stopping the election machinery, and would deny the electorate the right to vote for those persons who were duly nominated in the primary election. Butcher. The court further posited, “it would be improper to invalidate a primary election when that machinery has been lawfully and faithfully complied with.” Id., 28 Pa. D. & C.2d at 542. Where the people nominated their candidates in accordance with the requirements of the Election Code, an injunction preventing the electorate from exercising its will would be of “very questionable validity.” Id. The Court held that “to negate the will of the electorate by judicial fiat” and effectuating “any course of action in the time that is allowed between now and the November election would be fraught with difficulty and undue haste.” Id. Applying the same rationale in Butcher to the instant proceeding, it would be improper to invalidate a primary election when that machinery has been lawfully and faithfully complied with. The Petitioners have asserted no viable legal basis to invalidate the choice made by the Republican voters of the 22nd Legislative District. For these reasons, this Court concludes that the Petitioners have failed to establish any clear right to the injunc-tive relief requested. Immediate and Irreparable Harm Additionally, the Petitioners have not shown danger of suffering immediate and irreparable harm if the preliminary injunction is denied. The harm the Petitioners seek to prevent is the disenfranchisement of the electorate and nullification of the Election Code by allowing a candidate who has allegedly engaged in fraudulent activity from obtaining public office. The alleged fraud was in connection with the nomination petition process— a process that Diven withdrew himself from—not the primary election itself, wherein the electorate chose Diven as their candidate by valid write-in votes. As addressed above, the Petitioners’ allegations of fraud are currently under investigation. Those charges are proceeding in the appropriate investigatory bodies. The candidate himself has not been so charged and there are presently no reasons why Diven’s name should not appear on the ballot for general election. Greater Injwi'y The Petitioners have also not established that greater injury would result from granting the preliminary injunction than would result from denying it. In fact, this Court finds that the harm would be greater if the injunction were granted. The Commonwealth of Pennsylvania has a significant interest in protecting the electoral process, especially when it functions lawfully. Butcher. Diven was nominated in the May 16, 2006 primary election by the Republican electorate for the 22nd Legislative District in Allegheny County through valid write-in votes cast for him. Granting the Petitioners’ injunctive relief and invalidating the primary results would harm the electoral process, invalidate the will of the electorate and, as a result, greatly harm public interest. Status Quo Finally, the Petitioners have not established that a preliminary injunction will restore the status quo. The Petitioners are in effect requesting this Court to return them to a status quo that would undo the lawful results of the May 16, 2006 primary election and invalidate the electorate’s choice for the Republican nominee for the office. Such is not an acceptable result. For the foregoing reasons, the Petitioners’ Motion for Injunctive Relief was denied. SUBPOENAS With regard to the Motion to Quash, the Romaniellos assert that they did not receive sufficient notice to appear at the hearing. The hearing in this matter was originally set for August 2, 2006 by order of Court dated July 13, 2006 and was continued to August 3, 2006 by order dated July 24, 2006. The Petitioners had adequate time to serve timely subpoenas. However, the Petitioners did not personally serve Daniel Romaniello until August 1, 2006 at approximately 8:30 p.m. Debora Romaniello was not personally served; a subpoena was left at her place of employment on Friday, July 28, 2006. Debora Romaniello alleges that she did not become aware of the subpoena until August 1. The Romaniellos, who reside in Pittsburgh, Pennsylvania, assert that one day’s notice to appear in Harrisburg, Pennsylvania is “insufficient, unreasonable and oppressive.” At the hearing, the Petitioners did not provide adequate justification for the short notice. This Court agrees such short notice was insufficient and unreasonable. Thus, the Motion to Quash was granted. . Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. . Additionally, the Court notes that if Petitioners were to ultimately prevail in this matter, a vacancy in the Republican Party nomination would exist. Pursuant to Section 979 of the Election Code, 25 P.S. § 2939, "[a]ny vacancy happening or existing after the date of the primary in any party nomination, by reason of the death or withdrawal of any candidate after nomination, ... may be filled by a substituted nomination made by such committee as is authorized by the rules of the party to make nominations in the event of vacancies on the party ticket.” Petitioners, as registered, Republican electors in the 22nd Legislative District, have a direct and immediate interest in ensuring that a true and lawful Republican nominee appears on the general election ballot. . The Election Code distinguishes between political parties and political bodies. Section 801 of the Election Code, 25 P.S. § 2831; Packrall v. Quail, 411 Pa. 555, 192 A.2d 704 (1963). A political group which receives more than a certain number of votes at the preceding general or municipal election is deemed a political party and permitted to select its candidates by the primary election method. Id. A prospective candidate places his name on the primary ballot by filing a nomination petition. Id. Any other political group is deemed a “political body” and must select its candidates by the more difficult process of filing nomination papers. Id. . Added by the Act of July 11, 1980, P.L. 591. . Section 976 provides that no nomination paper shall be accepted "if the candidate named therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed.” . Diven’s chief of staff, Debora Romaniello, was arrested on July 28, 2006 and charged with fraud in connection with Diven's nomination petition. . Added by the Act of July 11, 1980, P.L. 600. This section provides: At primary elections, the voter shall vote for the candidates of his choice for nomination, ... or he may so mark the write-in position provided on the ballot for the particular office and, in the space provided therefor on the ballot and/or ballot envelope, write the identification of the office in question and the name of any person not already printed on the ballot for that office, and such mark and written insertion shall count as a vote for that person for such office. 25 P.S. § 3031.12(b)(2). ' . This was the date of Ms. Romaniello's arrest.

ORDER PER CURIAM. AND NOW, this 14th day of September 2006, the Petition for Allowance of Appeal is granted limited to the following issues: Did the Superior Court err as a matter of law when it concluded that Appellee Gary E. Wimer (“Wimer”) was not required to exhaust his contractual remedies under the PEBTF’s governing plan documents? Did the Superior Court err as a matter of law when it concluded that the PEBTF’s right to subrogation is determined as of the date when it reimbursed Wimer’s medical expenses and therefore concluded that the PEBTF should be denied the right of subrogation for any medical payments made on Wimer’s behalf after January 1,1998?

OPINION Justice NEWMAN. Stone Crushed Partnership (Stone) and Robert James Jackson (Jackson) (collectively, “Appellant”) appeal from an Order of the Superior Court affirming the Order of the Court of Common Pleas of Delaware County (trial court) that dismissed Appellant’s action alleging wrongful use of civil proceedings and abuse of process pursuant to Pennsylvania’s “Dragonetti” Act, 42 Pa. C.S. §§ 8351-55 (the Act). The trial court and Superior Court based their decisions on the determination that the Bankruptcy Code, 11 U.S.C. §§ 101-1330, preempted any state claim. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY On March 1, 1990, Jackson, along with William Archbold, Jr., Esq. (Archbold), and Joseph O’Brien, Esq. (O’Brien), formed, with equal shares, Granite Partners I, Ltd. (Granite), to purchase and maintain real estate. Additionally, Jackson, Edward Kassab, Esq. (Kassab), Arch-bold, and O’Brien were partners in the law firm Kassab, Archbold, Jackson, and O’Brien (KAJO), in Media, Pennsylvania. Subsequently, Granite entered into an agreement of sale to purchase a 12.7-acre tract of land in Middletown Township, Pa. Granite obtained a loan of $500,000.00 from First Fidelity Bank, N.A. (Fidelity), secured by a mortgage, note, and personal guarantees from the three partners. Granite later defaulted on the loan, and Fidelity confessed judgment in the amounts of $699,636.97 and $652,992.37, against Granite and the three partners, by virtue of their personal guarantees, respectively. Seeking to avoid foreclosure, Jackson, the only partner who wished to continue the investment, approached Archbold and O’Brien and asked whether they would be willing to contribute funds. Archbold and O’Brien rejected the invitation, and Jackson formed his own partnership, Stone, to purchase the mortgage and note from the lender. Stone, essentially, is Jackson acting in accordance with the protection afforded to a company formed as a limited partnership. On October 19, 1995, approximately one year after the mortgage and note were assigned to Stone, Granite, at the request of Archbold and O’Brien, filed for Chapter 11 relief pursuant to the Bankruptcy Code. On May 17,1996, Stone initiated an Adversary Proceeding in Bankruptcy Court against Granite to exempt from discharge the debt of $811,320.30 owed to Stone. R.R. at 49-50. On August 22, 1996, Granite counterclaimed, alleging that Jackson, as a partner in Granite and via his alter ego Stone, could not profit at the expense of Archbold and O’Brien, his partners. Id. The Bankruptcy Court dismissed the counterclaims of Archbold and O’Brien on November 20, 1997, and granted Stone’s Motion for Summary Judgment in the amount of $699,636.67, plus interest at the rate of ten and one-half percent per annum plus costs. In re Granite Partners I, Ltd., No. 95-18296 DWS, 1997 Bankr.Lexis 2219 (Bankr.E.D.Pa.). Archbold and O’Brien appealed and asserted the same claim, namely that Stone is an alter ego of Jackson and, contrary to Pennsylvania partnership law, 15 Pa.C.S. § 8334, is making a profit at the expense of his partners in Granite, thereby breaching his fiduciary duty to Granite. On February 20, 1998, the United States District Court for the Eastern District of Pennsylvania affirmed the Bankruptcy Court’s denial of the claims of Archbold and O’Brien. R.R. at 20-24. In particular, the District Court found that even if Jackson and Stone were insiders, the agreement between Stone and Granite was legitimate and done with the full knowledge and consent of all parties, notably, all of whom were attorneys intimately involved in the deal. Id. at 22-23. On March 20, 1998, Archbold and O’Brien appealed again, asserting the same claims in the United States Court of Appeals for the Third Circuit. On December 23, 1998, the Third Circuit affirmed the denial of their claims, In re Granite Partners I, Ltd., 173 F.3d 420 (3d Cir. 1998), noting that Jackson saved Granite from the risk of a sheriffs sale or the risk that the personal guarantees of Archbold and O’Brien would be used to satisfy a judgment. R.R. at 27. Archbold and O’Brien did not appeal to the United States Supreme Court within ninety days, which rendered the Judgment final on March 24, 1999. U.S. Supreme Court Rule 13. In 1998, Appellant Jackson filed an entirely separate action against Archbold, O’Brien, and Kassab (collectively, “Appel-lees”) in the Court of Common Pleas of Delaware County (trial court). R.R. at 52. Specifically, Jackson sought payment for his share of a building partnership, KAJO Building Associates, which Jackson, Appel-lees, and Richard A. Stanko, Esq. (Stan-ko), owned. Id. Appellees counterclaimed and within the New Matter and Counterclaim sections, asserted the same claim that was raised and dismissed in the federal courts. Id. at 53. On July 6, 2000, after a bench trial, the trial court ruled in favor of Jackson and awarded him his share of the value of the KAJO Budding Associates partnership in the amount of $141,212.38. Id. Additionally, the trial court dismissed the counterclaim of Appellees. Id. On November 26, 2002, the Superior Court affirmed the judgment. Jackson v. Kassab, Archbold & O’Brien, 812 A.2d 1233 (Pa.Super.2002). Before the Superior Court issued its decision regarding the appeal, Appellant filed an action in February of 2000, alleging wrongful use of civil proceedings and abuse of process pursuant to 42 Pa. C.S. § 8351. Appellant Jackson seeks consequential, exemplary, and punitive damages pursuant to the state torts of malicious use of process and abuse of process as codified in the Act. On July 31, 2002, the trial court entered Summary Judgment in favor of Appellees, holding that the Bankruptcy Code preempted Appellant’s claim. On April 23, 2003, the Superior Court, in an unpublished Opinion, affirmed the Judgment of the trial court. Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 828 A.2d 409 (Pa.Super.2003). The Superior Court relied on Shiner v. Moriarty, 706 A.2d 1228 (Pa.Super.), petition for allowance of appeal denied, 556 Pa. 711, 729 A.2d 1130 (1998), and Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super.), petition for allowance of appeal denied, 569 Pa. 722, 806 A.2d 862 (2002), in concluding that Appellant was precluded from bringing claims in state court for actions that occurred in Bankruptcy Court. DISCUSSION We granted allowance of appeal to determine, as a matter of first impression for this Court, if the Commonwealth -will adopt the law established by the Superior Court in Shiner or that of the Third Circuit in U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383 (3d Cir.2002) (recogniz ing a split in the Circuit Courts regarding preemption of state remedies by the Bankruptcy Code and noting that in Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47 (3d Cir.1988), it “discovered that because of a gap in the text the Code failed to provide a remedy against a creditor that had improperly filed an involuntary petition for bankruptcy against a debtor”). U.S. Express, 281 F.3d at 393. Thus, the question we must answer is whether the Bankruptcy Code preempts the entire field, including a state tort claim for abuse of process based upon Bankruptcy Court proceedings. For the reasons that follow, we hold that the Bankruptcy Code preempts a state law claim of abuse of process based upon a frivolous claim filed in Bankruptcy Court proceedings because: (1) Congress evinced an intent to govern the whole field; and (2) Fed.R.Civ.P. 11 (Rule 11), 28 U.S.C. § 1927, and the Bankruptcy Code potentially provide for the equivalent protection afforded by this Commonwealth to its citizens in a Dragonetti Act claim. The Supremacy Clause of the United States Constitution controls federal preemption. U.S. Const. Art. VI, cl. 2; Fidelity Federal Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); English v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Congress has the undisputed power to preempt state law in areas of federal concern. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). Such preemption does not need to be explicit in a statute invalidating a state law. Int'l Paper Co. v. Ouellette, 479 U.S. 481, 491, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). If the area in question is one of traditional state concern, it should be presumed that Congress did not intend to supersede state authority absent a clear and manifest legislative purpose to the contrary. Pac. Gas, 461 U.S. at 206, 103 S.Ct. 1713. Congress’ intent to preempt state law may be express or implied and found in any of three ways: First, state law may be preempted where the United States Congress enacts a provision which expressly preempts the state enactment. Pac. Gas, 461 U.S. at 204, 103 S.Ct. 1713. Likewise, preemption may be found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). Finally, a state enactment will be preempted where a state law conflicts with a federal law. Id. Such a conflict may be found in two instances, when it is impossible to comply with both federal and state law, Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142—43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 664 (2004) (citations modified); accord English, 496 U.S. at 78-79, 110 S.Ct. 2270. Presently at issue is the second category, namely, that a finding of preemption is warranted where the federal legislation is “sufficiently comprehensive” to raise the inference that Congress “left no room for supplementary state regulation.” Int’l Paper Co., 479 U.S. at 491, 107 S.Ct. 805 (internal quotation marks omitted). However, the mere existence of a detailed and extensive regulatory scheme by itself does not imply an intent to preempt state remedies. English, 496 U.S. at 87, 110 S.Ct. 2270. While there is no doubt that the Bankruptcy Code generally preempts the field of bankruptcy, courts have not uniformly determined whether the Bankruptcy Code preempts state law concerning a state action for abuse of process or wrongful use of civil procedure. In the instant matter, the Superior Court relied heavily upon Shiner and Wer-ner, which may be contrasted with the reasoning and outcome in U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383 (3d Cir.2002), and Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47 (3d Cir.1988). Therefore, closer examination of these cases will shed light on the ultimate reasoning of this Court. Initially, we note that this Court is, of course, not bound by the holdings of the Superior Court, but, because this is an issue of first impression, we find it useful to address the reasoning in Werner and Shiner. In Shiner, the plaintiffs sought to bring an abuse of process claim for damages resulting from the filing of certain papers in Bankruptcy Court. The plaintiffs alleged that the defendants filed a voluntary petition in bankruptcy on October 14, 1987, in order to trigger an automatic stay of all legal process against them. Shiner, 706 A.2d at 1232. The plaintiffs filed a motion seeking relief from the stay, which the United States Bankruptcy Court granted. Id. The defendants applied to the Supreme Court for a reinstatement of its previous Order granting a stay pending appeal in the equity action, which was denied. Id. The defendants renewed the request for a preliminary injunction and repeated the request for a stay, which the trial court denied. Id. The defendants appealed to the Superior Court. In response, the trial judge, in his Pa.R.A.P. 1925(a) statement, opined in full: The relief sought herein was denied three times by this judge, once by Judge Wekselman of this court, twice by the Superior Court, twice by the Supreme Court and once by the Bankruptcy Court. Litigation must end at some point. It is suggested that the Superior Court impose counsel fees upon Appellants and/or their counsel. Id. (quoting Opinion of Strassburger, J., at GD 87-13537). The Superior Court in Shiner addressed the claim and stated: [T]he trial court relied upon Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47 (3d Cir.1988)[,] and R.L. La-Roche, Inc. v. Barnett Bank of South Florida, 661 So.2d 855 (Fla.Dist.Ct.App.1995)[,] for the proposition that a state court claim premised on actions taken before a bankruptcy court can be maintained. These cases stand in stark contrast to the preponderance of federal and state decisions. See, e.g. MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910 (9th Cir.1996); Gonzales v. Parks, 830 F.2d 1033 (9th Cir.1987); Raymark Industries, Inc. v. Baron, No. 96-7625, 1997 WL 359333, 1997 U.S. Dist. Lexis 8871 (E.D.Pa. June 23,1997); Koffman v. Osteoimplant Technology, Inc., 182 B.R. 115 (D.Md.1995); Mason v. Smith, 140 N.H. 696, 672 A.2d 705 (1996); Sarno v. Thermen, 239 Ill.App.3d 1034, 180 Ill.Dec. 889, 608 N.E.2d 11 (1992); Idell v. Goodman, 224 Cal.App.3d 262, 273 Cal.Rptr. 605 (1990). Further, the trial court’s application of Paradise Hotel, supra, to this pre-emption issue is not consistent with the interpretation of at least one district court within the Third Circuit. Raymark, supra, at *34-36 (finding Paradise Hotel “inapplicable” to issue of pre-emption of state tort claim based on bankruptcy filings and “explicitly restricted to its facts”). Shiner, 706 A.2d at 1238 (spacing modified). The Superior Court further concluded, “the Bankruptcy Code permits no state law remedies for abuse of its provisions.” Id. Shiner relied on a string of cases from other jurisdictions, one of which was MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910 (9th Cir.1996). In MSR Exploration, the Ninth Circuit addressed a situation in which a Chapter 11 debtor brought an action for malicious prosecution against a creditor claiming that the creditor maliciously pursued frivolous claims in bankruptcy proceedings. The Ninth Circuit stated that through the complexity and detailed provisions of the Bankruptcy Code, Congress has clearly demonstrated an intent to control the entire field. Id. at 914. Additionally, the Bankruptcy Court in Koffinan reasoned that: Parties could be deterred from exercising their rights in bankruptcy if, by filing a bankruptcy petition, they risk being faced with a state court lawsuit and liability for substantial damages. Gonzales, 830 F.2d at 1036. “It is for Congress and the federal courts, not the state courts, to decide what incentives and penalties are appropriate for use in connection with the bankruptcy process and when those incentives or penalties shall be utilized.” Id. See also Taylor [v. Freeland & Kronz], 503 U.S. at 643-46, 112 S.Ct. at 1648-49[, 118 L.Ed.2d 280 (1992)] (To the extent that existing federal remedies do not deter bad-faith behavior in bankruptcy proceedings, “Congress may enact comparable provisions to address the difficulties”) (emphasis added). Koffman, 182 B.R. at 126. The Bankruptcy Court noted that the jurisdictions that have held that federal law preempts the state claims of abuse of process are concerned specifically that allowing a state lawsuit to advance would deter a party from exercising its rights in bankruptcy for fear of a state civil lawsuit. Id. The Superior Court in the case sub judi-ce noted Werner, which stated that the, “Bankruptcy Code demonstrates Congress’s intent to create a whole system under federal control therefore mandating that the adjustment of rights and duties within the bankruptcy process itself is uniquely and exclusively federal, thereby precluding state law remedies for abuse of its proceedings.” Werner, 799 A.2d at 791 (citing Shiner, 706 A.2d at 1238). We note that this statement was made as an aside by the Superior Court in Werner, apparently without the benefit of the Third Circuit’s decision in U.S. Express Lines. In this case, the Superior Court chose to rely upon the line of eases in which they authored opinions, which determined that the Bankruptcy Code preempts state law entirely, including claims of abuse of process. Accord Glannon v. Garrett & Assocs., Inc., 261 B.R. 259, 263-67 (D.Kan.2001); Mason v. Smith, 140 N.H. 696, 672 A.2d 705 (1996); Edmonds v. Lawrence Nat’l Bank & Trust Co., 16 Kan.App.2d 331, 823 P.2d 219, 221-22 (1991); Smith v. Mitchell Constr. Co., 225 Ga.App. 383, 481 S.E.2d 558, 560-61 (1997); Sarno v. Thermen, 239 Ill.App.3d 1034, 180 Ill.Dec. 889, 608 N.E.2d 11, 15-18 (1992); Idell v. Goodman, 224 Cal.App.3d 262, 273 Cal.Rptr. 605, 609-10 (1990). Conversely, a second line of cases exists in which abuse of process has been found to be outside of the scope of preemption of the Bankruptcy Code. The Superior Court decided Shiner in 1998 and rejected Paradise Hotel (holding that a state court claim premised on actions taken before a bankruptcy court is not preempted), in favor of Gonzales v. Parks, 830 F.2d 1033 (9th Cir.1987) (holding that the Bankruptcy Code does preempt the state torts of abuse of process and wrongful use of civil process), and MSR Exploration. Shiner, 706 A.2d at 1238. Although the Third Circuit issued its decision in U.S. Express shortly before the Superior Court decided Werner, the Werner court did not consider it. While the Superior Court in Shiner and Werner expressly rejected Paradise Hotel, it did so because it reasoned that Paradise Hotel and the Third Circuit stood alone and apart from the reasoning of other jurisdictions. We now turn to the opposing position and examine the reasoning of the courts that have found that state claims of abuse of process are not precluded by the Bankruptcy Code or the Federal Rules of Civil Procedure. In 2002, the Third Circuit held, in U.S. Express Lines, that despite the conflict with the Ninth Circuit in Gonzales, Paradise Hotel is the law in the Third Circuit. U.S. Express Lines, 281 F.3d at 393. In U.S. Express Lines, the plaintiffs contended that the defendants secured writs of attachment in direct violation of Rule B, which precludes the seizure of maritime assets if the debtor is found within the district in which the litigation is commenced. The plaintiffs stated that the defendants were well aware that Express Lines had its principal office in the Eastern District of Pennsylvania and acted in bad faith in seeking attachments in that district. The Third Circuit found that “recovery under Dragonetti can be more expansive than the sanctions available under Rule 11, which are generally limited to counsel fees or fines, or counsel fees alone under 28 U.S.C. § 1927.” U.S. Express Lines, 281 F.3d at 392. In discussing the general principles underlying the Dragonetti Act, the Third Circuit stated: The breadth of the remedy provided by the state statute is a strong indication of its substantive nature. Under the Rules Enabling Act, 28 U.S.C. § 2072(b), procedural rules may not supplant substantive rights[.] ... In Burlington Northern Railway Co. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), the Supreme Court held that “Rules which incidentally affect litigants’ substantive rights do not violate” the Rules Enabling Act if they are “reasonably necessary to maintain the integrity of that system of rules.” Id. at 5, 107 S.Ct. 967 (emphasis added). Following that rationale, the Court later emphasized that Rule 11 was intended to deter frivolous suits in the district courts. Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 552-53, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991)_ Business Guides also rejected the argument that “Rule 11 creates a federal common law of malicious prosecution.” Id. at 553, 111 S.Ct. 922. Continuing, the Court stated, “[t]he main objective of the Rule is not to reward parties who are victimized by litigation,” but to deter baseless filings. Id. Although it conceded that sanctioning a party might benefit its adversary, the Court was “confident that district courts will resist the temptation to use sanctions as substitutes for tort damages,” Id., and noted that in the event that a district court misapplied the Rule in a particular case, the error could be corrected on appeal. Id. at 554, 111 S.Ct. 922. Business Guides found no need for such a correction because there, the district court had properly declined to include consequential damages in awarding attorneys’ fees and out-of-pocket expenses. Id. U.S. Express Lines, 281 F.3d at 392-93; see also Paul v. Monts, 906 F.2d 1468, 1475 (10th Cir.1990) (discussing a claim for breach of contract related to a Chapter 11 plan for reorganization and stating, “[w]here the Bankruptcy Code is silent, and no uniform bankruptcy rule is required, the rights of the parties are governed by the underlying non-bankruptcy law.”). In summary, the Third Circuit in U.S. Express Lines held that Rule 11 sanctions were available but were intended only to deter baseless filings and not to compensate the victims of such filings. Our review of extant case law persuades us that the Federal Rules of Civil Procedure do not preempt claims for abuse of process and similar torts providing relief for misconduct in federal litigation. Therefore, victims of such misconduct may, in appropriate circumstances, bring suit to recover damages under state causes of action. U.S. Express Lines, 281 F.3d at 393. U.S. Express Lines is not directly on point because the facts of that case were limited to a maritime action and Rule 11. The Third Circuit did address the greater sanctions provided by the Bankruptcy Code and held that a Dragonetti claim stands despite the fact that the Bankruptcy Code allows for greater sanctions than those available pursuant to Rule 11, thereby illustrating the importance of a Drago-netti claim. U.S. Express Lines, 281 F.3d at 393. In particular, “[d]espite the broad scope of remedies available in the [Bankruptcy] Code and the general exclusivity of the federal courts in bankruptcy, we have held that a state claim for malicious abuse of process was not preempted.” Id. (citing Paradise Hotel, 842 F.2d 47, 51-52 (3d Cir.1988)). In Paradise Hotel, a creditor improperly had filed an involuntary petition for bankruptcy against a debtor. The Third Circuit summarized its decision in Paradise Hotel, opining: [i]n that case, we discovered that because of a gap in the text the [Bankruptcy] Code failed to provide a remedy against a creditor that had improperly filed an involuntary petition for bankruptcy against a debtor. We concluded that Congress did not intend preemption to extend to the point of barring a debt- or from the use of a state remedy. U.S. Express Lines, 281 F.3d at 393 (further noting a conflict with the Ninth Circuit in Gonzales). Additionally, other jurisdictions have determined that the Bankruptcy Code and the Federal Rules of Civil Procedure do not preempt state law claims of abuse of process brought in federal court. See Sears, Roebuck & Co. v. O’Brien, 178 F.3d 962, 968 (8th Cir.1999) (holding that an “Iowa law that prohibited Sears from corresponding with debtors represented by counsel is not preempted by federal bankruptcy law” and “that law does not impede Sears in the exercise of its federal bankruptcy rights”); Silver v. Mendel, 894 F.2d 598 (3d Cir.1990) (holding that a malicious filing of an involuntary petition for bankruptcy is not protected by the judicial privilege); Sturm v. Providian Nat’l Bank, 242 B.R. 599, 602 (Bankr.S.D.W.Va.1999) (holding that a claim under West Virginia statute was not preempted by the Bankruptcy Code based on reasoning of Sears, Roebuck); Matter of Emerald City Records, Inc., 9 B.R. 319 (Bankr.N.D.Ga.1981) (holding state law tort claim based on creditor’s filing of involuntary bankruptcy petition was not preempted by federal law); Mullin v. Orthwein, 772 So.2d 30 (Fla.Dist.Ct.App.2000) (affirming R.L. La-Roche, infra, and holding state law tort claims were not preempted by federal law); R.L. LaRoche, Inc. v. Barnett Bank, 661 So.2d 855 (Fla.Dist.Ct.App.1995) (holding state law tort claims of abuse of process and malicious prosecution based on creditor’s alleged bad faith filing of involuntary bankruptcy petition were not preempted by federal law). After reviewing the case law from other jurisdictions, we are persuaded that, although the greater sanctions available under the Bankruptcy Code are not directly applicable to the case at hand, the Code’s provision of remedies and sanctions implies an intent to govern sanctions as they relate to Bankruptcy Court proceedings. Those sanctions include: (1) 11 U.S.C. § 303(i), where a creditor wrongfully commences an involuntary bankruptcy petition against a debtor; (2) 11 U.S.C. § 362(k), where there is a willful violation of a stay; and (3) 11 U.S.C. 726(a)(4), which addresses the distribution of assets to those with allowed claims “arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine[s] ... are not compensation for actual pecuniary loss.” Koffman, 182 B.R. at 124 (listing the sanctions available under the Bankruptcy Code). As well, 11 U.S.C. § 105, mirroring Rule 11, provides that the court “may issue any order, process, or judgment that is necessary or appropriate ... to prevent an abuse of process.” Koffman, 182 B.R. at 124 (quoting 11 U.S.C. § 105) (omission in original). Kojfman also cites to: “Rule 1008 of the Federal Rules of Bankruptcy Procedure, which requires filings to ‘be verified or contain an unsworn declaration’ of truthfulness under penalty of perjury, and Rule 9011, which authorizes sanctions for signing certain documents not ‘well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ ” Id. (quoting Fed. R.Bankr.P. 1008, 9011). These exceptions, although similar to Rule 11, provide protection against perjury and frivolous claims. As urged by Appellees, the above-listed sanctions provide an inference that Congress intended to preempt state law remedies for frivolous claims in the field of bankruptcy. Further, Appellees note that the Bankruptcy Court may dismiss a case for improper conduct, but, despite the fact that Congress did not choose to preempt a Dragonetti-type state claim, we find that because of the breadth of the Bankruptcy Code, as well as the potential compensation available for the victim of an abuse of bankruptcy court proceedings, Congress intended to preempt a state claim for compensatory damages. We note that this Court may find that Rule 11, 11 U.S.C. § 105, and the remaining Bankruptcy Code provisions do not preempt a state claim of abuse of civil proceedings if, in the future, the Bankruptcy Courts categorically deny compensation to victims of abuse of process or explicitly state that, like Rule 11, the sanctions are not meant to preempt a state abuse of process claim. See Busi ness Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 553-54, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991), (holding, as discussed supra, that Rule 11 is not meant to supplant state tort claims). The remedies available are designed more to compensate the Bankruptcy Court for time wasted and to prevent the misuse of its resources than to compensate a victim. However, because a strict reading of the available sanctions allows for compensation to the victim of a frivolous claim, we find that a state claim for compensatory damages is preempted. We are persuaded by the reasoning of the Superior Court in Shiner and 'Werner, as well as that of the Koffman court and its progeny. As stated in Werner, part of the policy underlying preemption, in addition to encouraging consistency with the Third Circuit, is to prevent litigants from forum shopping to achieve a different result in federal court than they could obtain in state court. Werner, 799 A.2d at 782 (citing Cellucci (citing Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965); Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993))). The Werner court explained the difference between allowing a Dragonetti Act claim to be heard in a case involving an abuse of process centered on a civil RICO claim in federal courts and denying that an abuse of process claim be heard when the underlying federal court claim is based on the Bankruptcy Code. “[The] Bankruptcy Code demonstrates Congress’s intent to create a whole system under federal control therefore mandating that the adjustment of rights and duties within the bankruptcy process itself is uniquely and exclusively federal, thereby precluding state law remedies for abuse of its proceedings.” Wer-ner, 799 A.2d at 791 (citing Shiner, 706 A.2d at 1238). Therefore, we determine that because the Bankruptcy Code has potential remedies available for a situation such as the case sub judice involving non-bankruptcy counterclaims, the matter falls within the scope of field preemption. Appellant Jackson may be made whole if he were limited exclusively to the Bankruptcy Court sanctions without resort to state law. We further note the concern in Raymark that the mere possibility of being sued in tort in state court can, in some instances, deter persons from exercising their rights in bankruptcy. Raymark, 1997 WL 359333 at *10-*11; see also MSR Exploration, 74 F.3d 910, 916 (9th Cir.1996) (opining that allowing a state claim would create a situation “where the specter of additional litigation must haunt virtually every actor in a bankruptcy proceeding”). Ultimately, we conclude that the Bankruptcy Code and Federal Rules of Civil Procedure preempt Appellant’s rights pursuant to state law for compensation in a wrongful use of civil proceedings or abuse of process claim grounded in bankruptcy court proceedings. Accordingly, we affirm the Order of the Superior Court. Chief Justice CAPPY and Justices CASTILLE, SAYLOR and BAER join the opinion. Former Justice NIGRO did not participate in the decision of this case. Justice EAKIN files a concurring opinion in which Chief Justice CAPPY joins. . In response to frivolous lawsuits, the Pennsylvania Legislature enacted the Act, which punishes both the client and the attorney for bringing a wrongful civil action. The Act establishes liability when “[a] person who takes part in the procurement, initiation or continuation of civil proceedings against another” acts "in a grossly negligent manner or without probable cause and primarily for” an improper purpose. 42 Pa.C.S. § 8351(a)(1). The Act subsumes both the torts of malicious use of process and abuse of process. The Act allows recovery for: (1) the harm from the arrest or interference with the use of land or chattels; (2) the harm from any defamatory statement alleged as a basis for the proceeding; (3) the expense of defending the original action, including attorneys’ fees; (4) any pecuniary loss resulting from the original proceedings; (5) any emotional distress that is caused by the wrongful proceeding; and (6) punitive damages. 42 Pa.C.S. § 8353. . For clarification, it is important to note that Jackson used a disinterested person, an associate of KAJO, Kevin E. Gibson, Esq. (Gibson), for the purposes of forming Stone; however, Gibson never contributed money nor performed any actions on behalf of Stone. Reproduced Record (R.R.) at 48-49. Gibson did own one percent of the company to effectuate his role as a general partner. Id. at 35. . The four-year gap exists between the original verdict and the determination of the Superior Court because of a derivative matter wherein the Superior Court denied Appellees’ appeal as waived for failure to timely file a brief, reconsidered and allowed the appeal as timely, and then heard the case on its merits. . It should be noted that the trial court held that Appellant's abuse of process claim could be heard only as based upon the Bankruptcy Court proceedings because the appeal was still pending in Appellant's separate action concerning KAJO Building Associates. R.R. at 125. As a result, the trial court considered only three of the five denials of Appellees’ claim concerning Jackson’s improperly profiting at the expense of his partners, all of them stemming from the Bankruptcy Court proceeding. Appellees argue that the present suit, involving only the Bankruptcy Court actions, is time-barred because of the two-year statute of limitations to such a claim. See 42 Pa.C.S. § 5524. In particular, Appellees allege that the federal proceedings became final as of the December 23, 1998 Order of the Third Circuit. However, the Bankruptcy Court proceedings did not become final until March 24, 1999, 90 days after the December 23, 1998 Order of the Third Circuit. Hence, Appellant had until March 24, 2001, to file the instant suit. As the present claim was brought in February of 2001, the claim based solely on Bankruptcy Court proceedings is not time-barred. Of course, this Opinion is not meant to preclude a claim for abuse of civil proceedings for actions taking place in state court, but only for those actions occurring in the specialized federal bankruptcy courts. . On questions of law, our standard of review is de novo and our scope of review is plenary. Straub v. Cherne Industries, 583 Pa. 608, 880 A.2d 561, 566 n. 7 (2005). . Fed.R.Civ.P. 11(c)(2) reads, as follows: Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation. (A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2). (B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. . 28 U.S.C. § 1927 provides that: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. . U.S. Const, art. VI, cl. 2 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. . The MSR Exploration court did note that the Bankruptcy Code does take some cues from state law. The court stated that, "[w]hile it is true that bankruptcy law makes reference to state law at many points, the adjustment of rights and duties within the bankruptcy process itself is uniquely and exclusively federal.” MSR Exploration, 74 F.3d at 914. . It is helpful to note the standards this Court recently adopted regarding the relevancy of federal District and Circuit Court decisions. Specifically, we analyzed the approach of other jurisdictions and, ultimately, six Justices decided to treat inferior federal court decisions as persuasive but not binding, consistent with prior case law within this Commonwealth. Hall v. Pennsylvania Board of Probation and Parole, 578 Pa. 245, 851 A.2d 859 (2004) (Opinion announcing the Judgment of the Court) (Justice Baer concurring in the result; Chief Justice Cappy dissenting, joined by Justices Nigro and Saylor): There appear to be four schools of thought on this question: (1) a decision of an inferí- or federal court should be treated as persuasive, but not binding, authority; (2) a decision of an inferior federal court should be followed, if reasonably possible, to avoid a conflict between state and federal resolutions of the same question; (3) a decision of an inferior federal court binds the state court; and (4) if the decisions of the inferi- or federal courts are "numerous and consistent,” the state court must follow their dictates. A vast majority of state supreme courts that have addressed this issue have adopted the first approach. Id. at 863. More recently, in a number of decisions, this Court has clearly indicated that we are not obligated to follow the decisions of the Third Circuit on issues of federal law. See, e.g., Commonwealth v. Cross, 555 Pa. 603, 726 A.2d 333 (1999) (this Court not bound by a Third Circuit decision interpreting United States Supreme Court jurisprudence); Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390 (1999) (this Court is not constrained by a Third Circuit decision interpreting federal law); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999) (same); Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999) (same). Id. at 865. Chief Justice Cappy summarized the position of the Majority and stated that, "[l]ike the majority, I agree that a decision of an inferior federal court should be treated by this court as persuasive, but not binding, authority, where that decision interprets federal law.” Id. (Cappy, C.J., dissenting). Accord Cellucci v. Gen. Motors Corp., 450 Pa.Super. 438, 676 A.2d 253, 255 n. 1 (1996), aff'd, 550 Pa. 407, 706 A.2d 806 (1998); City of Philadelphia v. Pa. Pub. Util. Comm’n, 676 A.2d 1298, 1305 n. 10 (Pa.Cmwlth.), petition for allowance of appeal denied, 546 Pa. 657, 684 A.2d 558 (1996). The decision of the Third Circuit in U.S. Express Lines is not binding, and for the reasons discussed infra, we ultimately adopt the reasoning of both the Superior Court and the majority of Circuit Courts that have addressed the issue. . The well-reasoned Opinion of the Werner court stated that "Rule 11 sanctions cannot include consequential damages and thus are not a substitute for tort damages.” Werner, 799 A.2d at 784 (citing the Advisory Committee Notes of Rule 11 that "Rule 11 does not preclude a party from initiating an independent action for malicious prosecution or abuse of process”). However, no such notice is provided in the Bankruptcy Code, nor has the U.S. Supreme Court addressed the issue as with Rule 11. See Business Guides, supra.

ORDER PER CURIAM. AND NOW, this 29th day of August, 2006, the above-captioned appeal is quashed as an appeal from a non-final order.

OPINION BY TAMILIA, J.: ¶ 1 P.F., natural mother, appeals from the February 24, 2006 Order terminating her parental rights to her minor children, R.M., born September 21, 1990, and E.M., born November 15, 1991. Minor child E.M. also appeals from the Order. The two cases have been consolidated for our review. ¶ 2 The factual and procedural history of the case is as follows. On April 22, 2003, the children were placed with the Lehigh County Office of Children and Youth Services (CYS), after police took emergency custody of them due to mother’s arrest for assaulting her 17-year-old stepson. N.T., 10/7/05, at 12, 15. With neither parent present, the children were adjudicated dependent on May 1, 2003. Id. at 12. Mother alleged she was in a car accident on the way to the May 1st hearing and requested a rehearing, which was held on June 12, 2003, after which the children were again adjudicated dependent. Id. at 14, 16, 49. The permanency plan at that time was “return to home” and the court ordered a 60-day review in anticipation that the goal would be realized by that time. Id. at 16- 17. Mother was ordered to complete a psychological evaluation and follow through with all recommendations of the evaluator, resolve her criminal issues and activities, obtain housing and a legal source of income, participate in counseling as well as any other of CYS’s recommendations, including anger management and domestic violence classes. Id. at 17. She was granted liberal phone contact with the children and supervised visitation, which could be increased in frequency as deemed appropriate. Id. ¶ 3 At the August 14, 2003 review hearing, the court concluded mother failed to comply with the psychological evaluation, failed to obtain housing and income, failed to remain arrest free, and failed to maintain contact with her children. Id. at 20. Underlying the court’s determination were the following facts. Since the prior hearing, mother moved from Allentown to Bethlehem, and then to a family shelter in Norfolk, Virginia, all without notifying CYS. Id. at 18. She had attended only six of eleven possible visits with the children. She had confirmed some of the missed visits, thus the children were taken to the place of the scheduled visit, yet she failed to appear, causing the children “grave disappointment.” Id. at 20. Although granted two phone calls per week, she called only four times in the 60-day period. Id. at 18-19. Mother also was arrested on July 2, and spent six days in Lehigh County Prison for criminal contempt charges filed by father. Id. at 18. Mother initially refused to sign consent forms for her children to obtain counseling and other sendees through CYS, but finally complied on July 31, 2003. Id. at 19. Mother made an appointment for the requisite psychological evaluation but failed to attend. Id. at 18, 54-55. The court ordered another six-month review hearing. In the interim, mother was to accomplish essentially the same objectives as previously had been established: complete a psychological evaluation and follow through with recommendations, obtain housing and income, resolve all her criminal charges, participate in counseling services, and maintain supervised visits with the children. Id. at 20-21. ¶ 4 Mother was present by phone for the next review hearing on February 12, 2004, at which time it was determined she again had failed to achieve all of the objectives set for her. She failed to resolve her criminal issues, and failed to obtain housing and income. Id. at 22-23. During this six-month period, mother did not maintain contact with the agency and the agency did not know her whereabouts. She reportedly had lived in Virginia, Louisiana, and California, and as of the hearing date, in Mexico, but did not have a permanent address. Id. at 22-23. She did not complete a psychological evaluation or counseling. Further, she did not attend a single visit with her children during this period, and was inconsistent in maintaining phone contact with them. Id. As a result, the goal was changed from return home to termination of parental rights for adoption. Id. at 23. ¶ 5 CYS informed mother of the goal change by letter in April 2004, and also informed her of the services in which she was to participate. Id. at 24. Mother, however, made no contact with CYS until August 25, 2004, the day before the next permanency review hearing was scheduled to take place, when she called and informed CYS that she had an income, and was ready to come to Pennsylvania, visit with the children, and comply with services. Id. at 24-25. She was present by phone for the August 26, 2004 hearing and reiterated to the court that she intended to resume visitation with the children. Id. at 26. Also at that hearing, the court ordered that any phone calls between mother and children were to occur during the children’s therapy sessions since her inconsistency in calling had negatively affected the children, and also because when she did call, she incorrectly informed the children that she did all she could but CYS still kept her from visiting the children, causing the children to act out against their foster mother. Id. at 25-26, 60-61. In addition, mother informed the court that she had open criminal charges in Florida. Id. at 28-29, 50, 54. The court ordered a three-month review healing. ¶ 6 Mother did not attend the November 18, 2004 review hearing. She called that morning, at approximately 8:45 a.m., fifteen minutes before the hearing was scheduled, and requested a continuance, alleging she had the flu and was not thinking clearly. Her request was denied, id. at 28, and at the hearing, the court learned that despite mother’s representations to the contrary, and despite CYS’s continued willingness to arrange visitation for mother, mother did not appear for a single visit with the children. Id. at 26, 59-60. As for the requirement that mother undergo a psychological evaluation, mother provided her attorney with a letter indicating she had begun the evaluation. CYS sent letters to the psychologist in September and October of 2004 requesting a copy of the evaluation but received no response. Id. at 29. The court determined mother did not comply with any of the objectives set for her. Id. at 28. It was also learned mother was circumventing the requirement that she contact the children via phone during therapy sessions, by communicating with the children via email. Id. at 30-31. In addition, mother continued to be difficult for CYS to contact. The phone number she provided was not functional, and mail that was sent to the address she provided was returned to CYS. Id. at 32. Mother also provided an address of a home she acquired in Mexico through a divorce settlement. She did not live there, however. Id. at 29, 32. At the end of the hearing, the court ordered that mother comply with the same objectives that had been set repeatedly. Id. at 29-30. ¶ 7 CYS filed a petition for involuntary termination on February 7, 2005, and a final review hearing was held on May 5, 2005. Id. at 32-33. From November 2004 until that time, mother had not met any of the objectives. Id. at 32-33. In January 2005 she provided an address for her cousin’s house where mother then lived, and at which she could receive mail. CYS learned from mother’s attorney that mother intended to offer this cousin as a resource for the children so it sent two letters to that address indicating the steps mother’s cousin could take to present herself as a resource, but it never received a reply. Id. at 32-33, 41-42. Also on May 5, 2005, CYS sent the person who completed mother’s psychological evaluation documents from its case files, providing case history, and asked for any further recommendations based upon that information. CYS never received a response. Id. at 84, 58. ¶ 8 A hearing was held on CYS’s petition on October 7, 2005, and November 17, 2005. As of that hearing, mother had not seen the children since July 2003, and had only very sporadic, and often very brief, telephone contact with them. Sometimes months elapsed without her calling her children as scheduled. N.T., 10/7/03, at 19, 39, 45^46, 64. Mother also never sent a card, gift or letter to the children in the two and one-half years they had been in custody. Id. at 64-65 ¶ 9 As for the children, we note R.M. was fifteen years old as of the October 2005 hearing, and E.M. was almost fourteen. They were in the same foster home where they had lived since only approximately a month after their initial placement. Id. at 70. This is not a pre-adoptive home, but their foster mother allegedly is willing to keep them until they reach the age of majority. Id. at 65-66, 70-71. The children indicated their preferred choices to CYS as follows: (1) return to mother; (2) remain in their current foster home; and (3) proceed with the adoption process. Id. at 67. ¶ 10 The court granted the petition as to both children, finding statutory criteria for termination were met pursuant to 23 Pa. C.S.A. § 2511, Grounds for involuntary termination, (a) General rule, (1), (2), and (8), and pursuant to Section 2511(b), Other considerations, best served the needs and welfare of the children. Record Nos. 29, 31. ¶ 11 These timely appeals followed in which mother argues the statutory criteria of section 2511(a) were not met for the following reasons. First, in an apparent argument that CYS failed to meet its burden as to section 2511(a)(8), mother contends the conditions that led to the children’s removal, allegedly her arrest and resultant incarceration, no longer exist. Also, she contends CYS cited as a basis for the children’s removal domestic violence between mother and father, but she no longer has any relationship with father. Mother’s brief at 16-17. Mother further contends she has complied with the requirements established by CYS. She completed a psychological evaluation, resolved her criminal charges, has suitable living arrangements, and is employed. Id. at 17-18. E.M. incorporates by reference mother’s arguments regarding section 2511(a). We address these arguments before proceeding to mother and E.M.’s remaining arguments relating to the section 2511(b) analysis of the children’s needs and welfare. ¶ 12 “In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.” Id. (citations omitted). In such a proceeding, the focus is on the conduct of the parent. In re B.L.W., 843 A.2d 380, 383 (Pa.Super.2004), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (citations omitted). Paramount, however, is that adequate consideration be given to the needs and welfare of the child. In re J.I.R., 808 A.2d 934, 937 (Pa.Super.2002), appeal denied, 573 Pa. 672, 821 A.2d 587 (2003); see also 23 Pa.C.S.A. § 2511(b), Other considerations (providing, in pertinent part, that, “the court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child”). In evaluating the needs and welfare of the child, the court must consider whatever bonds may exist between parent and child. In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa.Super.2002). ¶ 13 In our review of the court’s decision, we adhere to the following well-established legal principles: When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence. In re B.L.W. at 383 (citations omitted). If competent evidence supports the court’s findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.2003). ¶ 14 We conclude, without hesitation, CYS met its burden of proving the statutory criteria for termination pursuant to section 2511(a). Section 2511(a)(1) provides, in pertinent part, that a parent’s rights may be terminated if: The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition ... has failed to perform parental duties. 23 Pa.C.S.A. § 2511(a)(1). “Although it is the six months immediately preceding the filing of the petition that is most critical to the analysis, the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super.2004). ¶ 15 As the above recitation of the case history elucidates, mother’s actions in the six months immediately preceding the February 2005 filing of the petition for termination were no different than her actions beginning in July 2003. Mother concedes she never once visited her children since July 2003, but contends her lack of visitation is insufficient to support termination since she contacted her children by phone. She also concedes her telephone contact was erratic. Mother’s brief at 20-21. According to her testimony, when she first left Pennsylvania, she tried to talk to her children eight times a month, but only succeeded, on average, four times per month. N.T., 10/7/05, at 119-120. Paul Rieger, a therapist who worked with E.M. from September 2008 in weekly sessions, informed the court that supervised phone calls between mother and children began in July 2004, with mother to initiate the calls. Id. at 74r-75. In the 55 weeks from July 22, 2004, until the October 2005 hearing, mother failed to make 31 of those scheduled weekly calls to her children. Id. at 75-77. There were also long gaps in between phone calls, e.g., there were no calls from April 21, 2005 until July 7, 2005. Id. at 80. Mother emphasizes she maintained contact with her children via email. Mother’s brief at 20-21. She argues she did not abandon her children and has made “every reasonable effort in her power to maintain contact with the children and remain important in their Uves.” Id. at 21-22. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance. In re B., N.M. at 855 (citations omitted). ¶ 16 We have no difficulty in concluding that mother’s email contact and sporadic phone contact were insufficient to meet this obligation. During mother’s absence, R.M. grew from twelve to fifteen years old, and, as mother learned via email, R.M. was raped and/or engaged in consensual sex during this time. N.T., 11/17/05, at 18. Certainly, mother could not properly support her child during this critical time via email. Mother, through her physical and emotional absence, failed to support her children in times of crises, and also through their daily trials and tribulations. A review of the record leaves no question that since the children’s removal, mother has failed to perform her parental duties. ¶ 17 We also do not hesitate to conclude termination was proper pursuant to section 2511(a)(2), which provides a parent’s rights may be terminated when: The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. 23 Pa.C.S.A. § 2511(a)(2). Mother had over two and one-half years to work toward reunification with her children. During that time, she was essentially absent from their lives. There is no question this caused the children to be without parental care, control and subsistence, and the children’s foster mother provided those things in her absence. “Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.” In re B., N.M., supra at 855. Mother argues the court must consider her explanation for her “apparent neglect.” Mother’s brief at 19-20; see also In re B., N.M. at 855 (stating “The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination”). ¶ 18 Upon review, we find mother’s testimony was vague, rambling, frequently nonsensical, and her responses often non-sequiturs, but we will attempt to decipher it. Mother provided the following excuses for her failure to visit her children: she is not from Pennsylvania; she’s from Mexico and was trying to get back there. Her husband was somehow getting her in trouble with the law. She made vague references to financial difficulties, a difficult economy and difficulty finding employment. She alleged her job, which she began in June 2005, did not provide her with vacation time. She made some apparently unrelated complaints about her ex-husband. She even somehow blamed the cold weather for her difficulties in contacting her children. ¶ 19 Mother also alleged she could not return to the U.S. because her purse, in which she kept her immigration documentation, had been stolen. It should be noted her purse allegedly was stolen in approximately April 2004, so this excuse does not account for the time prior to that. Also, when asked why she was not present at the termination hearing, she again blamed immigration issues, stating “I don’t have a permit to go into the country,” yet she had been to California in October 2005, when she participated in a hearing by phone, and also was there the week prior to the termination hearing. N.T., 10/7/05, at 115-119, 124-127; N.T., 11/17/05, at 14-17, 20-21, 25. ¶20 In addition we note that although mother claimed she had a very supportive family in Mexico, when asked why they could not help her purchase a plane ticket to see her children, which she claimed she could not afford, she responded her family was supportive “over here” (in Mexico). N.T., 11/17/05, at 17. ¶ 21 Perhaps most illuminating, when confronted directly as to why she failed to visit her children, mother explained, in sum, “Pennsylvania is ... not my place.” She stated “I do not belong in Pennsylvania.” N.T., 11/7/05, at 15-16. ¶ 22 Mother explained she missed more than half of the supervised calls during therapy sessions because the connections were bad, the calls were expensive, and she had conflicts with work. N.T., 10/7/05, at 120. She blamed work conflicts for her failure to call her children for the three-month period from April to July 2005. Id. at 122. She contends, however, it is “important to note” she is in a time zone three hours behind Pennsylvania. Mother’s brief at 21. ¶23 Mother has attempted to explain her “apparent neglect” and claims she “has made every reasonable effort in her power to maintain contact with the children and to remain important in their fives.” Id. at 19, 21-22. She also claimed to be “so worried” about her children. N.T., 10/7/05, at 13. The court found mother’s testimony to be incredible. Record Nos. 29, 31, Adjudications as to R.M. and E.M., respectively, at 4, ¶ 16. “[Bjbecause the trial judge is in the best position to observe the witnesses and evaluate their credibility, we accord great weight to his credibility determinations.” In re G.P.-R, 851 A.2d 967, 974 (Pa.Super.2004). We have no reason to set aside the court’s credibility determination. ¶ 24 We remind mother that [t]his affirmative [parental] duty ... requires continuing interest in the child and a genuine effort to maintain communication and association with the child. ... parental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s fife’ Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. In re B., N.M., supra, at 855 (citations omitted). ¶ 25 Mother’s chief complaints are the expense and difficulty of visiting and calling her children in Pennsylvania. When asked why she does not have her kids back she responded “Because the money reasons.” N.T., 11/17/05, at 25. It was unquestionably more expensive for mother to visit or even call her children from Mexico, and it was likely more difficult to maintain contact due to the time difference, yet mother chose to return to Mexico when her children were in placement in Pennsylvania. In other words, mother erected the very barriers which she complains keep her from her children. ¶ 26 Mother has failed to live up to her parental duty. In a brief moment of lucidity, mother conceded it was her fault CYS had moved to terminate her rights. N.T., 11/17/05, at 22. We agree. CYS proved mother failed to perform parental duty for almost two and one-half years, and also proved mother’s refusal or neglect caused the children to be without parental care, control, or subsistence, which had to be provided by foster mother. ¶ 27 We have addressed sections 2511(a)(1) and (a)(2). It is not necessary that we consider whether termination was proper pursuant to section 2511(a)(8). See In re B.L.W., supra at 384 (reiterating that “we need only agree with its decision as to any one subsection in order to affirm the termination of parental rights.”) (emphasis supplied). We now proceed to consider whether termination was proper pursuant to section 2511(b). ¶ 28 We begin this discussion by noting the prospective outcomes of this case. If mother’s rights are terminated, then the children either remain in foster care, preferably in the foster home where they have been since just after placement with CYS, or CYS must try to find adoptive placement — to which the children must consent. If mother’s rights are not terminated, CYS may continue to make futile attempts to reunite the children with mother, or may try to place them with another relative, though none has been identified, or the children will stay in foster care, again, preferably in the foster home where they have been living. N.T., 10/7/05, at 107-108. ¶ 29 Given the circumstances of this case, i.e., mother’s continued failures in reuniting with her children, no relative has been identified for placement, their current placement is not a pre-adoptive home, the ages of the children as it relates to their prospects for adoption, and the fact that they must consent to adoption, and the fact that E.M. is appealing the termination, the reality is these children most likely will remain in foster care until they reach majority regardless of the outcome of this case. Mother concedes this is true. She contends, Nothing in these children’s lives will change if termination is granted. Nothing in their lives will change if termination is denied. These children will continue to live with their current caregiver with whom they are comfortable and with whom they may stay with until reaching majority. These children are very fortunate to have a caregiver who is willing to keep them until such time as they reach the age of majority. Mother’s brief at 24-25. She also emphasizes the children have expressed a preference to return to her and she does not believe they will consent to adoption. Id. at 28-24. In sum, mother argues that termination in this case will serve no purpose since it will result in the same physical arrangement as currently exists, but will make the children true orphans. Id. Mother alleges the children “currently have permanency to the fullest extent possible.” Id. at 24. She suggests the best solution is the denial of the termination petition combined with the foster mother assuming a permanent legal custodianship of the children. Id. at 25. ¶ 80 E.M. reiterates that his first preference is reunification with his mother, his second preference is to remain in the foster home, and he would only consider adoption as a last resort. E.M.’s brief at 10. He does not want his mother’s rights to be terminated because that would foreclose the possibility of reunification for the sake of “permanence.” He notes the denial of the instant petition would allow reunification, continued placement, or if subsequent circumstances warrant, termination. Id. at 10-11. Most significantly, he argues denial of the petition is the best option, particularly considering that at his age, he can refuse to consent to adoption. Id. at 11. ¶ 31 As of trial in this case, R.M. was opposed to termination, reunification was her first choice, remaining in her current foster placement her second, and adoption her third. She did not appeal, however, and now takes the position that the court’s decision to terminate was supported by clear and convincing evidence. R.M.’s brief at 2. She recounted the testimony of the CYS caseworker, Sharon Dunn, and that of her therapist, set forth in detail infra, which she indicates reflects her position. ¶ 32 Multiple witnesses testified as to the children’s interests. The CYS caseworker, Sharon Dunn, testified both children have loyalty issues towards them mother and cannot move forward until a decision is made. They have been involved in the process of interviewing adoptive families and have created presentations about themselves for adoption purposes, but are reluctant to go forward until a decision is made in this case. N.T., 10/7/05, at 46-47. Dunn acknowledged that in a June 2003 Order, the court found the children were clearly bonded with mother. Dunn however believed this bond had not been maintained but the children remained loyal to them mother. Dunn felt any bond that remained was not healthy, the children’s best interest would be served by severing it, and the court’s decision to terminate mother’s rights would allow the children to move forward with their fives. Id. at 63-64, 68-69, 71. Dunn believed termination served the children’s best interests despite the fact that due to their respective ages, they could refuse consent to adopt. Id. at 72. ¶ 33 Paul Rieger, a therapist who worked with E.M. from September 2003 in weekly sessions testified. Rieger felt that out of loyalty to his mother, E.M.’s first choice is to reunite with her. He is very frustrated and will not discuss other options until there is resolution with mother. Id. at 81. He has mentioned, however, he is very comfortable in the foster home and would stay there. He has also been involved in some of the adoption preparation activities, but again, does not want to pursue anything until there is a resolution with mother. Id. at 81, 92-93. ¶ 34 Rieger does not deny there is a relationship between E.M. and mother, but opines it has not grown since the separation, and if anything, had recently begun to deteriorate due to E.M.’s frustration with the situation. Id. at 82-83. Rieger believed that a decision, whatever it is, is in E.M.’s best interests, so that he can move forward. If termination were the decision, Rieger believed E.M. then would open himself up to other alternatives and further, that termination would not harm E.M. Id. at 84-85, 91. E.M. has indicated to Rieger, however, that if mother’s rights were terminated and accordingly, there would not be contact between the two, he would not be happy about that. Id. at 90-91. In approximately March 2005, it was reported to Rieger that E.M. threatened to run away if his mother’s rights are terminated. E.M. denied this to Rieger, however. Id. at 63, 89-90; N.T., 11/17/05, at 11-12. ¶ 35 Rieger conceded that if mother’s rights were terminated, when R.M. and E.M. turn eighteen and “age out” of the system, they could reunite with mother. At that point, however, Rieger believed the children, who would have enjoyed “permanency” in their remaining juvenile years, would be better equipped to deal with their relationship with mother. Id. at 94. ¶ 36 Mindy Watson, the therapist who worked with R.M. since November 18, 2004, also testified. She described R.M. as being conflicted, but farther along in “the process” than E.M. Id. at 97. When mother has not been in contact with the children, R.M. considers other options, including adoption, but when mother contacts them, she gets her hopes up again. Id. at 97-98. Watson acknowledges R.M. loves her mother, feels loyalty towards her, and worries about her, but believes their relationship has deteriorated. R.M. recognizes mother has been out of her life for two and one-half years, and that she is in placement due to mother’s failures. Id. at 103. ¶ 37 Watson feels R.M. needs permanency in her life and a stable parental figure, which the foster mother provides. Id. at 98-99. R.M. is also conflicted as to whether she will continue to communicate with mother if mother’s rights are terminated. Id. at 99-100. She expressed sadness at the prospect of a cessation of communication with mother. Id. at 104. ¶ 38 Watson also feels that a decision is in R.M.’s best interests, so that she can move forward but also feels that a stable placement with caregivers who can provide her guidance is in her best interests. Id. at 101. Watson does not feel termination of mother’s rights and the attendant cessation of contact between mother and children will harm R.M., but would benefit her by eliminating her false sense of hope. Id. at 101.103-105. ¶ 39 Watson believes terminating mother’s rights and finding her an adoptive placement, someone committed to her beyond age eighteen, will benefit R.M. by giving her a sense of family. Id. at 104-106. Watson acknowledged she was unaware whether the foster family would be committed to R.M. beyond age eighteen, and also acknowledged that by the time mother’s rights were terminated, if that were the outcome, both children, would be of age that there consent is required for adoption. Id. at 106-107. ¶ 40 Both Rieger and Watson described a very strong bond between the siblings, and Rieger feels it is important that the children remain together. Id. at 85, 96. ¶ 41 In analyzing this case, we must remain cognizant of our deferential standard of review — we must determine whether the decision is supported by competent evidence and, “absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand.” In re B.L.W., supra at 383. Although competent evidence of record supports the court’s findings that severing the bond between mother and children will not harm the children, given the unique circumstances of this case, we find the court abused its discretion in finding that termination serves the needs and welfare of the children. ¶ 42 If an adoptive placement were already identified for these children, our decision likely would be different. As this case has been pending, however, the children have continued to age. No adoptive placement has yet been identified for the children, and the reality is, it is not likely an adoptive family will be found at this late stage of their childhood. Although testimony indicates termination of parental rights will eliminate their false hope that they will reunite with mother, R.M. seems to accept this reality already. In addition, termination may very well create a new false hope — that they will be adopted at this late stage of their childhood. ¶ 43 Further, the children need to consent to adoption at this point. Testimony indicates R.M. is farther along in “the process” than E.M. This is evident particularly given the fact that R.M. did not appeal, but E.M. has. It would not benefit these children to separate them if one is willing to consent to adoption and the other is not. In his appellate brief, E.M. specifically emphasizes his consent to adoption is required. E.M.’s brief at 11. We note there have been two constants in the children’s lives since they have been in placement, their foster home in which they are very comfortable, and their relationship with each other. Both therapists agree there is a very strong bond between the children, and E.M.’s therapist felt it was very important the children remain together. ¶ 44 In addition we note neither child has expressed a commitment to a cessation of contact with their mother in the event of termination, nor will anything prevent them from remaining in email contact, or even telephone contact, if they so chose. We would delude ourselves to pretend otherwise. They remained in email contact when the only court-sanctioned communication was supervised telephone contact during therapy sessions. They can also reunite with mother in the not too distant future, when they are eighteen and age out of the system. ¶ 45 In sum, we are resigned to agree with mother — nothing will change whether mother’s rights are terminated or not, and the only thing that will be accomplished by termination is that the children will be true orphans. We further agree the children currently have permanency to the fullest extent possible under the circumstances. ¶ 46 In addition we note both therapists testified that a decision, whatever that is, would benefit the children so that they can move forward accordingly. ¶ 47 Although the statutory criterion has been met for termination, the court abused its discretion in concluding termination serves the needs and welfare of these children. ¶ 48 Order vacated. ¶ 49 Jurisdiction relinquished. . Natural father, (E.M., a.k.a. A.L.) whose rights were also terminated as to both children, did not file an appeal. Since father is not a party, the initials E.M. as hereinafter used in this Opinion, refer only to the minor child. Minor child R.M. is an appellee in both appeals and takes the position that the Order terminating mother’s parental rights is supported by clear and convincing evidence. . Mother pled guilty to the criminal charges stemming from the incident and was sentenced to probation. N.T., 10/7/05, at 110-111. We also note the family’s history involved "domestic violence and Children and Youth involvement in other states and counties, mental health problems; criminal issues.” N.T., 10/7/05, at 15. Mother has been arrested several times, for aggravated battery, false identification, resisting arrest, possession of an instrument of crime, defiant trespass, and traffic offenses. Id. at 16. Children and Youth Services of Monroe County, Florida, was involved with mother for "issues related to threatening her children, physical discipline, aggravated battery, and family violence.” Id. at 15-16. Children and Youth Services of Monroe County, Florida filed for dependency but mother moved to California and subsequently in that state, her parental rights were terminated as to four children. Id. at 16, 50. . The CYS caseworker testified mother did not attend the August 14, 2003 hearing. N.T., 10/7/05, at 18. The testimony also indicated that at that hearing, mother requested weekend rather than weekday visitation, a request the court denied due to her lack of compli-anee to date, and she requested expanded time periods in which to call, a request the court granted. Id. at 20. It is unclear whether these requests were made through counsel who appeared for mother, or if she in fact did appear. . Ultimately, in February 2005, the court received a completed psychological evaluation. CYS could not recall anything significant about the evaluation, but noted it described mother as being "psychologically apt.” N.T., 10/7/05, at 34, 55-58. . 23 Pa.C.S.A. § 2511, Grounds for involuntary termination, provides, in relevant part: (a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. (b) OTHER CONSIDERATIONS. — The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. 23 Pa.C.S.A. § 2511. . We note CYS filed the termination petition in February 2005. Record No. 1. Even though mother knew CYS was proceeding to terminate her rights to her children, she still failed to call them from April to July 2005. N.T., 10/7/05, at 83. In violation of the requirement that communication between mother and children be supervised, mother initiated and encouraged email communication between them. Id. at 88-89, 100-101. . There was a suggestion as of November 17, 2005, that E.M. was removed from his foster home because his foster mother was afraid of him. N.T., 11/17/05, at 19. E.M.’s counsel, in his appellate brief, however, contends continued placement with the present foster mother is a viable option. E.M.'s brief at 10.

OLSZEWSKI, Judge: This is an appeal from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence of alcohol. The sole issue is whether the trial court erred in concluding that the Drunk Driving Act required that it impose a minimum sentence of thirty days imprisonment under the circumstances of this case. For the reasons which follow, we vacate judgment and remand for resentencing. This matter involves two separate arrests for driving under the influence of alcohol (DUI). Appellant, Dawn Gretz, was first arrested and charged with DUI in Chester County, Pennsylvania, on May 2, 1984. She thereafter applied for and was accepted into the Accelerated Rehabilitative Disposition (ARD) program. While under the súpervision of that program, appellant was arrested and charged with DUI in Bucks County, Pennsylvania, on January 18, 1985. Following appellant's guilty plea to this second offense, the Honorable Kenneth G. Biehn of the Court of Common Pleas of Bucks County sentenced appellant to a term of forty-eight hours to one year imprisonment pursuant to the first offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(i). Upon learning of this conviction, the district attorney of Chester County requested and obtained appellant's removal from the ARD program. Thereafter, on March 31, 1986, appellant appeared before the Honorable Thomas G. Gavin of the Court of Common Pleas of Chester County and pled guilty to the DUI charge that was first in time of arrest, but second in time for sentencing purposes. On the same date, Judge Gavin sentenced appellant to thirty days to twenty-three months imprisonment pursuant to the second offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(ii). Appellant filed a motion to modify sentence which Judge Gavin denied. It is the latter sentence which appellant challenges in this appeal. In sentencing appellant for the May 2, 1984 offense (1984 offense) at issue here, the trial court concluded that appellant had properly been sentenced as a first offender for the January 18, 1985 offense (1985 offense). Next, believing that appellant had “previously been convicted” in view of the guilty plea and sentencing for the 1985 offense, the court concluded that it was required to sentence appellant as a second offender for the 1984 offense. Upon review, we find that both conclusions were in error. We find specifically that appellant should have been sentenced as a second offender for the 1985 offense and as a first offender for the 1984 offense. Sentencing for DUI convictions is governed by § 3731(e) of the Vehicle Code. That section provides in part: (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of: (i) not less than 48 consecutive hours. (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years. (2) Acceptance of Accelerated Rehabilitative Disposition 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. 75 Pa.C.S.A. § 3731(e). In concluding that appellant’s sentence for the 1985 offense was proper, the trial court interpreted these provisions to mean that only acceptance and completion of ARD shall be considered a first conviction. We recently rejected this interpretation in our en banc decision in Commonwealth v. Becker, 530 A.2d 888 (Pa.Super., 1987). In that case we held that the plain language of § 3731(e)(2) compels the conclusion that acceptance of ARD is sufficient to trigger an enhanced penalty upon sentencing for a subsequent offense. Id., at 890. Accordingly, the trial court in the case at bar erred in concluding that appellant’s sentence for the 1985 offense was proper and in relying on that conclusion in imposing the sentence at issue in this appeal. We address next the trial court’s conclusion that it was required to treat appellant as a second offender in imposing sentence for the 1984 offense, which occurred first in time. In reviewing this conclusion, we must ascertain when a person “has previously been convicted of an offense under this section” so that an enhanced sentence is mandated by § 3731(e)(1)(ii). Specifically, we must determine whether one has been previously convicted for purposes of that provision where he is convicted on a subsequent DUI charge prior to sentencing, but after commission of the offense for which he is being sentenced (the principal offense). In construing statutes, we are to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.A. § 1921(a). When the language of a statute is clear and unambiguous, we are to construe its provisions in accordance with their plain meaning and common usage. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). When the words are not explicit, however, the intention of the General Assembly may be ascertained by considering other matters. 1 Pa.C. S.A. § 1921(c). We find that the language of § 3731(e)(1)(ii) is not explicit as it does not indicate when a person must have been previously convicted in order to trigger its enhanced penalty. Accordingly, we may consider matters other than the language itself. Appellant urges that we apply to the penalty provisions of § 3731 a principle relied upon in our decisions in Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435, allowance of appeal granted, 513 Pa. 640, 521 A.2d 932 (1986); and Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986). In those cases, we interpreted the guidelines promulgated by the Pennsylvania Commission on Sentencing, see 204 Pa.Code 303.6 reprinted at 42 Pa.C.S.A. § 9721, as conforming to the principle that “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Commonwealth v. Mourar, supra, 349 Pa.Super. at 592, 504 A.2d at 202. We found that this principle was central to most recidivist statutes. Section 3731(e)(1)(ii) is an enhanced sentencing provision applied to recidivists. In our view, as we stated in Mourar and Wolfe: Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed. Commonwealth v. Mourar, supra, 349 Pa.Super. at 593, 504 A.2d at 203 (quoting 39 Am.Jur.2d Habitual Criminals § 6); Commonwealth v. Wolfe, supra, 349 Pa.Super. at 420, 503 A.2d at 438 (quoting 39 Am.Jur.2d Habitual Criminals § 6). As we further noted in those cases, when a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty. Commonwealth v. Mourar, supra, 349 Pa.Super. at 595-96, 504 A.2d at 204; Commonwealth v. Wolfe, supra, 349 Pa.Super. at 418-19, 503 A.2d at 437. For these reasons, we apply the principle behind Mourar and Wolfe here and hold that the mandatory minimum sentence of § 3731(e)(1)(h) does not apply unless the previous conviction precedes commission of the principal offense. In light of this holding, the trial court erred in concluding that it was required to impose a minimum sentence of thirty days in this case. As we noted in Mourar, however, “[i]t is only the logic behind the sentence and not necessarily the length to which we take exception.” Commonwealth v. Mourar, supra 349 Pa.Super. at 596, 504 A.2d at 204. The court’s sentence of thirty days to twenty-three months is well within the statutory maximum of two years for a misdemeanor of the second degree. Consequently, on remand, the trial court is free to impose the same sentence, provided that it is otherwise lawfully entered. In view of the foregoing, we vacate the judgment of sentence and remand for resentencing in accordance with this memorandum. Jurisdiction is relinquished. . December 15, 1982, P.L. 1268, No. 289, § 9, 75 Pa.C.S.A. § 3731. . We note that Becker was filed subsequent to the trial court’s decision in this matter. . As we stated in Mourar, however: We do not deny the propriety of consideration by the court of other offenses in determining sentence. "Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].” Common wealth v. Lupatsky, 341 Pa.Super. 338, 491 A.2d 845 (1985) (citation omitted). Commonwealth v. Mourar, supra, 349 Pa.Super. at 595-96, 504 A.2d at 204.

HESTER, Judge: This appeal from the judgment of sentence involves a single issue: whether the trial court erred in refusing to suppress the results of a breathalyzer test. For the reasons which follow, we conclude that the trial court did not err, and affirm. The record reveals that appellant, Jeffrey Wege, was arrested for driving under the influence of alcohol on October 26, 1986. He entered a plea of guilty on December 30, 1986, which he successfully withdrew on March 2, 1987. Thereafter, on May 29, 1987, the trial court denied appellant’s pretrial motion to suppress, and appellant entered a plea of nolo contendere on July 6, 1987. The court sentenced appellant to a term of incarceration of thirty days to twenty-three months, plus the payment of fines and costs. This appeal followed. The facts of the case are as follows. On October 26, 1986, Officer Ricky Williams of the Littletown Borough Police, observed appellant driving, at 1:25 a.m., at approximately five miles per hour. When appellant crossed over the center line several times, Officer Williams put on his flasher and stopped appellant’s vehicle. Appellant attempted to perform several field sobriety tests, but failed. The officer noticed that appellant’s eyes were bloodshot, his speech was slurred, and he had an odor of alcohol on his breath. Appellant was arrested and taken to the Gettysburg Police Station where police administered Miranda warnings and requested appellant to submit to a breathalyzer test. Appellant twice refused, but on the third request, submitted to the test. The test indicated that appellant’s blood alcohol level was .26 percent. Appellant argued in his pretrial motion to suppress, and argues now, that inasmuch as 75 Pa.C.S. § 1547(b) provides that chemical testing shall not be conducted upon a refusal to submit to such testing, the police improperly requested appellant to submit to the breathalyzer after his initial refusal. He thus asserts that the trial court should have suppressed the results of the breathalyzer exam. We do not agree. Section 1547(b)(1) provides: (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. Appellant does not allege that he was coerced into taking the test. He simply contends that once a test is refused, the police are prohibited, by the language of 75 Pa.C.S. § 1547(b)(1), from making a subsequent request. We have stated that the purpose of the above provision and prior enactments is “to facilitate the acquisition of chemical analyses and to permit their utilization in legal proceedings.” Commonwealth v. Tylwalk, 258 Pa.Super. 506, 511, 393 A.2d 473, 475 (1978). We do not believe appellant’s interpretation of § 1547 is in keeping with such a purpose. There is nothing in the statute that precludes an officer’s discretion in allowing an accused to change his mind. Corporal Dennis Wright of the Gettysburg Police Department, who administered the breathalyzer, testified that it is the policy of his police department to give each person charged with driving under the influence three opportunities to take a breathalyzer exam. Such benevolence is certainly not required. Indeed, once an accused refuses to submit to chemical testing, a subsequent assent to the test need not be accepted. E.g., In re Miller, 79 Pa.Cmwlth. 648, 470 A.2d 213 (1984). Indeed, the Miller court quoted with approval the following language in the opinion of the trial court therein. “[P]olice officers are not required to spend effort either cajoling the defendant or ... waiting to see if the defendant will ultimately change his mind.” Id. at 650, 470 A.2d at 214. That the Gettysburg police do more than they are required by law to do is to their credit. Although we have found no cases addressing the precise issue in this case, there are many examples where police afforded an accused drunk driver more than one opportunity to assent to chemical testing. See, e.g., Phillips v. Commonwealth, 84 Pa.Cmwth. 217, 478 A.2d 958 (1984) (police offered accused three opportunities to take a breathalyzer test and one chance to submit to a blood test); In re Weitzel, 41 Pa.Cmwlth. 235, 400 A.2d 646 (1979) (police made four requests of accused to take breathalyzer exam). We conclude that the police were not prohibited from extending appellant a second and third opportunity to submit to a breathalyzer test by the language of 75 Pa.C.S. § 1547(b)(1). Accordingly, the judgment of sentence is affirmed. CAVANAUGH, J., files a dissenting opinion. . Appellant’s arrest occurred while on ARD probation for drunk driving. However, appellant never informed his probation officer of this second arrest, and he was released from ARD. For that reason, the Commonwealth did not seek revocation of ARD. Notes of Testimony, 12/30/86, at 2, 6-7. . The notes of testimony from the May 29, 1987 suppression hearing have not been transcribed. The trial court opinion issued in compliance with Pa.R.A.P. 1925 on August 26, 1987, sets forth Corporal Wright’s testimony.

CAVANAUGH, Judge: The issue involved in this case is whether the court below erred regarding the law or abused its discretion in refusing to open a default judgment entered in favor of the plaintiff. A civil action was commenced by Betty Burkett, the plaintiff below, who is the appellee herein, against Allstate Insurance Company, the appellant. The basis of the com plaint was an alleged breach of contract entered into between the appellee and the appellant concerning settlement of a case. The complaint, which was endorsed with a notice to plead, was filed on July 10, 1986 and the appellant was served on July 18, 1986. Subsequently, counsel for the appellant entered his appearance and also wrote to counsel for the appellee stating: “I note that the period within which to plead or otherwise move is about to expire and therefore respectfully request that the defendant, Allstate Insurance Company, be granted a reasonable extension of time within which to plead or otherwise move. If I do not hear from you to the contrary, I shall assume that such an extension has been granted.” On or about August 4, 1986 counsel for the appellee responded stating: “I am in receipt of your letter dated July 24, 1986 requesting an extension of time to plead or otherwise move to plaintiffs complaint. Please be advised that I will grant an extension of time until August 18, 1986 to answer the plaintiffs Complaint. I will not grant any extensions of time to otherwise move to plaintiffs Complaint.” The appellant did not file an answer or other pleading or motion by August 18, 1986 and on August 21, 1986 the appellee filed a praecipe with the prothonotary directing the entry of judgment by default against the appellant. On September 12,1986 the appellant filed a petition to open the judgment which was denied by the court below speaking through DiBona, Jr., J. by order of December 19, 1986. It is from this order that an appeal has been taken. A petition to open a default judgment is addressed to the equitable powers of the court and the grant or denial of the petition is within the discretion of the court. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982); Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984); Autologic, Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362 (1984). In order to grant a petition to open a default judgment, the following factors must coalesce: (1) the petition to open must have been promptly filed; (2) a meritorious defense must be set forth and (3) there must be a reasonable explanation for failing to respond. Levy Estate v. CNA Insurance Company, 338 Pa.Super. 191, 487 A.2d 919 (1985); Explo, Inc. v. Johnson and Morgan, 295 Pa.Super. 133, 441 A.2d 384 (1982). Also, the court’s refusal to open a default judgment will not be reversed unless there has been an abuse of discretion or error of law. Maurice Goldstein Co. v. Margolin, 285 Pa.Super. 161, 427 A.2d 162 (1980); Schultz v. Erie Insurance Co., supra; Vision Service Plan v. Pennsylvania AFSCME Health and Welfare Fund, 326 Pa.Super. 474, 474 A.2d 339 (1984). Accordingly, "... our scope of review on appeal from the lower court’s grant or refusal to open a judgment by default is a narrow one.” Carson Pirie Scott and Co. v. Phillips, 290 Pa.Super. 353, 356, 434 A.2d 790, 791 (1981). The court below found that the appellant had promptly filed the petition to open and had set forth a meritorious defense to the action. We agree that the petition was promptly filed as it was filed approximately 22 days after the entry of the default judgment. “The law does not establish a certain number of days which constitutes a cutoff point between a prompt filing of a petition to open and one which is not timely filed.” King v. Evans, 281 Pa.Super. 219, 224, 421 A.2d 1228, 1230 (1980). In some cases it is evident that the petition to open has been promptly filed. In DiNenno v. Great Atlantic & Pacific Tea Company, 245 Pa.Super. 498, 369 A.2d 738 (1976) the petition to open was filed fifteen days after the entry of a default judgment, and we held that “clearly the petition to open was promptly filed.” 245 Pa.Super. at 500, 369 A.2d at 739. See also Quaker Transit Company, Inc. v. Jack W. Blumenfeld & Company, 277 Pa.Super. 393, 419 A.2d 1202 (1980) in which this court held that a petition to open filed fourteen days after the default judgment had been entered was timely filed. The court below properly determined that the petition to open was timely. Further, a meritorious defense was posited as the appellant contended that the complaint did not set forth a cause of action. The defendant must allege an arguably meritorious defense sufficient to justify relief if proven. Alexander v. Jesray Construction Co., 237 Pa.Super. 99, 346 A.2d 566 (1975). See also Provident Credit Corporation v. Young, supra. The meritorious defense need not be proved at this state of the proceedings. Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979). However, it must be set forth in precise, specific and clear terms. Sines v. Packer, 316 Pa.Super. 500, 463 A.2d 475 (1983). The test of a posited meritorious defense was clearly met. The defendant contended in the petition to open that the complaint did not set forth a cause of action and specifically that no settlement agreement was reached as the appellee had refused to sign an appropriate release. The court below found that there was no reasonable explanation for failing to timely file a responsive pleading. We disagree with this conclusion and find that the court erred in not opening the default judgment. In determining whether there was an adequate excuse for the appellant’s failure to file a responsive pleading, we must determine the applicability of Pa.R.C.P. 237.1. We have recently held that the failure of the party entering a judgment by default to comply with Pa.R.C.P. 237.1 constitutes such an excuse in connection with a petition to open a default judgment. Rounsley v. D.C. Ventre and Sons, Inc., 361 Pa.Super. 253, 522 A.2d 569 (1987). For the reasons set forth below, we have concluded that the appellee did not comply with Pa.R.C.P. 237.1 which provides in pertinent part: Rule 287.1. Notice of Praecipe for Entry of Default Judgment (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. (Emphasis Added.) Pa.R.C.P. 237.1 must be strictly construed. Academy House Council v. Phillips, 312 Pa.Super. 364, 458 A.2d 1002 (1983). In addition, “the rule is mandatory in nature.” N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 595, 456 A.2d 1377, 1380 (1983). The court below determined that the appellee fully complied with Rule 237.1 as a written agreement had been entered into between the parties concerning an extension of time and specifying “the time within which the required action must be taken” and a default occurred thereafter. We cannot agree with this conclusion. Our analysis discloses that no agreement was reached by counsel for the parties. The attorney for the appellant asked for a “reasonable extension of time within which to plead or otherwise move.” (Emphasis added.) The attorney for the appellee did not grant this request, but instead stated that he would “grant an extension of time until August 18, 1986 to answer the plaintiffs Complaint. I will not grant any extension of time to otherwise move to plaintiffs Complaint.” (Emphasis added.) We note that the appellant’s counsel sought an extension of time not merely to file an answer but “to plead or otherwise move.” Under Pa.R.C.P. 1017 the appellant could have filed an answer or preliminary objections to the complaint. He was not limited to filing an answer, and in fact the court below pointed out that part of the appellant’s argument for opening the default judgment would have constituted the basis for a preliminary objection. The salient point is that there was no agreement between the attorneys for the parties, as counsel for the appellee only granted an extension of time in which to file an answer and specifically refused to grant an extension of time for the filing of any other pleading. The test for enforceability of an agreement is whether both parties have manifested an intent to be bound by the terms of the agreement and whether the terms are sufficiently definite and whether consideration existed. Channel Home Centers v. Grossman, 795 F.2d 291 (C.A. 3 1986). In the written agreement contemplated under Pa.R.C.P. 237.1 there is no legally sufficient consideration required in the usual sense of contract law. An agreement is enforceable where the parties intended to conclude a binding agreement and the essential terms of the agreement are certain enough to provide the basis for an appropriate remedy. Linnet v. Hitchcock, 324 Pa.Super. 209, 471 A.2d 537 (1984). What is clearly lacking in the exchange of writings between counsel for the parties in the instant case is the mutuality of assent. Lawyers, especially, should recognize that a “written agreement” must manifest in unequivocal language the mutual understanding reached by the parties. Simply stated, counsel for the appellant’s request for a “reasonable extension of time within which to plead or otherwise move ”, was denied by counsel for the appellee. Even though there was an exchange of letters, no agreement was reached. In the absence of a written agreement between the parties, counsel for the appellee was required to comply with Pa.R.C.P. 237.1 requiring the giving of notice of the intention to file a praecipe for the entry of a default judgment in a form that substantially complied with Pa.R.C.P. 237.1(c). Such notice was not given. The reason for Rule 237.1 is that the law does not look with favor on “snap” judgments. McPherson v. Tube City Taxicab Co., 321 Pa.Super. 144, 467 A.2d 1170 (1983); Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980). Prior to the adoption of Pa.R.C.P. 237.1, the entry of snap judgments without notice was strongly disapproved by this court and the lack of notice was frequently singled out as an important factor justifying the opening of a default judgment. See Explanatory Note to Pa.R.C.P. 237.1. The purpose of Rule 237.1 is to assure that a default judgment is not entered without prior notice to the defendant. Brown v. Great Atlantic & Pacific Tea Company, 314 Pa.Super. 78, 460 A.2d 773 (1983). There must be strict compliance with Pa.R.C.P. 237.1. A written notice of intention to file a praecipe must be given in accordance with the rule before the entry of a default judgment. The exception to this is where both parties enter into a written agreement as described in Rule 237.1(a). The giving of written notice of intent to file a praecipe is an ex parte matter and requires no action by opposing counsel. However, if the party seeking to enter a default judgment elects to refrain from the giving of a written notice, then an agreement between the parties must be entered and this requires a manifestation of mutual assent to the terms of the agreement. This is the more difficult route to follow than the giving of notice in accordance with the form set forth in Pa.R.C.P. 237.1(c) as the forging of an agreement between opposing counsel may be wrought with difficulty. The failure of the appellant to comply with Pa.R.C.P. 237.1 in this case precluded the entry of judgment by default and the court below erred regarding the law in not opening the default judgment. Order reversed and judgment by default is opened. . Pa.R.C.P. 1026 provides, inter alia: Rule 1026. Time for Filing. Notice to Plead (a) Except as provided by subdivision (b), every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead. Under this rule the appellant was required to file a responsive pleading to the complaint by August 7, 1986. . Pa.R.C.P. 237.1(c) provides: (c) The notice required by subdivision (a) shall be substantially in the following form: (CAPTION) To:_ (Defendant) Date of Notice: _ IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: (Name of Office) (Address of Office) (Telephone Number) (Signature of Plaintiff or Attorney) (Address) The appellee did not give the notice referred to in Pa.RX.P. 237.1(c). . Pa.RX.P. 1017 provides in part: Rule 1017. Pleadings Allowed (a) The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto. (b) Preliminary objections are available to any party ... . As pointed out in the Explanatory Note to Pa.R.C.P. 237.1 “A written agreement of extension need not be formal. An exchange of letters between counsel will suffice. But any agreement should be sufficiently specific to avoid argument over its terms. (Emphasis added.) . We note that in the case before us, counsel for the appellee gave no indication of an intent to enter a default judgment, but even if he had the requirements of 237.1 would not have been met in the absence of an agreement. In N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A.2d 1377 (1983) counsel for plaintiff wrote to counsel for defendant after the time for filing a responsive pleading had passed, stating that if he did not have anything in the next two weeks, he would assume that he should feel free to enter a default judgment. This court, speaking through Montemuro, J., found that there was no written agreement and the default was not entered "in accordance with the mandatory requirements of Pa.R.C.P. 237.1.” 310 Pa.Super. at 599, 456 A.2d at 1382. Similarly, in Giallorenzo v. American Druggists' Insurance Co., 301 Pa.Super. 294, 447 A.2d 974 (1982) we found that in the absence of a written agreement, even where counsel for plaintiff wrote to counsel for defendant after the time for filing a responsive pleading had passed that he would enter a default judgment if an answer was not filed within 10 days, that this did not satisfy the rule. In our case, we have neither a written agreement or any warning concerning the entry of a default judgment. . Nothing in our discussion concerning Pa.RX.P. 237.1 is meant to detract in any way from the necessity of compliance with Pa.R.C.P. 1026 concerning the time for filing responsive pleadings. Failure to comply with Pa.R.C.P. 237.1 bars the entry of a default judgment, but the mandate of Pa.R.C.P. 1026 remains intact.

BECK, Judge: This case presents a difficult question regarding the parameters and application of the “malfunction theory” in a strict product liability action. The malfunction theory has been part of the law of strict liability in Pennsylvania since 1969 when this Court decided MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), allocatur denied. In MacDougall, the Court held "... that the occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a ‘defective condition’ within the meaning of § 402A____” Id., 214 Pa.Superior Ct. at 391, 257 A.2d at 680. Thus, the malfunction theory relieves a Section 402A plaintiff from the burden of proving a specific defect in the product. The theory permits a plaintiff to establish a prima facie case as to the first element of strict liability, existence of a defect, through circumstantial evidence of a defect consisting merely in the fact of the malfunction of the product and the absence of abnormal use or reasonable secondary causes. Id.; Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super 386, 395-96, 473 A.2d 120, 125 (1984), allocatur denied. The primary argument of defendant-appellant Johnson & Johnson, Products, Incorporated (J & J) on appeal is that the trial court erred in submitting plaintiffs-appellees’ strict liability claim, insofar as it was based on the malfunction theory, to the jury. J & J asserts that appellees failed to demonstrate the absence of reasonable secondary causes as to the malfunction and urges this court to direct the entry of judgment n.o.v. in J & J’s favor. Thus, the instant case calls upon us to divine precisely what the malfunction theory requires of a plaintiff who seeks to establish the absence of reasonable secondary causes. The facts giving rise to this action can be briefly summarized. The action arose out of injuries sustained by appellee Price Rogers on May 1,1977. On that date, Mr. Rogers went to Lankenau Hospital (“Lankenau”) seeking medical treatment for a broken leg. The treating physicians were Dr. John J. Dowling, Chief of Orthopedic Surgery at Lankenau, and Dr. Lawrence Naame, a third-year resident at Thomas Jefferson University Hospital (“Jefferson”). Dr. Naame was on rotation to Lankenau at the time. As part of the treatment of Mr. Rogers, Dr. Dowling instructed Dr. Naame to prepare a plaster of Paris splint to support Mr. Rogers’ leg until the next day when Dr. Dowling intended to operate. The plaster of Paris product Dr. Naame used, technically called Johnson & Johnson Specialist fast-setting plaster of Paris (the “plaster of Paris”), was manufactured by appellant J & J. After Dr. Naame prepared the splint, he applied it to Mr. Rogers’ leg and left the treatment room. Dr. Dowling continued Mr. Rogers’ treatment for a short while. Mr. Rogers complained to Dr. Dowling of a feeling of heat being generated by the splint but Dr. Dowling assured him everything was fine and left to secure Mr. Rogers a hospital bed for the night. Shortly thereafter, Mr. Rogers began to complain again about a burning sensation under the splint. Mrs. Rogers called Dr. Dowling back to the room and it would appear that he made some further efforts to cool the splint. However, when the splint was removed the next day, second and third degree bums were discovered on the back of Mr. Rogers’ leg. In August 1978, appellees instituted this action against J & J, Jefferson and Lankenau. Neither doctor was a defendant. Appellees’ complaint alternatively alleged that the J & J plaster of Paris product was defective and/or negligently designed or manufactured and that the hospital defendants were liable under a theory of respondeat superior for the negligence of the treating physicians in preparing and ap plying the plaster of Paris. Prior to trial, counsel for appellees summarized their basic position, demonstrating that counsel relied both on strict liability and negligence: I have evidence in this case that cuts two ways____ [A] 402A result for the plaintiff against Johnson & Johnson____ I have a burned man, Your Honor. The evidence can also show overwrapping and pillowing and dip water being too hot [evidence of medical malpractice in preparing and applying the splint], if [the jury] believe all of that, they can come back against____ Jefferson by their agent, Dr. Naame. At first blush, this would appear to be less than extraordinary. Appellees had simply pleaded and were pursuing alternate theories of relief. However, in this case the situation was rendered somewhat more complex because of the precise nature of appellees’ strict liability claim against J & J. Appellees conceded that they were unable to prove any specific defect in the manufacture or design of the plaster of Paris that would result in it overheating. Given this lack of direct evidence of defect, appellees based their strict liability claim against J & J on circumstantial evidence of a defect under the malfunction theory. Appellees’ re liance on the malfunction theory to support their strict liability claim coupled with their continued desire to preserve their negligence claim against the hospitals forced appellees to adopt a novel trial strategy. Appellees were apparently aware that it was potentially problematical for them to attempt both to sustain their burden of demonstrating the absence of reasonable secondary causes of the malfunction, and thus present a prima facie case of strict liability under the malfunction theory, while also presenting compelling evidence of a possible secondary cause, namely, the medical malpractice of the doctors. Appellees apparently also knew that J & J intended to attempt to prove that the product was not defective by showing that the product had acted as it did, i.e. had overheated, solely because of the negligence of the doctors in preparing and applying the splint. Faced with this dilemma, appellees decided to marshal of their evidence in favor of the malfunction theory and to leave the proof of the alleged medical malpractice to J & J. In this manner, appellees sought to have their cake (the malfunction theory) and eat it too (the negligence theory). As we will indicate in greater detail below, this appellee could not do. At trial, appellees called Dr. Dowling himself to testify to the occurrence of a malfunction in the plaster of Paris. Dr. Dowling testified that there had been no negligence on the part of either himself or Dr. Naame and that the burning of Mr. Rogers’ leg could, therefore, only be explained by a malfunction of the product caused by some defect therein. Appellant, on the other hand, produced its own expert to testify tp the negligence of Drs. Dowling and Naame, both in preparing the splint and in treating Mr. Rogers thereafter. The case proceeded to the jury on all of appellees’ theories, the trial court having denied all of the defendants’ motions for compulsory nonsuit and/or directed verdict. The jury was sent out with a detailed Verdict Form which, coupled with the trial court’s charge, gave the jury very specific guidance as to how its deliberations should proceed. Because of the importance of the Verdict Form to our disposition of this case, we reproduce it here: Question 1: Was the Johnson & Johnson plaster of Paris defective as a result of malfunction? Yes No Question 2: Was the Johnson & Johnson plaster of Paris defective as a result of failure to warn its users? Yes No Question 3: If you answer “Yes” to either Questions 1 or 2, was the defect a substantial factor in bringing about the plaintiffs harm? Yes No Question 4: Was defendant, Johnson & Johnson, negligent? Yes No Question 5: If yes, was the negligence of defendant, Johnson & Johnson, a substantial contributing factor in causing plaintiffs burns? Yes No Question 6: Was Dr. Naame negligent? Yes No Question 7: If yes, was the negligence of Dr. Naame a substantial contributing factor in causing plaintiffs injuries? Yes No Question 8: If you answer “Yes” to Question 7, (a) Was Dr. Naame the agent of Lankenau Hospital? Yes No (b) Was Dr. Naame the agent of Jefferson Hospital? Yes No Question 9: If you answer “Yes” to either Questions 3, or 5, or 8(a) or (b), in what amount do you find damages for plaintiff, Price L. Rogers? In what amount do you find damages for Elaine Rogers’ loss of consortium? $- Question 10: If you answer “Yes” to Question 5 and Question 8(a) or (b), what percentage of that causal negligence do you attribute to: Question 11: Defendant Johnson & Johnson % Dr. Naame % Total 100% (R. 2669-70). The jury was instructed that if it found for appellees on the strict liability theory, it should not consider any of the appellees’ remaining theories and should proceed directly to a determination of damages. Moreover, although the trial court never expressly instructed the jury that if it found that the plaster of Paris was defective under the malfunction theory, it need not determine whether the product was also defective under the failure to warn theory, this was the clear implication of the Court’s charge. On February 7, 1984, the jury returned a verdict for appellees and against Johnson & Johnson only on the malfunction theory. The jury answered “Yes” to Question Nos. 1 and 3 and did not answer Question No. 2 or Question Nos. 4 through 8. In response to Question Nos. 9 and 10, the jury awarded $175,000 to Mr. Rogers and $50,000 to Mrs. Rogers on her loss of consortium claim. The specificity of the Verdict Form coupled with the trial court’s instructions provide us with a reliable guide to interpreting the jury’s verdict. First, it is clear that the jury found for appellees on the malfunction theory only and did not even consider appellees’ failure to warn theory. In delivering the verdict, the jury foreman specifically stated that the jury had not discussed Question No. 2 relating to failure to warn. This apparently resulted from the clear implication in the court’s charge that a finding of a defect could be premised on either the malfunction theory or the failure to warn theory. Second, the jury did not specifically consider the negligence of J & J since it was instructed not to do so if it found J & J strictly liable. On the other hand, despite the fact that the jury did not specifically answer those questions relating to Dr. Naame’s negligence or the responsibility of the hospitals for such negligence, the jury’s verdict might also be construed as a verdict not only against J & J but also in favor of the hospital defendants. The trial court announced this to be its understanding of the verdict shortly after the verdict was returned. J & J filed a timely post-trial motion on February 16, 1984 and asserted therein numerous grounds for the grant of judgment n.o.v. or, alternatively, a new trial. J & J later supplemented this motion on March 22, 1984. By order of the trial court dated March 6,1986, J & J’s post-trial motion was denied and this appeal followed. J & J’s major contention on appeal is made in support of its request for entry of judgment n.o.v. J & J contends that the trial court erred in submitting both appellees’ malfunction theory strict liability claim and their medical malpractice claim to the jury. Actually, J & J argues that when the trial court determined that there was sufficient evidence of medical malpractice to require submission of that issue to the jury, it thereby had necessarily also determined that appellees had failed to sustain their burden of establishing a prima facie case of strict liability under the malfunction theory. J & J so reasons because, as we have previously stated, a jury will be permitted to infer that a product is defective based solely on circumstantial evidence of a malfunction only in the absence of abnormal use of the product and reasonable secondary causes for the product to have malfunctioned. MacDougall, supra. Under J & J’s interpretation of these requirements, a plaintiff cannot possibly have established the absence of reasonable secondary causes as to the malfunction if in fact the trial court is able to find that there is also sufficient evidence of negligence by third parties to justify submitting plaintiffs case to the jury on a negligence theory. J & J finds compelling support for its position in Thompson v. Anthony Crane Rental, Inc., supra. In Thompson, the plaintiff was injured when the boom of a truck crane owned by one of the defendants struck high voltage wires on the premises of another of the defendants. Plaintiffs hands were resting on an iron rail being lifted by the crane when the crane struck the wires and, as a result, he suffered severe electrical burns. The Thompson plaintiff alleged that the owner of the crane was strictly liable because the crane was defective and the defect caused the crane to swing into the wires. Alternatively, the plaintiff alleged that the operator of the crane, an employee of the owner, negligently operated the crane and thereby caused the crane to swing into the wires. The plaintiff relied exclusively on the malfunction theory in support of his strict liability claim. The trial court submitted both the strict liability and the negligence theories to the jury, which returned a verdict in favor of plaintiff on both theories. Id., 325 Pa.Superior Ct. at 390-95, 473 A.2d at 122, 123-24. On appeal, the crane owner argued that the trial court had erred in submitting plaintiffs strict liability claim to the jury because plaintiff had failed to eliminate all possible secondary causes for the crane to have functioned as it did. Id., 325 Pa.Superior Ct. at 395, 473 A.2d at 125. Although the Thompson Court rejected the crane owner’s contention that a malfunction theory plaintiff must completely negate all possibility of a secondary cause for the malfunction of the product, the Court did require that such a plaintiff eliminate those other causes, if any, as are fairly suggested by the evidence. Id. (quoting Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976) (plurality)). See also Woelfel v. Murphy Ford Co., 337 Pa.Super. 433, 436, 487 A.2d 23, 24 (1985) (prima facie case under malfunction theory requires a showing of malfunction and elimination of other reasonable causes); Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 124-25 (3d Cir.1984) (malfunction theory plaintiff must negate other reasonable explanations for malfunction). Applying that standard to the case before it, the Thompson Court concluded that the trial court had erred in submitting the case to the jury on the malfunction theory. The Court held it was reversible error for the trial court to submit the malfunction theory to the jury where the evidence of a reasonable secondary cause, i.e. the negligence of the crane operator, was sufficient to permit a theory of liability based on that cause to go to the jury. Id., 325 Pa.Superior Ct. at 395, 473 A.2d at 125. In other words, as appellant has correctly stated in its brief, Thompson establishes that “reasonable secondary causes cannot be both a jury question and have been ‘eliminated’ at the same time.” Brief for Appellant at p. 16. That this was in fact the fundamental reason underlying the Thompson decision is beyond question. The Court specifically stated: [The] [trial] court erred in submitting the instant case to a jury on a malfunction theory of strict liability. Our conclusion results from the recognition that the [trial] court also found sufficient evidence to present this case to the jury on Plaintiffs theory of negligence by the operator. in cases like the instant one, where the plaintiff’s strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm. Id., 325 Pa.Superior Ct. at 395-96, 473 A.2d at 125 (emphasis added). Appellant persuasively argues that the instant case is directly controlled by Thompson. As in Thompson, appellees included both theories of malfunction liability and of negligence based on the human intervention of the doctors. Moreover, as in Thompson, here the trial court found that there was sufficient evidence in support of both theories to allow both to go to the jury. On these bases, the legal analog between the cases is compelling. Appellees, on the other hand, contend that their evidence in support of the malfunction theory was sufficient to present a jury question. Appellees see their burden as having been simply to come forward with enough probative evidence that the malfunction of the product was not caused by any “non-defect” factors reasonably suggested by the evidence to enable a jury reasonably to find that the malfunction was caused by a defect. Moreover, appellees correctly stress that we, as an appellate court reviewing a denial of a motion for judgment n.o.v., must review the evidence in all respects most favorable to appellees as the verdict winners. Miller v. Checker Cab Company, 465 Pa. 82, 348 A.2d 128 (1975). Given this limited standard of review, appellees urge us to regard the testimony of Dr. Dowling as sufficient negation of reasonable secondary causes to justify submission of the malfunction theory to the jury. In making the foregoing argument, appellees also attempt to distinguish Thompson. In this regard, appellees primarily point out that they submitted no evidence of doctor negligence and in fact offered Dr. Dowling’s testimony in opposition to the negligence theory. They contrast this approach to the approach of the plaintiff in Thompson, who did not attempt to rebut his own negligence theory and in fact himself presented evidence in support of it. Appellees also point to language in the Thompson opinion that describes the plaintiff's strict liability case as being one where the plaintiff’s only proof of a defect was the occur rence of the malfunction. Appellees contrast their case by pointing to Dr. Dowling’s testimony to the effect that since it was his opinion that there had been no doctor negligence in the use of the plaster of Paris, he would conclude that there was a defect in the plaster of Paris. This, appellees argue, is proof of a defect outside of the malfunction itself and renders appellees’ case distinguishable from Thompson. We find all of appellees’ arguments and attempts to distinguish Thompson to be unavailing. They are based upon a misapprehension of the malfunction theory, apparently shared by the trial court. There are two elements of proof in any strict product liability action. The plaintiff must prove both that the product is defective and that the defect is the legal cause of the plaintiff’s injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Bascelli v. Randy, Inc., 339 Pa.Super. 254, 260-261, 488 A.2d 1110, 1113 (1985). The malfunction theory is relevant only to the first of these elements. It addresses a situation where the plaintiff lacks direct proof of any specific defect in the product but can establish that the product malfunctioned. In such a case, the jury is permitted to infer the presence of a defect if the plaintiff proves that a malfunction of the product occurred in the absence of abnormal use or reasonable secondary causes for the malfunction. We stress that the “absence of reasonable secondary causes” requirement does not refer to causation in the sense of proximate or legal causation. The malfunction theory plaintiff must demonstrate the absence of reasonable secondary causes for the malfunction, not for the injuries to the plaintiff. In other words, to satisfy the defect element of a Section 402A claim, the malfunction theory plaintiff must show that the malfunction of the product was not caused by any other factor reasonably suggested by the evidence. After satisfying this element, the plaintiff must also satisfy the second element, i.e. that the defect is the legal cause of the injuries. This important distinction was elucidated by our Supreme Court in one of the few cases in which that Court has had an opportunity to opine on the malfunction theory. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974) (plurality), the plaintiff attempted to proceed on the malfunction theory to recover for injuries sustained when the locking device of a crane failed and the crane dropped its load on plaintiff. The defendant argued that plaintiff had not demonstrated the absence of reasonable secondary causes because the crane operator had negligently left the operator’s cab of the crane at the time the locking device failed. Defendant argued that this negligence was a reasonable secondary cause. Id., 457 Pa. at 323, 328-30, 319 A.2d at 917, 919-20. The Supreme Court rejected this argument, stating: When a malfunction occurs, a concurrent abnormal use of the machine forecloses an inference of a defective condition only if the abnormal use itself contributed to the malfunction. Here, while the operator’s absence from the cab might be found to be a cause of the accident, it certainly did not cause the release of the brake locking device [i.e. the malfunction]. Given the occurrence of a malfunction, the operator’s assumed negligence assumes legal significance only if it was a supervening cause of Kuisis’ injuries. Id., 457 Pa. at 330, 319 A.2d at 920. The Kuisis Court would, therefore, allow a case to proceed to the jury on the malfunction theory despite the presence in the same case of an allegation of negligence by a third party as a legal cause for the plaintiff’s injuries only where the alleged negligence was not a possible cause of the malfunction itself. We note that in the instant case, as well as in Thompson, the alleged negligence consisted in conduct that contributed to the malfunction itself, as well as to the plaintiff’s injuries. The above-quoted language from Kuisis clarifies the burden of a malfunction theory plaintiff in eliminating secondary causes of the malfunction to establish a defect. We note that the Kuisis Court would find that an inference of a defect is foreclosed where “abnormal use itself contributed to the malfunction”. Id. We must, therefore, conclude that an inference of a defect is equally foreclosed where a reasonable secondary cause other than abnormal use itself contributes to the malfunction. The question that arises, however, is what must a plaintiff do to sufficiently negate the possibility that reasonable secondary causes contributed to the malfunction? In the instant case, the malfunction is the overheating of the plaster of Paris to the point of burning appellee Mr. Rogers. Appellees argue that the jury here could reasonably find from the preponderance of the evidence that this malfunction was caused by a defect in the plaster of Paris. In fact, the jury here did so find, presumably by believing appellees’ evidence and disbelieving appellant’s evidence. In other words, appellees argue that they presented a prima facie case by presenting enough evidence to enable the jury, if it believed such evidence, to find that there were no causes other than a defect that contributed to the malfunction. This, appellees state, is sufficient despite the presence of conflicting evidence that other causes may well have contributed to the malfunction. The trial court agreed with appellees’ analysis, stating in its Opinion denying J & J’s Motion for Post-Trial Relief: In the case before us, Plaintiffs presented evidence which, if believed, would support a verdict under the malfunction theory, i.e. would eliminate all reasonable secondary causes, in addition to establishing the malfunction itself ... Defendant presented evidence in rebuttal, which, if believed, would establish the presence of at least one reasonable secondary cause and would make the malfunction theory inapplicable, i.e. negligence on the part of either or both doctors. At that point, which evidence to believe became a jury question. Trial Court Opinion at p. 4. The fatal flaw in this analysis is that it leaves to the jury the determination of a pure question of law — namely, has the plaintiff eliminated those other possible causes for the malfunction as were reasonably suggested by the evidence, thus providing an adequate ground on which the jury might base an inference of the existence of a defect? The principle that this question is a matter of law which must be answered in the affirmative by the trial court before a malfunction theory strict liability action can be sent to the jury was first indicated in the plurality opinion in Lenkiewicz v. Lange, 242 Pa.Super. 87, 92, 363 A.2d 1172, 1175 (1976) (plurality). The principle became binding precedent upon its application in the unanimous opinion of a panel of this Court in Thompson. In Lenkiewicz, the plurality opined that in a malfunction theory case, where an explanation for the malfunction which is consistent with a finding of a defect is only as probable as some other explanation arising from the evidence which is inconsistent with a finding of defect, the plaintiff has not met his burden. Id,., 242 Pa.Superior Ct. at 91, 363 A.2d at 1175. Moreover, Lenkiewicz required that the trial court make this determination before the issue could be submitted to the jury. Id. We agree with the analysis of the Lenkiewicz plurality and with the application of that analysis made in Thompson. Malfunction theory cases differ materially from strict product liability cases involving direct proof of a defect. In the latter, the plaintiff can indeed present a jury question as to the existence of a defect by producing enough evidence of a specific defect to enable a jury reasonably to find by a preponderance of the evidence that a defect in the product existed. Johns v. Shaler Township, 240 Pa.Super. 129, 368 A.2d 339 (1976) (en banc) (generally a plaintiff must establish each element of his cause of action by a preponderance of the evidence). In contrast, a malfunction theory plaintiff actually produces no evidence of a specific defect. Such a plaintiff produces evidence only of a malfunction. In fact, by proceeding on the malfunction theory, the plaintiff admits that it not only cannot prove a specific defect by a preponderance of the evidence, but that there is no direct evidence of a specific defect. The defect is found purely through an inference from the occurrence of the malfunction whereby proof of the malfunction is allowed as proof of the defect. See Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 124 (3d Cir.1984) (evidence of malfunction is not a substitute for need to establish defect; malfunction is evidence of defect only where plaintiff eliminates all reasonable explanations for the malfunction other than existence of defect). Lenkiewicz and Thompson merely require that a jury be foreclosed from drawing this inference of defect where the evidence is such that a jury could conclude that the malfunction was explained by some act or condition other than a defect. Stated somewhat differently, a trial court may not allow a plaintiff to use evidence of the occurrence of a malfunction as proof of a defect unless the court has first found that the malfunction cannot reasonably be said to have been caused by something other than a defect. We note that contrary to the suggestion found in the concurring opinion in Lenkiewicz, placing the responsibility for this decision on the trial court rather than leaving it to the jury to decide does not invade the province of the jury as the finder of fact. Lenkiewicz, 242 Pa.Super. at 95, 363 A.2d at 1177 (Hoffman, J., concurring). Here, the question is not which evidence to believe. We reiterate that there is no evidence of a specific defect. The question is whether evidence of a malfunction is to be considered probative of the existence of a defect. This is a question of law. The Thompson holding is the necessary corollary of the foregoing analysis. If a malfunction theory plaintiff must demonstrate that there is an absence of reasonable secondary causes in order to present a jury question as to the existence of a defect, then such a plaintiff must necessarily negate any explanation for the malfunction based on negligence by a third party which is reasonably suggested by the evidence. Where there is enough evidence that the malfunction was caused by negligence of a third party to warrant submitting a negligence cause of action against the third party to the jury, the plaintiff can not have met its burden. This conclusion rests on the standard for submission of a negligence claim to a jury, which is well-settled in Pennsylvania. To present a jury question as to negligence, there must be sufficient evidence for the jury reasonably to say that the preponderance favors liability. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). Therefore, a trial court’s finding that there is sufficient evidence of negligence by third parties as a cause for a product’s malfunction to make out a jury question as to negligence as a cause of the plaintiff’s injuries necessarily imports that a reasonable jury could find by a preponderance of the evidence that negligence caused the malfunction. Thus, such a trial court had impliedly found that there is a reasonable secondary cause for the malfunction and that the inference of a defect is foreclosed. We note that our reasoning applies equally whether the evidence that presents a jury question as to negligence is produced by the malfunction theory plaintiff or, as in this case, by the defendant. It is the presence of the evidence of a reasonable secondary cause in such a case, no matter what the source, that creates the burden on the plaintiff to negate such evidence. This is what is meant by the Thompson Court’s statement that a malfunction theory plaintiff must eliminate all reasonable secondary causes as are fairly suggested by the evidence. In fact, a malfunction theory plaintiff carries the same burden even in a case where the plaintiff itself has not brought a negligence action against a third party in which the plaintiff alleges that the negligence of the third party caused the malfunction and the injuries. In Wojciechowski v. Long-Airdox Div. of Marmon Group, Inc., 488 F.2d 1111 (3d Cir.1973), the plaintiff brought a strict liability action against the manufacturer of a blasting device which allegedly malfunctioned, injuring plaintiff. The manufacturer brought a third party claim against the plaintiff’s employer, alleging that its negligence through its servant was the cause of the malfunction and the injury to the plaintiff. Id. at 1112-14. Plaintiff brought no action against his employer since such action was barred by the Workmen’s Compensation Act. The Wojciechowski Court stated the plaintiff’s burden as requiring the negation of the likelihood of other reasonable secondary causes. In dicta, the Court said that it doubted whether the plaintiff had satisfied that burden in that case because of the “possibility” of human intervention as a cause for the malfunction which had been raised by the defendant in support of its third-party claim. Id. at 1117. In deciding the actual issue in Wojciechowski, i.e. whether the trial court had erred in dismissing the employer-defendant because the evidence allegedly would support a finding of joint causation (malfunction due both to defect and negligent human intervention), the Wojciechowski Court concluded that there could be no such concurrent causation in a malfunction theory case. The Court reasoned that a finding that the malfunction and injury to plaintiff could have been caused by negligent human intervention would foreclose a permissible inference of defect from the occurrence of the malfunction alone. Id. We draw the same conclusion today. In a case where there is sufficient evidence of negligent human intervention as a cause of the malfunction of a product to enable a trial court to conclude that an independent theory as to the cause of the plaintiff’s injuries based on that negligence merits submission to the jury, the plaintiff has not sus tained its burden of eliminating other reasonable secondary causes for the malfunction. Thus, the malfunction theory strict liability claim of such a plaintiff must fail in that he has failed to present a jury question as to the existence of a defect which is an essential element of his cause of action. Berkebile, supra. We caution that we are not deciding that a mere scintilla of evidence of negligence by a third party will suffice to defeat a malfunction theory plaintiffs claim. Our decision in this case does not enable defendants in strict liability malfunction theory cases to obtain directed verdicts merely by introducing evidence, no matter how little, of a reasonable secondary cause. Our decision allows such a defendant to defeat the claim only where there is sufficient evidence of a reasonable secondary cause to present a jury question as to whether that cause itself resulted in the malfunction and the plaintiffs injury. Applying these principles to the instant case, we find that the trial court erred in submitting appellees’ malfunction theory strict liability claim to the jury in the presence of sufficient evidence of negligence as a cause of the malfunction to warrant submission of appellees’ negligence theory to the jury. We are not persuaded that appellees’ production of Dr. Dowling’s testimony as to the absence of reasonable secondary causes was a sufficient elimination of such causes, as is evidenced by the trial court’s determination that, even considering this testimony, a jury question as to doctor negligence had been presented. Moreover, we are not persuaded that Thompson is inapplicable because of the presence in the instant case of Dr. Dowling’s statement that because in his opinion there had been no doctor negligence, the malfunction was caused by a defect in the plaster of Paris. This statement does not constitute independent proof of a specific defect. In fact, on cross-examination Dr. Dowling admitted that he could not identify any specific defect in the plaster of Paris. Dr. Dowling’s statement was nothing more than a conclusion that absent reasonable secondary causes, in his opinion, the only other possible cause of the malfunction was some kind of defect. (R. 524). This is certainly not proof of a specific defect and does not distinguish this case from Thompson. Since we have demonstrated our concurrence with the rationale underlying Thompson and with its holding and since we have determined that it is legally indistinguishable from the instant case and concluded that the trial court here erred in submitting appellees’ malfunction theory strict liability claim to the jury, the jury’s verdict based solely on that theory must not be permitted to stand. However, we cannot accept J & J’s argument that we must accomplish this end by granting judgment n.o.v. in J & J’s favor. Under the peculiar circumstances of this case, we view that such a disposition would work a substantial injustice to appellees. If we were to grant judgment n.o.v., we would leave appellees completely without a remedy, despite the fact that none of appellees’ causes of action other than their malfunction theory strict liability action were ever expressly decided by the jury. As we have earlier stated, the construction of the Verdict Form in this case coupled with the trial court’s instructions thereon resulted in the jury ceasing its deliberations as to liability questions immediately upon finding liability under the malfunction theory. The jury then proceeded to award damages. Although as we have stated, the verdict can be interpreted as being not only against J & J but also for the hospital defendants, this jury clearly never decided either appellees’ failure to warn strict liability claim or their negligence claim against J & J. J & J argues that appellees are deserving of this harsh result because they advocated the use of the Verdict Form and, therefore, must accept the consequences of its use. We, on the other hand, are constrained to avoid an unneces sarily harsh result whenever we can do so without doing violence to the applicable law. In this case, we consider the grant of a new trial to be the most equitable disposition. Granting a new trial both acknowledges the applicability of Thompson to this case and rectifies the error of the trial court which gave rise to the malfunction theory verdict against J & J. It also permits appellees to obtain a jury’s decision on those of appellees’ claims which retain viability in light of this opinion. In light of this disposition, we need not consider J & J’s remaining contentions on appeal, all of which are made in support of J & J’s alternative request for a new trial. The judgment of the trial court is reversed and a new trial to be conducted in a manner consistent with this Opinion is hereby ordered. . J & J also raises numerous grounds for the grant of a new trial. Because of our disposition of this case on the basis of J & J’s malfunction theory argument, we find it unnecessary to decide J & J’s remaining contentions. . Mr. Rogers’ wife is a co-appellee. She joined in her husband’s action with a claim for loss of consortium. . Appellees also pleaded a second and alternative strict liability theory based on J & J's alleged failure to warn of the dangers inherent in plaster of Paris. As in any failure to warn case, proof of this theory (like the malfunction theory) did not include any direct proof of a manufacturing defect or of any defect in the design, or chemical formula, of the plaster of Paris itself. Justice Larsen, writing in dissent in Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982) (Larsen, J. dissenting), explained the difference between failure to warn defects and other product defects as follows: A defect due to a failure to warn is a defect extrinsic to the product itself and the adequacy of (or need for) a warning is a determination that cannot be made in a vacuum containing only the physical properties of the product. In the manufacturing or fabrication defect situation there exists an intrinsic flaw, blemish or imperfection of some sort which is physically demonstrable, i.e. the jury may see or touch the defective product and can compare it to a perfectly manufactured product of the same product line. However, the problem of finding a defect in a perfectly constructed product is conceptually different. When trying to identify a defect for failure to warn or for improper design, any ‘defect’ becomes apparent only by additionally looking at a configuration of elements external to the product — in the non-manufacturing/fabrication context, then, ‘defect’ is used in a special sense. Id., 498 Pa. at 623, 450 A.2d at 630 (emphasis supplied) (citations omitted). Appellees’ failure to warn theory is not directly implicated in this appeal and we mention it only for purposes of completeness. . On February 4, 1983, J & J answered appellees’ complaint and, in New Matter, cross-claimed against Jefferson and Lankenau pursuant to Pa.R.C.P. 2252(d). If for no other reason, J & J could be expected to put on evidence of doctor negligence in support of this cross-claim. . It should be noted that the trial court, after having denied Lankenau’s Motion for Directed Verdict, later partially reversed itself and granted the motion only insofar as it requested a directed verdict that Dr. Dowling was not an ostensible agent of Lankenau. It was because of this ruling that the Verdict Form (discussed infra ) contained no reference to any possible negligence by Dr. Dowling. . The trial court charged the jury: But it's clear that you have to start with the determination of the defect, if there is a defect in the product, whether it be on the theory of malfunction or the theory of failure to warn. Once you reach that decision, once you answer yes to either question 1, 2 and 3, all the rest of the case is out, even though it’s that much instruction I have to give you concerning the rest of the question, because once there’s a defect, that’s the only party that can be found liable. Is that clear? So you skip to 9 and 10 only. (R. 2417). . We note that the Thompson Court mistakenly referred to the plurality opinion in Lenkiewicz as a majority opinion. This error, although meriting correction, in no way erodes the viability or binding nature of the Thompson opinion. . It would appear that the Lenkiewicz plurality somewhat confused the distinction that we have indicated must be drawn between eliminating reasonable secondary causes to prove a defect and establishing that the defect was the proximate or legal cause of the plaintiffs injuries. This may well result from the fact that in many cases involving the malfunction theory, proof of the defect will be somewhat coincident with proof of causation. This is because in eliminating other possible causes of the malfunction, a plaintiff will also be producing evidence that goes to establish the causal link between the malfunction and defect and his injuries. In a case not involving a possible supervening cause, this may be all that is necessary to establish a prima facie case as to the second element of a strict liability case, i.e. legal causation. . Appellee’s brief also makes passing reference to evidence they presented regarding a similar burning incident involving plaster of Paris which appellees sought, over J & J’s objection, to use to show a defect in the plaster of Paris. In support of J & J’s alternative motion for a new trial, J & J has alleged on appeal that the admission of this evidence was in error. We note that this evidence was admitted only in support of appellees’ failure to warn theory and their negligence theory against J & J, and not in support of their malfunction theory. . We note that the Thompson Court was not faced with a similar difficulty since in that case, unlike here, the jury had returned an independent verdict based on the plaintiffs negligence of the crane operator theory. The Thompson Court’s decision that judgment n.o.v. was warranted as to the malfunction theory strict liability claim did not affect the negligence verdict, which the Court allowed to stand. Thompson, 325 Pa.Super. at 394-96, 473 A.2d at 125-6. . Thompson was decided three days after the completion of the trial in this case. Nevertheless, changes in decisional law are applicable to cases in litigation at the time of the change. McCloskey v. Workmen’s Compensation Appeal Board, 501 Pa. 93, 98 n. 3, 460 A.2d 237, 239 n. 3 (1983).

BECK, Judge: This is an an appeal by William J. Irvin from an order dismissing exceptions to the denial of his petition to have Melba F. Wood adjudicated incompetent. We affirm the order of the trial court. Appellant Irvin is the step-nephew of Mrs. Wood. He is the step-son of Mrs. Wood’s late husband’s brother. In 1982, Mrs. Wood gave appellant’s wife Bertha Irvin a power of attorney. In 1984, Mrs. Wood released the power of attorney. She then entered into a revocable inter vivos trust agreement with the Union National Bank and Trust Company of Souderton (“the Bank”) which now handles her financial affairs. Shortly thereafter, appellant Irvin filed a petition under the Decedents, Estates and Fiduciaries Code requesting that Mrs. Wood be declared incompetent and that his wife Bertha Irvin be appointed her guardian. See 20 Pa.Cons.Stat.Ann. § 5511 (Purdon 1975). The petition alleged that Mrs. Wood was eighty-four years old, that she resided in a nursing home, and that she was unable to manage her property, and was liable to dissipate it or become the victim of designing persons. The Orphans’ Court Division of the Court of Common Pleas of Montgomery County held a competency hearing. Mr. Irvin testified that in recent months Mrs. Wood had appeared very confused. He related the following incidents: Mrs. Wood had claimed that for three days she had nothing to eat at the nursing home although she was well fed; she had attempted to eat breakfast cereal with a fork; she had been unaware that a lens was missing from her glasses; and she had stated on one occasion that her deceased husband would need a sweater the following winter. Counsel for appellant Irvin called Mrs. Wood to the stand. Mrs. Wood could not accurately state her age, or the name of the nursing home where she lived, or the names of the President of the United States or of the Governor of Pennsylvania. She did not know the purpose of the incompetency proceeding, and she could not describe the difference between a checking account and a savings account. She also admitted that her memory “sometimes slows up ...” N.T. at 19. However, she was aware that the Bank was managing her money. Q. Did you want Bertha [to] continue acting as your power-of-attorney in handling your finances? A. No, we have — for the estate we have the bank, and we’re well pleased with it. Q. Okay. But you decided you didn’t want Bertha; is that right? To continue? A. Well, yes, that’s right. Q.' You don’t write any checks on your own? A. No. Q. You don’t make any deposits in the bank on your own? A. No. Q. Is the bank doing all that? A. That’s right. N.T. at 21-22. At the close of appellant Irvin’s case, counsel attempted to introduce into evidence an affidavit from a physician who had treated Mrs. Wood at the nursing home. The trial judge sustained an objection to this evidence on the grounds that it constituted inadmissible hearsay. Counsel for Irvin did not come forward with any other evidence or testimony of a medical nature. Counsel for Mrs. Wood called as his sole witness a psychiatrist with over twenty-five years experience. The psychiatrist testified that based upon his examination of Mrs. Wood, he had concluded that she showed signs of minimal organic brain disorder. However, he believed that she was competent to make decisions regarding who should assist her with her financial affairs. The trial judge found that incompetency had not been established and entered an order dismissing Irvin’s petition on September 24, 1984. Irvin directly appealed this order and also filed exceptions to the order. On September 22, 1985, Superior Court quashed the appeal as interlocutory and remanded for disposition of the exceptions. See In Re Estate of Wood, 355 Pa.Super. 442, 513 A.2d 993 (1986). On October 15, 1986, the trial court dismissed the exceptions and entered its prior order as a final order. Irvin then filed this second appeal. Appellant Irvin raises three allegations of error. None merits reversal of the trial court’s final order. Appellant contends that the trial court erred by refusing to admit into evidence the affidavit of a physician affiliated with the private nursing home in which Mrs. Wood is a resident. Appellant asserts that this affidavit— although hearsay — should have been admitted pursuant to section 5518 of the Decedents, Estates and Fiduciaries Code. That section provides: In any hearing relating to the mental condition of a person whose competency is in question, the deposition of, or sworn statement by, a superintendent, manager, physician or psychiatrist of any State-owned mental hospital or veterans’ administration hospital or a physician or psychiatrist at any hospital or institution shall be admissible in evidence as to the condition of an inmate of such hospital in lieu of his appearance and testimony, unless by special order, the court directs his appearance and testimony in person. 20 Pa.Cons.Stat.Ann. § 5518 (Purdon 1975) (emphasis added). We need not decide if the affidavit in question falls within the purview of section 5518. The trial court’s decision to exclude this document by sustaining an objection to its admission was the functional equivalent of a “special order” directing the treating physician to appear and testify in person. As the trial judge noted in his opinion: Notwithstanding the failure of counsel to cite § 5518 to the court at the hearing, the issue was in fact essentially dealt with in accordance with that section. The affidavit was ruled inadmissible, thus by implication (as opposed to a “special order”) the testimony of the treating physician was required — a result clearly authorized by § 5518. Petitioner could have requested a continuance to produce the treating physician. He chose not to do so, and therefore should not now be heard to complain. Tr. Court Op. at 3-4. Accordingly, we will not reverse on this basis. Appellant next argues that the trial court erroneously assumed that medical testimony in support of a guardianship petition is an absolute prerequisite for a finding of incompetency. At the close of the petitioner’s case, the trial judge remarked “I do not think that it is within my power to declare someone incompetent without medical testimony of any kind, and that’s the position we find ourselves in at this moment.” N.T. at 25. We agree with appellant that this is not a correct statement of law. Medical testimony is of great significance since it assists the trial court in determining the nature, severity, and consequences of an alleged incompetent’s disability. The Pennsylvania Supreme Court has stated in dicta that “[ejxpert testimony is needed when transactions fall within the penumbra between competence and incompetence, when the light of reason may come and go unbidden.” Hagopian v. Eskandarian, 396 Pa. 401, 404, 153 A.2d 897, 899 (1959), cert. denied, 361 U.S. 938, 80 S.Ct. 381, 4 L.Ed.2d 358 (1960). However, the appellate courts have never adopted a rule of evidence which would require the use of expert testimony in all incompetency proceedings without exception. The testimony of lay witnesses who have observed the alleged incompetent is admissible and highly probative since “[ojne’s mental capacity is best determined by his spoken words, his acts, and his conduct.” Urquhart Estate, 431 Pa. 134, 142, 245 A.2d 141, 146 (1968). See also Weir by Gasper v. Ciao, 364 Pa.Super. 490, 494-495, 528 A.2d 616, 619-620 (1987) (court may base finding of competency on evidence provided by lay witness). Although the introduction of expert testimony from psychiatrists, psychiatric nurses, and other health care professionals is to be encouraged, we cannot say that lay testimony alone can never be sufficient to meet the heavy burden of establishing incompetency. Nevertheless, in the case sub judice, appellant was not prejudiced by the trial judge’s comment. The trial judge based his decision to dismiss the guardianship petition on his assessment of the testimony of both Mrs. Wood and the psychiatrist who spoke on her behalf. Tr. Court Op. at 4. We find that the trial judge properly evaluated all of the evidence before him. Finally, appellant claims that the trial court abused its discretion by failing to find that Mrs. Wood is incompetent. An “incompetent” is defined as: ... a person who, because of infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety: (1) is unable to manage his property, or is liable to dissipate it or become the victim of designing persons; or (2) lacks sufficient capacity to make or communicate responsible decisions concerning his person. 20 Pa.Cons.Stat.Ann. § 5501 (Purdon 1975). A trial court must act with circumspection when applying this definition. As one commentator has noted: That guardianship of a person’s property is sometimes the only reasonable course does not mean, however, that it is to be embarked upon whenever a person seems to be having property-management problems. The consequences of guardianship are far too dire to be unleashed lightly. In Pennsylvania, the incompetent must relinquish possession of his real and personal property to his guardian. [See 20 Pa.Cons.Stat.Ann § 5521(1)], who is empowered to “sell, at public or private sale, any personal property of the [incompetent].” [20 Pa.Cons.Stat.Ann § 5151 incorporated by 20 Pa.Cons.Stat.Ann. § 5521(22).] The incompetent is “incapable of making any contract or gift or any instrument in writing____” [20 Pa.Cons.Stat. Ann. § 5524.] This provision may prevent an incompetent from legally marrying, and from executing a valid will, as well as from forming enforceable business con tracts and from making valid inter vivos gifts. An incompetent also loses the capacity to initiate lawsuits on his own. [See Pa.Rs.Civ.P. 2051-64.] After a person has been declared incompetent, the burden shifts to him, in a petition for termination of the guardianship, to show that he has regained competence. [See 20 Pa.Cons.Stat.Ann. § 5517.] Beyond the direct legal consequences, an incompetent may suffer severe social, commercial, and psychological effects. He is told that he is unable to handle the estate he may have accumulated through years of hard work. It is not difficult to imagine the sense of despair, the loss of dignity, and the frustration that often must rage in the mind of one who is told that the state’s “preventative and protective” law will now relieve him of the right to spend his own money freely. Comment, An Assessment of the Pennsylvania Estate Guardianship Incompetency Standard, 124 U.Pa.L.Rev. 1048 (1976) (footnotes omitted). For all these reasons, the appellate courts have cautioned that a guardianship statute is “a dangerous statute easily capable of abuse ...” Smith v. Smith, 365 Pa.Super. 195, 204, 529 A.2d 466, 470 (1987) (Beck, J., concurring) (citing Myers Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959)), and have required that the petitioner bear the burden of proving incompetency by clear and convincing evidence. See Matter of Caine, 490 Pa. 24, 415 A.2d 13 (1980). In the instant case, the record indicates that although Mrs. Wood’s memory is seriously impaired, she is aware that the Bank is managing her assets and she has consistently maintained that she wants to entrust her money to the Bank rather than to appellant’s wife. Moreover, the psychiatrist who interviewed Mrs. Wood concluded that she was capable of choosing a financial representative. Under these circumstances, we conclude that the trial court did not abuse its discretion by finding that appellant did not clearly and convincingly prove that Mrs. Wood is incompetent within the meaning of the statute. Order affirmed. WIEAND, J., concurs in the result.

KELLY, Judge: Appellant, Ruben Mascitti, appeals from judgment of sentence of ten to twenty years imprisonment imposed upon his conviction of involuntary deviate sexual intercourse, statutory rape, corruption of minors, and endangering welfare of children following a jury trial. Appellant contends on appeal that: 1) the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of a child based upon the alleged expiration of the statute of limitations period for the offenses; 2) the trial court erred in sua sponte vacating appellant’s negotiated nolo contendere plea; and 3) the trial court abused its discretion in denying appellant’s trial counsel’s motion for declaration of a mistrial and for permission to withdraw as counsel following an in-chambers hearing regarding counsel’s belief that appellant intended to commit perjury. We find no merit in the contentions and accordingly affirm. The details of this case may be briefly stated as follows. Appellant married the victim’s mother in 1975, when the victim was three years old. In November 1979, appellant began sexually abusing his then six-year-old step-daughter. The abuse occurred in the family home in Crawford County, Pennsylvania, and included acts of intercourse and oral sex. In September 1982, appellant moved to Florida to seek employment. One month later, his wife and the child victim joined him in Florida. In December 1983, the child victim and her mother came to Pennsylvania intending to make a brief visit; however, the visit became an extended stay. In June 1984, the child victim revealed to her mother the facts regarding the repeated sexual abuse inflicted upon her by her stepfather. Charges were filed against appellant in July 1984, and appellant returned to the Commonwealth for arraignment in August 1984. Appellant initially entered a plea of nolo contendere to the charges on January 15, 1985. Sentence was deferred until completion of a pre-sentence report. On February 5, 1985, following review of the pre-sentence report and examination of the appellant regarding assertions of innocence made by appellant to the probation officer, the trial court sua sponte vacated appellant’s plea and scheduled the case for trial. An in-chambers hearing was held prior to trial during which counsel for appellant informed the trial court that he had reason to believe that appellant intended to take the stand and commit perjury. The court then proceeded to question appellant. Apparently unsatisfied with appellant’s responses, the court directed that counsel continue representation but that appellant would have to testify by narrative rather than direct examination if appellant chose to testify at trial. The trial court also admonished appellant regarding the consequences of committing perjury. Counsel’s motions for declaration of a mistrial and for permission to withdraw as counsel were denied. Trial commenced, and appellant chose not to testify in his own defense. A verdict of guilty was returned. Post-verdict motions were denied. Sentence was imposed, and the instant timely appeal followed. I. Appellant first contends that the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of children based upon the alleged expiration of the statute of limitations period. Appellant argues that although he was in fact continuously absent from the Commonwealth from September 1982 to July 1984, the running of the statute of limitations period was not tolled by operation of 42 Pa.C.S.A. § 5554(1), because appellant left the Commonwealth legitimately to seek new employment in Florida and not to escape prosecution, and at no time did he seek to hide his identity or whereabouts. (Appellant’s Brief at 13). We cannot agree. Appellant’s argument assumes the existence of a mens rea or motivation exception or limitation to Section 5554(1) of the statute of limitations tolling statute, which we do not find in the plain language of the statute: § 5554. Tolling of statute. Except as provided by section 5553(e) (relating to disposition of [summary] proceedings within two years), the period of limitation does not run during any time when: (1) the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth; ____ Rather, the plain and unambiguous language of the statute provides that the statute of limitation period is tolled whenever an accused is continuously absent from the Commonwealth. We have neither the authority nor the inclination to adopt the novel theory propounded by appellant. “Where as here, the words of the statute are clear, the letter thereof will not be disregarded under the pretext of pursuing an unstated legislative intent. 1 Pa.C.S.A. § 1921(b); City of Pittsburgh v. Royston Service, Inc., 37 Pa.Cmwlth. 394, 390 A.2d 896 (1978).” Commonwealth v. Duncan, 279 Pa.Super. 395, 398, 421 A.2d 257, 259 (1980). Appellant’s first contention is without merit. II. Appellant’s second contention is that the trial court erred in sua sponte vacating appellant’s plea of nolo contendere based upon appellant’s denial during an interview with a probation officer for the preparation of the pre-sentence report of sexual contact with the child victim, and appellant’s election not to respond to the court’s inquiry as to whether the denial had been made and whether there was in fact a factual basis for the plea. Appellant argues that regardless of what appellant said to the probation officer, the plea should not have been vacated because a plea of nolo contendere does not involve an admission of guilt even though the plea subjects the appellant to conviction and imposition of sentence as if a guilty plea had been entered. (Appellant’s Brief at 15). We do not agree. The entry and acceptance of plea agreements is governed by Pa.R.Crim.P. 319 which provides in pertinent part: Rule 319. Pleas and Plea Agreements b) Plea Agreements (1) The trial judge shall not participate in plea negotiations preceding an agreement. (2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement. (3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea. (Emphasis added). The decision of whether to accept or reject a plea agreement is within the sound discretion of the trial court. Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Pa.R.Crim.P. 319(b)(3). The trial court concluded that the plea had been improvidently accepted and decided to vacate the plea agreement. We find no abuse of the trial court’s sound discretion in this area. Appellant’s second contention is, therefore, without merit. III. Appellant’s third and final contention is that the trial court erred in failing to grant trial counsel’s motion for the declaration of a mistrial and for permission to withdraw as counsel. Appellant contends that the trial court’s order denying counsel’s motion for a mistrial effectively denied him his right to testify on his own behalf. He argues that: the order improperly bound him to his plea negotiation version of the facts; he did not indicate during the in-chambers hearing that he intended to commit perjury; as a result of the ruling at the hearing, he was uncertain as to what he could testify to without risking perjury charges; because trial commenced immediately after the hearing, he was unable to seek effective assistance of counsel regarding whether he should testify; trial strategy was hindered by the uncertainty as to whether appellant would testify; and, the admissions disclosed during plea negotiations should not have been used against appellant as the basis for the order imposed. (Appellant’s Brief at 18-23). We find no merit in appellant’s arguments in support of this contention. A. After a jury was selected, but prior to opening argument, appellant’s trial counsel requested an in-chambers hearing with the judge, appellant, co-counsel, and both counsel for the Commonwealth. At this hearing, counsel for appellant disclosed that appellant had informed him that he intended to take the stand and deny all sexual contact with the child victim (just as he had done earlier when interviewed by the probation officer drafting the pre-sentence report). How ever, during plea negotiations appellant had authorized counsel to reveal to the Commonwealth confidential admissions made by appellant which were in direct conflict with a claim of complete innocence. (N.T. 3/12/85 at 3-7). Counsel concluded that appellant’s proposed testimony was, therefore, perjurious. Appellant did not deny making the statements to counsel indicating that some sexual contact had occurred, nor did he deny telling counsel he intended to take the stand and deny all sexual contact. Following an extended discussion with appellant regarding his proposed testimony, the trial court concluded as follows: All right. We’ve got to go forward with this matter in some manner. So here’s what we’re going to do. I’m going to try to protect Mr. Truax. I’m going to protect your rights as much as possible. But we’re in somewhat of a bind under the circumstances. I don’t know what you’re going to testify to. You have told me today that you did tell and that it, in fact, was true that you had sexual contact, including probably an admission of the statutory rape charge, although denying the deviate intercourse. Now we’ll go ahead with this trial. I’m not going to require Mr. Truax to call you as a witness since he can’t be sure whether you’re going to testify until you’ve testified whether you’re going to testify truthfully or not under the circumstances. I will permit you to testify. And it’s entirely up to you what you want to testify to, I suppose, although I don’t recommend perjury. And I’m sure that the District Attorney, if he feels that you have perjured yourself, will charge you with that and you’ll have those additional charges to face. But in order to protect Mr. Truax, if you decide to testify, you will testify in a narrative form. In other words, he can just say, ‘You tell your story,’ and you can tell it. And if you tell a story which is untruthful when compared with what you have said here today, I will not permit Mr. Truax to argue that version to the jury. I know that somewhat ties his hands as counsel. But on the other hand, I don’t think that I can let him argue something that you have admitted isn’t true if you so testify. If you want to take the stand and tell the truth, he can argue anything he wants to from your testimony. The truth as it has been developed here. I’m accepting this as the true version. (N.T. 3/12/85 at 12-13). (Emphasis added). Counsel for appellant then made the following motion: MR. THOMAS: I would on behalf of Mr. Truax, I would ask the Court to consider that the jury has been sworn in this case and to declare a mistrial and relieve Mr. Truax as counsel for the defendant in view of the testimony that has developed in this hearing. THE COURT: I’m going to deny that request because we don’t know what Mr. Mascitti is going to do when he takes the stand at this point or whether he’s going to take the stand. I’m just cautioning him on what’s going to happen if he does, and depending on the way he testifies. The jury has not yet been sworn and I suppose we could dismiss them. But I’m not going to do that. The victim in this case has gone through preparing herself I suppose to some degree psychologically to testify at least on two occasions. And I think it would be grossly unfair to her to do anything else. I think I’m adequately protecting Mr. Truax, and certainly, if the Disciplinary Board goes after him, I’ll go to bat on his behalf because I think he has acted totally properly in this matter. (N.T. 3/12/85 at 14-15). It is the denial of this motion which forms the basis for appellant’s third contention on appeal. B. Appellant’s assertion that the trial court bound appellant to his plea negotiation version of the facts is clearly not supported by the record. The trial court indicated that despite minor discrepancies between appellant’s plea negotiation and in-chambers hearing versions of the facts, the court was prepared to permit appellant’s in-chambers hearing version to be presented to the jury and to permit counsel to use such evidence in closing argument. The order requiring appellant to testify by narrative and the admonishment by the court regarding potential perjury charges was based on the court’s conclusion that despite appellant’s in-chambers hearing testimony, neither counsel nor the court could be certain of what appellant would say if he took the stand. Despite appellant’s qualified admissions during plea negotiations and also at the in-chambers hearing to sexual contact with the victim, appellant had denied all sexual contact to the probation officer drafting the pre-sentence report and had informed counsel prior to trial that he would deny all sexual contact when he testified. The court quite reasonably concluded that it would not know what version of the facts appellant would testify to until appellant testified. Under Pennsylvania law, “in all criminal prosecutions for criminal offenses a man hath a right to be heard by himself and counsel.” Pa.Const. Art. I, sec. 9; Commonwealth v. Osborn, 364 Pa.Super. 505, 510 n. 1, 528 A.2d 623, 625 n. 1 (1987). Undeniably, an accused has a constitutional right to effective representation by learned counsel who knows and will protect the accused’s rights zealously; however, our system also requires that lawyers act ethically, within the bounds of the law, so that they may be perceived as officers of the court who are committed to the proper administration of justice, and not as subverters of justice. See Commonwealth v. Stenhach, 356 Pa.Super. 5, 13, 514 A.2d 114, 118 (1986). It is axiomatic that the right to effective counsel does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation of false evidence. Commonwealth v. Alderman, 292 Pa.Super. 263, 269, 437 A.2d 36, 39 (1981); accord Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). The dilemma created by an appellant who informs counsel of his intent to present perjurious testimony has engen dered active debate in the legal profession. We limit our review, however, to the narrow issue presented instantly— whether the trial court abused its discretion in directing appellant to testify (if at all) by the narrative approach rather than declaring a mistrial, permitting counsel to withdraw, and appointing new counsel. The narrative approach utilized by the trial court in this case has been used with approval in the courts of our sister states. See State v. Fosnight, 235 Kan. 52, 679 P.2d 174 (1984); People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (1980); People v. Lowery, 52 Ill.App.3d 44, 366 N.E.2d 155 (1977). We find no abuse of discretion in the trial court’s decision to direct that the narrative approach be followed in the instant case. We note that declaring a mistrial, permitting withdrawal of counsel and providing appointment of new counsel in the instant case could not resolve the ethical dilemma created by appellant’s erratic, pendulum shifts between qualified admissions of guilt and outright denials of all sexual contact with the child victim. Consequently, grant of the motion for withdrawal of counsel and declaration of a mistrial would merely have shifted the dilemma from present counsel to new counsel, and would have unduly prolonged the adjudication process and its deleterious effects on the child victim. See generally Meyers, The Legal Response to Child Abuse, 24 Fam.L.J. 149, 182-84 & nn. 109-112 (1986) (discussing the need to minimize the trauma caused by the drawn out criminal adjudication process); Arther, Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam. Ct.J. 1, 30-31 (1986) (same). The trial court quite properly rejected this approach. C. Appellant argues that as a result of the ruling: he was uncertain as to what he could testify to without risking perjury charges; he was unable to seek guidance from counsel; and counsel’s strategy was hindered by the uncertainty as to whether he would testify. These arguments are of dubious relevance to the issue of whether the motions for mistrial and withdrawal of counsel were properly denied; they are, in any event, without any merit. The following excerpts from the hearing transcript are demonstrative of the clarity of the trial court’s ruling: If you want to take the stand and admit that you had sexual contact and explain whatever mitigating circumstances you feel existed you may do that. ****** I don’t know what you are going to testify to. You have told me today that you did tell it and that it, in fact, was true that you had sexual contact, including probably an admission of the statutory rape charge, although denying the deviate intercourse. ****** I will permit you to testify. And it’s entirely up to you what you want to testify to, I suppose, although I don’t recommend perjury. And I’m sure that the District Attorney, if he feels that you have perjured yourself, will charge you with that____ ****** If you want to take the stand and tell the truth, [counsel] can argue anything he wants from your testimony. The truth as it has been developed here. I’m accepting this as the true version. (N.T. 3/12/85 at 9, 12-13). We note that appellant did not express any of his alleged uncertainties on the record during the hearing. Similarly, there is no indication appellant expressed his alleged uncertainties to counsel. It is the accused’s decision whether to testify or to remain silent. Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 227 n. 4, 520 A.2d 424, 431 n. 4 (1987). In making this decision, an accused cannot reasonably expect counsel to anticipate every desire, question, or misapprehension of fact which might linger unexpressed in his client’s mind; we will not find counsel ineffective for failing to answer questions which were never asked. Cf. Commonwealth v. Johnson, 355 Pa.Super. 123, 136, 512 A.2d 1242, 1249 (1986). This is not a case where an accused’s questions went unanswered, or where a necessary continuance for consultation regarding unforeseen developments was denied. Any doubt or uncertainty experienced by appellant was the result of his failure to present his questions to the court or to counsel, and not the result of the trial court’s order. We reject utterly any notion that the trial court’s order created uncertainty as to whether appellant would testify. To the contrary, the trial court merely presented appellant with clear options and the consequences attendant thereto. Any uncertainty as to whether appellant would testify was solely the product of indecision and vacillation by appellant, not the order of the trial court. Moreover, we note that appellant has not indicated any specific manner in which trial tactics were hindered. Cf. Commonwealth v. Duffy, 355 Pa.Super. 145, 156, 512 A.2d 1253, 1258-59 (1986) (we reject appellant’s cryptic allegation of “tactical disadvantage.”). D. Finally, appellant argues that the admissions which appellant consented to disclose to the Commonwealth during plea negotiations should not have been permitted to be used against him after the plea agreement had been rejected by the trial court. Dictum in previous decisions of this Court indicate that admissions made during the course of plea bargaining are not admissible against the accused at a later trial as evidence of guilt if no bargain is struck or if the bargain is rejected by the trial judge. See Commonwealth v. Wolf, 353 Pa.Super. 483, 510 A.2d 764 (1986); Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983); Commonwealth v. Cohen, 133 Pa.Super. 437, 2 A.2d 560 (1938). In Commonwealth v. Calloway, supra, this Court explained its approval of the prohibition based upon the public policy of encouraging plea bargaining. This Court noted, however, that the rule was limited to cases where the accused made the statement under an actual and reasonable expectation to negotiate a plea at the time of the discussion. In both Commonwealth v. Calloway, supra, and Commonwealth v. Wolf, supra, this limitation was found not to have been met. Appellant’s argument does not require this Court to pass upon the dictum in Cohen, Calloway, and Wolf In the instant case, the admission was considered solely for the purpose of determining the validity of counsel’s assertion that withdrawal was necessary because his client intended to commit perjury. Whether or not appellant’s admission was admissible at trial as evidence of appellant’s guilt, or subsequently in a potential perjury trial, we find that neither the rule, nor the public policy which the rule is presumed to advance, warrant expansion of the rule to apply to the instant case. Succinctly, the public’s arguable interest in promoting plea negotiations is not of sufficient magnitude to warrant suppression of the statements made during plea negotiations when the result of suppression would be to compel an attorney to be an unwilling participant in an accused’s perjurious designs. Thus, even if we were to assume, arguendo, that appellant’s argument was relevant to the issue of whether the trial court abused its discretion in failing to grant counsel’s motion for a mistrial and to permit withdrawal as appellant’s counsel, we would find the argument to be without merit. Each of appellant’s arguments have been rejected; the third and final contention on appeal is found to be without merit. CONCLUSION Based upon the foregoing, judgment of sentence is affirmed. HOFFMAN, J., files concurring and dissenting opinion. . We note that appellant has not challenged, the record does not disclose, and we do not consider the adequacy of the steps counsel took prior to bringing the perjury issue to the attention of the court. We note that in Nix v. Whiteside, supra, the United States Supreme Court stated that it is universally accepted that before taking any other action, counsel should attempt to dissuade the client from the unlawful course of conduct. 475 U.S. at 169, 106 S.Ct. at 996, 89 L.Ed.2d at 136. The transcript of the in-chambers hearing does refer to a limited waiver of confidentiality in connection with the in-chambers hearing, but provides no details regarding the waiver. (N.T. 3/12/85 at 3). . Commonwealth v. Cohen, supra, was decided upon other grounds; the discussion of the rule was purely dictum. See Commonwealth v. Calloway, supra, 459 A.2d at 799. In both Commonwealth v. Calloway and Commonwealth v. Wolf, this Court found that the admissions at issue were not, in fact, made under the actual and reasonable expectation that a plea was being negotiated. Thus, the cases constitute persuasive rather than binding precedential authority in Pennsylvania. The rule and its application continues to engender active debate. See State v. Boyle, 198 N.J.Super. 64, 486 A.2d 852 (1984) (declining to adopt the rule, discussing its limitations, and collecting cases). . We note that it is one thing to authorize the disclosure and consideration of confidences and/or admissions made during plea negotiations to prevent counsel, as an individual and as an officer of the court, from being compelled to foster an accused’s perjurious designs; it, of course, would be quite another to permit the confidences or plea negotiation admissions to be introduced as evidence of appellant’s guilt at trial or in a subsequent perjury trial. The latter situations are not presented in this appeal, and therefore, need not be considered. . The rule itself is limited and subject to exceptions. See e.g. State v. Hansen, 633 P.2d 1202 (Mont.1981) (cross-examination regarding plea bargain admission of having intercourse with victim without victim’s consent was properly permitted after accused took stand and denied that any non-consensual intercourse occurred); People v. Jackson, 24 Ill.App.3d 700, 321 N.E.2d 420 (1974) (accused was properly cross-examined regarding plea bargain admissions after accused asserted on direct examination that he was offered a plea bargain but rejected it); see also State v. Boyle, supra at note 2.

KELLY, Judge: Appellants appeal from dismissal of their counterclaim and entry of summary judgment in favor of appellees. Appellants argue that their recovery of damages for an improvidently issued injunction should not be limited by the amount of the bond. We agree. They further argue their damages recoverable should reflect lost interest income. We remand for fact-finding on this issue. This appeal represents the first opportunity for this Court to rule directly on whether Pa.R.C.P. 1531(b) insulates a plaintiff from damages in excess of the bond amount when an injunction is later found to have been improvidently granted. Although the Commonwealth Court passed on a similar issue in Juniata Foods v. Mifflin County Development Authority, 87 Pa.Cmwlth. 127, 486 A.2d 1035 (1985), that case is not dispositive of the issue raised herein. This action has followed a complicated if not tortuous route through the courts of this Commonwealth, and we set forth that procedural history in detail, as follows. Plaintiffs, Thomas C. Christo and Blanche Greenberger, originally filed a suit at law to recover real estate commissions allegedly owed to them. On October 18, 1976, plaintiffs filed a complaint in equity and petition for preliminary injunction against Tuscany, Inc., Brittany, Inc., Phoebe M. Rennekamp, William A. Rennekamp, Antoinette B. Tchirkow individually, and as executrix of the estate of Edgar G. Tchirkow, deceased [hereinafter appellants]. Plaintiffs/appellees filed the suit in equity when appellants caused the two corporations named as defendants in the prior suit to be dissolved. A hearing on the equity petition was held on October 28, 1976, and, by order dated December 3, 1976, the court granted the preliminary injunction and required appellants to deposit $80,000 at First Federal Savings and Loan of Pittsburgh, in an interest-bearing account, as security for any judgments in favor of plaintiffs in the brokerage commission actions. By order dated March 21, 1977, the court ordered the funds transferred to a savings deposit at Concord Liberty Savings and Loan Association. The funds deposited in the savings account earned a return of five and three-quarters percent (5%%) interest. Appellants filed a demurrer to the equity action; the demurrer was denied. Appellants next, on March 19, 1979, filed an answer, new matter and counterclaim to the equity action. The counterclaim alleged that appellants were suffering damages by reason of the fact that the $80,000 security deposit was earning 5%% interest, while investment rates were offering 10% interest returns. On March 27, 1979 appellants moved to dissolve the injunction, or in the alternative, to have plaintiffs post a bond pursuant to Pa.R.C.P. 1531(b). The equity court denied the motion on April 2, 1979. Appellants filed a timely appeal to this Court; by opinion dated November 30, 1982, this Court reversed the order and remanded the case, finding that the equity court erred in failing to have plaintiffs post a bond. Pa.R.C.P. 1531(b). Christo v. Tuscany, Inc., 308 Pa.Super. 564, 454 A.2d 1042 (1982). Upon remand, on September 12, 1983, the lower court ordered plaintiffs to post a nominal bond of one dollar ($1.00). Appellants filed a timely appeal from this order, which was docketed in this Court at No. 1138 Pittsburgh 1983. In the interim, plaintiffs’ original suit for broker commissions had been dismissed by the trial court on summary judgment, and that judgment had been unsuccessfully challenged through all stages of the appellate process. Consequently, after the original suit was finally litigated, motions were made in this Court at No. 1138 Pittsburgh 1983, including: appellants’ motion for special relief; plaintiffs’ motion to dismiss the equity suit for mootness; and answers thereto. After a hearing in this Court on February 9, 1984, the Honorable John P. Hester dissolved the December 3, 1976 injunction, directed the release of the escrowed $80,000 to appellants, and remanded the appeal at No. 1138 Pittsburgh 1983 (from the order imposing one dollar bond) to the lower court for an adjudication on appellants’ counterclaim for damages which had been filed in March 1979. On remand, the lower court granted plaintiffs’ motion for summary judgment. This appeal timely followed. Appellant raises two issues on appeal: I. Where a Plaintiff is ordered by the trial court to post only a one dollar ($1.00) injunction bond as security for Defendant’s damages upon termination of the injunction proceedings, is Defendant limited to an action on the bond or the amount of the bond in its claim for damages for its economic losses from the injunction proceedings? II. Where a Defendant is ordered to deposit substantial funds in a passbook savings account with an interest rate of 5% percent, when there are other investment opportunities paying 10 percent to 21 percent, are Defendant’s damages so speculative as to be noncompensable in an action for damages? We shall address these claims, seriatim. I. AMOUNT OF BOND AS A LIMIT ON DAMAGES Appellants’ first issue raises a point not directly passed upon by our courts since the adoption by our Su preme Court of the Rules of Civil Procedure in 1952. Appellants argue that they are not limited by the amount of the injunction bond in their claim for damages because Pa.R.C.P. 1531(b) authorizes recovery for “all damages” incurred. Plaintiffs counter that the rule should be construed so as to limit recovery to the amount of the bond. Therefore, we are called upon to resolve this conflict as to the proper construction of the language of Pa.R.C.P. 1531(b). Specifically, the rule states: (b) Except when the plaintiff is the Commonwealth of Pennsylvania, a political subdivision or a department, board, commission, instrumentality or officer of the Commonwealth or of a political subdivision, a preliminary or special injunction shall be granted only if (1) the plaintiff files a bond in an amount fixed with the security approved by the court, naming the Commonwealth as obligee, conditioned that if the injunction is dissolved because improperly granted or for failure to hold a hearing, the plaintiff shall pay to any person injured all damages sustained by reason of granting the injunction and all legally taxable costs and fees, or (2) the plaintiff deposits with the prothonotary legal tender of the United States in an amount fixed by the court to be held by the prothonotary upon the same condition as provided for the injunction bond. (Emphasis added). Our duty is to accord the language utilized by the Supreme Court its plain meaning. Pa.R.C.P. 127(b); Cf. Salvado v. Prudential Property and Cas. Ins. Co., 287 Pa.Super. 304, 430 A.2d 297 (1981). We construe the rule as a mandate that a petitioner file a bond, in the amount fixed by the court, prior to the court’s issuance of the requested special relief. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987); Christo v. Tuscany, Inc., supra (bond must be filed). The rule further states that the bond is subject to the condition that plaintiff shall pay from the bond “all” damages sustained by reason of the injunction upon dissolution of the injunction. Clearly, the rule provides that the bond shall be subject to disbursement to pay damages; however, the rule is somewhat less than clear regarding the question of whether other funds may also be subject to disbursement to pay “all” damages. To date, there have been no cases which have directly addressed this issue. However, the Commonwealth Court has passed on a substantially similar issue. In Juniata Foods, supra, the plaintiff, a governmental entity, sought and gained a preliminary injunction against defendant. The plaintiff posted no bond, as the Commonwealth is exempt from the need to post bond. Pa.R.C.P. 1531(b). When the injunction was dissolved as improperly granted, defendant sued the Commonwealth for damages. The issue was whether recovery was foreclosed as no bond had been posted. The Court held that a “bond is not a condition precedent to obtaining damages from a governmental entity.” Rather, “[t]he bond requirement in Pa.R.C.P. 1531(b)(1) is merely to insure a ready source for payment of damages if due.” Juniata Foods v. Mifflin County Development Authority, supra, 486 A.2d at 1037. Therefore, where no bond is set, an action for damages may still lie against the Commonwealth. This Court’s task is to determine whether an action upon the bond would be the sole source of recovery from a non-governmental plaintiff. As we deem the plain meaning of the express language of the rule ambiguous on this point, further analysis as to the rule’s meaning must be made in accordance with the rules of construction set forth in the Rules of Civil Procedure. Specifically: Rule 127. Construction of Rules. Intent of Supreme Court Controls (a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court. (b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. (c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule. Pa.R.C.P. 127. (Emphasis added). A) Prior Practice The statute which preceded Pa.R.C.P. 1531(b) was 12 P.S. § 2071: § 2071. Indemnity bond before injunction may issue. No injunction shall be issued by any court or judge until the party applying for the same shall be given bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction. 1844, May 6, P.L. 564, § 1. (Emphasis added). Prior practice, under this rule, was enunciated by the Supreme Court in Azar v. Markle, 311 Pa. 296, 166 A. 889 (1933). The Court, in a per curiam opinion, stated that a defendant’s only remedy for damages from an injunction is against the bond. “The very purpose of such bonds is to indemnify defendants for ‘all damages that may be sustained by reason of such injunction.’ If the amount of the bond was inadequate, the attention of the chancellor should have been directed to that fact at the time it was filed.” 311 Pa. at 298,166 A. 889. (citation omitted). Accordingly, prior practice was to limit damages to the amount of the bond. B) Contemporaneous History The Rules of Civil Procedure were first promulgated in 1952; Rule 1531(b) replaced 12 P.S. § 2071. The rules were promulgated by our Supreme Court, assisted by a Procedural Rules Committee. Specifically, the Court noted that its intent was to make changes in the equity rules: Equity Rule 92, adopted by the Supreme Court, May 13, 1940, and as amended Nov. 28, 1941, read as follows: Those Rules of Civil Procedure promulgated by the Supreme Court which are applicable to equity practice and procedure, shall prevail over any existing Equity Rules which are inconsistent therewith; and the Equity Rules are modified, or abrogated, to the extent of such inconsistency, as of the respective dates the dominant Rules of Civil Procedure became or become operative. Purdon’s Pennsylvania Statutes Annotated, 1967 edition, Title 12, p. 19. (Emphasis added). The prior rules, including the rule on bonds, were suspended. See Pa.R.C.P. 1550(4), suspending 12 P.S. § 2071 absolutely. Crucial to our analysis is the fact that Rule 1531(b) contains different language than that previously utilized in Section 2071. Pa.R.C.P. 128 supplies, “[presumptions in Ascertaining the Intent of the Supreme Court” as aids in construction. One of the presumptions is that “if the Supreme Court has construed the language used in a rule ..., the Supreme Court in promulgating a rule on the same subject matter which employs the same language intends the same construction to be placed upon such language; ---- Pa.R.C.P. 128(d). (Emphasis added). Although Rule 1531(b) covers the same subject matter as the prior rule, the Court chose not to employ the same language. Therefore, we may not presume that the construction of Section 2071 as exemplified by Azar v. Markle, supra, should be placed upon Rule 1531(b). See also Purdon’s Pennsylvania Statutes Annotated, 1967 edition, Title 12, Ronald A. Anderson, Esquire, “Repositories of Pennsylvania Civil Practice,” p. XXII. We find that the use of different language suggests a different intent behind Rule 1531 and permits a different construction of the rule. See Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa.Super. 509, 474 A.2d 605 (1984), aff'd as modified, 510 Pa. 1, 507 A.2d 1 (1986) (it is a rule of statutory construction that a change in the language of a statute ordinarily indicates a change in the legislative intent). In further support of finding a change between the prior construction of the rule and a new construction of the current rules, is appellants’ argument that the Pennsylvania Rules of Civil Procedure were promulgated in 1952 in response to enactment of the Federal Rules of Civil Procedure in 1938. The language of the federal rule governing injunction bonds, F.R.C.P. 65(c), is different from the rule adopted in the Commonwealth. Although the language is different, we deem federal practice helpful in ascertaining our Supreme Court’s intentions when promulgating Pa.R. C.P. 1531(b); the federal rule and practice do not control but do illuminate the historical context in which our state’s rules were promulgated. Many states, including Pennsylvania, promulgated new rules of civil procedure, intended to govern both law and equity actions, in response to the federal rules. See Wright & Miller, Federal Practice and Procedure, § 1008 at 48 (1973). Posting a bond in federal courts, as in Pennsylvania, is mandatory prior to issuance of injunctive relief. However, [t]he mandatory nature of the security requirement is ameliorated by the remaining portion of the first sentence of Rule 65(c), which states that the security required shall be ‘in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.’ As a result of this passage, the discretion permitted a federal court sitting in equity is available to a court in setting the amount of security that is required by Rule 65(c). Accordingly, the judge usually will fix security in an amount that covers the potential incidental and consequential costs and either the losses the unjustly enjoined or restrained party will suffer during the period he is prohibited from engaging in certain activities or the complainant’s unjust enrichment caused by his adversary being improperly enjoined or restrained. Wright & Miller, supra, § 2954 at 525. (Emphasis added). The security is set, in a balancing process, to cover foreseeable damages. Practice in federal courts is to allow recovery beyond the bond amount where actual damages exceed foreseeable damages covered by the bond, either by a motion pursuant to F.R.C.P. 65.1 or by suits at law for unjust enrichment or malicious prosecution. Wright & Miller, supra, § 2973 at 652. C) Practice followed under Rule 1531(b) Since the promulgation of the Pennsylvania Rules, the issue of whether recovery should be limited to the amount of the bond has not arisen, although other issues involving the interpretation of Rule 1531(b) have been decided. In Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975), this Court considered whether the amount set by the trial court for the bond, pursuant to Pa.R.C.P. 1531(b), was inadequate because losses could total an amount greater than the bond. The Court, in reviewing the amount, utilized a test “balancing ... the equities of the respective sides____” 345 A.2d at 671. The Court found no abuse of discretion in the amount set, especially in light of the inability of the appellant to “credibly establish its possible loss.” 345 A.2d at 671. In College Watercolor Group, Inc. v. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976), the Court held that a trial court improperly dissolved a preliminary injunction bond, noting that the bond “was to protect appellants in the event that the preliminary injunction was improperly granted and damages [were] sustained thereby.” 360 A.2d at 207-208. The Court further stated “appellants are entitled to look to the bond for recovery.” 360 A.2d at 208. There is no indication, however, whether appellants could look beyond the bond for recovery. Other recent decisions of this Court have also focused on the bond amount itself to see if it is adequate protection for foreseeable damages, and a proper exercise of lower court discretion. Broad & Locust Associates v. Locust-Broad Realty, 318 Pa.Super. 38, 464 A.2d 506 (1983) (bond adequate in view of reasonably anticipated damages); Christo v. Tuscany, Inc., supra (court’s failure to set bond constituted error). D) Object of the Rule The cases cited dealing with Rule 1531(b) assist our analysis by delineating the purpose behind mandating that a bond be set. A bond is required so as to provide protection to a wrongly enjoined party; the bond provides a source of funds which may be used to pay to an injured defendant the “damages sustained by reason of granting the injunction.” College Watercolor Group, Inc., supra. Because the rule is mandatory, some protection will always be afforded an enjoined party. However, the case law enunciates a caveat that, in practice, the bond amount is not set to cover “all damages” but only those that are reasonably foreseeable. See Broad & Locust Assoc., supra. The trial court must determine the amount after balancing the equities involved on a case by case basis. Safeguard Mutual Ins. Co., supra. For instance, plaintiffs may be unable to provide sufficient security where damages could be great, or where plaintiff is impecunious, yet the court may determine, based upon the balance of the equities, that the injunction should nevertheless issue. Consequently, a relatively low bond in light of possible damages may be set. E) Consequences of the Rule’s Interpretation Our analysis of the consequences of appellants’ suggestion, that recovery in excess of the bond amount is not prohibited by the rule, leads us to the conclusion that this construction carries the weight of reason. We are aware that courts, in setting the bond amount originally, are not in a position to accurately and definitively gauge the amount of damages which may be incurred as the result of an improvidently issued injunction. Courts sitting in equity on motions for special relief have a duty to act quickly to prevent “immediate and irreparable injury.” Pa.R.C.P. 1531(a). The court’s decision-making process must balance competing concerns; its primary focus is on whether to grant the relief requested, rather than on what potential damages might be incurred if the injunction is later determined to be erroneously issued. The preliminary injunction hearing does not function as a final hearing on the merits, but is held only when needed to settle factual disputes arising from the pleadings. Township of Clinton v. Carmat, Inc., 288 Pa.Super. 433, 432 A.2d 238 (1981); Wood v. City of Pittsburgh, 74 Pa.Cmwlth. 450, 460 A.2d 390 (1983). Consequently, there may not be a full hearing wherein the issue of potential damages could be discussed. Even where there is a hearing, an equity court has neither the time nor the resources to conduct a searching fact-finding review of the amount of damages which may ensue; this type of detailed fact-finding is more properly reserved until the final hearing, after damages have in fact occurred, and are no longer a matter of prognostication. Thus, when issuing the injunction, the equity court is required to set the bond at an amount which constitutes a reasonable measure of protection but may not be in a position to conduct an exhaustive inquiry to determine the amount of damages with certainty. F) Conclusion Our analysis is complete. Having considered the prior rule, Section 2071, and prior practice as exemplified by Azar v. Markle, supra, we find that the promulgation of the Rules of Civil Procedure in 1952 signalled a change with prior practice. This change is demonstrated by the decision not to utilize the language of Section 2071 in Rule 1531(b). The use of different language suggests that a different construction of the rule could emerge. The use of different language also reflects the fact that Pennsylvania’s Rules of Civil Procedure were promulgated, at least in part, in response to the federal rules promulgated in 1938; the federal rule governing posting of a bond prior to issuance of a preliminary injunction allows recovery beyond the bond if the injunction is later determined to be improvidently granted. Both federal practice and Pennsylvania practice have evolved such that the bond is not intended to be a definitive measure of damages but only an equitable measure of foreseeable damages. Compare Azar, supra, and Safeguard Mutual Ins. Co., supra. We are persuaded that a construction similar to the federal rule may and should apply to Rule 1531(b). We hold that the bond amount set pursuant to Pa.R.C.P. 1531(b) does not set a limit upon recovery for damages from a wrongly issued injunction. Therefore, should the injunction be found to have been improperly issued, actual damages should be determined, and the enjoined party shall be free to seek recompense for “all damages” accrued. The enjoined party may use the bond amount as a source of damages payment but that party is not limited to the protection afforded by the bond. Accord Juniata Foods, supra. Therefore, we find appellants’ argument that they should not have been limited to the bond amount well-founded, and we reverse that part of the order of July 29, 1986 limiting appellants' damages to the bond. II. AMOUNT OF DAMAGES Appellants’ second and final contention is that they should be able to recover as damages their lost interest income on the escrowed $80,000; they urge this Court to measure their damages by the difference between the interest rate received at the savings account where appellants were ordered to place their money, which was five and three-quarters percent (5%%), and the interest the money would have earned in the investment market. Appellants assert that rates of ten percent (10%) and greater were available for investments during the time appellants’ funds were in escrow. Plaintiffs respond that: lost profits in the form of interest income are noncompensable, citing Ashcraft v. C.G. Hussey & Co., 359 Pa. 129, 58 A.2d 170 (1948); even if appellants are entitled to lost profits, their damages are limited to the legal rate of interest of six percent (6%), citing 41 P.S. § 202, Traffic Safety Co., Inc., 21 B.R. 669 (Bkrtcy.Pa.1982); and, because plaintiffs did not enjoy the use of the funds while in escrow, there is no equitable reason for an award of damages. The trial court held that appellants’ damages were limited to the one dollar bond; but, even if the bond amount was not the limit of recovery, the trial court opined that the damages appellants seek are not recoverable because the appellants chose to place their escrowed funds in a low interest account, and because the damages were too remote and speculative to be recoverable. We note the record does not contain facts to support either of the trial court findings. As to the first trial court finding, we note that the court’s order directed appellants’ funds be placed in a savings deposit at a particular savings and loan institution. The record contains no evidence as to whether there was more than one, or any higher yielding savings deposits at that particular savings and loan institution. Thus, there is no basis in the record for the trial court’s finding that appellants chose this account. We must reject findings which have no support in the record. Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968). Secondly, the trial court’s holding that damages were remote and speculative was made without benefit of a fact-finding hearing; the court, on remand from this Court after dissolution of the injunction, dismissed the counterclaim without an evidentiary hearing. However:, Pa.R.C.P. No. 1517(a) requires a chancellor to make specific findings of all facts necessary to determine the issues in the case and to support the decree and where such findings are general or absent, the cause must be remanded to the chancellor for the required findings. Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968). Sack v. Feinman, 489 Pa. 152, 166, 413 A.2d 1059, 1066 (1980), aff'd after remand, 495 Pa. 100, 432 A.2d 971 (1981). The court failed to conduct a hearing to determine whether, in fact, investment opportunities were paying returns of ten to twenty-one percent as appellants claim and whether appellants would have availed themselves of such opportunities. Certainly such rates of interest are capable of being determined with certainty and thus are in no way speculative; similarly, appellants were entitled to present evidence that the order in fact prevented them from investing at the market rates. Thus, the trial court’s order cannot be affirmed on the grounds stated. We next turn to the legal arguments raised by the parties. We find it important to note initially that appellants do not argue that the trial court’s order of March 21, 1977, directing appellants to place the escrow funds in Concord Liberty Savings & Loan, was an abuse of discretion; they readily acknowledge that in granting the special relief to the plaintiffs the court in equity had broad authority to balance competing interests. Hence, the selection of a low interest bearing highly liquid savings account is not challenged. Rather, appellants contend that plaintiffs must compensate appellants for the damages (lost interest income) suffered as the result of the order. The issue, then, is not whether it was reasonable for the trial court to burden appellants but whether plaintiffs should have to compensate appellants for the damage caused by the burden, upon determination that the injunction was improvidently granted. Our review indicates that the law in equity is settled: in equity cases, the award of damages and rate of interest thereon is allowed at the discretion of the chancellor. Daset Min. Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584, 595 (1984). See also Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 276 A.2d 542 (1971). Lost profit damages resulting from an improvidently granted preliminary injunction may be recoverable where the damages directly result from the injunction, and the damages are ascertainable with reasonable certainty. Compare Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). Plaintiffs cite Ashcraft v. C.G. Hussey & Co., supra, for the proposition that profits from investment capital may not be included in the measure of lost profits. Ashcraft involved a suit to recover lost future earnings due to injuries plaintiff sustained through the negligence of the defendant. The Court held that plaintiffs damages for impairment of his earning capacity were not speculative. The court further opined that the measure of lost earning capacity should be limited to “personal effort, either mental or physical” rather than lost profits from investment capital. Ashcraft, supra 58 A.2d at 173. Ashcraft does not purport to mandate that damages in other types of actions cannot be measured by lost profits; the holding applies only to personal injury actions. Ashcraft does not address the issue of the measure of damages sustained through a grant of a preliminary injunction; therefore, it is inapposite. Rather, the rule in equity cases is that damages may include whatever the court in its discretion determines to be equitable. Daset, supra. Nor is the measure of damages limited to the legal rate of interest. The statute cited by plaintiff, 41 P.S. § 202, provides that the legal rate of interest applies where authorized by law or by private agreement. Neither statute nor caselaw limits recovery of damages in equity actions to the interest rate of six percent (6%). To the contrary, Rule of Civil Procedure 1531(b) authorizes recovery of “all damages” sustained by an improvidently granted injunction without any expression of limitation to the legal interest rate. Thus, there is no statutory authority to limit the measure of damages to six percent (6%); rather, clear statutory language authorizes recovery of “all damages.” Furthermore, “the decided trend of the courts of law and courts of equity has been to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case____” Murray Hills Estates v. Bastin, 442 Pa. 405, 276 A.2d 542 (1971). See also Sack, supra; Daset Min. Corp., supra (courts sitting in equity take an equitable approach in determining interest as an element of damages). In light of express statutory language authorizing recovery of “all damages” sustained, and in full accord with the authority of the chancellor in equity cases to measure damages by equitable principles, rather than by the legal rate of interest, we find the legal rate of interest provided in 41 Pa.C.S. § 202 has no application to this equity case; and, we find that plaintiffs’ argument that lost interest income damages are limited to the legal rate must be rejected. Finally, plaintiffs argue that because “there is no evidence of record that [plaintiffs] had the use of the escrowed funds or received any interest on such amount,” appellants are not entitled to equitable damages greater than the six percent (6%) legal interest rate. (Appellees’ brief at 22-23). First, as decided above, the legal rate does not apply to this equity action. Second, plaintiffs’ argument ignores the fact that plaintiffs desired, sought and gained the injunction; thus, they did enjoy a benefit by reason of having the funds in escrow. Plaintiffs obtained security for potential judgment in the amount of $80,000 while their suit at law for broker’s commissions was being litigated. Moreover, appellants clearly suffered a detriment, i.e., the loss of the control of those funds and profits to be derived therefrom while those funds were in escrow. Finally, we perceive no reason why appellants should be undercompensated for provable losses merely because the plaintiffs did not make a financial profit on the escrowed funds. The plaintiffs’ beneficial use of the funds is not a prerequisite to a finding that appellants suffered damages. There is no reason, as a matter of law, why appellants should be precluded in their attempt to prove and recover all damages accrued by reason of the grant of the preliminary injunction. Appellants must, on remand, prove that the market rate of interest to be used as a measure of damages can be ascertained without resort to speculation. Further, appellants must establish by a preponderance the fact of proximate causation, i.e., that but for the injunction, the escrowed funds would have been invested at the rates available. See Delahanty, supra. Clearly, these are facts which cannot be determined at the appellate level. Thus, we have determined that appellants are not limited in their recovery to the amount of the bond, and that appellants should have the opportunity to meet their burden of proof on the damages issue. Accordingly, we remand appellants' counterclaim to the trial court for proceedings not inconsistent with this opinion. Sack, supra. Order reversed and remanded. Jurisdiction relinquished. . The Commonwealth Court held that a ‘bond is not a condition precedent to obtaining damages from a government entity." 486 A.2d at 1037. (Emphasis added). We do not have a government entity involved in this action. (See discussion, infra). . We note appellants failed to raise in this appeal, following this Court’s remand of the appeal at No. 1138 Pittsburgh 1983, any issue as to whether imposition of only nominal bond was an abuse of discretion by the trial court. . 12 P.S. § 2071 can be traced to the Act of May 6, 1844, P.L. 564, § 1. . Section 2071 was repealed April 28, 1978, P.L. 202, No. 53, § 2(a)[205]; see 42 Pa.C.S.A. § 1722. . F.R.C.P. 65(c) states: (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof. . Specifically, the order stated: IT IS HEREBY ORDERED AND DECREED, that First Federal Savings & Loan Association of Pittsburgh make cashiers checks payable to Maurice A. Nernberg, Jr., Esq., and Frank Mast, Esq., for deposit to Concord Liberty Savings and Loan Association in the name of Maurice A. Nernberg, Jr. Esq. and Frank Mast, Esq., with the following endorsements: ‘BOTH SIGNATURES REQUIRED FOR WITHDRAWALS. NO WITHDRAWALS EXCEPT BY ORDER OF COURT SAVINGS DEPOSIT’ * it * And that a Savings Deposit shall be made in CONCORD LIBERTY SAVINGS & LOAN ASSOCIATION endorsed as follows:' ‘BOTH SIGNATURES REQUIRED FOR WITHDRAWALS. NO WITHDRAWALS EXCEPT BY ORDER OF COURT SAVINGS DEPOSIT’ it it it (Emphasis added). . We distinguish between the damages of lost interest income and the interest which the court may grant upon an award of damages. . We do not herein decide the continuing validity of Ashcraft; the distinction between labor income and capital income as set forth in Ashcraft is by no means undebatable. „ . Appellees cite Traffic Safety Co., Inc., supra, in support of their contention that damages are limited to six percent (6%). However, again, the facts of the case cited as authority are inapposite, as Traffic Safety did not involve a claim for damages by reason of a preliminary injunction, but rather an action against a trustee in a bankruptcy proceeding for misappropriation of funds. Furthermore, Traffic Safety is clearly not in accord with recent trend of equity cases. See Murray Hills Estates, supra.

McEWEN, Judge: These consolidated appeals have been taken from an order directing the forfeiture of bail which had been posted to guarantee the appearance of the defendant, Michael Mitchell, at all proceedings attendant charges of murder which had been lodged against him. When Michael Mitchell was charged with the offense of murder, bail was set at $400,000. David Mitchell, the father of the defendant, posted $40,000 cash bail and retained counsel to represent his son. A jury subsequently determined that Michael Mitchell was guilty of third degree murder. When the defendant failed to appear at sentencing, the Commonwealth filed a petition to forfeit bail. The court conducted a hearing and directed that the bail be forfeited, rejecting an argument by counsel for Mitchell that $20,000 of the cash bail, assigned to him as payment of his counsel fees, should not be forfeited to the Commonwealth. Counsel for Mitchell asserts in this appeal that this court should, in the interests of justice, declare that the hearing court erred and direct that he be paid his fee from the forfeited sum. Initially, we note that Michael Mitchell remains a fugitive. It is, of course, well-settled that a defendant who elects to escape from custody or become a fugitive while free on bail forfeits his right to appellate review. See: Commonwealth v. Passaro, 504 Pa. 611, 613-617, 476 A.2d 346, 348-349 (1984). However, the defendant has not undertaken this appeal. Rather, trial counsel for appellant has undertaken this appeal asserting that the court committed an abuse of discretion in ordering forfeiture. The procedure of remission is as ancient as the right to bail, and it is well established that “[Remission of forfeiture is a practice, calculated to encourage bondsmen to seek actively the return of absent defendants. Commonwealth v. Reeher, 245 Pa.Super. 282, 369 A.2d 404 (1976). Allowance or denial of a remission lies within the sound discretion of the trial court. Commonwealth v. Jones, 286 Pa.Super. 507, 429 A.2d 436 (1981).” Commonwealth v. Fleming, 336 Pa.Super. 377, 379, 485 A.2d 1130, 1131 (1984). Accord: Commonwealth v. Nolan, 288 Pa.Super. 484, 488, 432 A.2d 616, 618 (1981). Similiarly, the United States District Court for the Western District of Pennsylvania, in denying an application for remission factually identical to the instant matter, declared that “ ‘[rjelease [of a defendant] is conditioned on the execution of a bail bond in order to assure the presence of the accused, ... Remission of forfeited bonds while their subjects are still at large would undermine that purpose.’ ” United States v. Ciotti, 579 F.Supp. 276, 278 (W.D.Pa.1984) quoting United States v. Skipper, 633 F.2d 1177, 1180 n. 6 (5th Cir.1981). We have not, however, discovered any Pennsylvania appellate court decisions involving a petition to remit a forfeiture (1) where the petitioner is neither the defendant nor a surety, and (2) where the petition was filed while the defendant remained a fugitive. It is unnecessary to discuss the legal arguments assembled by the Commonwealth, or to address the compelling personal plea of counsel for payment of his fee, since we are of a mind that public policy precludes the remission here sought. There exist a number of public policy preclusions to remission of the forfeiture to counsel for the defendant, not the least of which is the temptation, and even encouragement, that such a result would present to other defendants released on bail. It is sufficient to simply observe that crime should never pay — either the criminal or his counsel — and, surely it is obvious that to honor such a claim by counsel for a fugitive is to reward the fugitive for his escape. That result might even justify the description of the law provided by Mr. Bumble. Therefore, we conclude that the distinguished Judge Paul R. Beckert properly denied the application for partial remission. Order affirmed at No. 00790 Philadelphia 1987. The appeal at No. 00789 Philadelphia 1987 is quashed. . The appeal at No. 00789 Philadelphia 1987 has been taken from the order of forfeiture. The appeal at No. 00790 Philadelphia 1987 has been taken from the order dismissing "exceptions” to the order of forfeiture which, for purposes of this appeal, we have treated as a petition for remission, the denial of which is appealable pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(1). . See footnote 1 supra.

KELLY, Judge: This appeal arises from the trial court’s denial of appellant’s (Container) motions for judgment n.o.v. and a new trial. We modify judgment and affirm. The instant action commenced when appellee/plaintiff, Jerry Beary (Beary), filed suit sounding in trespass against Pennsylvania Electric Company and appellant Glass Containers Corporation, now Container General Corporation. Container joined Edwards Tank Erection, Inc. (Edwards), Beary’s employer, as an additional defendant upon a theory of contractual indemnity. The first trial commenced October 19, 1981 and, at the conclusion of the testimony on October 23, 1981, the trial court directed the jury to return a verdict for Container and against Beary. On appeal to this Court, the trial court’s directed verdict was reversed, and the case remanded for a new trial. Beary v. Pennsylvania Electric Co. and Glass Containers, 322 Pa.Super. 52, 469 A.2d 176 (1983). The second liability trial commenced November 13, 1984 and resulted in a jury verdict that Beary and Container were equally negligent. However, when the jury returned on November 20, 1984, after a recess, to decide the damages issue, the court declared a mistrial because several jurors had read a newspaper article concerning the case, contrary to the trial court’s admonition. The jury eventually impanelled to decide the amount of the damages returned a verdict of $500,000. The verdict was molded to $250,000 for Beary, plus delay damages of $133,424.27 pursuant to Pa.R.C.P. 238. On March 5, 1986, Container’s motion for new trial or for judgment n.o.v. was denied. Timely appeal to this Court followed. Appellee Beary was injured in the course of his employment on September 13,1976. His employer, Edwards Tank, had entered a contract to construct a 100,000 gallon fuel tank on the premises of Container General Corporation. A mobile crane with an extendable fifty-five (55) foot boom was to be used in the construction of the tank. Steel plates were to be welded together to form the tank. Appellant was to provide the necessary electrical power for Edwards’ welding equipment. (N.T. at 56). Before work could begin, a panel box weighing somewhere between 200 and 500 pounds had to be connected to the source of electricity located in the “batch house.” The batch house was located up a narrow gravel road, approximately 174 feet from the construction site. The Edwards crew used the boom of the mobile crane to transport the panel box uphill to the batch house, as was their standard practice (N.T. at 447); appellee Beary walked backwards alongside the box, holding the wires to steady the box while directing the crane operator up the narrow road. (N.T. at 132-135). Electrical wires were suspended 43 feet above the roadway, 130 feet from the construction site, between the construction site and the batch house. As Beary proceeded, facing the crane and walking backwards uphill, the boom of the crane came into contact with the electrical wires. Beary was severely injured as a result of his exposure to the electrical current. On appeal, Container raises the following questions: I. Was [Container] free of causal negligence so as to entitle it to a judgment n.o.v.? II. Did [Edwards Tank] the independent contractor create a dangerous condition on the land of [Container] that [Container] was not required to anticipate so as to entitle [Container] to a judgment n.o.v.? III. Did the lower court err in permitting [Beary’s] expert to testify on the basis of matters beyond the record to opinions on ultimate issues, which opinions were confusing, misleading and prejudicial to [Container] so as to entitle [Container] to a new trial? IV. Did the lower court err in granting [Beary’s] points for charge Nos. 9, 13 and 15 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial? V. Did the lower court err in granting [Beary’s] points for charge No’s, [sic] 6 and 18 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial? VI. Did the trial court err in assessing Rule 238 delay damages during periods while [Container] had a directed verdict in its favor? We shall address each question seriatim. Initially, we note that our sole duty on review of a denial of judgment n.o.v., or refusal of a new trial: ... is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, [the appellee herein] the benefit of every favorable inference reasonably to be drawn from the evidence. All unfavorable testimony and inferences must be rejected. As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action ‘absent an abuse of discretion or error of law which controlled the outcome of the case.’ McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). I. Container first argues that the record is devoid of evidence establishing any causal negligence on the part of Container. Specifically, Container argues Beary failed to show that: [Container] knew or should have known of the existence on its land of a condition which involved an unreasonable risk of harm to [Beary], that [Container] should have expected that [Beary] would fail to protect itself against the known danger, and that [Container] failed to exercise reasonable care to protect [Beary] against said danger. (Container Brief at 10). Container’s argument is premised upon Beary’s alleged failure to demonstrate Container’s liability under Section 343 'of the Restatement of Torts, Second, which provides in part: § 343. Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. § 343 A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Beary’s burden of proof in this matter was to set forth facts sufficient to establish by a fair preponderance of the evidence that Container had not met its duty of care under Section 343. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 540, 488 A.2d 21, 23 (1985). Our review of the record indicates that Beary demonstrated the electrical wires over the roadway were of high voltage (34,500) (N.T. at 101). Container’s chief electrician knew the high voltage nature of the power flow. (N.T. at 101). Neither he, nor any other of Container’s employees communicated this knowledge to Beary or other Edwards’ employees. (N.T. at 61, 76, 97, 445). Beary does not remember what, if anything, he was told about the wires, although his employer testified he warned Beary to look for the wires. Although the wires may have been obvious, or at least known, the nature of the current carried by the wires was not obvious. (N.T. at 447). See also Beary, supra, 469 A.2d at 179; Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232 (1959). None of Container’s employees considered turning off or deenergizing the lines. (N.T. at 83-84). The wires were not covered or insulated despite the availability of such precautionary covers. (N.T. at 82-83, 107). Nor were there signs posted to warn of the danger. (N.T. at 35, 102, 139). Container’s employees did not know who, if anyone, was in charge of briefing Edwards as to known safety hazards at the work site. (N.T. at 36-38). Container’s employees were aware that a crane would be used in the construction process (N.T. at 34, 55, 57) and saw the specific crane in operation immediately before the accident. (N.T. at 71,102-103). Container knew the 500-pound panel box would have to be transported up the road, under the wires, to the batch house. None of Container’s employees, however, considered or planned for the possibility that the crane or its boom might be used to carry the box and thus would travel under the electrical wires. (N.T. at 72, 105). A transmission line is a dangerous instrumentality and the law requires that the possessor of such instrumentality exercise a high degree of care. Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957) (emphasis added); accord Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956). Enigmatic as is the basic element of electricity, no one with the slightest mentality is ignorant of its vast potentialities for destruction. The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures. As the proprietor of ferocious beasts may not, by pleading excessive cost for confining them, escape liability for the loss of life occasioned by his savage wards, so also the owner of high-voltaged electric machinery may not avoid re sponsibility for the devastation caused through his failure to adequately guard such uninhibited devices. This court has declared that when human life is at stake the rule of due care and diligence require everything that gives reasonable promise of its preservation to be done regardless of difficulties or expense. Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 304, 122 A.2d 699, 703 (1956). (Musmanno, J.). (Emphasis added). We thus find that ample evidence of Container’s negligence was presented to the jury. The jury could reasonably infer from the evidence presented that Container knew that the wires posed a dangerous condition, and should have realized that the presence of dangerous high voltage wires, uninsulated, and with no warning signs posted nearby, when combined with the use of a mobile crane, would present an unreasonable risk of harm to Edwards’ employees. The jury could also infer that Beary might not recognize the extremely high voltage nature of the wires. Finally, they could infer that by neglecting to warn, to install insulating covers, or to post warning markers, Container failed to “exercise ... reasonable care to protect” Edwards and his workmen from the extreme degree of danger the wires posed. Restatement Torts, Second, § 343. Moreover, in the alternative, the jury could infer from the evidence presented that, even if the electrical wires were obvious, Container should have anticipated that while working in the vicinity of the wires with its mobile crane and its boom, Edwards’ employees might be distracted and via the boom inadvertently come into contact with the wires. As Comment f to Section 343 A of the Restatement states, in part: Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invi tee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 466 and 496 D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. Quoted in Skalos v. Higgins, 303 Pa.Super. 107, 117, 449 A.2d 601, 605-606 (1982). (Emphasis added). Thus the jury could also infer that Container failed in a duty of care owed under Section 343 A. II. Container’s second contention is that Edwards, as an independent contractor, created the hazard to its own employee, by causing its crane to be moved into the power line, and consequently, Container should be relieved from responsibility for Beary’s injury. Container cites Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 189 A.2d 271 (1963) in support of its contention. However, we deem Hader factually distinguishable from the facts herein. In Hader, Coplay Cement Manufacturing Company had entered a contract whereby an independent contractor was to install a stone crusher and to erect a structure to house the crusher on Coplay’s property. While carrying some construction material, Hader, an employee of the independent contractor, slipped and fell some 35 feet through an open space in the construction. Coplay exercised no control over the work, or the premises where the work was to occur. In Hader, our Supreme Court noted that the owner of the land had delivered possession of his land to the independent contractor; therefore, the Court held that: [a]n owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor. Hader, supra, 189 A.2d at 277. (Emphasis added). See also Restatement of Torts 2d, § 328E. Herein, there are several distinguishing factors. First, we have not found any evidence that Container delivered possession of any portion of their land to Edwards; certainly there was no delivery of that portion of land where the wires or the batch house were located, as Container remained responsible for providing electricity to power Edwards’ welding equipment. (N.T. at 56). Thus, the Hader rule of an independent contractor’s duty does not apply to our factual situation. Second, the danger posed by installing a stone crusher in Hader is inherently different from the danger posed by electrical wires in the vicinity of the independent contractor’s work site. Whereas the installation of any machine may pose a limited danger, the presence of high voltage wires poses a high degree of danger. Thus the duty imposed on whomever controls the electricity must be correspondingly greater. Beary, supra, 469 A.2d at 180; Yoffee, supra; Cooper, supra. Because Container remained in control of the electricity and thereby responsible for the safety of all those to whom it presented a foreseeable danger, we find no factual predicate for relieving Container of its duty of care. Third, Container was aware that Edwards would have to move the weighty panel box under the wires to the batch-house. Yet Container’s employees failed to anticipate or ascertain how the box was to be transported. Edwards did not unilaterally create the hazard by moving its crane; Container created the hazard by failing to warn Edwards not to move the crane under the wires. Accordingly, we agree that there was sufficient evidence to sustain the verdict, and Container is not entitled to a judgment n.o.v. on this issue. III. Container’s third contention is that the lower court erred in admitting the testimony of Mr. Alexander R. Chamberlin, who was qualified by the court to testify as an expert witness. Container argues that Chamberlin’s opinion testimony “was based on mere speculation and assumed facts never established of record.” (Container’s Brief at 23). The law regarding the qualification of a witness as an expert is well-established. When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is so distinctively related to some science, business or occupation as to be beyond the knowledge of the average layman and if answered in the affirmative, the next question the court should ask is whether the witness has sufficient skill, knowledge or expertise in that field as to make it appear that his opinion will probably aid the trier in his search for truth. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 35, 485 A.2d 408 (1984), appeal dismissed 508 Pa. 643, 500 A.2d 428. Moreover, “[i]f a witness has any reasonable pretension to specialized knowledge on the subject under investigation, he may testify, and the weight to be given to his evidence is for the jury.” (Per Flaherty, J., with two Justices concurring and one concurring in the result). Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 598, 437 A.2d 1198, 1201 (1981), quoting Kuisis v. Baldwin-LimaHamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). Finally, “the question of the qualifications of an expert witness is one for the discretion of the trial court.” Morris v. Moss, 290 Pa.Super. 587, 591, 435 A.2d 184, 186 (1981). Beary’s expert, Chamberlin, was a certified professional engineer with more than forty years experience in the fields of mechanical and mining engineering. He was knowledgable of the standards for industrial safety, and had worked with and planned for the use of high voltage electricity in various construction projects. (N.T. at 210-11). There is no question that these engineering occupations are beyond the knowledge of the average layperson. His background, therefore, qualified him as an expert witness to aid the jury in its deliberations. Dambacher, supra. However, Container maintains Chamberlin based his opinion on facts not of record. “Absent some basis in fact, opinion testimony is inadmissible and to admit such evidence would be an abuse of the trial court’s discretion.” Rose v. Hoover, 231 Pa.Super. 251, 254-55, 331 A.2d 878, 880 (1974). Accord, Palmeri v. Com., Pennsylvania State Police, 82 Pa.Cmwlth. 348, 474 A.2d 1223 (1984), affirmed 508 Pa. 544, 499 A.2d 278 (1985). (“While an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence.”) Specifically, Container cites Chamberlin’s alleged speculation as to the weather conditions at the time of the accident, the noise levels present at the scene of the accident, and other “distractions on a work site that can cause men to be hurt____” as facts not in the record forming the basis of Chamberlin’s opinion. (N.T. at 248, Appellant’s Brief at 24). Container also argues with Chamberlin’s ultimate conclusion: “[t]he fact that work was proximate to the 34,500 foot power line was a hazard____” (N.T. at 250). A qualified expert may be permitted to assert relevant facts not generally known but known to him because of his special training and experience, but such special training and experience must be confined to technical knowledge which is beyond that of average men and to that which would be of assistance in determining ultimate issues in case. Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). (Emphasis added). See also Pirches v. General Acc. Ins. Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986). A statement of opinion is admissible if the witness has had an opportunity of personal observation and has obtained some impressions from observation. Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). We find, upon examination of the trial transcript, that when Chamberlin testified as to the weather conditions, he was not expressing an opinion as to actual weather conditions the day of the accident, but rather explaining his personal observations of the accident site, and his knowledge that: ... copper conductors when they are in the air for a comparatively short time they get a coating on the outside which is green in color____ They are virtually invisible, especially if you are against a bright sky where you have the sun in back of you, shining on it and they are green. (N.T. at 232-33). (Emphasis added). Chamberlin did not say the day of the accident was a sunny day, but rather the wires were “virtually invisible” in any type of weather, “especially” sunny days. Chamberlin’s testimony was properly admitted, as founded both upon his special training and experience, and his personal observations. Next, our examination of the trial transcript demonstrates that Container’s counsel forcefully objected to prevent Chamberlin from expressing any baseless speculation as to noise levels at the scene of the accident. (N.T. at 239, 240, 241). The trial judge sustained Container’s objections to impermissible, baseless speculation. (N.T. at 242). Thus, Container’s argument that speculation was permitted is not supported by the record. When Chamberlin stated the basis for his opinion as to distractions at the work site, he was limited to specifying those noise-producing machines known through previous testimony to be in operation at the time of the accident: A. Gasoline powered Galion crane; the gasoline powered welder that was being used before the electrical welders were connected; the fact the trucks, tractor-trailers hauling sand drove along the road beside those tanks; the fact that immediately adjacent to the power lines in back of the first tank was a road that appears to be fairly heavily traveled by cars and trucks____ (N.T. at 243-244). (See N.T. at 128-129 for testimony providing factual basis). Thus, there was no error in permitting Chamberlin’s limited testimony. Rose, supra. Finally, Container contends that Chamberlin’s opinion that the unmarked, uncovered powerline was dangerously “approximate” or “near” to the work site is not borne out by the facts in evidence. The work site was 130 feet from the power lines. (N.T. at 53). Chamberlin based his opinion (that 130 feet was “near”) on his expert knowledge of normal, acceptable work practice, and his knowledge of the speed and mobility of the crane involved in the accident. (N.T. at 260-290). Any speculative or baseless testimony expressed by Chamberlin was struck by the trial judge. (See N.T. 237, 240, 244). While it is true that expert opinion on ultimate issues is not admissible where such testimony would confuse, mislead or prejudice the jury, Bessemer Stores v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985), we note that Chamberlin’s testimony did not serve to confuse, mislead, or prejudice but rather to aid the jury in the determination of complex issues beyond the ordinary ken of a layperson. Dambacher, supra; Reardon, supra. Chamberlin’s testimony that, given the crane’s potential and actual operation, the wires were dangerously near the work site, was properly admitted as an opinion since it was premised on facts in the record and facts from his own area of expertise. Whether the wires presented an unreasonable danger was only one of the “ultimate issues” to be decided by the jury. The weight to be given Chamberlin’s opinion along with the other evidence presented on that issue, including the defense experts, was for the jury to determine. Rutter, supra; Kuisis, supra. The trial court did not abuse its discretion by permitting the jury to consider Chamberlin’s opinion. Container, accordingly, is not entitled to a new trial on this issue. IV. and V. Container’s fourth and fifth contentions involve allegations of trial court error in the jury instructions. Initially, we note our standard in reviewing such allegations. “A trial judge has wide latitude in charging the jury and may use any particular language provided the language used adequately and fully conveys the laws applicable to the facts of the case.” Seewagen v. Vanderkluet, supra, 488 A.2d at 26 (1985). “A jury ‘charge should be clear and precise and so couched as to not confuse the jury.’ However, ‘contradictory instructions are not always reversible error. An erroneous statement of law in one portion of the charge can be rendered harmless by a subsequent correct statement of the same principles if the jury is clearly instructed that the latter statement ... is the correct statement.’ ” Dunlap v. Larkin, 342 Pa.Super. 594, 605, 493 A.2d 750, 756 (1985) (citation omitted). “Whether the jury should be instructed on a given point of law, of course, depends upon the facts and the issues in the case. It is axiomatic that where there is a dispute as to what the relevant facts are, this dispute must be submitted to the jury along with instructions on points of law which, with a view to the evidence in the case, are relevant.” Ferrick v. Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 190, 484 A.2d 744, 748 (1984). “In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, supra, 489 A.2d at 1305. Container contends that it was error to give Charge No. 9 as it was not based on any evidence, it was improperly premised on the case of Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957), and it served to confuse and mislead the jury. That portion of the charge provided: If you determine that the wires were not patently obvious to Beary and unknown to him as a business visitor, he is not required to make an independent survey to determine whether the possessor of the land has in fact performed his duty. (N.T. at 458). However, our review of the record indicates there were factual disputes as to whether appellee Beary had seen or knew of the wires, and as to whether the wires were clearly visible. (N.T. at 364-367, 445, 232-33). This factual dispute was for the jury to decide. Ferrick, supra. Accordingly, the jury was properly instructed that, should they decide that Beary was unaware of the wires, the law would not require Beary to independently survey appellant’s land to find dangerous conditions such as wires. Furthermore, the charge was neither confusing nor misleading but an accurate statement of applicable law as to a landowner’s duties to a business invitee. The principle of law enunciated in Stark, supra, was applicable to the facts of this case. The jury had to determine appellant’s duties before finding a breach of that duty. Jury Charge No. 13, Container contends, was not required by evidence in the record. We disagree. The trial court charged: Our law of torts has traditionally required a higher degree of care in situations where the risk of injury is greater. Vigilence must always be commensurate with danger. A high degree of danger always calls for a high degree of care. (N.T. at 458-459). As a matter of law, electricity is a dangerous instrumentality requiring “a high degree of care.” Yoffee, supra. “The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures.” Cooper, supra, 122 A.2d at 703. The learned trial judge prefaced his charge with a statement that, if the "jury determined that the location of the power line might be a source of peril, then the jury must also determine if “... [Container] met with its requirement of a higher degree of care.” (N.T. at 458). Since the possible breach of Container’s duty of care was an essential issue in litigation, and sufficient evidence was presented to demonstrate Container’s negligence, including evidence concerning the location of the powerlines, this charge was properly submitted to the jury. Charge No. 15 again correctly restates the law, that power lines do not always constitute an obvious danger. Stimmel v. Kerr, supra. The charge read: The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, is not bound to know its degree in any particular case. (N.T. at 459). Container argues this charge is not supported by the evidence. However, the charge is supported by the testimony of several employees that they were unaware of the amount of current conducted through the wires. (See N.T. at 139). Even several of Container’s employees did not know the voltage carried by the wires. (N.T. at 34, 53). Accordingly, we find no merit to Container’s arguments concerning Charge No. 15. Container contends Charge No. 6 was error because “there is no evidence in the record whatsoever to indicate that [Container] had any reason to expect that [Beary] would be distracted and consequently injured,” (Container’s brief at 36), nor any evidence that distractions did occur. The instruction stated: There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases, the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm. Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious or will forget what he has discovered, or fail to protect himself against it. (N.T. at 457-58). (Emphasis added). Our review of the record disclosed there was testimony as to: the noise emanating from machines and passing trucks at the scene of the accident; an expert opinion given that such noises would constitute a distraction; and appellant’s employees were aware of the sources of the noise. (See N.T. at 128-129, 243-244). Accordingly, this charge was properly founded upon facts in the record. Moreover, it is not a confusing charge, read in the context of the charge as a whole, as it does tell the jury the significance of distractions in the context of Container’s duty of care. Reilly, supra. Container contends that Charge No. 18 was improper because it was premised on Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963), a case with facts distinguishable from the facts herein. The charge, as delivered, stated: There is evidence in the record that the plaintiff was warned of the high-tension lines. The area in which the plaintiff was engaged in his work at the time of the accident was in the vicinity of these lines. You must decide whether or not the plaintiff could become so engrossed in his work as to make him temporarily oblivious to any other surrounding danger. (N.T. at 459). (Emphasis added). Specifically, Container argues that the decedent in Skoda was injured as a result of a danger totally unrelated to his usual job function, whereas Beary was injured in the performance of his job. Thus, Container argues, Beary, while performing his job, should not have become so engrossed. Beary, however, correctly states that the jury did ultimately find that he was contributorily negligent. Thus, Container does not and cannot demonstrate how this instruction was prejudicial. Where a party fails to demonstrate harm, we will not hold it to be reversible error. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965). Container also argues that charge 18 was confusing, and directs our attention to the jury’s subsequent question of the instruction: “You read something about a worker getting so involved in his job that something happens and we didn’t get the point of law.” (N.T. at 471). The trial court cured whatever confusion may have existed by its response to the question. The trial judge sent into the jury a copy of charge 6 (see reproduced supra) giving the point of law applicable. Any alleged error concerning Charge No. 18 was, therefore, rendered harmless. See Dunlap, supra; Reilly, supra. Accordingly, we find no merit to Container’s claims of error in this instruction. Having reviewed the charge to the jury in its entirety, we find no error. The trial judge properly instructed the jury on all the relevant law. Dunlap, supra; Ferrick, supra. VI. Container’s final contention involves the trial court’s assessment of delay damages; the court molded the verdict to include delay damages in the amount of $133,424.27, pursuant to Pa.R.C.P. 238. The court below included delay damages from the date of filing the complaint through the judgment rendered at the second trial, inclusive. Container contends that the court erred in assessing delay damages during the period between the original directed verdict in Container’s favor, October 1981, and this Court’s reversal of that verdict, which Container erroneously dates as February 28, 1984. Container properly cites Hawthorne v. Dravo Corp., et al, 352 Pa.Super. 359, 508 A.2d 298 (1986) in support of its argument. In Hawthorne, we held that no delay damages should accrue from the date of the entry of the first judgment, until that judgment was reversed on appeal. During that appeal period, the verdict winner is entitled to rely on the validity of the judgment. Hawthorne, 508 A.2d at 308. Thus Container’s argument has merit, and we conclude that any delay during the appellate process is not a matter for the trial court to consider when assessing delay damages under Rule 238. The portion of the judgment which exceeds $250,000.00 is vacated and we modify the order such that no delay damages be awarded for the period from October 23, 1981, the date of filing the appeal from the first judgment in this case, through November 18, 1983, the date this Court awarded Beary a new trial. The amount of delay damages to be rescinded is $51,644.00. As so modified, the judgment is affirmed. . PECO was granted an uncontested compulsory nonsuit. . The court bifurcated Beary’s claim against Container as to liability and damages. Container’s indemnification claim against Edwards was likewise bifurcated. . "The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. ‘Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case.’ ” Beary, supra, 469 A.2d at 179. (Emphasis added). Because evidence was presented that Container should have expected Beary would fail to realize the danger, there is no need to address Container’s argument that Beary failed to protect himself. § 343(b). . Our examination of the record reveals Container's counsel failed to object to Chamberlin’s statement at trial. In order to preserve an issue for appeal, a litigant must make a timely specific objection at trial. Failure to object leads this Court to conclude the issue is waived. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). We nonetheless will discuss Container’s contention. . Container argues that Deary's job, and not the law, required that he survey the land. However, Deary’s job function is not at issue with this charge; rather, that issue properly was covered in the instructions on contributory negligence. This charge was necessary to cover the law as to appellant’s duty under Restatement Torts, 2d § 343. . Container and Deary dispute whether this charge went to Deary’s contributory negligence or to Container’s liability. (Container’s brief at 33; Deary’s brief at 28). It goes to Container’s duty as possessor of the land. See note 5, supra. The trial court premised this instruction by noting: “an invitee in certain circumstances must be protected even from obvious dangers." (N.T. at 458). . We note Container incorrectly dates this Court’s previous award of the new trial as February 28, 1984. Our order in Beary v. Pennsylvania Electric Company, supra, which awarded Beary a new trial, was issued by the Superior Court Prothonotary on November 18, 1983. Appellee informs us that February 28, 1984 was the date the record was received in the lower court. (Appellee’s brief at 35). However, the date of issuance of the order by the Prothonotary of this Court is the effective date of the remand, rather than the date the record was received in the lower court. See Pa.R.A.P. 2521. . We note that since the filing of this appeal and our decision in Hawthorne, there have been intervening changes in the law of delay damages. In Craig v. Magee Memorial Rehab. Center, 512 Pa. 60, 515 A.2d 1350 (1986), our state Supreme Court reconsidered its previous mandatory rule of delay damages, and directed that, henceforth, delay damages should not be assessed without reference to the respective fault of the parties. Craig applies retroactively only where an appellant has properly preserved a Rule 238 due process challenge. Morgan v. Monessen Southwestern Ry. Co., 513 Pa. 86, 518 A.2d 1171 (1986); Bolus, et al. v. United Penn Bank, et al., 363 Pa.Super. 247, 525 A.2d 1215 (1987). Appellant did not raise any due process challenge in his appellate brief, but only a challenge based upon Hawthorne. Our analysis of Craig assures us that Craig does not change the point of law decided in Hawthorne; delay due to an intervening appeal is not to be considered by a trial court when molding a verdict in a second trial. . Container, relying erroneously on the date of February 28, 1984 instead of November 18, 1983, overestimates the amount of delay damages to be rescinded as $58,766.72. (See Container’s brief at 43). See footnote 7, supra.

CAVANAUGH, Judge: Appellant entered a plea of nolo contendere to charges of robbery and criminal conspiracy. While admitting his involvement in the street robbery, appellant denied using a knife in perpetration of the crime as claimed by the complainant at the plea hearing. The court found that appellant had in fact used a knife during the robbery, and accordingly added the deadly weapon enhancement to the minimum ranges. Appellant was sentenced to two concurrent terms of two to ten years imprisonment. Following denial of his petition for reconsideration of sentence, appellant filed the instant appeal. The sole issue raised on appeal is a constitutional challenge to the deadly weapon enhancement provision. This provision mandates augmented sentencing ranges when the accused possesses a deadly weapon during the commission of an offense. It is appellant’s position that the terms “possession” and “deadly weapon” are impermissibly vague. Appellant also claims that the deadly weapon enhancement provision is overbroad and violative of substantive due process because of the lack of a nexus between the particular behavior sought to be prevented, and the wide range of behavior actually proscribed by the wording of the provision. Appellant’s argument rests solely on this court’s en banc decision in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), aff'd., per curiam 516 Pa. 21, 531 A.2d 1111 (1987). However, the view of the deadly weapon enhancement provision as unconstitutionally vague and overbroad was adopted by only three of the nine judges on the panel, and did not command a majority of the court; it is therefore not binding in the case at bar. In a recent decision in Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986), we declined to follow the holding in Taylor. Instead, in considering appellant’s facial attack on the vagueness of the statute, and absent a claim of infringement of First Amendment freedoms, it was held that the specificity of the statute is to be measured against the actual conduct in which the appellant engaged. Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245 (1976). The terms which appellant challenges as vague are “possession” and “deadly weapon”. There is no assertion by appellant that his First Amendment rights were infringed. The arguments made by appellant deal exclusively with a range of scenarios where application of the deadly weapon enhancement provision would arguably work an unconstitutional result. Unfortunately for the appellant, his case exists outside the realm of the hypothetical, and we are compelled to look to the facts at hand, and appellant’s own conduct, in order to judge the vagueness of the statute. The complainant testified that appellant approached her, held an eight-inch knife to her throat and demanded her valuables. Appellant has not claimed that the term “possession” was so vague as to preclude him from realizing that his possession of the knife was behavior encompassed by the deadly weapon enhancement provision. Further, there could be no serious argument advanced which would convince us that the knife could have been considered anything but a deadly weapon by appellant, in view of the circumstances and manner in which it was used. It is eminently clear that the conduct appellant engaged in is precisely the kind of criminal activity that the statute was designed to deter and punish with enhanced prison sentences. Appellant’s only other claim on appeal is that the statute is unconstitutional as overbroad and violative of substantive due process. It is urged that, due to its overbreadth, the statute will have an impact on activities which are not the intended focus of the deadly weapon enhancement provision, and which are protected by the First Amendment. Appellant may have standing to challenge the statute as overbroad even though he does not claim that his own conduct was within the sphere of protected activity. Such a challenge may be raised vicariously on behalf of others against whom the statute may be unconstitutionally applied. Commonwealth v. DeFrancesco, 481 Pa. 595, 609-611, 393 A.2d 321, 328-329 (1978). We note at this point that appellant failed to raise the overbreadth claim in his petition to vacate and reconsider sentence. As a general rule, such an omission would preclude this court from examining the issue. Pursuant to Pa.R.App.P. 302(a), “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Id. See also Commonwealth v. Johnson, 355 Pa.Super. 123, 140-141, 512 A.2d 1242, 1251 (1986); Commonwealth v. Baker, 352 Pa.Super. 260, 264, 507 A.2d 872, 874 (1986); Commonwealth v. Whetstine, 344 Pa.Super. 246, 256, 496 A.2d 777, 782 (1985); Commonwealth v. Carrillo, 319 Pa.Super. 115, 123, 465 A.2d 1256, 1260 (1983). We recognize that there is a well-established exception to the above rule concerning issues that go to the legality of sentence. Commonwealth v. Button, 332 Pa.Super. 239, 251 n. 8, 481 A.2d 342, 348 n. 8 (1984). Such issues can never be waived solely on the basis of procedural error and may be raised for the first time on appeal. Commonwealth v. Lee, 363 Pa.Super. 400, 404-405, 526 A.2d 405, 406-407 (1987); Commonwealth v. Adams, 350 Pa.Super. 506, 516, 504 A.2d 1264, 1269 (1986); Commonwealth v. Barnhart, 345 Pa.Super. 10, 33, 497 A.2d 616, 628-629 (1985); Commonwealth v. Bossche, 324 Pa.Super. 1, 4-5, 471 A.2d 93, 94-95 (1984); Commonwealth v. Fulton, 315 Pa.Super. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983); Commonwealth v. Miranda, 296 Pa.Super. 441, 459 n. 17, 442 A.2d 1133, 1142 n. 17 (1982). The legality of sentence exception to the waiver doctrine has traditionally been limited to situations where the claim is that the sentence is facially illegal. The obvious example is a case where a sentence is beyond the statutorily prescribed limits. See e.g., Commonwealth v. Ohlinger, 337 Pa.Super. 437, 440, 487 A.2d 25, 26 (1985) (minimum sentence proscribed under Youth Offender’s Act); Commonwealth v. Britton, 334 Pa.Super. 203, 221, 482 A.2d 1294, 1304 (1984) (en banc) appeal dismissed 509 Pa. 620, 506 A.2d 895 (sentence beyond the statutory limits); Commonwealth v. Mathis, 317 Pa.Super. 362, 372, 464 A.2d 362, 368 (1983) (definition of “illegal sentence”); Commonwealth v. Reardon, 297 Pa.Super. 193, 199-200, 443 A.2d 792, 795 (1981) (sentence in excess of statutory maximum). Moreover, as in Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986), “The question of the legality of multiple sentences based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court. This is because multiple sentences ... are beyond the power of the trial court.” Id., 351 Pa.Superior Ct. at 63, 505 A.2d at 265. See also Commonwealth v. Nelson, 337 Pa.Super. 292, 305, 486 A.2d 1340, 1347 (1984) (claim that offenses merged for sentencing purposes not waived); Commonwealth v. Fulton, supra (same); Commonwealth v. Welch, 291 Pa.Super. 1, 3, 435 A.2d 189, 189 (1981) (same). Appellant herein does not complain of a merger of offenses or the imposition of a sentence in excess of the statutory maximum. Rather, in situations like the present, the “illegality” arises because the sentence is alleged to be tainted by the unconstitutionality of the factors considered in the exercise of the court’s discretion, not because the sentence is improper under settled sentencing strictures. Constitutional claims such as the ones involved in this appeal should be raised and preserved at each level of the criminal proceeding in order that the reviewing court will have the benefit of the lower court record on these issues. As President Judge Cirillo recently observed in a thoughtful and exhaustive examination of the subject, “The Pennsylvania Supreme Court has clearly held that constitutional issues, even sentencing issues based on the constitution, are waived if not properly raised in the trial court.” Commonwealth v. Hartz, 367 Pa.Super. 267, 273, 532 A.2d 1139, 1142 (1987). (Cirillo, P.J. concurring). In his Hartz concurrence, Judge Cirillo discussed challenges to the constitutionality of sentencing factors as well as claims that go to the legality of sentence or the jurisdiction of the court. See also Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134, 135 (1987) (“[I]ssues of constitutional dimensions can be waived.); Commonwealth v. Walton, 483 Pa. 588, 600, 397 A.2d 1179, 1185 (1979) (allegation that the lower court’s construction of a restitution statute violated due process was waived when not raised at the sentencing hearing); Commonwealth v. Lee, 478 Pa. 70, 73 n. 4, 385 A.2d 1317, 1319 n. 4 (1978) (due process challenge to the imposition of sentence by a judge other than appellant’s trial judge was waived); Commonwealth v. McConnell, 470 Pa. 312, 315-316, 368 A.2d 646, 647-648 (1977) (claim that a life sentence was unconstitutional on equal protection and due process grounds was waived); Commonwealth v. Boone, 467 Pa. 168, 181, 354 A.2d 898, 904 (1975) (claim that the imposition of a maximum as well as minimum sentence violated due process was waived for failure to advance this argument at the sentencing proceedings.) Quite recently, in Commonwealth v. Sessoms, 516 Pa. 365, 375-376, 532 A.2d 775, 780 (1987), our Supreme Court indicated that an attack upon the constitutionality of the Sentencing Guidelines would be subject to appellate review only “where the issue has been properly preserved at all stages of adjudication up to and including any direct appeal.” Id. (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Sessoms involved a challenge to the constitutionality of the procedure by which the Sentencing Guidelines were adopted. Concluding that the aforementioned procedure was constitutionally infirm and that the resulting Guidelines were invalid, the Sessoms court reinforced the well-entrenched principle that constitutional issues are waived if not raised and preserved at all levels of adjudication. See also, Commonwealth v. Samuels, 516 Pa. 300, 302-303, 532 A.2d 404, 405 (1987). In light of the controlling authority, we find that the appellant has waived his overbreadth challenge by failing to advance and preserve it in the court below. We are aware that our holding is in conflict with several recent Superior Court decisions that, without discussion or review of authority, equate constitutional issues with claims that go to the legality of sentence. See e.g. Commonwealth v. Cooke, 342 Pa.Super. 58, 68 n. 1, 492 A.2d 63, 68 n. 1 (1985); Commonwealth v. Eliason, 353 Pa.Super. 321, 324 n. 3, 509 A.2d 1296, 1298 n. 3 (1986); Commonwealth v. Irving, 347 Pa.Super. 349, 356, 500 A.2d 868, 872 (1985). To the extent that these cases contradict the ruling in Sessoms and clear precedents from our Supreme Court, they must be specifically rejected. Judgment of sentence affirmed. . 42 Pa.C.S. § 9721; 204 Pa.Code § 303.4. . Judges Brosky and Johnson joined in the concurrence. Moreover, Judge Kelly joined in the constitutional non-waiver issue raised therein, in a separate concurrence. . We cite Sessoms in this context only as support for the proposition that constitutional issues which were not raised and preserved in the lower court cannot be considered for the first time on appeal. The focus in Sessoms was upon the constitutionality of the mechanism by which the Sentencing Guidelines were adopted. The Supreme Court held that the process was flawed insofar as it failed to comply with the requirements delineated in Art. Ill § 9 of the Pennsylvania Constitution, dealing with “bicameral consideration and presentment for gubernatorial approval.” Sessoms, supra 516 Pa. at 367-368, 532 A.2d at 776. Appellant herein has not challenged this aspect of the Guidelines and has limited his argument to the areas of vagueness and overbreadth.

TAMILIA, Judge: For the second time, the Superior Court has been requested to determine whether the Schadels, as foster parents, have standing to pursue this action. In our prior en banc determination, In Interest of G.C., 449 Pa.Super. 258, 673 A.2d 932 (1996), we recited the following facts and procedural history: On July 24,1992, G.C. was bom to Amy Pursel and Travis C. Less than two months later, on September 21, 1992, G.C. was admitted to Geisinger Medical Center suffering from trauma, bruising around his left eye, a tom upper frenulum and a displaced left parietal skull. On the same date, a Child Protective Services referral was anonymously filed with the Northum-berland County Children and Youth Services (hereinafter “CYS”) indicating that G.C.’s injuries were a direct result of serious child abuse. The allegation of child abuse was later substantiated by a CYS investigation and independent medical evidence. The anonymous report also named the following five individuals as potential perpetrators of the abuse: G.C.’s biological mother and father, Amy Pursel and Travis C.; G.C.’s maternal grandmother and grandfather, Julie Miller and appel-lee/David Pursel; and G.C.’s maternal step-grandfather, Robert Miller. On September 25, 1992, following his hospitalization, G.C. was placed in the care of appellants, foster parents approved by CYS. G.C. was then adjudicated dependent and legal custody was awarded to CYS pursuant to The Juvenile Act, 42 Pa.C.S. § 6351 Disposition of dependent child. Thereafter, supervised weekly visits were scheduled between the natural parents, David Pursel and G.C. at the foster home. In March of 1993, David Pursel petitioned the court to place G.C. with him. The request was denied but the court allowed G.C. to visit with David Pursel and his wife, at their home, beginning in September, 1993. G.C.’s natural parents then asked appellants to adopt G.C. and appellants agreed and contacted CYS. On February 4, 1994, CYS requested that Amy Pursel voluntarily relinquish her parental rights. Ms. Pursel agreed on the condition that appellants be allowed to adopt G.C. CYS refused the condition and, on March 14, 1994, decided that G.C. would not be placed with appellants. On May 24, 1994, David Pursel filed a petition seeking physical custody of G.C. Appellants responded by filing their own petition to retain custody of G.C. On September 13, 1994, following three days of hearings on the respective petitions, the Court of Common Pleas of Nor-thumberland County issued an Order granting physical custody of G.C. to David Pursel. Legal custody remains in CYS. [Appellants then appealed.] Oral arguments were presented to a panel of this Court on January 26, 1995 and, on March 20, 1995, we issued an Order that the appeal be heard by the Court en banc. Id. at 263, 673 A.2d at 934. Following oral argument, the Court en banc issued its Opinion on March 20,1995. The Court was divided four to four on the issue of “whether CYS foster parents have standing to seek and contest awards of custody concerning their foster children.” Id. at 283-85, 673 A.2d at 945. Seven of the eight judges deciding the case, however, agreed that a remand was necessary for the following purposes: We remand for proceedings consistent with this Opinion, which will require a comprehensive review of the family history, the efforts, if any, employed by CYS to counsel and aid the child’s mother and grandparents dealing with parental stress and the underlying cause for the abuse. Id. In remanding, the Court expressed particular concern over the fact that David Pur-sel, to whom the trial court had awarded custody of G.C., “was listed on the anonymous Child Protective Services referral as a potential abuser of G.C.,” id. at 280, 673 A.2d at 943, and “is fisted on the Statewide Central Register as a perpetrator of abuse[,]” id. at 282, 673 A.2d at 944, citing R. 131a, R. 139a. Pursuant to our Order, a remand hearing was held on March 25, 1996, just five days after our Opinion was filed. The court heard testimony from numerous witnesses, includ ing Jane Kearney, the Administrator of Nor-thumberland County CYS, Ronald McMann, a case work supervisor for Montour County CYS, and Carla Snyder, a caseworker for Northumberland County CYS. These witnesses all were of the opinion that the Pur-sels had provided a warm and loving home for G.C. Also, it was established that the referral and listing of Mr. Pursel as a child abuser had been “ultimately dismissed and ultimately expunged.” (N.T., 3/25/96, p. 104.) Based on this testimony, the court entered the following findings of fact: I find that a close parent-child relationship has developed between the minor child, [G.C.], and Mr. and Mrs. Pursel over the last 18 months. I find that the record reflects that this is a loving and not in any way fearful relationship. I find that the custodians have engaged in appropriate discipline and judgment and care of the minor child in question. I find that the custodians have a sincere desire to provide a permanent home for the minor child, [G.C.]. I find that based on the testimony and the observations of the caseworkers that the home is clearly hygienic, tidy, in good repair [and] that the child always appears to be clean and well presented, well nourished, always has clean clothing. The record reflects that the child has been provided adequate health care [and] that there is no need to have any type of parenting classes or stress counseling for either the grandfather or the step grandmother. The Court would reaffirm our finding that there is no evidence of misconduct or abuse by either the grandfather or the step grandmother. Again, reiterating that the indicated report was expunged, that there was no foundation by an Administrative Law Judge with regard to any abuse ... by the grandfather with regard to the minor child in question. Findings of Fact, N.T. at 264-266. The court then held that “the best interest and welfare of the child” would be served by granting full physical and legal custody to David Pursel (N.T. at 266). The court also directed that visitation with appellants would continue until Mr. Pursel filed a notice of intent to adopt G.C. Id.; see also Order, Feudale, J., 3/25/96. On April 22,1996, appellants filed the instant appeal claiming that they have standing and that the trial court abused its discretion in awarding physical and legal custody of G.C. to David Pursel. Initially, appellants allege that the issue of their standing to seek custody of G.C. “was not settled” by our Opinion of March 20, 1995 because “[o]n this issue, the en banc Court was evenly divided.” (Appellant’s brief at 13.) Appellants’ argument overlooks the well-settled principle that a divided vote by an appellate court operates to affirm the decision of the lower court. See e.g. Chester County Children and Youth Services v. Cunningham, 540 Pa. 258, 656 A.2d 1346 (1995) (where Supreme Court was equally divided, Order of Superior Court determining that foster parents lacked standing to seek adoption of their foster children absent consent of child welfare agency would be affirmed). In this regard, we note the following statement of the trial court at the initial hearing: I’ve been allowing the Schadels to maintain what I would perhaps characterize as temporary or unadjudicated standing — if I can use that word — in order to better develop the record_ The Court basically considers the foster parents in this proceeding more as a friend of the Court. However, as pointed out in the briefs, the issue I’ve been asked to consider is whether, in fact, they have true standing in the legal sense.... I do agree ... legally that the foster parents do not at this point in time have standing. (N.T., 9/13/94, pp. 31-34; emphasis added). Thus, the trial court clearly decided the issue of standing against appellants. The court merely allowed them to participate “as a friend of the Court” “for the purpose of [the initial] proceeding to better develop a record until the end of [the] hearing.” (N.T. at 33.) Any doubt as to the trial court’s resolution of the standing issue cannot withstand a review of the transcript of the remand hearing, during which the court stated: We would note for the record that this Court entered an Order on September 13, 1994, after hearing held, granting physical custody to the maternal grandfather, David Pursel, and denying the petition of the foster parents as to custody due to lack of standing. (N.T., 3/25/96, p. 4; emphasis added.) Marvin and Brenda Schadel ... have not been participating as a result of the ruling of the lower and appellate court that the foster parents do not have standing. (N.T. at 98; emphasis added.) Since our en banc Opinion affirmed the trial court decision that appellants lack standing to proceed in this action, and such is the law of the case, we have no option but to quash the instant appeal. See Tyro Industries, Inc. v. James A Wood, Inc., 418 Pa.Super. 296, 614 A.2d 279 (1992) (issue decided by appellate court on prior appeal between same parties becomes law of the case and will not be considered on subsequent appeal); see also Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988), alloc. denied, 524 Pa. 607, 569 A.2d 1367 (1989), alloc. denied, Corbett v. DeMoura, 524 Pa. 620, 571 A.2d 383 (1989), alloc. denied, Petition of DeMoura, 524 Pa. 620, 571 A.2d 383 (1989) (identical and duplicative appeals will be quashed). Further, if, for purposes of review of the remand procedure, we were inclined to consider this appeal as being filed pursuant to the provisional standing conferred by the trial court in the first instance, appellants still would not prevail. We have examined the record of the March 25,1996 hearing and find that the trial court complied in all respects with our remand Order. The extensive testimony presented, including that of David and Mary Ann Pursel, convinced the trial court that the best interests of G.C. were served by an award of physical and legal custody to David Pursel. Our own thorough review of this testimony, as well as the briefs of the Pursels, Northumberland County CYS and G.C.’s guardian ad litem, reveals unanimity of opinion that the Pursels have provided G.C. with a loving and nurturing environment. Thus, the evidence of record overwhelmingly supports the trial court’s conclusion, and we find no error. Based on the foregoing, we find that the Schadels lack standing to pursue this appeal. Since they are the only appellants of record, we must quash the appeal. Appeal quashed. ' Dissenting Statement by MONTEMURO, . Appellant also claims the trial court erred in refusing to allow their participation in the remand hearing. However, since the law of the case is that appellants lack standing, they had no right to participate in the remand hearing. Further, the record indicates that the court "was going to call the Schadels as a court witness, to offer what, if anything, they felt they might want to add to the record, to assist the court in making a determination in this matter_” (N.T., 3/25/96, pp. 98-99.) Unfortunately, appellants had left the remand hearing prior to the court’s offer.

MONTEMURO, Judge: This is an appeal by the Commonwealth from an order of the Berks County Court of Common Pleas granting a motion to suppress methamphetamine and drug paraphernalia found in a tow truck driven by Appellee, Michael Lechner. The suppression court found that the police lacked probable cause to conduct a warrantless search of Appellee and his truck, therefore, the search was illegal. We agree and, accordingly, affirm. On July 18, 1995, at approximately 7:30 p.m., Detective Andrea L. Kohut of the Berks County Narcotics Enforcement Team received a page from a unknown confidential informant. She called the informant who advised her that, in a few minutes, Michael Lechner would be leaving K.C. Auto Body on Route 422 in Exeter with a quantity of methamphetamine in his tow truck, described as a black, flatbed, rollback tow truck which displayed the words “K.C. Auto Body” on the door. Further, the informant indicated that Appellee would be delivering the methamphetamine to the informant’s location, a house in the 100 block of West 47th Street in Exeter. The informant’s location was a distance of approximately two (2) and one half (1/2) blocks away from K.C. Auto Body. This delivery was arranged pursuant to a conversation the informant had with Appellee immediately prior to contacting Detective Ko-hut. Based on the informant’s tip, Detective Kohut dispatched an Exeter Township police officer to K.C. Auto Body to follow Appellee, and she also arranged for a police car to be placed in the 100 block of West 47th Street with its hood up, feigning automotive failure. As predicted, Appellee promptly left K.C. Auto Body driving a black, flatbed, rollback tow truck, stopped briefly at Boscov’s department store, and then continued to the 100 block of West 47th Street. After approaching the 100 block of West 47th Street, Appel-lee stopped his truck to render aid to the police officer in distress. The officer asked Appellee to get out of the truck, patted him down for weapons, conducted a warrantless search of the truck, and placed Appellee under arrest. The search of the truck uncovered various packages of narcotics and drug paraphernalia. Appellee was subsequently charged in Berks County with possession, possession with intent to deliver methamphetamine, and possession of drug paraphernalia. Appellee filed an Omnibus Pre-Trial Motion in the nature of a Motion to Suppress the evidence obtained from the truck, and a hearing was held. On February 27,1996 the suppression court ordered the suppression of the evidence found in Appellee’s truck, concluding that the police lacked probable cause to search Appellee and his truck. This timely appeal followed. In reviewing an appeal by the Commonwealth from an order suppressing evidence, “we consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uneontradicted.” Commonwealth v. Evans, 443 Pa.Super. 351, 355, 661 A.2d 881, 883 (1995). We are bound by only those factual findings made by the suppression court which are supported by the record, and thereafter must determine whether the legal conclusions and inferences drawn from those facts are legitimate. Commonwealth v. Walker, 540 Pa. 80, 94, 656 A.2d 90, 97, cert. denied, — U.S. —, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995). As a result, we may reverse only if the legal conclusions drawn from the factual findings are erroneous. Commonwealth v. Rosario, 438 Pa.Super. 241, 263, 652 A.2d 354, 365 (1994). This Court has consistently recognized the well-established principle that the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures and, to that end, a search conducted without a warrant is generally presumed unreasonable unless it is undertaken pursuant to a recognized exception to the warrant requirement. Evans, 443 Pa.Super. at 357, 661 A.2d at 883-84. Our supreme court has recognized an exception to this general rule whereby police may search an automobile 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, 543 Pa. 45, 51-53, 669 A.2d 896, 900 (1995). In the present case, the suppression court found that the police lacked probable cause to search Appel-lee’s truck, therefore, the search conducted without a warrant was illegal. The level of probable cause necessary for warrantless searches of automobiles is the same as that required to obtain a search warrant. Commonwealth v. Talley, 430 Pa.Super. 351, 357, 634 A.2d 640, 643 (1993). The well-established standard for evaluating whether probable cause exists is the “totality of the circumstances” test. Evans, 443 Pa.Super. at 358, 661 A.2d at 884. This test allows for a flexible, common-sense approach to all circumstances presented. Commonwealth v. Jones, 542 Pa. 418, 425, 668 A.2d 114, 117 (1995). Probable cause typically exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994). The evidence required to establish probable cause for a warrantless search must be more than a mere suspicion or a good faith belief on the part of the police officer. Commonwealth v. Germann, 423 Pa.Super. 393, 399, 621 A.2d 589, 592 (1993). Under the totality of the circumstances test, a tip from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant’s credibility and the reliability of his or her information. Commonwealth v. Lemanski, 365 Pa.Super. 332, 353, 529 A.2d 1085, 1095 (1987); Commonwealth v. Carlisle, 348 Pa.Super. 96, 100, 501 A.2d 664, 666 (1985), aff'd., 517 Pa. 36, 534 A.2d 469 (1987). See In the Interest of J.H., 424 Pa.Super. 224, 228, 622 A.2d 351, 353 (1993)(stating that a court must assess informant’s veracity and basis of knowledge in determining whether police had probable cause to search based on tip). The credibility of an informant and the reliability of the information provided may be established through either the assertion that the informant has given reliable information in the past or through independent police corroboration of the tip. Jones, 542 Pa. at 425, 668 A.2d at 117. In the present case, although the Commonwealth concedes that the record does not contain any evidence as to prior information provided by the informant, it contends that the police had probable cause to search Appellee’s truck because they sufficiently corroborated the informant’s tip prior to the warrantless search. (Appellant’s Brief at 12). The suppression court disagreed, stating that the “[p]olice corroboration consisted merely of seeing the Defendant in the described vehicle in the designated block. His behavior was not suspicious_ Verification of a tip through the observation of a described individual engaged in innocent behavior in a specified location does not establish probable cause.” (Suppression Ct. Op. at 3). Although the police corroboration may have been enough to sustain a reasonable suspicion sufficient for an investigatory stop, we agree that it did not rise to the level of probable cause sufficient to justify a warrant-less automobile search. In granting the motion to suppress, the suppression court relies on our decision in In the Interest of J.H., 424 Pa.Super. 224, 622 A.2d 351 (1993). In that case, a woman called the police claiming that at a certain address, five minutes before she called, she saw a dark-complected black male, wearing a peach jacket and blue jeans, who might have been involved in a murder that occurred two days earlier. Id. at 226, 622 A.2d at 352. The officers went to the specified address and saw a black man matching the description walking towards them. Id. The police searched the suspect and uncovered forty-five vials of crack cocaine. Id. The trial court denied the defendant’s motion to suppress the cocaine and this Court reversed, concluding that the evidence did not support a finding of probable cause. Id. at 228-29, 622 A.2d at 353. In J.H., this Court found that there was no evidence supporting the basis of the informant’s knowledge; she did not claim to be an eyewitness to the murder or have information from individuals who were involved. Id. Further, this court found that the independent police corroboration linking the Appellant to the murder was lacking because “[a] mere description of an individual, with nothing more, does not establish probable cause. This information, Appellant’s clothing and location, does not support the reliability of the informant’s tip.” Id. at 229, 622 A.2d at 354. The Commonwealth argues that the tip in the present case was sufficiently corroborated; surveillance revealed that Appellee, Michael Lechner, was driving a black, flatbed, rollback tow truck with “KC. Auto Body” on the side, toward the location of the informant, within the time period predicted. Further, the Commonwealth argues that the informant’s basis of knowledge was sufficient: the informant spoke first-hand with Appellee regarding the transportation and destination of the methamphetamine. Although this Court acknowledges that in this case, the informant’s basis of knowledge is slightly greater than that exhibited in J.H., it still inadequately establishes the informant’s veracity and therefore independent police corroboration is required to demonstrate the reliability of the informant’s tip, thereby forming the basis of probable cause. See Jones, 542 Pa. at 425, 668 A.2d at 117 (1995)(stating that corroboration is unnecessary only when informant’s veraci ty has already been established through pri- or reliable tips). The question, therefore, is whether the police sufficiently corroborated the informant’s tip regarding Appellee’s actions in order to rise to the level of probable cause required for a warrantless search. This Court has stated that “ ‘an informer’s report which itself fails to establish probable cause may be sufficiently corroborated by independent observation of a suspect’s conduct, if the latter tends to confirm the information in the report or otherwise to support a conclusion that the suspect is engaged in committing a crime.’” Commonwealth v. Corleto, 328 Pa.Super. 522, 527, 477 A.2d 863, 865-66 (1984)(quoting United States v. Acarino, 408 F.2d 512, 515 (2d Cir.1969)). In Corleto, this Court found that independent police corroboration tended to confirm the informant’s report of drug sales when, after receiving a tip from a first-time informant indicating that he was present in the defendant’s apartment when drugs were sold, the police set up surveillance for two days and discovered a pattern of pedestrian activity consistent with drug trafficking. Id. at 524, 477 A.2d at 864. See also Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23 (1992)(informant’s tip that defendant was selling drugs corroborated by police officer’s first-hand observation); Commonwealth v. Wilkinson, 436 Pa.Super. 233, 647 A.2d 583 (1994)(informant’s tip not sufficiently corroborated where informant was neither a proven rehable informant nor witnessed Appellees in possession of drugs, and police did not observe or investigate any drug activity involving Appellees); Commonwealth v. Silverman, 373 Pa.Super. 274, 541 A.2d 9 (1988)(police officer corroborated informant’s tip by going to scene of crime and verifying informant’s story through observations); Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987)(unnamed informant’s tips of suspected marijuana not adequately corroborated by independent police work when police only drove by and saw “a plant” growing through roof of observations). In the instant ease, however, the record is devoid of any evidence tending to confirm the allegation that AppeUee, Michael Lechner, was involved in drug activities. Consistent with Pennsylvania precedent, we are unable to permit a finding of probable cause based on the mere verification of Appellee’s location and vehicle at a specific time. This is not to say, however, that such corroboration would not rise to the level of reasonable suspicion sufficient to permit an investigatory stop. Both the United States Supreme Court and this Court have found, in factually analogous situations, that although a tip from a confidential informant was not sufficiently reliable to establish probable cause, it was sufficiently corroborated by the police to justify a Terry stop. In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the police received a telephone call from an anonymous person stating that Vanessa White would be leaving Lynwood Terrace Apartments at a particular time, in a brown Plymouth station wagon with the taillight lens broken, and would be going to Dobe/s Motel with an ounce of cocaine inside a brown attache case. Id. at 327, 110 S.Ct. at 2414-15. The police proceeded to Lynwood Apartments, saw the described vehicle, observed a woman leave the building and enter the vehicle, and proceeded to follow the vehicle as it drove the most direct route to Dobey’s Motel. Id. The vehicle was stopped just short of the motel. Id. The police asked if they could look for cocaine, and ultimately found marijuana in a locked, brown, attache case and three grams of cocaine in the driver’s purse. Id. The Court reviewed the differences between the probable cause standard required for arrest and search warrants and the reasonable suspicion standard required for investigatory stops. Id. at 329, 110 S.Ct. at 2415-16. The Court stated that although the content and degree of reliability of the information are relevant considerations in evaluating both standards, reasonable suspicion is a less demanding standard and can arise from information that is less reliable than that required to establish probable cause. Id. at 330, 110 S.Ct. at 2416. Stating that this was a “close case,” the Court concluded that when the officers stopped the vehicle, the tip had been sufficiently corroborated through the verification of significant aspects of the caller’s predictions so as to furnish a reasonable suspicion that the driver was engaged in criminal activity, and therefore support an investigatory stop. Id. at 332, 110 S.Ct. at 2417. With guidance from White, this Court decided the factually analogous case of Commonwealth v. Ogborne, 410 Pa.Super. 164, 599 A.2d 656 (1981), alloc. denied, 530 Pa. 631, 606 A2d 901 (1992). In Ogbome, a confidential informant, who provided prior rehable tips, stated that based on personal knowledge, he knew that the defendant would arrive at his home in a few hours driving a new, black Dodge Daytona, and would have in his possession approximately ten (10) bundles of phencyclidine (“PCP”). Id. at 167, 599 A.2d at 657-58. The police officer confirmed the defendant’s address, established surveillance at the location, observed a new, black Dodge Daytona heading toward the residence, and recognized the driver as the defendant. Id. at 168, 599 A.2d at 658. The officer pulled into the driveway behind defendant’s vehicle, approached the vehicle, and asked the driver to turn the motor off. Id. After repeated requests, the driver refused to turn the motor off so the officer began to open the car door and, upon doing so, detected the odor of PCP within the vehicle. Id. A pat-down of the defendant uncovered 89 packets of PCP. Id. In accordance with the analysis in White, this court held that the detective’s investigation corroborated much of the informant’s predictions and therefore, under the totality of the circumstances, “exhibited sufficient in-dicia of reliability to justify the investigatory stop of Appellant.” Id. at 170, 599 A.2d at 659. Applying this law to the present case, it is clear that the officers had sufficiently corroborated the informant’s tip to establish a reasonable suspicion permitting an investigatory stop. What distinguishes this case from White and Ogbome, however, is that the police in the present case went far beyond an investigatory stop. In fact, the record indicates that when Appellee’s vehicle was stopped, the police asked him to get out of the vehicle, patted him down for weapons, and proceeded to search the truck. There is no evidence that the officers conducted an investigatory stop and search; they did not see anything in plain view, they did not ask him questions regarding alleged drug activity, nor did they ask him permission to search the truck for the suspected methamphetamine. Rather, presumably relying on the meager corroboration as sufficient probable cause, after stopping Appellee’s vehicle, the police proceeded to make a full search. Appellant has thus found itself in an unfortunate position; not enough corroboration to establish probable cause, and a search too intrusive to deem it investigatory. Finding no evidence of an investigatory stop and a level of police corroboration insufficient to establish probable cause, we are compelled to conclude that the warrantless search of Appellee’s tow truck was illegal. Order Affirmed. .The Commonwealth certified that the suppression order in the instant case substantially handicaps and terminates the case against Appellee by suppressing essential Commonwealth evidence. Therefore, this appeal is properly before this court. 42 Pa.C.S.A. § 5105(a); Commonwealth v. Dugger, 42 Pa.C.S.A. § 5105(a); 506 Pa. 537, 486 A.2d 382 (1985). . 35 Pa.C.S.A. § 780-113(a)(16). . 35 Pa.C.S.A. § 780-113(a)(30). . 35 Pa.C.S.A. § 780-113(a)(32). . "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST, amend. IV. . "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 the affiant." PA. CONST, art. I, § 8. . Under White, the Pennsylvania Supreme Court determined that Article I, § 8 of the Pennsylvania Constitution provides greater protection than the Fourth Amendment to the United States Consti-' tution with regard to warrantless searches of automobiles by requiring police to show probable cause and exigent circumstances before searching an automobile without a warrant. The Fourth Amendment does not require a showing of exigency over and above the mobility of the automobile. See Pennsylvania v. Labron, - U.S. -, -, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996)(stating that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.”); Commonwealth v. Yedinak, 450 Pa.Super. 352, 676 A.2d 1217, 1220 n. 5 (1996)(noting that the Pennsylvania Constitution provides greater protection regarding automobile searches); Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 636, 662 A.2d 1131, 1141 (1995), alloc. denied, 544 Pa. 605, 674 A.2d 1070 (1996) (recognizing that Pennsylvania Constitution affords its citizens a greater right to privacy than the Federal Constitution). . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

SMITH, Judge. John H. Broujos, Louise Broujos, Harold Kretzing, Jean Kretzing and Robert Lee Jacobs (collectively, Protestants) appeal from an order of the Court of Common Pleas of Cumberland County that dismissed Protestants’ appeal from a decision of the Carlisle Borough Council (Council) granting approval of a preliminary subdivision and land development plan on behalf of Windsor Building Corporation (Windsor). The legal and equitable owners of the subject property, Mary Lou Robbins and Norman Elam, t/d/b/a Windsor, are before the Court as Interve-nors. The issue presented is whether the Council, in approving the preliminary plan, abused its discretion and committed errors of law by failing to require compliance with the applicable provisions of the Borough’s Subdivision and Land Development Ordinance and Zoning Ordinance. On March 14,1995, Windsor filed an application with the Borough for approval of a preliminary plan to subdivide Intervenors’ 1.26-acre tract and to construct four duplexes with eight single-family, semi-detached dwellings. Each duplex is to have a separate garage and is intended to be sold for up to $140,000. Intervenors’ property fronts on Cemetery Avenue to the north and abuts a middle school to the south. Cemetery Avenue is essentially an alley and is unevenly paved. The subject site consists of an open area with some dilapidated structures that were used when it was a commercial flower business. The property is located in an R-2 medium-density residential district, in which single-family semi-detached dwellings are specifically permitted as of right. In its preliminary plan, Windsor requested a modification of requirements pursuant to Section 226-14(A) of the Borough’s Subdivision and Land Development Ordinance to allow a lesser right-of-way width for Cemetery Avenue and also to delete curbing and sidewalks on the north side of Cemetery Avenue. The preliminary plan was initially approved by the Borough’s Planning Commission. Following a public hearing, the Council approved the plan with the two requested modifications. Without taking any additional testimony, the trial court upheld the Council’s approval of the plan. Protestants, neighboring homeowners, appeal. Protestants first argue that Cemetery Avenue is an alley intended only to be used for access to the rear side of properties otherwise abutting a street; they aver that when they purchased their homes on East Ridge Street they assumed that they had the unimpeded use of the alley to service their properties. To support their position, Protestants note that Section 226-23(C) of the Subdivision and Land Development Ordinance requires a minimum 50-foot right-of-way, and they contend that a waiver of this requirement should have been the subject of a variance before the Borough’s Zoning Hearing Board. In Appeal of Fiori, 160 Pa.Cmwlth. 659, 635 A.2d 743 (1993), appeal denied sub nom. Fiori v. Bensalem Township, 538 Pa. 638, 647 A.2d 512 (1994), this Court reaffirmed the well-established rule that where a municipality has enacted a subdivision and land development ordinance, the “municipality’s governing body has exclusive jurisdiction to hear and render final adjudications in applications for approval of subdivisions or land developments.” Id., 160 Pa.Cmwlth. at 663, 635 A.2d at 745. In the present case, Section 226-3 of the Subdivision and Land Development Ordinance designates the Borough’s Council, not the Zoning Hearing Board, as the authority to review, make recommendations and approve or disapprove all preliminary and final subdivision plat applications. In view of Appeal of Fiori, the trial court correctly concluded that because the plan met all zoning requirements, the standards for granting variances to zoning regulations do not apply to granting modifications of requirements under the Subdivision and Land Development Ordinance. As noted by the trial court, a 34-foot right-of-way was reserved by the predecessor-in-title to the legal owner of the subject property when it was subdivided in 1971. Under the subdivision and land development ordinance in effect at that time, 34 feet was the existing requirement for a local street. Hence, there is evidence of record to indicate that Cemetery Avenue was intended to be a local street. In any event, regardless of the width of the right-of-way, the plan requires Windsor to pave the cartway of Cemetery Avenue to a width of 22 feet, which meets the current minimum pavement width requirements of Section 226-23(C)(l) of the Subdivision and Land Development Ordinance for a local street. Accordingly, this Court concludes that the Council did not err or abuse its discretion in modifying the right-of-way width requirements. Protestants contend that the Council erred in approving the plan because the proposed development does not provide for orderly expansion or for compatibility with existing houses as required by Section 255-21 of the Borough’s Zoning Ordinance, a general provision describing the intent of the R-2 District. Specifically, Protestants argue that the four duplex houses on Cemetery Avenue are not compatible with existing housing, which is predominantly single-family, and that in approving the duplexes the Council failed to consider the existing single-family character of the area as required by Section 255-2(B) of the Zoning Ordinance. As noted by the trial court, Section 255-22(B) of the Zoning Ordinance specifically provides that single-family, semi-detached dwellings are a use permitted by right in any R-2 District. “It is well settled that specific provisions in an ordinance control over general provisions.” Appeal of Farrell) 85 Pa.Cmwlth. 163, 481 A.2d 986, 989 (1984). Therefore, the specific provision in Section 255-22(B) must take precedence over any general “intent” requirements set forth in the Zoning Ordinance. Further, because single-family, semi-detached dwellings are permitted on the subject property as of right, they may not be considered incompatible with the general intent of the Zoning Ordinance. In any event, because of changes in the neighborhood, the area is no longer comprised exclusively of single-family dwellings. In addition, Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,1968, P.L. 805, as amended, added by Section 48 of the Act of December 21, 1988, 53 P.S. § 10603.1, provides: In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction. In 1995, when the plan was submitted, the area had been rezoned to R-2 for at least five years, and based upon the evolving nature of the area, this Court concludes that the Council did not err or abuse its discretion in approving the preliminary plan. Protestants next contend that the approved plan does not meet the intent and objectives as set forth in Section 255-2(C)(l) of the Zoning Ordinance in that it will not promote, protect and facilitate the public health, safety and general welfare of the area. Specifically, Protestants assert that the development will create dangerous conditions for elderly residents walking or children playing in the alley when it is turned into a street. The record indicates that these safety concerns were considered by the Council. The approved plan provides for a sidewalk and a curb on the south side of Cemetery Avenue in front of the proposed duplexes in order to accommodate pedestrian traffic. Further, the fire chief opined that the proposed use would generate less automobile traffic than the previous commercial use and that fire apparatus would have adequate access to the properties. In short, there is substantial evidence of record to indicate that there is no need for a sidewalk and a curb on the north side of the street. Moreover, the absence of a sidewalk and curbing on that side of the street will protect it from storm water runoff. Finally, Protestants contend that the Council (1) failed to make findings as to whether Cemetery Avenue is a designated street, (2) failed to list the ten conditions to which the developer agreed and (3) permitted hearsay testimony from the fire chief, who claimed that there would be no problem for trucks responding to that area. Pursuant to Section 508(2) of the MPC, 53 P.S. § 10508(2), when a preliminary subdivision plan is approved, the governing body need not make findings of fact or conclusions of law to support its decision. It is only where a plan is not approved that the decision denying approval must specify the plan’s defects and cite to specific provisions of the ordinance that were violated. Herr v. Lancaster County Planning Comm’n, 155 Pa. Cmwlth. 379, 625 A.2d 164 (1993), appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). In summary, it is well established that the approval of a subdivision plan may not be withheld where the plan complies with all applicable regulations. Akin v. South Middleton Township Zoning Hearing Board, 120 Pa.Cmwlth. 112, 547 A.2d 883 (1988). Also, a subdivision plan may not be required to meet standards that are not contained in the subdivision ordinance. Id. In the present case, the Council properly determined that Windsor’s preliminary plan met all requirements of the Borough’s Zoning Ordinance. Furthermore, the Council did not err or abuse its discretion in granting the modifications from the requirements of the Borough’s Subdivision and Land Development Ordinance for Cemetery Avenue’s right-of-way width and sidewalks and curbing. The order of the trial court is affirmed. ORDER AND NOW, this 14th day of November, 1996, the order of the Court of Common Pleas of Cumberland County is hereby affirmed. COLINS, President Judge, dissents. .This section provides that the Council: may grant a modification of the requirements of one (1) or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of this chapter are observed. . The right-of-way width for Cemetery Avenue is 34 feet, which is 16 feet less than the required 50 feet. In 1971, when the property was deeded from Intervenor Robbins' predecessor-in-title to Protestant Kretzing, a right-of-way of 34 feet was reserved, which was the requirement for a local street at that time. . As recommended by the Borough's engineer, the deletion of curbing and sidewalk requirements on the north side of Cemetery Avenue will allow rainwater to collect in a drain system without being restricted by a curb and sidewalk. Windsor must install a curb and sidewalk on the south side of Cemetery Avenue where the duplexes will be built. . In a land use appeal, where the trial court does not take any additional evidence, this Court’s scope of review is limited to determining whether the local governing body committed an error of law or an abuse of discretion. Herr v. Lancaster County Planning Comm’n, 155 Pa.Cmwlth. 379, 625 A.2d 164 (1993), appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). ‘‘[T]he governing body abuses its discretion when its findings of fact are not supported by substantial evidence.” Id., 155 Pa.Cmwlth. at 385, 625 A.2d at 167. . Section 226-9 of the Subdivision and Land Development Ordinance defines “CARTWAY or ROADWAY" as: “That portion of a street which is improved, designated or intended for vehicular use, including paved areas for any on-street parking.” . Protestants did not raise the question of Cemetery Avenue's designation as a street either before the Council or on appeal to the trial court. Accordingly, it is waived. Pa. R.A.P. 302(a). This Court’s review of the record indicates that the Council did list the ten conditions agreed to by Windsor, the developer. See Certified Record, Council’s July 5, 1995 Special Meeting Minutes; Consent to Subdivision/Land Development Plan Approval with Conditions. Fred Bean, the Borough Manager, testified that he asked the fire chief whether, given the width of the street, he could get a truck into this area and the fire chief felt comfortable that he could.

MIRARCHI, Jr., Senior Judge. Jeffrey Adams Ward petitions for review of an order of the Department of Community Affairs (DCA) granting the motion of the Borough of Kennett Square (Borough) and the Kennett Square Borough Council (Borough Council) to dismiss Ward’s complaint. On November 29, 1995, the Borough filed an application with DCA, pursuant to Section 411 of the Local Government Unit Debt Act (Debt Act), for approval of guaranteed revenue bonds in the amount of $4,525,000. The bonds were to be issued to finance the construction of a parking garage in the Borough. As part of the application, the Borough filed a debt statement listing, inter alia, the gross indebtedness of the Borough. Included in the category entitled “General Obligation Notes, Non-electorai” was a bond issuance of 1993 in the amount of $10,000,000. The 1993 issuance was listed with a representation that “there has been no increase or decrease in the amount on non-electoral debt originally excluded as self-liquidating debt by any change of circumstances other than decreases resulting from the payment of the DVRFA [Delaware Valley Regional Finance Authority] Debt referred to above.” Ward filed a complaint with DCA pursuant to Section 901 of the Debt Act, 53 P.S. § 6780-401, challenging the validity of the proposed bond issue. Ward alleged the following: (1) that there was improper notification of a public meeting on the bond issue; (2) that a meeting was held to discuss finane-ing of the parking garage in violation of the Sunshine Act; (3) that the parking garage will benefit private enterprise; (4) the copy of the debt statement obtained from Borough Council contains different figures than the debt statement obtained from the attorneys representing the underwriters of the bonds for the parking garage; (5) the debt statement represents that there was no change in circumstances while there was in fact a change; (6) taxpayers will ultimately be held responsible for the debt incurred in the event of a default; and (7) the construction of a parking garage is not provided for in the Borough’s comprehensive plan. The Borough and the Borough Council filed a motion to dismiss Ward’s complaint. A presiding officer was appointed and oral argument was heard on the motion to dismiss. The presiding officer issued a report in which he found that several allegations in the complaint were not within the jurisdiction of DCA. The remaining allegations in the complaint were reduced to three basic objections: (1) the project lacks a public purpose; (2) the project’s cost was underestimated by at least $800,000; and (3) the Borough’s certification as to the status of previous exclusions for self-liquidating debt was improper. The presiding officer found that even if a private company would gain by the construction of the parking garage, that fact alone would not serve to change the character of the garage as having a basic public purpose. The presiding officer found that the pleadings provided no indication that the Borough in any way acted outside of the discretion granted to it in proposing the project. In regard to Ward’s second argument that the project’s cost was underestimated, the presiding officer, cited this Court’s decision in Borough of Brentwood v. Department of Community Affairs, 657 A.2d 1025 (Pa.Cmwlth.1995), which held that uncertainty about specific details cannot be considered proof that the cost estimates were unrealistic and that such unrealistic estimates constituted fraud. In regard to the final argument, the presiding officer found that under Section 206(b) of the Debt Act, 53 P.S. § 6780-56(b), exclusions are protected during the period of a project’s construction and for a reasonable period thereafter. The presiding officer recommended that Ward’s complaint be dismissed and the bond issue of the Borough be approved. On January 3,1996, DCA granted the motion and dismissed Ward’s complaint. Ward now appeals to this Court. On appeal, Ward contends that (1) the incurrence of new debt triggers the duty of DCA to review its prior approval to exclude debt as self-liquidating even when the project financed through the self-liquidating debt is under construction and (2) the obvious private nature of the parking garage, the discrepancy in the costs of the parking garage and conflicting statements of Borough officials raises genuine issues of fact sufficient to preclude the Borough’s motion to dismiss. Section 901 of the Debt Act provides a means by which taxpayers and other interested parties may challenge the validity of the proceedings in which a local government unit incurs bonded debt. 53 P.S. § 6780-401. However, this challenge is very narrowly circumscribed, restricting inquiry into procedural and substantive matters arising from the proceedings of the local government unit taken pursuant to the Debt Act and involving only: (1) the regularity of the proceedings; (2) the validity of the bonds, and (3) the legality of the purpose for which the bonds are issued. Simonetti v. Department of Community Affairs, 651 A.2d 626 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 540 Pa. 652, 659 A.2d 990 (1995). In an appeal from a DCA action under the Debt Act, our scope of review is restricted to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Id. Ward’s first argument concerns the $10,-000,000 general obligation note issued by the Borough in 1993 to finance a spray irrigation project. The note was approved by DCA as self-liquidating. Ward contends that the scope of the project has changed substantially and that the original financial projections, that revenues would pay the debt service, are no longer valid. Ward further contends that if a portion of the sewer bonds was deemed not to be self-liquidating, then the added debt for construction of the parking garage would cause the Borough to exceed its debt limit of $7,735,043. Ward argues that DCA erred in interpreting Section 206(b) as precluding inquiry into a previously approved bond issue during the period of the project’s construction. Ward contends that the event which terminates the exclusion of the self-liquidating debt is the point at which new electoral, nonelectoral or lease rental debt is to be incurred. Section 206(b) of the Debt Act provides as follows: If the department shall approve the exclusion of the principal amount of bonds, notes or obligations or bonds or notes of an authority or another local government unit secured by an instrument evidencing lease rental debt stated in such report as being self-liquidating debt, as being in accordance with law, it shall endorse its approval upon a duplicate original of the proceedings and return the same to the local government unit. Upon receipt of such approval by such local government unit, such principal amount of bonds, notes or obligations shall be excluded from none-lectoral debt or net lease rental debt, as the case may be, during the period of construction and thereafter until new electoral, nonelectoral or lease rental debt is to be incurred, at which time, if such principal is to be excluded, a certification of no decrease, other than decreases resulting from the payment of bonds or notes, in the amount to be excluded shall be included in the debt statement to be filed pursuant to section 410 of this act. If there is a decrease, or if more of such debt is desired to be excluded as self-liquidating, a new certification shall be filed 53 P.S. § 6780-56(b) (emphasis added). A plain reading of Section 206(b) indicates that self-liquidating debt is excluded during the period of construction and for the period thereafter until new debt is to be incurred. Ward’s interpretation of Section 206(b), that the exclusion terminates when new debt is to be incurred, reads out of the statute the phrase “and thereafter.” It is well settled that the legislature is presumed not to have intended provisions in its laws as mere sur-plusage; courts must construe a statute, if possible so as to give effect to every word, sentence or provision thereof. Masland v. Bachman, 473 Pa. 280, 874 A.2d 517 (1977). Ward also argues that Section 410(b) contains no exception for debt incurred for projects still under construction. Section 410(b) provides: Where debt has previously been excluded as self-liquidating or subsidized debt, the debt statement shall be accompanied by a certification that no decrease in the amounts to be excluded is required by any change of circumstances, or if there has been a change, other than decreases resulting from the payments of bonds or notes, so that less debt is to be excluded or if it has become possible to exclude a greater amount of debt, and the local government unit desires to do so, the debt statement shall be accompanied by appropriate certificates supporting the revised amount to be excluded and a revised approval shall be obtained from the department. 53 P.S. § 6780-160(b). Section 410(b) requires only that the government unit file a certification that there has been no decrease in the amount of excluded debt, other than a decrease resulting from the payment of the bond or note. If the government unit desires to increase the amount of excluded debt, Section 410(b) requires that a revised approval be obtained from DCA. In the case before us, the Borough submitted a certification that there was no increase or decrease in the amount of self-liquidated debt to be excluded other than decreases resulting from the payment of the debt. Because the Borough was not seeking to increase the amount of debt to be excluded, therefore, it was not required by Section 410(b) to seek a revised approval from DCA. Ward next argues that DCA erred in dismissing his complaint where there were genuine issues of material fact. Ward contends that the affidavit submitted by the Borough, stating that the parking garage would be open to the public on a first come— first served basis, creates an issue of fact because the affiant’s credibility is at issue. Ward cites White v. Owens-Corning Fiberglas, Corp., 447 Pa. Superior Ct. 5, 668 A.2d 136 (1995) for the proposition that a witness’ credibility creates a genuine issue of material fact. A motion to dismiss resolves all well-pled facts and inferences in favor of the non-moving party and tests the legal sufficiency of the complaint. Property Owners, Residents, and/or Taxpayers of Pleasant Valley School District v. Pleasant Valley School District, 100 Pa.Cmwlth. 513, 515 A.2d 85 (1986). It places the burden of proof on the moving party to show that no issue exists upon which relief could be granted to the non-moving party. Id. The Borough attached to its motion to dismiss an affidavit from Douglas P. Margu-riet, the Borough Manager which averred that “the parking garage, as planned, will be a public parking facility, open to the public on a first come first served basis, and no portion of which will be set aside or reserved for the use of any private corporation or enterprise.” (Reproduced Record, p. 44a.) In response to the Borough’s motion, Ward submitted an affidavit signed by himself and two others, stating that “[o]n or about Monday, December 11, 1995, Douglas P. Margu-riet, Borough Manager, stated ‘Genesis would need seventy percent (70%) of the parking garage, leaving one hundred and five (105) spaces for the general public’.” (Reproduced Record, p. 57a.) In his report, the presiding officer viewed the affidavit submitted by Ward in the light most favorable to him. The presiding officer assumed that the parking garage would be heavily used by a private company and that private gain would result in the building of the garage. However, the presiding officer, relying on Campbell v. Bethlehem Parking Authority, 20 Pa.Cmwlth. 445, 342 A2d 114 (1975), concluded that these facts would not serve to change the character of the garage as having a basic public purpose. The presiding officer did not base his recommendation that the Borough’s motion be granted on Marguriet’s affidavit. Ward argues that the analysis in Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966), and not the analysis in Campbell, controls the disposition of this ease. In Price, the Supreme Court held that the primary and predominant purpose of a parking garage was private in nature. In that case, the parking authority was to acquire land from a developer, demolish an existing structure and construct a parking garage on the site. The developer was to be permitted to devote substantial portions of the ground and basement levels of the garage to its own purposes and to sublet other portions to private commercial enterprises. The developer was to lease and operate the garage and also construct a high-rise apartment building over the garage. The developer was also given an exclusive option to acquire the land and the garage. Further, through the construction of the parking garage, the developer would be able to meet the requirement of the Philadelphia Zoning Code that he provide approximately 500 parking spaces for the tenants in the proposed apartment building. In Campbell, the appellant sought to enjoin the construction of a parking garage on the ground that it was to be constructed for the predominant purpose of serving two private companies. On appeal, the appellant relied on the Supreme Court’s decision in Price. The Court distinguished Price on the basis that there was not the substantial degree of public involvement and investment in a private profit-making venture as was found in Price. The Court held that the parking garage was predominantly and primarily a public use and that any private gain by the private companies was merely incidental. We believe that Price is distinguishable on the facts. In the ease before us, there is no allegation in Ward’s complaint that the private company would operate the parking garage, or that a certain portion of the parking garage would be reserved for use of the company, or that the company would be assisted in complying with any Borough ordinance through the construction of the parking garage. Thus, there is no public involvement and investment in a private profit-making venture of the type that was found in Price. As in Campbell, the gain to the private company is merely incidental. We conclude that DCA did not err in dismissing Ward’s complaint. Accordingly, the order of DCA is affirmed. LEADBETTER, J., concurs in the result only. ORDER AND NOW, this 21st day of November, 1996, the order of the Department of Community Affairs in the above-captioned matter is hereby affirmed. . Act of July 12, 1972, P.L. 781, as amended, 53 P.S.§§ 6780-161. . Section 410(a) of the Debt Act, 53 P.S. § 6780-160, requires that the local governmental unit prepare a debt statement as of a date not more than 60 days before the filing. The debt statement must list the gross indebtedness of the local government unit, the claimed credits and exclusions from gross indebtedness aggregate principal amount of the bonds being issued, the borrowing base of the local government unit and the applicable nonelectoral debt limit and the limit for nonelectoral plus lease rent debt. . The parties do not dispute that the spray irriga-tíon project is still under construction. . In the statement of questions presented, Ward alleged that there was a discrepancy in the costs of the parking garage and that Borough officials made conflicting statements about the garage. Because Ward did not develop these arguments in his brief, we consider these arguments waived. See Mason & Dixon Lines, Inc. v. Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370 (1994).

FLAHERTY, Judge. In this consolidated appeal, Roscoe and Rosalyn Smith (Smith), Barry and Diane Schoenly (Schoenly), and John and Nancy DeSisti (DeSisti), eoüectively Appeñants, appeal from an order of the Court of Common Pleas of Bradford County which determined that Ordinance No. 69, adopted by the Athens Township Supervisors (Supervisors) on August 10,1989, which purported to establish a tap-in fee for the municipal sewer system at a cost of $600 for “each property upon which a residence shah be located,” and $1600 for each commercial property, was invalid and that the resolution of the Athens Township Authority (Authority) dated July 26, 1989, which established a tap-in fee of $600 for “each residence,” controlled over the minutes of the July 26,1989, Authority meeting and correctly set forth the cost of sewer connection fees. The issues in this case are: (1) whether the trial court erred in denying Appellants’ motion to amend their complaint to include constitutional issues after the close of testimony, (2) whether Ordinance No. 69 passed by the Supervisors, or the resolution adopted by the Authority governs tap-in fees, (3) whether a trailer park and an apartment building constitute commercial properties rather than residences, and (4) whether the tap-in fees are reasonable and uniform. The Schoenlys and the DeSistis each own and operate separate tráiler parks on Elmira Street in Athens Township. The Smiths own and operate an apartment complex on the same street. In 1989, a municipal sewer was installed on Elmira Street. The DeSistis and Schoenlys excavated and constructed sewer lines within their trader parks in order to service each of the trader lots and expended $47,000 and $72,600 respectively. On September 16, 1989, the Schoenlys and DeSistis submitted applications to the Authority for tap-in permits and each tendered $600. The Authority denied the applications, informing the DeSis-tis that, to tap into the sewer line, they were required to pay $22,000, and informing the Schoenlys that they were required to pay $31,200 to tap into the sewer line. These fees represented a $600 tap-in charge for each of the units within the DeSisti’s and Schoenly’s trader parks. On October 11, 1990, the Schoenlys and DeSistis filed a suit against the Authority seeking to compel them to accept $600 or $1,600 as fidl payment for the tap-in fee. On October 16, 1990, the Authority filed an action against the Smiths seeking to require them to connect to the municipal sewage system and demanding a total of $23,400, which represented a tap-in fee of $600 for each of the apartments within their complex. One week later, on October 23, 1990, the Authority enacted a resolution ratifying and confirming the resolution dated July 26,1989, reciting that questions had been raised because it was not signed nor physically attached to the minute book, and it was allegedly ambiguous. (R.R. at 236a-237a.) The Smiths filed suit against the Authority on January 31,1991. The Sehoenly, DeSisti and Smith proceedings were then consolidated for trial, which commenced on November 23, 1991. (R.R. at 2a.) At the hearing, Appellants argued that Ordinance No. 69 enacted August 10, 1989, by the Supervisors established the tap-in fees because it was in effect at the time they applied for their tap-in permits. Ordinance No. 69 provides, in relevant part, that “each property upon which a residence shall be located” shall pay a tap-in fee of $600. Additionally, “each property on which a commercial or industrial facility shall be located” shall pay a tap-in fee of $1,600. In accordance with Ordinance No. 69, Appellants argued that they are required to pay only $600 to tap their properties into the sewer system. In the alternative, Appellants argued that, at most, they are required to pay $1,600 if their properties are deemed a commercial or industrial facility. The Authority argued, and the trial court agreed, that Ordinance No. 69 is not valid and does not control tap-in fees. The Su pervisors who enacted Ordinance No. 69 purporting to establish these fees did not have the authority to do so. The court determined that, in accordance with the Act, the Authority has the exclusive power to regulate sewer rates and tap-in fees. As such, the trial court held that the Authority’s resolution of July 26, 1989, which was ultimately ratified on October 23, 1990, properly established the tap-in fees. In accordance with that resolution, a tap-in fee of $600 is required for “each residence”. Commercial or industrial properties are required to pay a tap-in fee of $1,600. Moreover, the court determined that the October 23,1990 resolution, which also defined residence to include mobilehomes, was not an ex post facto law but merely ratified the previous resolution of July 26, 1989. In addition, if the resolution of July 26, 1989 was not properly enacted, the trial court determined that the resolution of October 23, 1990, was applicable to Appellants retrospectively. Accordingly, the trial court determined that Appellants were required to pay a $600 tap-in fee for each residence on their property. The trial court also denied Appellants’ motion to amend their complaint at the conclusion of trial to include constitutional issues. Appellant filed post-trial motions which were denied by the court. This appeal followed. The burden is upon the challenging party to prove that the Authority abused its discretion by establishing a rate system which was either unreasonable or lacking in uniformity. The court must consider whether the factual findings are supported by substantial evidence and whether the law was properly applied to the facts. West v. Hampton Township Sanitary Authority, 661 A.2d 459 (Pa.Cmwlth.1995). Initially, Appellants Schoenly and De-Sisti contend that the trial court erred by refusing to grant their motion to amend their complaint for the third time because the testimony had been concluded, the opposing party would be prejudiced and there was not a reasonable possibility that the proposed amendment would be successful. After the close of testimony, Schoenly and DeSisti sought to include a claim that the imposition of the fees is an unconstitutional taking of private property without just compensation. Pa. R.C.P. No. 1033 provides: “A party, either by filed consent of the adverse party or by leave of court, may at any time ... amend his pleading.” Because Appellants did not have the consent of the Authority, they sought leave to amend from the trial court. This court held in Simmons v. Township of Moon, 144 Pa.Cmwlth. 198, 601 A.2d 425 (1991), that “leave to amend a complaint is within the sound discretion of the trial court.” Moreover, “where amendment is sought after the testimony has been concluded, prejudice will always result to the extent that the opposing party has not contemplated the subject matter of the proposed amendment in the preparation and trial of the case.” Newcomer v. Civil Service Commission, 100 Pa.Cmwlth. 559, 515 A.2d 108, 111 (1986), petition for allowance of appeal denied, 514 Pa. 626, 522 A.2d 51 (1987). We conclude that the trial court did not abuse its discretion in denying the motion to amend the complaint for the third time after the close of testimony to raise constitutional issues. Next, Appellants allege that Ordinance No. 69, which was enacted by the Supervisors on August 10,1989, and purported to establish a $600 tap-in fee for “each property,” is applicable to them because it was in effect at the time they tendered their application and tap-in fees. We disagree. In accordance with Sections 4(B)(h) and (t) of the Act, 53 P.S. §§ 306(B)(h) and (t), the Authority is vested with the power to set all rates and charges, including tap-in fees nec essary for sewer systems. That section provides in pertinent part: (B) Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: (h) To fkc, alter, charge and collect rates and other charges in the area served by its facilities at reasonable and uniform rates to be determined exclusively by it, for the purpose of providing for the payment of the expenses of the Authority, the construction, improvement, repair, maintenance and operation of its facilities and properties, and ... the payment of principal and interest on its obligations.... (t) To charge a tapping fee whenever the owner of any property connects such property with a sewer system or water main constructed by the Authority.... In accordance with the above statute, the Authority has “áll powers” to establish fees, including tap-in fees, and those fees are “to be determined exclusively by it [Authority].” “[T]he powers of municipal authorities include that of making and collecting rates ... for the construction and maintenance of their facilities.” Duryea Borough Sewer Authority v. McLaughlin, 74 Pa.Cmwlth. 517, 460 A.2d 402, 404 (1983.) According to the Act, the Authority sets the rates and fees in connection with its sewage system. Moreover, an authority which has been incorporated under the Act becomes an independent agency not subject to the control of the incorporating township. Bristol Township v. Lower Bucks County, 130 Pa. Cmwlth. 240, 567 A.2d 1110 (1989). As such, once Township created the Authority and appointed its members, Township no longer retained any control over Authority’s operation of its sewer system, Id., even though it retains power of appointment of its members when vacancies occur. Section 7 of the Act, 53 P.S. § 309. Inasmuch as the exclusive power to set charges rests with the Authority, the Supervisors did not have any authority to establish tap-in fees, so the Authority’s resolution governs. We note that, although Appellants contend that the Supervisors have concurrent authority to regulate and charge sewer tap-in fees in accordance with The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-67201, Appellants have not cited to any specific section in the Code, nor have we found a section, which purports to establish such power by a township after an authority has become incorporated under the Act. Next, we will examine the Authority’s resolution. The formal written resolution, which has the date of July 13, 1989, struck out and replaced with the date July 26,1989, states: WHEREAS, the Authority made the determination to assess the following charges: A tap-in fee of Six Hundred ($600.00) Dollars will be assessed for each residence The minutes of the July 26, 1989, meeting of the Authority, prepared by the Authority’s secretary, Mr. Bok (the secretary), provide in pertinent part: The following motion was unanimously approved: *A tap-in fee of $600.00 will be charged for residents .... Thereafter, the minutes of the July 26, 1989, meeting were “read, corrected and approved” at a subsequent meeting of the Authority on August 3, 1989. (R.R. at 179a.) However, there is nothing in the record indicating what corrections were made. (Id.) The secretary testified with regard to the minutes of July 26th: At the following meeting on August 3rd, they were ... it said, read corrected and approved, but I can’t specify what the corrections were. I guess, not being a profes sional secretary, I don’t know whether I, in fact, went back and made the corrections, but basically its a simple error. It was residents, instead of residence, with a C E, and had it been with a T S, we would have meant for every individual in the Township and it’s obvious that that’s a mistake. (R.R. at 179a.) Then, on October 23, 1990, another resolution was passed. The October 23 resolution provided that “on July 26, 1989, [Authority] approved a Resolution generally fixing a tap in fee of $600.00 for residential property and certain commercial property and fixing a tap fee of $1,600.00 on any commercial proper-ty_” (R.R. at 236a.) It further stated that the “resolution was not placed in the Minute Book and the Minute Book was allegedly ambiguous and mis-spelled a word ...” (Id.) As such, the Authority, in its October 23 resolution, ratified and confirmed the July 26.1989, resolution. In addition, the October 23.1990, resolution provided: Authority formally states by resolution that the tap in fees per residence shall include all mobile homes, modular units, apartment units or any other individual residential units hooked in any way to the sewer line shall be subject to an individual tap fee of $600.00_ (R.R. at 237a.) Although Appellants argued that the Authority’s resolution of October 23, 1990, was an ex post facto law, the trial court determined that it merely ratified the resolution of July 26, 1989, or was a retrospective law. Retrospective laws are reasonable when they do not impair contract rights or vested rights. Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960). Because the establishment of tap-in fees was not a valid exercise of the Supervisors’ authority and was thus invalid, Appellants acquired no vested rights based on the language in Ordinance No. 69 purporting to establish those fees. As to the July 26 resolution, Appellant’s claim that it was “invalid at the time that the Appellants applied for their permits and tendered the fees_” (Appellant’s brief at 20). If, as they claim, the resolution was invalid, then there was no authority for either the Authority or the Township to enter into a contract with Appellants and, therefore, they acquired neither contractual nor vested rights. Next, Appellants contend that, under either Ordinance No. 69 or the Authority’s resolution, they are only required to pay $1600 for a tap-in fee. Appellants contend that as an apartment complex and mobile-home park, they are commercial properties rather than residences. The term residence is defined in the October 23,1990, resolution, which we hold is valid, to include all mobile-homes, modular units, apartment units, or any other individual residential units hooked up in any way to the sewer line. In accordance with the above, Appellants’ properties are residences. Finally, Appellants contend that the tap-in fee is not reasonable or uniform. In accordance with Section 4(B)(h) of the Act, “any person questioning the reasonableness or uniformity of any rate fixed by any Authority ... may bring suit against the Authority.” However, the reasonableness of any classification is a matter for administrative discretion. Patton-Ferguson Joint Authority v. Hawbaker, 14 Pa.Cmwlth. 402, 322 A2d 783 (1974). Appellants contend that the rate is not uniform because all other persons beside themselves who are required to tap into the municipal septic system will pay either $600 or $1600. However, other owners of apartments, mobilehome parks, condominiums and townhouses will also be subject to tap-in fees of $600 per unit. As such, the rate is uniform in that each residence is subject to the $600 tap-in fee. Moreover, even though the tap-in fee is not based on the actual cost of connection, this does not mean that the fee is arbitrary. There is nothing in the Act which prevents the Authority from imposing a tap-in fee as a means of financing construction of the entire sewer system. Curson v. West Conshohocken Municipal Authority, 148 Pa. Cmwlth. 386, 611 A.2d 775, 777 (1992). This court has held that such a fee is an appropriate method for securing financing for the project. Id. In this ease, we hold that the trial court did not abuse its discretion in refusing to permit Appellants to amend their complaint after the close of testimony. Moreover, in accordance with Authority’s resolution, Appellants are required to pay tap-in fees amounting to $600 for every residence, i.e. mobilehome or apartment, contained on their property, which the trial court found to be reasonable and uniform. Accordingly, the decision of the trial court is affirmed. ORDER NOW, November 27,1996, the order of the Court of Common Pleas of Bradford County dated March 30, 1995 at No. 91 CV 000062 and No. 90 MD 000506 is affirmed. . It is not disputed that the Athens Township Authority was created by Athens Township Supervisors in 1987 (R.R. at 261a.), and was organized under the Municipality Authorities Act of 1945(Act), Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§ 301-322. .Although the trial court in its opinion refers to the July 13, 1989 resolution, it appears that the court was referring to the July 26, 1989, resolution as no meeting occurred on the thirteenth, nor was a resolution approved on that date. The parties stipulated that although the resolution bore the date of July, 13, 1989, that date was subsequently crossed out and replaced with (July "26.”) The change was made by Attorney Koc-sis, counsel for the Authority. (R.R. at 213a.) Appellants acknowledge that July 26 is the correct date of the resolution (Appellant’s brief at 19), but contend that the resolution was not properly enacted. . Only the Schoenlys and the DeSistis applied for tap-in permits on September 16, 1989. However, Appellants maintain that Ordinance No. 69 was in effect on October 16, 1990, when the Authority filed a civil action against the Smiths requiring them to connect to the sewage system. . We also note that the trial court in its opinion stated that "Ordinance 69 was deemed invalid by this court in an order dated March 6, 1991.” (Trial court opinion dated March 30, 1995, at 5.) However, the March 6, 1991 order contained in the original record does not contain any such language. In that order, the court struck "Count I of the second amended complaint and dismissed] Athens Township as a party." For purposes of this appeal, with respect to Ordinance 69, this court is only concerned with that portion which purports to establish tap-in fees. . On July 26, 1995, the trial court clarified its opinion of March 30, 1995 by correcting certain dates contained therein. . Section 4(B)(t) of the Act was substantially amended by Section 1 of the Act of December 19, 1990, P.L. 1227. The amendment was enacted after the cause of action arose in this case, as such it has no effect on its outcome. . The trial court determined that the formal written resolution controlled over the minutes of the July 26, 1989, meeting.

NARICK, Senior Judge. Wayne S. Ponce (Ponce) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that dismissed his appeal from a one-year suspension of his operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) for his failure to submit to chemical testing pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (Implied Consent Law). We affirm. The facts of this case, as found by the trial court, are as follows: On 1 October 1994, Officer Patrick Retort of the East Deer Township Police Department was called to the scene of a single vehicle accident where he discovered the operator of the vehicle, [Ponce]. [Ponce] exhibited a staggered gait, glassy eyes, and slurred speech and an alcoholic odor emanated from his person (H.T.2-3.)[ ] Field sobriety tests were performed and, in the opinion of the officer failed by [Ponce] (H.T.4.) En scene, Officer Retort advised [Ponce] of the implied consent law and requested chemical testing. [Ponce] verbally refused this request (H.T.6.) As a result, [DOT] suspended his motor vehicle operator’s privileges for a one-year period by notice dated 21 October 1994, effective 25 November 1994. At trial testimony concerning the accident was elicited from [Ponce] and Officer Retort. Both testified to the seriousness of the accident and the severity of the injuries sustained by [Ponce]. While medical personnel were summoned to the scene, [Ponce] rejected their assistance and did not, in point of fact, seek medical treatment until the following day (H.T.20). Our examination of the record including all admissible medical evidence demonstrated that while [Ponce] was injured there was no nexus between those injuries and his ability to comprehend the recital of the implied consent law and the request for testing. The officer’s credible testimony showed that the arrest itself was well-founded upon typical indicia of intoxication and we believe that [Ponce] made a knowing and conscious refusal of the request. Trial Court Opinion, pp. 1-2. Based on these findings, the trial court dismissed Ponce’s appeal of the one-year suspension of his operating privileges. On appeal to this court, Ponce claims: (1) the trial court erred in dismissing his appeal because the suspension violates the Double Jeopardy Clause of the United States Constitution; and (2) the trial court erred in holding that Ponce made a knowing and conscious refusal to Officer Retort’s request that he submit to chemical testing. At the hearing de novo before the trial court, Ponce argued that the imposition of the suspension violated the Double Jeopardy Clause of the United States Constitution as he had previously been tried for, and acquit ted of, the offense of driving while under the influence of alcohol, 75 Pa.C.S. § 8731, which arose out of the same incident underlying his license suspension. Here, Ponce again claims that the one-year suspension of his operating privileges is precluded by the Double Jeopardy Clause of the United States Constitution as it constitutes a second attempt by the Commonwealth to punish him for the offense of driving while under the influence of alcohol. However, the Double Jeopardy Clause does not preclude the imposition of a civil penalty for conduct for which a criminal conviction has already been obtained. Sweeny v. State Board of Funeral Directors, 666 A.2d 1137 (Pa.Cmwlth.1995). In addition, as a general rule, the Double Jeopardy Clause does not apply to civil proceedings, such as those before administrative agencies, which result in civil penalties. Id. Here, Ponce’s driving privileges were suspended pursuant to the Implied Consent Law which provides, in pertinent part: § 1547. Chemical testing to determine amount of alcohol or controlled substance (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. As it has been previously noted, the mandatory suspension of a licensee’s operating privileges following a conviction for driving under the influence of alcohol is a remedial sanction that is civil in nature. Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993); Zanotto v. Department of Transportation, 83 Pa.Cmwlth. 69, 475 A.2d 1375 (1984). The suspension of a licensee’s operating privileges under these circumstances serves not so much as punishment, but rather serves the remedial goal of protecting the public against the licensee’s unsafe driving habits. Wolf Because the suspension following a conviction for driving under the influence of alcohol serves this remedial goal, it does not constitute punishment for purposes of a double jeopardy analysis. Ponce also argues that his physical injuries prevented him from making a knowing conscious refusal to submit to chemical testing. Where a licensee has filed a statutory appeal from a one-year suspension imposed by DOT in compliance with the mandate set forth in 75 Pa.C.S. § 1547(b)(1), as a consequence of a reported chemical test refusal, DOT bears the initial burden of proof that at the statutory appeal hearing. In order to satisfy that burden and establish a prima facie case, DOT must present evidence showing that: (1) the licensee was arrested for a violation of 75 Pa.C.S. § 3731; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned of the consequences of. refusing the chemical test, i.e., the suspension of the licensee’s operating privilege. Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). Once DOT has made out its prima facie case, as it did here, the burden then shifts to the licensee to establish that refusal was not knowing and conscious or that the licensee was physically incapable of successfully performing the requested chemical test. Id. The specific issue of whether a licensee’s refusal of a chemical test was knowing and conscious is one of fact for determination by the trial court and must be supported by substantial evidence. Department of Transportation, Bureau of Driver Licensing v. Grass, 141 Pa.Cmwlth. 455, 595 A.2d 789 (1991). Here, Officer Retort testified that he did not notice that Ponce was injured other than a possible scrape on his arm. While Officer Retort summoned an ambulance to the accident scene, Ponce refused treatment and was not seen until the following day at Allegheny Valley Hospital. The hospital records indicated that Ponce experienced no loss of consciousness at the time of the accident as he “felt fine.” (72a.) Three days later Ponce saw Dr. Choudhry for injuries that required the wearing of a neck collar. Although Ponce argues that he had suffered a “broken neck,” Dr. Choudhry stated that there was only a fracture of the spinus process of the fifth cervical vertebrae, C-5, requiring no treatment except the neck collar. Dr. Choudhry never testified that, in his opinion, Ponce was incapable of making a knowing and conscious refusal because he could not render such opinion because he did not see Ponce until days later. Because Ponce had the burden of proof after DOT made out its prima facie case, the trial court’s finding that Ponce made a knowing and conscious refusal based on Officer Retort’s testimony is supported by substantial evidence. Therefore, we hold that the trial court did not err in dismissing Ponce’s appeal from the revocation of his operating privileges. Accordingly, we affirm. ORDER NOW, this 12th day of November, 1996, the order of the Court of Common Pleas of Allegheny County, is hereby affirmed. . "H.T.” refers to the notes of testimony from licensee's appeal de novo of DOT’S license suspension conducted before the trial court on October 25, 1995. . In an appeal arising from the suspension of a licensee’s operating privileges, our scope of review is limited to determining whether the trial court’s findings are supported by substantial evidence or whether the trial court erred as a matter of law or manifestly abused its discretion. Department of Transportation, Bureau of Driver Licensing v. Garlan, 121 Pa.Cmwlth. 400, 550 A.2d 873 (1988), petition for allowance of appeal denied, 522 Pa. 614, 563 A.2d 499 (1989). . For purposes of argument of the Double Jeopardy claim, the Commonwealth stipulated that Ponce had been found not guilty of driving while under the influence at criminal proceedings which preceded the civil hearing. . The Double Jeopardy Clause of the United States Constitution provides, in pertinent part, ”[n]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.. Const. Amend. V.

DOYLE, Judge. Before the Court in an equity action in our original jurisdiction are cross-motions for summary judgment filed by the petitioner, Pennsylvania Association of Milk Dealers, and Giant Eagle, Inc., the intervenor and real party in interest. The parties have stipulated to the following relevant facts: 1. Petitioner', Pennsylvania Association of Milk Dealers (PAMD), represents the interests of Pennsylvania milk dealers and is a corporation duly organized under the laws of the Commonwealth of Pennsylvania. ... 2. Respondent, the Pennsylvania Milk Marketing Board (the Board), is an agency of the Commonwealth of Pennsylvania. Its offices are located at 2301 North Cameron Street, Harrisburg, Pennsylvania.... 3. Intervenor, Giant Eagle, Inc. (Giant Eagle), owns and operates a chain of retail grocery stores and supplies independently owned and operated grocery stores located in Western Pennsylvania, Ohio and West Virginia and is a corporation duly organized under the laws of the Commonwealth of Pennsylvania. Its registered office is located [in] Pittsburgh, Pennsylvania.... 4. Giant Eagle sells milk and milk products to retail consumers through its grocery stores, and sells milk and milk products at wholesale to independently owned and operated stores. 5. Giant Eagle does not purchase, receive or handle milk for the purpose of Giant Eagle’s processing or manufacturing the milk; as a licensed milk dealer Giant Eagle purchases raw milk which is processed by a separate dairy prior to wholesale and retad sale. 6. Giant Eagle does not possess equipment or facilities which would enable it to process or manufacture milk, and does not presently intend to acquire such equipment or facilities or to process or manufacture milk. (Stipulation of Facts at 1-6.) In July of 1991, Giant Eagle submitted to the Milk Marketing Board an application for a milk dealer’s license, which the Board denied on August 20, 1992. On September 18, 1992, Giant Eagle filed with this Court a petition for review of the Board’s decision. In an opinion and order dated July 30, 1993, we reversed the Board’s decision and remanded the matter to the Board with instructions to grant a milk dealer’s license to Giant Eagle. On August 5, 1993, the Board filed an application for reconsideration and reargument of this Court’s decision, which was denied on September 10,1993. On September 27, 1993, the Board filed a petition for allowance of appeal in the Supreme Court of Pennsylvania, which the Court denied on November 3, 1994. On December 22, 1994, the Board filed with this Court a “Request for Guidance,” which was denied on January 25, 1995. Finally, pursuant to the order of this Court, the Board issued a milk dealer’s license to Giant Eagle on March 9, 1995, and renewed the license for a term of one year commencing on July 1,1995. Although Giant Eagle had been given a subdealer’s license on June 30, 1986, at no time prior to March 9, 1995, did Giant Eagle possess a milk dealer’s license. On February 7, 1995, PAMD initiated the instant action by filing a petition for review, in the nature of a complaint in equity, as well as a motion for a preliminary injunction against the Board, seeking to enjoin the Board from carrying out this Court’s order to issue a milk dealer’s license to Giant Eagle. A hearing on PAMD’s motion for a preliminary injunction was scheduled for March 1,1995. On February 23,1995, Giant Eagle applied for leave to intervene on the ground that it is an indispensable party to this litigation. On February 27,1995, PAMD withdrew its motion for a preliminary injunction, intending to*allow its petition for review to proceed through the normal procedures of this Court. On March 1, 1995, we granted Giant Eagle’s application for leave to intervene. Presently before this Court are the cross-motions for summary judgment, filed by PAMD on June 25,1996, and by Giant Eagle on June 28, 1996. To succeed on a motion for summary judgment, the prevailing party must demonstrate that it is entitled to judgment as a matter of law and that there is no genuine issue as to any material fact. Pa. R.C.P. No. 1035(b). For the reasons set forth below, we hold that Giant Eagle is entitled to summary judgment in its favor. Accordingly, we grant its motion for summary judgment and deny the motion filed by PAMD. The principal argument underlying PAMD’s motion for summary judgment and its case against the Board is that, pursuant to the definition of “milk dealer” in Section 103 of the Milk Marketing Law, an applicant for a milk dealer’s license must actually produce or manufacture milk. Thus, it argues that, because Giant Eagle does not itself process or manufacture milk, the Board should not have granted Giant Eagle a milk dealer’s license. The short answer to PAMD’s argument, of course, is that the Board was ordered to do so by this Court, and therefore a contrary conclusion is somewhat disingenuous. Moreover, regarding PAMD’s contention that an applicant for a milk dealer’s license must process or manufacture milk itself in order to qualify for that license, we reject such an argument and reference the prior litigation between the parties, which was concluded by our prior order in Giant Eagle, Inc. v. Commonwealth, Milk Marketing Board, 157 Pa.Cmwlth. 419, 630 A.2d 478 (1993), petition for allowance of appeal denied, 539 Pa. 656, 651 A.2d 543 (1994). The focal point of this issue, as well as this entire case, is the definition of “milk dealer” as defined under the Section 103 of the Milk Marketing Law, 31 P.S. § 700j-103. The Milk Marketing Law was first enacted in 1937 and was subsequently amended and reenacted in 1968. At that time, the definition of “ ‘milk dealer’ or ‘handler,’ ” provided, in relevant part, as follows: ‘Milk dealer’ or ‘handler’ means any person, including any store or subdealer or subhandler, as hereinafter defined, who purchases or receives or handles on consignment or otherwise milk within the Commonwealth, for sale, shipment, storage, processing or manufacture, within or without the Commonwealth, whether on behalf of himself or others, or both.... In 1984, the General Assembly amended certain sections of the Milk Marketing Law, one of which was the section defining “ ‘milk dealer’ or ‘handler.’ ”[ ] The definition of “milk dealer” currently reads, in pertinent part, as follows: ‘Milk dealer’ or ‘handler’ means any person, who purchases or receives or handles on consignment or otherwise milk within the Commonwealth, for processing or manufacturing and further sale, within or without the Commonwealth, whether on behalf of himself or others, or both. 31 P.S. § 700j-103. In this regard, this case raises the question of whether an applicant for a milk dealer’s license must actually process or manufacture milk in order to qualify as a licensed “milk dealer” as that term is defined under the Milk Marketing Law. First, in construing the meaning of statutes of this Commonwealth, we are compelled to observe the rules of statutory interpretation set forth in the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991, unless doing so would result in a construction inconsistent with the manifest intent of the General Assembly. In this regard, pursuant to Section 1921 of the Statutory Construction Act, When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Additionally, Section 1903 of the Statutory Construction Act provides as follows: § 1903. Words and Phrases (a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage.... (b) General words shall be construed to take their meaning and be restricted by preceding particular words. 1 Pa.C.S. § 1903. Thus, in our analysis of Section 103 of the Milk Marketing Law and the definition of “milk dealer” contained therein, we may find guidance in the rules of grammar, as well as in the common usage of the English language, in ascertaining the plain meaning of the statute. Reduced to its essential language for our purposes, the definition of a “milk dealer” is: “any person ... who ... purchases ... milk within the Commonwealth, for pro cessing or manufacturing and further sale.” 31 P.S. § 700j-103 (emphasis added). Giant Eagle is a “person” who purchases milk within this Commonwealth for processing and further sale. Although the grammatical structure of the entire statutory provision is rather cumbersome, it is obvious that the phrase “for processing or manufacturing” is a subordinate clause, a clause which modifies “milk” to the extent “milk” is “purchase[d] or receivefd] or handle[d].” Thus, the plain meaning of the statute indicates that, to be qualified for a milk dealer’s license, the applicant must purchase, receive, or handle milk, and that such purchasing, receiving, or handling must be for the purpose of the milk’s manufacturing or processing. This is precisely what Giant Eagle does. Giant Eagle purchases and receives raw milk during the manufacturing process and handles it by transporting it to independent dairies for further processing and future sale. Our conclusion is consistent with the rules of grammar and is the only sensible interpretation of “ ‘milk dealer’ or ‘handler’ ” as defined in Section 103 of the Milk Marketing Law. The definition of “milk dealer” under the statute does not state that a milk dealer must actually process or manufacture the milk it “purchases or receives or handles.” If the General Assembly intended the definition to include only those who “purchase or receive or handle” and “process or manufacture” milk, it would have been easy enough to so provide. To impose the meaning suggested by PAMD would be patently inconsistent with the plain language of the statute and contrary to the only reasonable interpretation discernible under the Statutory Construction Act. Second, we are propelled to such a conclusion because this Court has previously addressed Giant Eagle’s entitlement to a milk dealer’s license in Giant Eagle. We believe that the doctrine of stare decisis constrains us to reach the same conclusion as we did in 1993. In Commonwealth v. Tilghman, 543 Pa. 578, 588 n. 9, 673 A.2d 898, 903 n. 9 (1996), the Pennsylvania Supreme Court articulated the principle of stare decisis as such: The rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different. Furthermore, in County of Armstrong v. Workmen’s Compensation Appeal Board (Ross and Borough of Kittanning), 81 Pa. Cmwlth.474, 473 A.2d 755, 757 (1984), we stated: “[This Court is] bound by stare deci-sis to follow decisions of our own court until they are either overruled by the Supreme Court, or compelling reasons persuade us otherwise.” Although PAMD was not a party to the prior action, this ease presents facts identical to those presented in the prior Giant Eagle case, and we find no compelling reasons to disregard the doctrine of stare decisis in this case. To the contrary, the fact that Giant Eagle has been litigating its entitlement to a milk dealer’s license since 1991 illustrates the import of applying the doctrine of stare decisis here. The central issue in the 1993 Giant Eagle case, of course, was whether Giant Eagle was entitled to a milk dealer’s license. This Court reversed a decision of the Milk Marketing Board which denied Giant Eagle’s application for a milk dealer’s license. We ultimately remanded the case to the Board with instructions to grant a milk dealer’s license to Giant Eagle. The stipulated facts between the parties are recited in the text of the opinion. One of the stipulations, stipulation nine, states that “Giant Eagle does not process or package milk or milk products.” Giant Eagle, 630 A.2d at 479. We determined that Giant Eagle was nonetheless entitled to a milk dealer’s license. Hence, implicit in the Giant Eagle decision was the essential fact that Giant Eagle’s entitlement to a license was not negatively affected by the fact that it does not itself process or manufacture milk. Although that precise issue was not discussed at length in the Giant Eagle case, we determined that Giant Eagle was nonetheless entitled to a milk dealer’s license. Therefore, the Giant Eagle case stands for the proposition that Giant Eagle is entitled to a milk dealer’s license, despite the fact that it does not itself process or manufacture milk. Accordingly, we conclude that, under the current version of Section 103 of the Milk Marketing Law and the definition of “milk dealer” contained therein, a licensed milk dealer is not required to be the actual processor or manufacturer of the milk it purchases, receives, or handles. Because we have rejected PAMD’s contention that only processors and manufactures of milk may obtain a milk dealer’s license, we hold that it is not entitled to judgment as a matter of law. Furthermore, based upon our interpretation of Section 103 of the Milk Marketing Law and upon our 1993 decision in Giant Eagle v. Milk Marketing Board, we hold that Giant Eagle is entitled to judgment as a matter of law. In 1993 we ordered the Board to issue a milk dealer’s license to Giant Eagle. The Board complied with our order. PAMD now sues the Board for complying with our order. The cyclical nature of this litigation underscores the propriety of our result here. ORDER NOW, November 21, 1996, the motion for summary judgment filed by Giant Eagle, Inc. is hereby granted, and the motion for summary judgment filed by the Pennsylvania Association of Milk Dealers is denied. . The essential facts upon which our decision is based have been stipulated to between the parties. . Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-103. . The Milk Marketing Law was reenacted and amended by the Act of July 31, 1968, P.L. 963, No. 294. . Act of December 21, 1984, P.L. 1278, No. 243, effective January 1, 1985, amending Act of July 31, 1968, P.L. 963, as amended, 31 P.S. § 700j-103. . The 1984 amendments also added a "grandfather clause” to Section 404 of the Milk Marketing Law: The board shall grant a license to an applicant complying with the provisions of this act and the rules, regulations and orders issued by the board pursuant thereto. Anything in this act to the contrary notwithstanding, a store or controlled affiliate which satisfies all other requirements for licensing shall not be denied an appropriate license if it has been so licensed on the effective date of this amendment [January 1, 1985].... 31 P.S. § 700j-404. . The term "person,” as defined in Section 103 of the Milk Marketing Law, "includes an individual, corporation, association, partnership, limited partnership, or other unincorporated enterprise owned or conducted by or on behalf of two or more individuals or other persons.” 31 P.S. § 700j-103. . For instance, if the statute were worded as such, its plain meaning could arguably be that suggested by PAMD: "Milk dealer" or "handler" means any person who purchases or receives or handles and processes or manufactures milk.... Furthermore, if the General Assembly had intended an applicant to process or manufacture the milk it purchases, receives, or handles, it might also have amended the Milk Marketing Law as follows: "Milk dealer” or "handler” means any person who purchases or receives or handles ... milk ... for processing or manufacture by such person .... This, however, is not how the statute presently reads. .The doctrine of stare decisis is similar to the law of the case doctrine. The law of the case doctrine, however, provides that "issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered" on a subsequent appeal for another phase of the same case. Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394, 100 A.2d 595, 598 (1953). When invoking the rule of stare decisis, on the other hand, it is not necessary that the parties be identical. . In the Giant Eagle case, we also rejected the Board’s argument that Giant Eagle was not entitled to a milk dealer's license because it did not possess a license prior to January 1, 1985, the effective date of the 1984 amendments to the Milk Marketing Law. . Near the end of Judge Palladino’s opinion, she states that "[ujnder the current definition, a licensed milk dealer must either process or manufacture milk for further sale.” Giant Eagle, 630 A.2d at 480. This statement, however, does not comport with the ultimate holding of the case, especially in light of stipulation 9. Thus, we can only conclude that Judge Palladino's statement is either a typographical error or dicta and thus lacks significant precedential value. The inconsistency existing in the Giant Eagle opinion, however, does not negate the fact that the issue presented in this appeal has already been litigated before this Court — namely, whether Giant Eagle is entitled to a milk dealer’s license. As previously indicated, we have already answered this question in the affirmative. . Of course, under our inteipretation of Section 103 of the Milk Marketing Law, not all purchasing, receiving, or handling of milk is sufficient to qualify an applicant as a milk dealer under the Milk Marketing Law. Such purchasing, receiving, or handling must be undertaken for the purpose of processing or manufacturing the milk. As noted in the text of this opinion, we do not believe, however, that such processing or manufacturing must actually be performed by the applicant. . PAMD also argues that ”[u]nder [the 1984] amendments, stores which do not process or manufacture milk and which did not hold a milk dealer's license as of January 1, 1985, do not presently qualify as milk dealers under the Law.” (Brief in Support of Its Motion for Summary Judgment at 8). (Emphasis in original.) We note, however, that possessing a milk dealer’s license as of January 1, 1985, affects only a store's entitlement to receive a license under the grandfather clause of 31 P.S. § 700j-404 and does not relate to whether a store is presently qualified to receive a license under the general provisions of the Milk Marketing Law. . PAMD also argues that the grandfather clause of 31 P.S. § 700j-404 evinces a legislative intent to enable only processors and manufacturers of milk to obtain a milk dealer’s license. However, we do not believe that an analysis of the 1984 amendments to the Milk Marketing Law necessarily leads to this conclusion. Furthermore, even such legislative intent could be inferred. Section 1921(b) prevents us from disregarding the plain meaning of the statute "under file pretext of pursuing its spirit.” . This matter could have potentially been resolved in the future on the basis of collateral estoppel as well. However, because the factual averments and stipulations are not sufficient, at this stage, to establish that the Board and PAMD are in privity with one another, we believe that collateral estoppel does not support a finding of summary judgment in Giant Eagle’s favor. However, had we allowed this case to proceed through the original jurisdiction of this Court, it is highly likely that the doctrine of collateral estoppel would have precluded PAMD from relit-igating the issue of whether Giant Eagle is entitled to a milk dealer’s license.

ORDER PER CURIAM: AND NOW, this 17th day of December, 1996, the Petition for Allowance of Appeal is hereby GRANTED but LIMITED to the following: Whether the Superior Court erred in affirming the lower court’s granting of Respondent’s Motion for Summary Judgment.

LORD, Senior Judge. Newtown Township (Township) appeals a Delaware County Common Pleas Court order granting a special exception and variance to Drakoulis and Peggy Koutrakos (Owners) for additional seating and parking spaces at their restaurant, La Nouvelle Cuisine. The restaurant is located in a commercial district within the Township among small businesses utilizing the same ninety-four-space shopping area parking lot. Owners sought a special exception to expand the restaurant’s seating from eight to forty-eight seats and requested a variance from any parking requirements of the Township’s zoning ordinance. The ordinance mandates that the restaurant have one parking space for every two seats and, because it has carry-out service, two spaces for each service window or cashier. There is no dispute that the number of required parking spaces for the restaurant, after the trial court permitted expansion to forty seats, is twenty-three. Hearings were held on Owners’ application before the Township Zoning Hearing Board (Board). The Township presented evidence which it claims shows that there was a substantial parking problem in the area, that there was already a shortage of 220 spaces in the parking lot when the parking requirements of the ordinance were considered, and that the application would adversely affect off-street parking. The Township states that nineteen businesses share the parking lot in question and another restaurant alone was required to have eighty-three spaces. On the other hand, Owners adduced evidence that, in reality, there were on average more than twenty-three parking spaces available in the lot at peak hours. The Board denied Owners’ requests both orally and in a written order. Owners then appealed to the trial court. The court did not take additional evidence, but set forth its own findings and conclusions in granting the appeal. Specifically, the court held that Owners could increase their seating to forty seats without creating an additional burden on the community or adversely affecting off-street parking. The court credited and relied on the testimony of Owners’ witness that the twenty-three space requirement was satisfied given the actual number of open spaces available at peak hours. The Township now appeals to this Court. The primary question presented is whether the trial court erred in making its own findings without taking additional evidence. The Township has made lengthy arguments in its brief on what is essentially a straightforward issue. To summarize, it argues that the trial court should have taken additional evidence, remanded to the Board for findings of fact or accepted the Board’s findings. It first asserts that the court erred in making its own findings because the Board made sufficient oral findings, even if they were brief, unclear or limited. See Silar v. Spring Garden Township Zoning Board of Adjustment, 46 Pa.Cmwlth. 340, 407 A.2d 74 (1979). If the Board did not make sufficient findings, the Township maintains, then the trial court had to open the record for additional testimony before it prepared its own findings or, alternatively, it had to remand the case for the Board to complete the record. Since the court took neither action, the Township contends, it was bound by its scope of review to accept the Board’s findings, supported by substantial evidence, and could not make its own contrary findings. See Section 1005-A of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 11005-A; Appeal of Kit-Mar Builders, Inc., 439 Pa. 466, 268 A.2d 765 (1970); Bishop Nursing Home v. Middletown Township Zoning Hearing Board, 162 Pa.Cmwlth. 118, 638 A.2d 383 (1994), petition for allowance of appeal denied, 538 Pa. 675, 649 A.2d 676 (1994). Owners respond that the Board did not set forth findings, the trial court was therefore obligated by section 1005-A to make its own findings and it was within the court’s discretion not to remand or take additional testimony given the already complete record. See Boron Oil Co. v. City of Franklin, 2 Pa.Cmwlth. 152, 277 A.2d 364 (1971). We first decide that the Board did not make any findings here. There certainly are none in its written order. The Township instead points to oral statements made by the members of the Board when they closed the record and voted to deny Owners’ application. Some members stated as follows. “It’s obvious to me that if we have enough businesses up there so that the parking requirement should be two hundred and twenty more than what they really are and seems to be adequate testimony that there was a real parking problem there and Mr. Koutrakos when he was granted permission to open his restaurant from the Zoning Hearing Board agreed to eight tables, the prospect of trying to increase that sixfold, in my opinion, is unwarranted ...”; “the taxpayers have a difficult situation there ... [y]ou know, several times I’ve witnessed a filled-up gridlock situation there and it gets hazardous ...”; and “[w]e’re left with the burden ... to live with what exists and not apparently to go back and correct what is wrong. So I think we’re only left [sic] the decision we have in front of us.” (Notes of Testimony (N.T.), January 19,1995, pp. 39^11). Contrary to the Township’s argument, we hold that these oral comments by the Board members, or “sentiments” as one member described them, can hardly be called “findings,” particularly where they are based at least in part on personal observations instead of the record. Thus, this case is not like Silar, where there were sufficiently reviewable findings by a zoning board supported by the record. We must next decide what recourse the trial court had when faced with an absence of Board findings. We hold in this regard that the court properly made its own findings and that it was not required to take additional evidence in doing so. Section 1005-A of the MPC unambiguously provides: If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact or if additional evidence is taken by the court or by a referee, the court shall make its own findings of fact based on the record below as supplemented by the additional evidence, if any. 53 P.S. § 11005-A (emphasis added). This statute clearly leads to the following propositions. First, a trial court properly makes its own findings if a record being reviewed by the court does not include findings, which we have determined to be the case here. Second, as is often noted in the case law, the court also acts appropriately in making its own findings if it takes additional evidence. Third, the court generally may be precluded from making its own findings if the record includes findings and the court does not take additional evidence. Thus, section 1005-A compels us to reject the Township’s primary argument. Indeed, based on this section, we held in Faulkner v. Moosic Borough Board of Adjustment, 154 Pa.Cmwlth. 616, 624 A.2d 677 (1993) that the common pleas court is the fact-finder when it reviews a zoning board’s deemed approval, which normally implies an absence of board findings. Further, Owners have correctly pointed out at oral argument that the operative language of section 1005-A was previously contained in former Section 1010 of the MPC, 53 P.S. § 11010. This Court has held “[ujnder section 1010 of the MPC, when a board does not make factual findings, the trial court may make the necessary findings of fact, even though it takes no additional evidence.” Ford v. Caernarvon Township Zoning Hearing Board, 151 Pa.Cmwlth. 323, 616 A.2d 1089, 1093 (1992). We acknowledge that our Supreme Court in Kit-Mar stated that a trial court cannot make its own findings without taking additional testimony. However, in Kit-Mar, unlike here, the zoning board made findings of fact. Moreover, the Court in that case did not mention the statutory language we have cited. Instead, the Court relied on National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965), a case that predated the enactment of the MPC. Most decisions, including Kohn and more recent ones, state that a trial court reviews a zoning board’s decision for substantial evidence when the court takes no additional evidence, in which event this Court on further appeal reviews the board’s decision for substantial evidence. This statement is generally sufficient because, in the usual case such as Kit-Mar, the zoning board has made findings, which the trial court then must review for substantial evidence if it does not hear new evidence. By contrast, in more unusual cases like this one and Faulkner, where there are no board findings, the foregoing statement of the law is not comprehensive. It does not recognize the statutory mandate that a trial court make its own findings “[i]f the record does not include findings of fact or if additional evidence is taken by the court.” 53 P.S. § 11005-A (emphasis added). The next question raised by the Township is whether the parking space requirement in the ordinance was met. The Township points to its evidence on parking shortages and the number of required parking spaces as supporting the Board’s decision. However, the trial court did not accept this evidence. Our discussion above on the trial court’s scope of review, which in turn determines our scope of review, establishes that, since the trial court properly made its own findings, we examine the trial court’s decision, not the Board’s decision, for eviden-tiary support. Faulkner. Owners correctly contend that the evidence credited by the trial court shows that they were in compliance with the relevant parking requirements. The court relied on the testimony of a civil engineer who conducted a parking study showing that, during peak hours, an average of 47.38 parking spaces are open in the parking lot — including án average of 81.07 during breakfast hours, 24.93 during lunch hours and 36.14 during dinner hours. These numbers exceed the required twenty-three spaces. The civil engineer also testified that an increase in the restaurant’s seating would not substantially increase traffic congestion so as to adversely affect off-street parking or the health, safety and welfare of the community, and that the extra seating would be consistent with the character of the surrounding zoning and land area. (N.T., November 17, 1994, pp. 46-48, 54-55, 58-61). Thus, the trial court looked to evidence on the actual day-to-day parking situation in deciding to grant Owners’ appeal. We approve of that approach in this situation. The court relied on a practical, utilitarian study, the witness’ real test of what was happening in the parking lot, as opposed to requirements that likely could not be met by any of the businesses in the shopping area if, as the Township would have it, all of the businesses are viewed in the aggregate. In sum, we have no basis to disturb the court’s findings. Because they are supported by substantial credited evidence, we must uphold them even if other evidence might support the result reached by the Board. Faulkner. The final issue presented in this appeal is whether the trial court erred in not considering evidence of bad faith and estop-pel as to an initial special exception application by Owners in 1993. The Township contends that Owners admitted to the Board their intent to mislead on the earlier application, when they were originally granted a special exception for the eight-seat restaurant. According to the Township, Owners at that time did not admit their true aim to expand the restaurant’s seating to forty-eight seats. Thus, the Township claims, Owners are estopped from asserting compliance with the Township’s zoning ordinance or requesting a special exception and are subject to permit revocation. At the least, the Township states, this issue requires a remand for consideration. However, Owners accurately note that the trial court did address this argument. The court exercised its prerogative and rejected the contention, which it essentially considered vaguely presented at best. We agree with the court’s statement that, although Owners may have planned to request expansion when first granted a special exception, they were in no way prohibited from subsequently making that new request or having it properly granted. We therefore disagree with the Township’s remaining argument. Based on our resolution of the issues in this appeal, the trial court’s order is affirmed. ORDER AND NOW, this 21st day of November, 1996, the order of the Court of Common Pleas of Delaware County, No. 95-3620, dated August 14,1995, is hereby affirmed. . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11201. . The board in Silar approved a variance application after finding "[h]ardships exist because lot will not sell for uses permitted” and "[t]o authorize this variance from the terms of this ordinance will have no detrimental effect on the neighborhood and will not be contrary to the public interest.” Silar, 407 A.2d at 75-76. There is no indication that these were oral findings. .Whether additional evidence is permitted in a zoning case rests within the trial court’s discretion. Kossman v. Green Tree Zoning Hearing Board, 143 Pa.Cmwlth. 107, 597 A.2d 1274 (1991). There is no claim that the record in this case was incomplete. Nor is there authority for the notion that a court must remand for zoning board findings when the board, despite having issued a written order and having had an opportunity to make findings therein, did not render findings. . We held in Bishop that a trial court did not err by refusing to make its own findings where there were board findings, albeit late-filed, in the record. We recently held that, despite late-filed zoning board findings, a trial court should make its own findings when there is a deemed board approval under Section 908(9) of the MPC, 53 P.S. § 10908(9). Gryshuk v. Kolb, 685 A.2d 629 (Pa.Cmwlth. 1996). . Kit-Mar was decided two years after the MPC became law, but two years before section 1010, the predecessor of section 1005-A, was enacted. . There is obviously some question as to how in certain instances the Township can properly determine that parking requirements have not been met. Here, for example, the parking spaces in the lot are not individually owned and presumably any patron can park anywhere in the ninety-four-space lot for any of the nearby businesses. Although we do not consider the following arguments in this case, Owners claim that they have a cross-easement for thirty-five parking spaces in the lot. They also assert that they are entitled to a special exception even if there are problems already existing, i.e., they cannot be denied a permitted use on the basis that there are not presently enough parking spaces for existing uses. They submit that the Board's order denying their application operated as a de facto exclusion of a permitted use. See Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 139 Pa.Cmwlth. 206, 590 A.2d 65 (1991).

SMITH, Judge. Robert J. and Ruth E. Kee et al. (Petitioners) filed an amended petition for review in the nature of a complaint in equity on March 5, 1996, seeking to permanently stop construction that is being performed by the Pennsylvania Turnpike Commission (Commission) to enlarge the Plainfield Service Plaza (Plaza), located on the Pennsylvania Turnpike near Carlisle, or to require the Commission to perform various studies. The Commission filed preliminary objections styled a demurrer, presenting questions of whether various particular paragraphs of Petitioners’ Complaint should be dismissed because this Court lacks jurisdiction, Petitioners lack standing, the claims are based on repealed or inapplicable statutes or they are anticipatory and speculative. I Petitioners are residents of West Penns-boro Township (Township) who live adjacent to or near the Plaza, which is a nonconforming use that has been in operation for many years. In 1988 the Commission began planning to expand the Plaza; it entered into a contract in October 1995 for construction of an enlarged plaza, with parking spaces for many more trucks and passenger vehicles. Petitioners allege that throughout the planning and construction process the Commission has failed to consider concerns expressed by them and by the Township. Among the aspects of the project to which Petitioners object are alleged: noise and air pollution from a parking lot accommodating several times more ears and trucks; proximity of between 15 feet and 100 yards to their properties and to residences in an R-l district, without a barrier; arrangement of the parking area so that trucks’ headlights will shine into the residential area; increased air pollution; failure of the Commission to share an air quality study; light pollution from 100-foot-high light towers; increased security risks from free access by way of the access road; and groundwater pollution from the additional storm water runoff and from possible adverse effects of construction on the aquifer. Petitioners assert that the Commission has failed to comply with legal requirements under numerous environmental, land use planning and other statutes. II A The Commission first objects to Petitioners’ assertion of this Court’s jurisdiction pursuant to Section 761(a) of the Judicial Code, as amended, 42 Pa.C.S. § 761(a), which provides that this Court shall have original jurisdiction over all civil actions or proceedings against the Commonwealth government. Section 761(a)(1) expressly excepts: “(ii) eminent domain proceedings” and “(v) actions or proceedings in the nature of trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity....” The Commission objects on this basis to claims stated in Paragraph 20 relating to the asserted requirement of the Commission to hold hearings to consider various factors that the Department of Transportation (DOT) must consider under Section 2002(b) of The Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 512(b), when it acquires new or additional rights-of-way. The Court sees no claim of taking or of trespass stated in this Paragraph and so overrules this objection. The Commission objects to claims stated in Paragraphs 32 through 35, which arguably state claims of taking or trespass through allegations of grading of a portion of private property, encroachment, excessive use of an easement and coercion to grant an easement. However, in a supplemental brief submitted after oral argument pursuant to permission granted by the Court, Petitioners represent that these allegations are merely elements supporting their claim for injunctive relief based on nuisance and failure to comply with ordinances. Petitioners do not claim damages. The Court agrees that Petitioners have not stated separate claims in eminent domain or trespass, which the Court would be required to transfer to the appropriate court of common pleas, and the Commission’s jurisdictional objection is therefore overruled. B Next the Commission asserts that Paragraphs 13, 15, 17 and 26 of the Complaint involve efforts by Petitioners to assert claims and rights of the Township and that this record provides no evidence that they have standing to do so. The Court’s review of the Paragraphs shows that they essentially state a claim of failure to comply with a requirement under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 — 11201, and unspecified provisions of the Township Ordinance that the Commission submit a land development plan to the Township’s Zoning Hearing Board and participate in a procedure in which the objections and concerns of Petitioners and the Township could be raised, as well as failure to respect an asserted general due process right of Petitioners, the Township, the county and others to have input into the design, contracting and construction processes. Section 617 of the MPC, 53 P.S. § 10617, authorizes an owner or tenant of property whose land is or will be substantially affected by a violation of a land use ordinance to bring an appropriate action. Here, Petitioners have alleged substantial effects to their property, and their interest in seeing that proper procedures are followed is indistinguishable from that of the Township. The Court agrees that Petitioners lack standing to assert a claimed right of the Township to participate in design and construction of the Plaza. In any event, however, the Township has since intervened in this proceeding and is advancing its own rights; consequently this point is moot. Therefore, the Commission’s objections based on lack of standing are overruled. C The Commission next argues a failure to state a cause of action, i.e. a demurrer, because of Petitioners’ reliance upon statutes that assertedly have been repealed or are not applicable. In ruling upon a demurrer, the Court must accept as true all well-pleaded allegations of material fact and inferences reasonably deducible therefrom; a demurrer should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded. Rodgers v. Department of Corrections, 659 A.2d 63 (Pa.Cmwlth.1995). The Commission notes Petitioners’ reference in Paragraphs 20, 21 A., 22, 43 B. and 43 C. to Section 2002(b) of the Administrative Code, which requires DOT, upon submission of the preliminary plan or design of any transportation route or program requiring the acquisition of new or additional rights-of-way, to follow specified federal hearing procedures and to consider at such hearings 28 enumerated concerns such as residential and neighborhood character; noise, air and water pollution; aesthetics; public health and safety; property values and so on. The Commission disputes Petitioners’ assertion that the Commission must obtain approval from DOT and that it must consider the same factors as DOT when seeking approval. Section 4 of the Act of May 21, 1937 (1937 Turnpike Act), P.L. 774, as amended, 36 P.S. § 652d, contains the proviso that ah contracts “relating to the construction of the turnpike and connecting tunnels and bridges” shall be approved by DOT and the construction performed under DOT’S supervision. The Commission appears to argue that the phrase “turnpike and connecting tunnels and bridges” does not include a service plaza such as that involved here; therefore, the Commission need not seek DOT approval and supervision and the hearing requirements do not apply. However, that point need not be decided at this juncture. Mindful that the applicable standard is whether the law says with certainty that no relief may be had, the Court views this point as subject to sufficient dispute so as to require overruling this objection. D Next the Commission notes Petitioners’ reference in Paragraphs 26 and 44 P. to Section 1 of the 1937 Turnpike Act, 36 P.S. § 652a, in connection with due process claims. The Commission asserts that Section 1 was repealed by Section 21(b) of the 1985 Turnpike Act. Section 21(b) repeals the 1937 Turnpike Act insofar as it is inconsistent with the 1985 Turnpike Act. Section 20 of the 1985 Turnpike Act, 36 P.S. § 651.20, provides that the Act shall be regarded as supplemental and additional to powers conferred by other laws and shall not be regarded as in derogation of any powers now existing. Section 2, 36 P.S. § 651.2, defines “Commission” as the Commission created by the 1937 Turnpike Act, and Section 7(a)(9), 36 P.S. § 651.7(a)(9), provides that the Commission shall have all of the powers and perform all of the duties prescribed in the 1937 Turnpike Act. Therefore, the Commission is incorrect in arguing that its 1937 enabling legislation has been repealed. In the absence of some showing of a particular inconsistency, an objection may not be sustained on this basis. E Petitioners’ assertions in Paragraphs 42 B. and 43 A. that the Commission faded to comply with provisions of the MPC requiring the filing and approval of a proper land development plan with the Township are the subject of the next objection. The Commission cites Department of General Services v. Ogontz Area Neighbors Ass’n, 505 Pa. 614, 483 A.2d 448 (1984), where the question presented was whether the Zoning Board of Adjustment of the City of Philadelphia had the power-to enforce its regulations as to use and structural requirements for buddings against the state Department of General Services. There the Supreme Court held that the conflict was between two “instrumentalities” of the Commonwealth, not between a superior and an inferior governmental unit, and such conflict is to be resolved by examining the statutory sources of the powers sought to be exercised. Ultimately, the Court concluded that the City could enforce its regulations under its zoning enabling acts, in view of the lack of any expression of legislative intent that the agency’s powers should supersede them. The Commission focuses, however, on the Court’s applying the rule of statutory construction that the consequences of a particular interpretation may be considered. Section 1921(c)(6) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(6). The Commission asserts that it cannot find a substitute location for a larger plaza without budding in a new location and that the previous size of the Plaza created safety hazards because the insufficient number of parking spaces has resulted in the backing up of traffic onto the Turnpike itself during peak travel periods. The Commission also quotes Section 6 of the 1985 Turnpike Act, 36 P.S. § 651.6, declaring that the Commission’s exercise of the powers conferred by the Act in the construction, operation and maintenance of the Turnpike are to be deemed an essential governmental function. Petitioners respond that in numerous cases this Court has shown respect for local zoning laws in relation to state regulatory statutes. See, e.g., Appeal of Hoover, 147 Pa.Cmwlth. 475, 608 A.2d 607 (1992) (zoning ordinance provision prohibiting construction of sewage treatment plant in floodplain district not preempted by acts relating to floodplain management, clean streams or dam management). In Delaware County Solid Waste Authority v. Township of Earl, Berks County, 112 Pa.Cmwlth. 76, 535 A.2d 225 (1987), appeal denied, 518 Pa. 652, 544 A.2d 963 (1988), this Court noted that in 1987 the legislature removed language that imposed a unique disability on townships of the second class, such as this Township, by preventing them from enforcing their zoning ordinances against other governmental units. The Court, consequently, cannot conclude with certainty that the zoning law of the Township is not applicable to the Commission’s plan to expand the Plaza, and the Commission’s objection on this point is overruled. F Paragraph 42 A. of the Complaint asserts that the Commission is required to file a comprehensive storm water management plan under the Storm Water Management Act (SWMA), Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1 — 680.17. The Commission states that the definition of “person” in Section 4 of the SWMA, 32 P.S. § 680.4, expressly excludes “any department, board, bureau or agency of the Commonwealth,” and it argues that this Court granted summary judgment to a state agency in Pastore v. State System of Higher Education, 152 Pa.Cmwlth. 111, 618 A.2d 1118 (1992), on the ground that the agency was immune from suit under the SWMA. Fur ther, the Commission notes the principle that sovereign immunity bars suits against the Commonwealth seeking to compel affirmative action by state officials, citing this Court’s decision in Borough of Jefferson v. Century III Associates, 60 Pa.Cmwlth. 94, 430 A.2d 1040 (1981), vacated, 498 Pa. 57, 444 A.2d 665 (1982), holding that claims that state agencies failed to require permits and to make studies and inspections sought affirmative relief and fell within the rule of immunity. Petitioners point out that Section 4 of the SWMA includes Commonwealth units within the definition of “person” generally and excludes them only in regard to any provision prescribing or imposing a penalty. They assert that they are seeking compliance withv the SWMA, not money damages. They note that the Supreme Court vacated this Court’s decision in Borough of Jefferson and remanded with instructions to permit the petitioner borough to amend its petition to allege failure to perform ministerial duties under other specified statutes and to consider whether the amended petition set forth a cause of action in mandamus. Petitioners now contend that their complaint states causes of action in mandamus, which are not subject to immunity, and that actions stating claims in mandamus are treated by the courts as such, regardless of how they are titled. Commonwealth ex rel. Saltzburg v. Fulcomer, 382 Pa. Superior Ct. 422, 555 A.2d 912 (1989). On the question of whether the SWMA applies to state actors at all, the Court finds the plain language of the definition of “person” in Section 4 of the SWMA to state that it does. Section 13 of the SWMA, 32 P.S. § 680.13, provides that any person engaged in alteration or development of land that may affect storm water runoff characteristics must implement measures under the applicable storm water management plan to prevent injury to health, safety or other property. Although certain provisions of the SWMA imposing monetary and other penalties may not be enforced against a state agency, this Court rejects the notion that compliance with a clearly stated statutory duty constitutes a “penalty” rather than a ministerial act. The Commission’s objection is overruled. G The Commission disputes any application to the Plaza of provisions of the Air Pollution Control Act, Act of January 8,1960, P.L. (1959) 2119, as amended, 35 P.S. §§ 4001 — 4015. It quotes the definition of “[a]ir contamination source” in Section 3, 35 P.S. § 4003, as “[a]ny place, facility or equipment, stationary or mobile, at, from or by reason of which there is emitted into the outdoor atmosphere any air contaminant,” and the definition of “[s]tationary air contamination source” as “[a]ny air contamination source other than that which, when operated, moves in a given direction under its own power.” The Commission asserts that the Plaza and its parking lot do not emit pollutants and that the Commission does not operate the vehicles that stop at the Plaza. Further, the Commission challenges Petitioners’ standing. It notes that Section 13.6(a) of the Air Pollution Control Act, 35 P.S. § 4013.6(a), authorizes suits to be prosecuted in the name of the Commonwealth “to restrain or prevent any violation of this act” or rules adopted under it, but Section 13.6(c), 35 P.S. § 4013.6(c), provides that any person may commence a civil action “to compel compliance with this act_” In the Commission’s view, the phrase “compel compliance” applies only where violations have already occurred, whereas “restrain or prevent” authorizes the Commonwealth to take action against potential violations. Even if the Commission was required to conduct tests and to file reports with the Department of Environmental Protection (DEP), it asserts that any failure to perform these duties does not cause an injury to Petitioners. Petitioners acknowledge a lack of authority either way but assert that they regard trucks left running for hours at a time to be stationary air contamination sources, and they request an interpretation to that effect from this Court. They note that Section 10.1, added by Section 13 of the Act of July 9, 1992, P.L. 460, 35 P.S. § 4010.1, makes any release of air pollutants beyond that permitted by guidelines a nuisance as a matter of law, and they refer to a decision in which this Court noted that release of particulate matter by a strip mine operator was illegal if it was injurious or was enough to interfere unreasonably with the comfortable enjoyment of the life and property of a substantial segment of the neighboring community. Midway Coal Co. v. Department of Environmental Resources, 50 Pa.Cmwlth. 326, 413 A.2d 1139 (1980). The Court observes that Section 8, 35 P.S. § 4008, provides: “The owner or operator of an air contamination source shall not allow pollution of the air, water or other natural resources of the Commonwealth resulting from the source.” Recalling that the definition of “air contamination source” includes a “place ... from or by reason of which there is emitted into the outdoor atmosphere any air contaminant” (emphasis added), this Court concludes that the Commission has not shown in a manner that is clear and free from doubt that the Plaza falls outside the scope of the Air Pollution Control Act’s regulation. Similarly, the Commission’s fine distinction between preventing violations and compelling compliance does not provide the kind of certainty that is required to sustain a preliminary objection. H The Commission asserts that Petitioners’ requested environmental impact study is not required under The Clean Streams Law, Act of June 22,1937, P.L.1987, as amended, 35 P.S. §§ 691.1-691.1001. Further, it contends that Petitioners have offered no authority for their claim that the Commission was required to share groundwater reports with them. Petitioners maintain that it is common knowledge that both idling vehicles and those not operating drip coolants, oil, gasoline and other compounds that are a threat to health. Although DEP does not make a practice of considering parking lots as pollution sources, the Plaza’s lot is different in that rather than containing vehicles not operating, it will contain a large number of idling trucks, buses and other vehicles. The term “person” is expressly defined to include “any agency, instrumentality or entity of Federal or State Government.” Section 1 of the Clean Streams Law, 35 P.S. § 691.1. Without further development on this point, the Court is not satisfied that the Commission has shown with certainty that no provisions of the Clean Streams Law apply to the operation of the Plaza. Accordingly, the Commission’s preliminary objections are overruled in their entirety. ORDER AND NOW, this 20th day of November, 1996, the preliminary objections of the Pennsylvania Turnpike Commission are overruled. The Commission is required to file an Answer to the Petition for Review within 30 days; however, the record indicates that the Commission has already filed an Answer. . Petitioners also filed an application for special relief in the nature of a request for a preliminary injunction. By order of September 5, 1996, that request was granted in part and denied in part. . By order of July 11, 1996, the Township's petition to intervene was granted; by order of July 19, 1996, its participation was limited to the merits of the permanent injunction request. . Petitioners assert also that the Court has jurisdiction under Section 7(a)(3) of the Turnpike Organization, Extension and Toll Road Conversion Act (1985 Turnpike Act), Act of September 30, 1985, P.L. 240, as amended, 36 P.S. § 651.7(a)(3), which provides that “[a]ny and all actions at law or in equity against the commission shall be brought only in the courts in which such actions may be brought against the Commonwealth.” The Court sees no enlargement upon its jurisdiction as specified in Section 761(a) of the Judicial Code in this provision. Petitioners further point to Pa. R.C.P. No. 1508, which provides that a plaintiff may state in the complaint two or more causes of action cognizable in equity, although the official Note cautions that the causes of action must arise from the same transactions or occurrences, and a common question of fact or law must be involved. This purely procedural provision has no relation to the scope of this Court’s original jurisdiction. . Although Pa. R.C.P. No. 1028(a)(5) specifies lack of capacity of a parly to sue as a permissible preliminary objection, not lack of standing, this Court has previously ruled upon a preliminary objection and an appeal from a ruling on a preliminary objection raising questions of standing. See General Crushed Stone Co. v. Caernarvon Township, 146 Pa.Cmwlth. 306, 308 n 4, 605 A.2d 472, 473 n 4 (1992). . In its supplemental brief in support of preliminary objections, the Commission for the first time contends that Petitioners’ claims of violation of the MPC should be stricken because Petitioners did not comply with the requirement of Section 617 of the MPC that an owner or tenant whose real properly will be substantially affected by an existing or proposed activity may institute an appropriate action or proceeding, but he or she must first serve a copy of the complaint upon the municipality at least 30 days before the action is begun. Unlike most of the other objections, this argument states an objection under Pa. R.C.P. No. 1028(a)(2), relating to failure of a pleading to conform to law or rule of court. Because Rule 1028(b) requires that all preliminary objections be raised at the same time, the Court will not address this newly raised objection. . By contrast, in Olon v. Department of Corrections, 534 Pa. 90, 626 A.2d 533 (1993), cert. denied, 510 U.S. 1044, 114 S.Ct. 691, 126 L.Ed.2d 658 (1994), the Supreme Court held that the provision of a capital budget project itemization act authorizing incurrence of debt for the acquisition and renovation of a former college for use as a state correctional institution sufficiently expressed the legislative intent that the property be used for the stated purpose regardless of any contrary provisions of local zoning. Another example of express legislative intent is Section 619 of the MPC, 53 P.S. § 10619, which specifically exempts buildings used by a public utility from application of the entire MPC, if the Public Utility Commission determines after a hearing that a building is reasonably necessary for the convenience and welfare of the public. . Section 13.6 was added by Section 16 of the Act of July 9, 1992, P.L. 460. . The Commission also for the first time notes Petitioners' failure to provide 60 days’ notice to DEP, as required by Section 6(d), 35 P.S. § 4013.6(d). This challenge has been waived. See n4 above. . The Commission objects to various paragraphs of the Complaint that, in general, state a right to due process hearings during the planning and contracting stages of the Plaza project. Because this matter is to proceed to trial, the Court declines to dismiss these claims at this time, although the Court deems it unlikely that a general right of the public to be consulted exists, apart from express requirements in the statutes discussed above. The Court also rejects the Commission’s assertion that many of the Petitioners’ claims relate to matters that may or may not occur and therefore are too anticipatory and speculative. The Commission admits that it has multiplied the parking for both large trucks and passenger vehicles sev-eralfold to accommodate usage beyond what the current parking lot can handle. Petitioners’ allegations that more vehicles will use the facility, resulting in increased emissions, for example, are not based on speculation but are subject to proof, as are many of their other claims.

HUDOCK, J. ¶ 1 This is an appeal from an order granting the preliminary objections in the nature of a demurrer filed by Appellees (J. Plater-Zyberk, Jr., Ph.D., Stephen A. Winston, Esquire, Berger & Montague, P.C., Joseph Posillicio, Esquire, and Syn-nestvedt & Lechner, L.L.P.) and dismissing the complaint filed by Appellant (Arthur Werner, Esquire). For the reasons set forth below, we reverse, reinstate the complaint, and remand for further proceedings consistent with this opinion. ¶2 The Pennsylvania state court civil action underlying this appeal arose from a prior action filed in federal district court by Appellees. Appellees in the present action alleged in federal court, inter alia, that Appellant and several of his business associates were guilty of violating the federal Racketeering Influence and Corrupt Organization Act (RICO), 18 U.S.C. section 1962(c) & (d). Appellees also asserted several pendent state claims in their federal ease. The federal district court dismissed the RICO complaint on February 17, 1998, pursuant to federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action. All of the parties to the federal action were either natural persons residing in Pennsylvania or Pennsylvania corporations. Thus, once the district court dismissed the RICO count, it lacked any independent federal jurisdiction over the pendent state causes of action. The federal district court, therefore, invoked 28 U.S.C. section 1376(c)(3) and dismissed the entire complaint. The Court of Appeals for the Third Circuit affirmed the district court’s ruling on November 10, 1999. Plater-Zyberk v. Abraham, 203 F.3d 817 (3d Cir.1999) (disposition without opinion). ¶ 3 On August 11, 2000, Appellant filed a complaint with the Court of Common Pleas of Philadelphia County naming Appellees, the plaintiffs in the predecessor federal action (the Plater-Zyberk action), as the defendants. Appellant asserted that, in their pursuit of the Plater-Zyberk action, Appellees violated his rights under Pennsylvania law and were hable for, among other things, committing the torts of malicious prosecution and/or abuse of legal process pursuant to the substantive laws of this Commonwealth. Appellees jointly filed preliminary objections in the nature of a demurrer on September 11, 2000. The trial court heard argument on the matter in November of 2000.' On December 1, 2000, the trial court entered an order granting Appellees’ preliminary objections and dismissing the complaint for “legal insufficiency.” See Trial Court Order, 12/1/00. The trial court’s order was not docketed until December 7, 2000. ¶ 4 Appellant filed a timely notice of appeal on December 28, 2000. The trial court ordered Appellant to file a concise statement of matters raised on appeal pursuant to Rule of Appellate Procedure 1925(b), and Appellant complied. The present appeal raises a single issue for our consideration: WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW IN GRANTING PRELIMINARY OBJEC TIONS IN THE NATURE OF A DEMURRER FOR LEGAL INSUFFICIENCY UNDER THE PENNSYLVANIA WRONGFUL USE OF CIVIL PROCEEDING STATUTE (“THE DRAGONETTI ACT”) THEREIN RAISING A NEW LEGAL STANDARD THAT “FEDERAL LITIGANTS ARE PRECLUDED FROM AVAILING THEMSELVES OF STATE REMEDIES IN STATE COURT FOR LITIGATION MISCONDUCT WHICH OCCURRED IN FEDERAL COURT WHERE JURISDICTION WAS BASED ON [A] FEDERAL QUESTION.” Appellant’s Brief at 2. ¶ 5 Before proceeding to the merits of Appellant’s claim, we initially note that federal court decisions do not control the determinations of the Superior Court. Kleban v. National Union Fire Insurance Co., 771 A.2d 39, 43 (Pa.Super.2001). Our law clearly states that, absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. Commonwealth v. Lambert, 765 A.2d 306, 315 n. 4 (Pa.Super.2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1353, 149 L.Ed.2d 284 (2001). Accord Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 947, 952 (Pa.Super.2000). When the Third Circuit has spoken on a federal issue, the ultimate answer to which has not yet been provided by the United States Supreme Court, it is appropriate for this Court to follow Third Circuit precedent in preference to that of other jurisdictions. Cellucci v. General Motors Corp., 450 Pa.Super. 438, 676 A.2d 253, 255 n. 1 (1996), aff'd, 550 Pa. 407, 706 A.2d 806 (1998). Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly “walk across the street” to achieve a different result in federal court than would be obtained in state court. Id. (citing Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), and Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993)). Thus, if the Third Circuit has not ruled on a specific question, this Court may seek guidance from the pronouncements of the other federal circuits, as well as the district courts, in the same spirit in which the Third Circuit itself considers such decisions. Furthermore, if there is a circuit split and the pronouncements of the Third Circuit are “clearly wrong” in light of the decisions of other circuits, Pennsylvania appellate courts need not follow the Third Circuit’s decisions. City of Philadelphia v. Public Utility Commission, 676 A.2d 1298, 1305 n. 10 (Pa.Cmwlth.1996), appeal denied, 546 Pa. 657, 684 A.2d 558 (1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1334, 137 L.Ed.2d 494 (1997). ¶ 6 Procedurally, the present appeal stems from the grant of preliminary objections in the nature of a demurrer. When an appeal arises from an order sustaining preliminary objections in the nature of a demurrer, which results in the dismissal of a complaint, the Superior Court’s scope of review is plenary. DeMary v. Latrobe Printing and Publishing Co., 762 A.2d 758, 761 (Pa.Super.2000) (en banc). When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. Id. (emphasis removed). We need not consider the pleader’s legal conclusions, unwarranted inferences from facts, opinions, or argumentative allegations. Wier nik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 619 (Pa.Super.1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). ¶ 7 The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. DeMary, 762 A.2d at 761. "Where affirmance of the trial court’s order sustaining preliminary objections would result in the dismissal of an action, we may do so only when the case is clear and free from doubt. Id. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. We review the trial court’s decision for an abuse of discretion or an error of law. Id. (citations and quotations omitted). A demurrer tests the sufficiency of challenged pleadings. Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 581 A.2d 607, 609 (1990). Fact-based defenses, even those which might ultimately inure to the defendant’s benefit, are thus irrelevant on demurrer. Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987). ¶ 8 In the context of reviewing preliminary objections in the nature of a demurrer, an abuse of discretion is not merely an error of judgment. Ellenbogen v. PNC Bank, N.A., 731 A.2d 175, 181 n. 11 (Pa.Super.1999). Rather, the trial court commits an “abuse of discretion” when its judgment is manifestly unreasonable, or when the law- is not applied, or if the record shows that the decision resulted from partiality, prejudice, bias or ill will. Id. One way of summing up all the qualities commonly attributed to a valid exercise of judicial discretion is to say that “the decision had merit.” Id. Conversely, if the reason for performing the discretionary act had no merit, then the trial court will be deemed to have abused its discretion. Id. Thus, when viewed in terms of the degree of scrutiny that should be applied, an inquiry into an abuse of discretion is operationally equivalent to an inquiry into the merit of the trial court’s decision. Id. (citing Coker v. S.M. Flickinger Co., 533 Pa. 441, 447-48, 625 A.2d 1181, 1185 (1993)). ¶ 9 Appellant’s complaint alleges that Appellees engaged in a course of conduct toward him that constituted both abuse of legal process and wrongful use of civil proceedings as these torts are framed by Pennsylvania state law. See Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super.1998) (defining abuse of process), and 42 Pa.C.S.A. § 8351-8355 (wrongful use of civil proceedings). Appellant claims that he is entitled to relief in state court, under color of Pennsylvania law, independently of any federal cause of action that might accrue to him, or of any sanctions that might be imposed against Appellees by the federal district court in which the underlying action was conducted. Appellees respond that the peculiar federal interests raised by Appellant’s claims mandate the use of the federal district court and preclude relief in state court. Before addressing the specific contentions of the parties, we must resolve a more fundamental question concerning the nature and purpose of the law of torts in comparison to the nature and purpose of court imposed sanctions. ¶ 10 At least one scholar has defined a tort as “an act or omission which unlawfully violates a person’s right created by the law, and for which the appropriate remedy is a common law action for damages by the injured person.” Prosser and Keeton on The Law of Torts 2 n. 3 (W. Page Keeton ed., 5th ed.1984) (quoting Burdick, Torts, 3d Ed.1913, 12). The law of torts “is directed toward the compensation of individuals, rather than the public, for losses which they have suffered within the scope of their legally recognized interests generally, rather than ,one interest only, where the law considers that compensation is required.” Id. at 5-6. The common thread woven into all torts is the idea of unreasonable interference with the interests of others. Id. at 6. A civil action sounding in tort is commenced and maintained by the injured person. Id. at 7. The policy behind the law of torts is to put an injured person in a position as near as possible to his position prior to the acts that comprise the tort. Reformed Church v. Theodore Hooven & Sons, Inc., 764 A.2d 1106, 1109 (Pa.Super.2000). Thus, its primary purpose is to compensate an individual, at the expense of the wrongdoer, for the damage incurred. Prosser and Keeton at 7. Compare Hazleton Area School District v. Bosak, 671 A.2d 277, 283 (Pa.Cmwlth.1996) (citing Restatement (Second) of Torts § 901 (1977)) (the policy consideration underlying tort law is the protection of persons and property from losses resulting from injury to that person or property). ¶ 11 Appellees argue that Appellant’s interests would be vindicated adequately via sanctions imposed by the federal district court. However, the damages Appellant seeks are distinct from'the various types of penalties that may be imposed by a court as sanctions against a tortfea-sor. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 553-54, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). Sanctions, including monetary sanctions paid to an adversary in the form of fees or costs, address the interests of the court and not those of the individual. Id. A litigant cannot rely on a sanction motion to seek compensation for every injury that the sanctionable conduct produces. In re Spectee Group, Inc., 185 B.R. 146, 162-63 (Bkrtcy.S.D.N.Y.1995). Rather, an injured party must request tort damages to protect his personal interest in being free from unreasonable interference with his person and property. Business Guides, Inc., 498 U.S. at 553-54, 111 S.Ct. 922, 112 L.Ed.2d 1140. ¶ 12 Appellees argue that Appellant must seek sanctions under the federal procedural rules, specifically under Rule 11. Several of the federal rules provide for the imposition of sanctions, not merely Rule 11. See, e.g., Rules 16, 26, 30, 37, 56. See generally Chambers v. NASCO, Inc., 501 U.S. 32, 43 n. 8, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (discussing possible sanctions under the federal rules). It is correct to say that all federal courts have the inherent power to vindicate their judicial authority by sanctioning any conduct which abuses the judicial process. Id. at 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27. Nevertheless, the United States Supreme Court explicitly held that Rule 11 does not create a federal common law of malicious prosecution. Business Guides, Inc., 498 U.S. at 553, 111 S.Ct. 922, 112 L.Ed.2d 1140. ¶ 13 “The main objective of [Rule 11] is not to reward parties who are victimized by litigation; it is to deter baseless filings and curb abuses.” Id. While imposing monetary sanctions under Rule 11 may confer a financial benefit on a victimized litigant, this is merely an incidental effect on the substantive rights thereby implicated. Id. Simply put, Rule 11 sanctions cannot include consequential damages and thus are not a substitute for tort damages. Id. See also Fed.R.Civ.P. 11, Advisory Committed Notes (1993) (“[I]t should be noted that Rule 11 does not preclude a party from initiating an independent action for malicious prosecution or abuse of process.”). In light of the foregoing, we con- elude that Appellant’s right to seek tort damages for his alleged injuries exists independently of, and in addition to, any rights he might possess to petition for sanctions from the federal district court predicated on the manner in which the Plater-Zyberk action was pursued in that court. ¶ 14 Although we have concluded that Rule 11 sanctions are no substitute for tort damages, nothing in this determination precludes Appellant from requesting the federal district court to impose sanctions. As explained above, Appellant’s interests in seeking damages in tort from the Pennsylvania state court comprise a separate consideration from the federal district court’s interest in maintaining the integrity of the court and preventing abuse of the judicial process. See Chambers, 501 U.S. at 56, 111 S.Ct. 2123, 115 L.Ed.2d 27 (“under Rule 11, sanctions may be imposed years after a judgment on the merits”). Federal sanctions are not in derogation of state common law remedies, and both may be sought predicated on the same underlying factual and procedural events. See, e.g,, Heffernan v. Hunter, 189 F.3d 405, 413 n. 7 (3d Cir.1999) (explaining that the inherent power of the federal courts to sanction improper conduct does not preclude a claim for wrongful use of civil proceedings under the provisions of Pennsylvania law). Furthermore, the denial of sanctions under federal Rule 11 does not foreclose the assertion of a subsequent suit for malicious prosecution. Lightning Lube v. Witco Corp., 4 F.3d 1153, 1196 (3d Cir.1993) (citing Cohen v. Lupo, 927 F.2d 363, 365 (8th Cir.1991), cert. denied, 502 U.S. 861, 112 S.Ct. 180, 116 L.Ed.2d 142 (1991) for the proposition that a grant of Rule 11 sanctions is not res judicata with respect to a state law claim of malicious prosecution, and Amwest Mortgage Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir.1991) as authority that the denial of Rule 11 sanctions will not support a federal court’s enjoining a state malicious prosecution proceeding). ¶ 15 The torts of malicious prosecution and abuse of process are separate and distinct but often confused. Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, 644 A.2d 188, 191 (1994). “Abuse of process” is defined as “the use of legal process against another primarily to accomplish a purpose for which it is not designed.” Shiner, 706 A.2d at 1236 (quoting Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (1993)). To establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff. Id. Abuse of process is, in essence, the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process. McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987). Thus, the gravamen of this tort is the perversion of legal process to benefit someone in achieving- a purpose which is not an authorized goal of the procedure in question. Rosen, 627 A.2d at 192. ¶ 16 Abuse of process is a state common law claim. However, allegations of malicious prosecution invoke Pennsylvania’s statutory law in the form of the wrongful use of civil proceedings statute or “Dragonetti Act.” 42 Pa.C.S.A. §§ 8351-8355. Wrongful use of civil proceedings is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. Hart v. O’Malley, 781 A.2d 1211, 1219 (Pa.Super.2001). Our statutory law sets forth the elements that must be established for a viable cause of action pursuant to the Dragonetti Act as follows: Wrongful use of civil proceedings (a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil- proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. (b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter. 42 Pa.C.S.A. § 8351. Thus, in an action for wrongful use of civil proceedings, the plaintiff first must demonstrate that the person taking part in the initiation, procurement or continuation of civil proceedings either acted in a grossly negligent manner, or that he lacked probable cause. Broadwater v. Sentner, 725 A.2d 779, 782 (Pa.Super.1999), appeal denied, 562 Pa. 664, 753 A.2d 814 (2000). The plaintiff must also prove that the prior proceedings terminated in his favor and against the person against whom the Dragonetti Act charge has been filed. Id. ¶ 17 The trial court did not address the sufficiency of Appellant’s averments in light of the above legal standards. Rather, the trial court dismissed Appellant’s complaint on the following grounds: [F]ederal litigants are precluded from availing themselves of state remedies in state court for litigation misconduct where the subject litigation abuse occurred in Federal Court and the Federal Court’s jurisdiction was based on [a] federal question. Trial Court Opinion, 2/22/01, at 3. We disagree. ¶ 18 Neither the Dragonetti Act itself, nor subsequently decided case law concerning malicious prosecution or abuse of process, impose any restriction prohibiting an aggrieved party from seeking redress in Pennsylvania state court predicated on process served in, or “civil proceedings” conducted in, a jurisdiction other than this Commonwealth. Indeed, Pennsylvania case law demonstrates the exact opposite in that our state courts previously have elected to address the merits of tort claims stemming from actions conducted in federal court. See, e.g., Kelly-Springfield Tire Co. v. D’Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991) (reinstating complaint asserting torts claims, including a Dragonetti claim, predicated on acts that occurred during federal litigation in the United States District Court for the Eastern District of Pennsylvania); Rosen v. Tesoro Petroleum Corporation, 399 Pa.Super. 226, 582 A.2d 27 (1990) (wherein the Court of Common Pleas of Philadelphia County exercised jurisdiction over tort claims for abuse of process, malicious prosecution, malicious misuse of criminal proceedings and civil conspiracy predicated on a class action filed in Texas federal district court). The converse is also true. Federal courts have exercised jurisdiction over tort claims for malicious prosecution predicated on litigation conducted in Pennsylvania state court. See, e.g., Baird v. Aluminum Seal Co., Inc., 149 F.Supp. 874 (W.D.Pa.1956), aff'd, 250 F.2d 595 (3d Cir.1957). ¶ 19 Our diligent search has uncovered no Pennsylvania case, Third Circuit decision, or United States Supreme Court ruling, that explicitly bars a litigant from seeking application of the Dragonetti Act when the predicate proceedings occurred in federal district court. Furthermore, we have found no ruling that would preclude a suit based on the Pennsylvania common law torts of abuse of process or malicious prosecution in such a situation. Whether such tort claims are advanced in Pennsylvania state court or in a federal district court in Pennsylvania makes no difference: the decisional law of the Third Circuit requires Pennsylvania district courts to adjudicate the matter under Pennsylvania law. See, e.g., Lippay v. Christos, 996 F.2d 1490, 1502 (1993) (when federal court has jurisdiction to consider a tort claim, it applies the common law of the forum state). ¶ 20 In the present case, the trial court’s ruling may be understood as a decision that federal law is pre-emptive when tort claims are predicated on the filing of an action in federal district court. Federal preemption is a jurisdictional matter for a state court because it challenges subject matter jurisdiction and the competence of the court to reach the merits of the claims raised. Fetterman v. Green, 455 Pa.Super. 639, 689 A.2d 289, 291-92 (1997). Thus, whether the question of federal preemption is raised by the parties or by the court sua sponte, the matter must be sifted to ascertain whether the trial court has the authority to entertain the cause of action. ¶ 21 The principle of federal preemption of state law derives from the second clause of Article VI of the Constitution, the Supremacy Clause. Shiner, 706 A.2d at 1237(citing U.S. Const. Art. VI, cl. 2). Under the Supremacy Clause, federal law is “the supreme Law of the land” and any conflicts between federal and state laws must be resolved in favor of federal law. Burgstahler v. AcroMed Corp., 448 Pa.Super. 26, 670 A.2d 658, 663-64 (1995). The United States Supreme Court has recognized three ways in which federal law may preempt, and thereby displace, state law: (1) “express preemption,” (2) “field preemption” (also termed “implied preemption”), and (3) “conflict preemption.” Orson, Inc. v. Miramax Film Corp., 189 F.3d 377, 381 (3d Cir.1999), cert. denied, 529 U.S. 1012, 120 S.Ct. 1286, 146 L.Ed.2d 232 (2000). Express preemption arises when there is an explicit statutory command that state law be displaced. Id. Under the principles of field (or implied) preemption, state law may be displaced “if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.” Id. (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). Finally, state law may be displaced under conflict preemption principles if the state law in question presents a conflict with federal law in one of two situations: (a) when it is physically impossible to comply with both the state and the federal law, or (b) when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. at 381-82. ¶ 22 State law and federal regulations on the same subject both may apply when state law is not in conflict with, and may be construed consistently with, federal law and regulations. See generally Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). Preemption is primarily a matter of congressional intent. Id. at 884, 120 S.Ct. 1913, 146 L.Ed.2d 914. State law is impliedly preempted only when it directly conflicts with federal law by constituting an obstacle to accomplishing and executing Congress’ full purposes and objectives. Id. ¶ 23 It is also well established that federal law may impliedly preempt state law to the extent that the state law conflicts with a federal regulatory scheme. Pokomy v. Ford Motor Company, 902 F.2d 1116, 1122 (3d Cir.1990). A federal regulation may have just as much preemptive effect as a federal statute. Id. Moreover, common law liability also may create a conflict with federal law. Id. “Enforcement of common law duties can have the same regulatory effect as an affirmative legislative enactment.” Shulick v. Paine-Webber, Inc., 554 Pa. 524, 528, 722 A.2d 148, 150 (1998). Preemption is thus no less of an issue when common law requirements, rather than statutory mandates, are concerned. Id. Nevertheless, both federal law and Pennsylvania law clearly hold that there is a presumption against preemption. Pokorny, 902 F.2d at 1122 (citing Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)); Fetterman, 689 A.2d at 292. The historic police powers of the states are not to be superseded by federal law unless that is the clear and manifest purpose of Congress. Burgstahler, 670 A.2d at 665 (quoting Cipollone, 505 U.S. at 514, 112 S.Ct. 2608, 120 L.Ed.2d 407). The presumption against preemption under the Supremacy Clause strongly applies whenever preemption would deny a party access to all judicial remedies. Burgstahler, 670 A.2d at 665-66 (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251-52, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984)). ¶ 24 The presumption against federal preemption of state law is one of “dual jurisdiction” which “results from reasons of comity and mutual respect between the two judicial systems that form the framework of our democracy.” Fetterman, 689 A.2d at 292 (citing Cipollone, supra and Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir.1995)). As our sister court, the Commonwealth Court of Pennsylvania, succinctly explained: “There is no hierarchical arrangement between state courts and federal courts that exercise jurisdiction within that state. Under the federal system, the states possess sovereignty concurrent with that of the federal government.” City of Philadelphia, 676 A.2d at 1309 n. 10. For these reasons, in the absence of explicit preemption, state law must create an actual conflict with a federal law or regulatory scheme before it is impliedly preempted. Pokorny, 902 F.2d at 1122. See Geier, 529 U.S. at 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (state law is impliedly preempted only when it directly conflicts with federal law). See also Hunsaker v. Surgidev Corp., 818 F.Supp. 744, 751 (M.D.Pa.1992) (holding that state causes of action sounding in tort survive federal preemption if there is no specific federal counterpart). ¶ 25 In support of their position, Appel-lees have cited several authorities for the proposition that only a federal court has jurisdiction to vindicate the rights of a victim of tortious acts committed in federal court. First, Appellees discuss the views of Alexander Hamilton concerning the power of the federal judiciary as set forth in the Federalist Papers. We do not find this argument at all pertinent to the present case. Appellees also point to several early federal decisions, such as Harrison v. St. Louis & San Francisco Railroad Co., 232 U.S. 318, 34 S.Ct. 333, 58 L.Ed. 621 (1914), as requiring state courts to refrain from any action that would impede access to the federal courts or that would divest them of their authority. While we agree with this assertion, we cannot find that it applies in any way to the present case. Appellant is not seeking to preclude Appellees from accessing the federal courts; rather, Appellees wish to prevent Appellant obtaining redress in state court. ¶ 26 Neither the trial court nor Appellees have pointed to any statute, regulation, or federal decision explicitly indicating that federal law preempts state tort claims of abuse of process or wrongful use of civil proceedings when the underlying proceedings occurred in federal district court. Nor has our research uncovered any such statute, regulation, or federal decision. We conclude that direct preemption does not apply in this case. The. question remains, however, whether “field preemption” (implied preemption) or conflict preemption preclude the trial court from hearing Appellant’s case. ¶ 27 Appellees have failed to explain specifically, in a manner congruent with the above standards, why Appellant’s cause of action should be deemed impliedly preempted. They simply have cited to no decision or statute that indicates Congress intends to occupy the field of tort claims for malicious prosecution or abuse of process. Furthermore, they have not explained why Appellant’s causes of action must be seen to be in conflict with any federal statute, regulation or case law. The United States Supreme Court has proscribed creating a conflict between state and federal law where none exists. See Huron Portland Cement Co. v. City of Detroit, Mich., 362 U.S. 440, 446, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960) (wherein the Supreme Court enjoined seeking out nonexistent conflicts between state and federal regulation). ¶ 28 We are cognizant of Appel-lees’ contentions that the present appeal does not raise the issue of whether a federal question exists and that the preemption doctrine has “no bearing” on the instant matter. Appellees’ Brief at 26-27. We cannot agree. Both considerations are significant because of the nature of federal jurisdiction and the manner in which federal law assigns the burden of establishing jurisdiction. As already discussed, the question of preemption challenges subject matter jurisdiction and the competence of the court to reach the merits of the claim raised. Fetterman, 689 A.2d at 291-92. “Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the court through due process of law.” Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa.Super.2001). The trial court has jurisdiction if it is competent to hear or determine controversies of the general nature of the matter involved. Id. Jurisdiction lies if the court has the power to enter into the inquiry, not whether it might ultimately decide that it could not grant relief in a particular case. Id. When determining whether a trial court correctly decided the issue of subject matter jurisdiction, Superior Court will accept as true all facts averred in the plaintiffs complaint. Id. ¶ 29 Federal courts created by statute are courts of limited jurisdiction. Kokkonen v. Guardian Life Insurance Company, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Federal district courts possess only that power authorized by the Constitution and by Congressional statute. Erienet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 515 (3d Cir. 1998). State courts, however, are courts of general jurisdiction. Id., 156 F.3d at 516. The rule is of longstanding duration that at all stages of any proceedings, federal jurisdiction is never presumed but always must appear affirmatively on the record. Lehigh Mining & Manufacturing Co. v. Kelly, 160 U.S. 327, 337, 16 S.Ct. 307, 40 L.Ed. 444 (1895). The presumption is that a cause of action lies outside this limited federal jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673, 128 L.Ed.2d 391. The burden of establishing the contrary rests squarely upon the party asserting jurisdiction. Id. ¶ 30 The United States Supreme Court has indicated clearly that for a federal court to have jurisdiction over any controversy, “the Constitution must have given the court the capacity to take it, and an act of Congress must have supplied it.” Grays Ferry Cogeneration Partnership v. PECO Energy Company, 998 F.Supp. 542, 549 (E.D.Pa.1998) (quoting Finley v. United States, 490 U.S. 545,109 S.Ct. 2003, 104 L.Ed.2d 593 (1989)). The essence of Ap-pellees’ argument is that Appellant’s complaint “arises under” federal law thereby raising a federal question. The Plater-Zyberk action underlying the present appeal was filed in the Federal District Court for the Eastern District of Pennsylvania. Thus, we shall apply that court’s standard for determining whether a question “arises under” federal law. ¶ 31 Federal courts are governed by the “well-pleaded complaint rule,” which requires that a federal question be presented on the face of the complaint. Grays Ferry Cogeneration Partnership, 998 F.Supp. at 549 (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). When reviewing the face of a complaint for federal question jurisdiction, there are two categories of cases through which a suit may “arise under” federal law. Justice Holmes phrased the first category: “A suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). The second [category occurs] when the plaintiffs cause of action is based on state law, but a federal law that creates a cause of action is an essential component of the plaintiffs complaint. See, e.g., Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L.Ed. 1270 (1917). Id. ¶ 32 Clearly, Appellant’s torts claims do not fall within the second category because they do not in any way include a federal law, statute or regulation as an essential component of the complaint. (We have already explained why federal procedural Rule 11 does not set forth an essential element of Appellant’s torts claims.) Ap-pellees have hot advanced any specific federal statute as a component of Appellant’s torts claims, and our research has not uncovered any such statute. Rather, when federal courts within the Third Circuit have occasion to consider allegations of malicious prosecution or abuse of process, they rely entirely upon Pennsylvania’s substantive law when Pennsylvania is the forum state. See, e.g., Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 474 (3d Cir.2001) (when subject matter- is based on diversity of citizenship, federal court must apply state substantive law to the underlying torts claim); Kane v. BOC Group, Inc., 234 F.3d 160, 162 (3d Cir.2000) (federal courts sitting in diversity must apply substantive law of the pertinent state court); Lippay, supra (in action brought under 42 U.S.C. § 1983, Third Circuit will apply Pennsylvania substantive law to the underlying malicious prosecution claim when Pennsylvania is the forum state). ¶ 33 The federal District Court for the Eastern District of Pennsylvania explained the manner in which a case can be said to fall within Justice Holmes’s first category as follows: Turning to the first category of cases, there are in essence three ways in which federal law “creates” a cause of action: first, when a federal law provides both a substantive right and a remedy for vindicating that right, second, when a federal law grants a substantive right and a federal remedy fairly may be implied from that right, and, third, when federal law so thoroughly preempts state law that it converts an ordinary state common-law claim into one stating a federal claim for purposes of the well-pleaded complaint rule. Grays Ferry Cogeneration Partnership, 998 F.Supp. at 549 (citations and quotations omitted). As already noted, Appel-lees have cited to no specific federal statute or regulation that can be said to “create” Appellant’s cause of action against Appellees as alleged tortfeasors. Indeed, as discussed above, federal courts apply the law of the forum state when adjudicating torts claims which are properly before them on diversity grounds, or on some other basis such as a civil rights action filed pursuant to 42 U.S.C. section 1983. Nor have we found any indication that Congress or the federal constitution have evinced any intention to occupy the field of torts claims as it has, for example, with bankruptcy law or copyright law. See Shiner, 706 A.2d at 1238 (Bankruptcy Code demonstrates Congress’s intent to create a whole system under federal control therefore mandating that the adjustment of rights and duties within the bankruptcy process itself is uniquely and exclusively federal, thereby precluding state law remedies for abuse of its proceedings); Orson, Inc., supra (holding that the Copyright Act manifests congressional intent to implement a nationally 'uniform system for creating and protecting rights in a copyrighted work and thus preempts Pennsylvania law concerning distribution and licensing of motion picture films). Compare Mitnik v. Cannon, 784 F.Supp. 1190 (E.D.Pa.1992), aff'd, 989 F.2d 488 (3d Cir.1993) (disposition without opinion), with the related and subsequent case of Cannon v. Shelter, 825 F.Supp. 722 (E.D.Pa.1993). In Mitnik, the federal district court held that Pennsylvania state law claims of fraudulent misrepresentation, breach of contract and breach of fiduciary duty were preempted by ERISA, Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. section 1001 et seq., because they related to the role of the defendant in providing administrative services to pension funds and arose out of an alleged fiduciary relationship between pension funds and a consulting firm. In Cannon v. Sheller, 825 F.Supp. 722 (E.D.Pa.1993), the same court held that federal preemption did not apply to-an abuse of civil proceedings claim predicated on the conduct of an earlier ERISA proceeding, because the state tort claims did not relate either directly or indirectly to ERISA itself. ¶ 34 We see no indication that a torts claim for abuse of process or for malicious prosecution can be said to create a federal question that would vest original subject matter jurisdiction in a federal district court. Certainly, the federal district courts have exercised pendent jurisdiction over such claims. However, the parties must first be in the federal district court on some basis other than the asserted state law claims. Our conclusions in this regard are bolstered by a recent decision of the very court in which Appellees argue that Appellant’s claims should have been filed. ¶ 35 The District Court for the Eastern District of Pennsylvania determined that it lacked subject matter jurisdiction over Pennsylvania tort law claims for malicious prosecution and abuse of process predicated on the filing and conduct of an action in federal district court. Fumo v. Gallas, 2001 WL 115460 (E.D.Pa.2001). (A copy of this decision is also available at 2001 U.S. Dist. Lexis 1140 (E.D.Pa.2001).) All the parties to the present action are Pennsylvania citizens and no party contends otherwise. Thus, diversity of citizenship provides no basis for establishing federal jurisdiction. ,See Mennen Company v. Atlantic Mutual Insurance Company, 147 F.3d 287, 290 (3d Cir.1998) (explaining diversity jurisdiction including the requirement of “complete diversity”). As in the present case, federal jurisdiction in Fumo could not be based on diversity of citizenship. The court, therefore, proceeded to ascertain whether the plaintiffs tort claims raised a federal question because, as in this case, they were predicated on events that occurred in the federal District Court for Eastern Pennsylvania. ¶ 36 The Fumo court concluded that a previously dismissed federal action does not cause a subsequently filed state court action for a malicious prosecution to “arise under” federal law. Furthermore, the court held that there is nothing in federal law, including Rule 11, that creates a federal common law tort of wrongful use of civil process that could be said to preempt state law claims for wrongful use of civil proceedings or abuse of process. Id. at *3. In the absence of a clear indication of congressional intent to preempt the field, the Fumo court declined to find federal subject matter jurisdiction. This decision is consistent with the earlier decision by the same federal district court in Cannon v. Sheller (discussed above). ¶ 37 We are not bound by the federal district court’s rulings in either the Fumo case or in Cannon. Lambert, 766 A.2d at 315 n. 4 (Superior Court is not bound by the decisions of federal courts in the absence of a United States Supreme Court pronouncement). However, it would be foolish to ignore the fact that Fumo and Cannon were decided by the same court that would sit on Appellant’s claims, were he to file them in federal district court. Furthermore, in consideration of our own analysis, supra, we see no basis on which we could disagree with the result reached in Fumo. We therefore conclude that the issues presented in Appellant’s complaint do not “arise under” federal law, do not implicate, a federal question, and do not support the assertion of federal subject matter jurisdiction. ¶ 38 Appellees also contend that the phrase “civil proceedings,” which appears in the Dragonetti Act, is limited under 42 Pa.C.S.A.. section 102 to proceedings occurring in the Pennsylvania unified judicial system and state agencies. We find no basis for this claim in the Judicial Code or in our case law. Section 102 defines “proceeding” as including “every declaration, petition or other application which may be made to a court under law or usage or under special statutory authority, but the term does not include an action or an appeal.” Section 102 itself does not preclude the possibility that the “proceeding” in question might have occurred in federal district court. ¶ 39 The Dragonetti Act imposes liability, under certain conditions, for “the procurement, initiation, or continuation of civil proceedings against another....” 42 Pa. C.S.A. § 8351(a). The statute does not, on its face, limit the “civil proceedings” to those that occur in tribunals that fall under the aegis of the uniform judicial system of this Commonwealth. This Court has explained that the correct definition of “wrongful use of civil proceedings” pursuant to the Dragonetti Act is “a tort which arises when a party institutes a lawsuit with malicious motive and lacking probable cause.” Mi-Lor, Inc. v. DiPentino, 439 Pa.Super. 636, 654 A.2d 1156, 1157 (1995). The definition does not include the requirement that the lawsuit in question must have been initiated in Pennsylvania state court. Indeed, the phrase “civil proceedings,” as explicated by our case law, plainly contrasts with “criminal proceedings” not with “federal proceedings.” A criminal proceeding is “[o]ne instituted and conducted for the purpose either of preventing the commission of a crime, or for fixing the guilt of a crime already committed and punishing the offender; as distinguished from a ‘civil’ proceeding, which is for the redress of a private party.” Commonwealth v. Mordan, 419 Pa.Super. 214, 615 A.2d 102, 106 n. 5 (1992), aff'd without opinion, 534 Pa. 390, 633 A.2d 588 (1993). In consideration of the above, we can see no grounds that would justify limiting the term “civil proceedings” in the Dragonetti Act to “proceedings” which have occurred in a Pennsylvania court of common pleas as opposed to “proceedings” that took place in federal district court. ¶ 40 For the above reasons, we find that the trial court erred in dismissing Appellant’s complaint on the grounds that litigants cannot seek state torts remedies for litigation abuse that occurred in federal court. Because the trial court did not address the legal sufficiency of Appellant’s complaint in light of the appropriate state torts law, we decline to do so in the first instance. We reverse the order of the trial court and reinstate Appellant’s complaint. We remand for further proceedings consistent with this opinion. ¶ 41 Order reversed. The complaint is reinstated and the case is remanded for further proceedings. Jurisdiction relinquished. . Although the United States District Court for the Eastern District of Pennsylvania reached its determination on February 17, 1998, the case was not filed until the following day. The federal court’s memorandum decision is available at Plater-Zyberk v. Abraham, 1998 U.S. Dist. Lexis 1736 (E.D.Pa. February 18, 1998), and at Plater-Zyberk v. Abraham, 1998 WL 67545 (E.D.Pa. February 17, 1998).

OPINION BY Senior Judge DOYLE. Before this Court, in our original jurisdiction, is the preliminary objection in the form of a demurrer filed by the Pennsylvania Board of Probation and Parole to the petition for review, in the nature of mandamus, of Vernal Alston. We sustain the Board’s objection and dismiss Alston’s petition. Alston is currently incarcerated in the Federal Correctional Institution in Schuylkill, Pennsylvania (F.C.I.-Schuylkill). On September 14, 1994, Alston was paroled from a state correctional institution where he had been serving a sentence of ten to twenty years, which was imposed following a conviction in Philadelphia County. He was arrested by federal authorities on October 30, 1997, and charged with distribution of cocaine and aiding and abetting. According to Alston, he was released on bail on the date that he was arrested, but was immediately incarcerated in the State Correctional Institution at Camp Hill, Pennsylvania (S.C.I.-Camp Hill) solely on the Board’s detainer. Alston was convicted of the federal charges, and the Board held a revocation hearing on November 5, 1997. Pursuant to a decision recorded on January 16, 1998, the Board mailed Alston a form PBPP-15 on February 11, 1998, by which it notified him of its decision to recommit him to serve three months of backtime, when available, as a technical parole violator and also to serve, as a convicted parole violator, nine months of backtime concurrently, when available, for a total of nine months of backtime. Alston now asserts that he was confined in S.C.I.-Camp Hill solely on the Board’s detainer from October 30, 1997 to December 6, 1999, and that this period of time must be credited to his original sentence. He also asserts that he was available to the Board for recommitment beginning on October 30, 1997, that service of his nine months of backtime should have begun on that date, and that service of his backtime should have expired on July 30, 1998. What Alston is essentially requesting is a Board order, or a new PBPP-15, containing a recomputed maximum date because, he maintains, the Board neglected to inform him when his reparole eligibility would expire. Alston argues that Section 21a(a) of the Parole Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(a), re- quires that the Board immediately credit the time he served in custody in the state system and recompute his sentence. However, the statutory section Alston cites requires that individuals paroled from state or county institutions who are recommitted to the same type of institution from which they were paroled shall serve the balance of their old terms prior to serving the subsequently imposed term. It provides further, however, that: “[i]n all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.” 61 P.S. § 331.21a(a) (emphasis added). Both Alston and the Board rely on our decision in Pugh v. Pennsylvania Board of Probation & Parole, 45 Pa.Cmwlth. 41, 404 A.2d 776 (1979). Alston’s reliance on Pugh, however, is misplaced. Pugh, like Aston, was on parole from a state institution when he was convicted on federal charges and sentenced to a federal prison. We held in Pugh that “where the new sentence is in a federal penal institution, the latter [federal] must be served first.” 404 A.2d at 778 (emphasis added) (citations omitted). Therefore, Aston, being presently in a federal prison, must wait until he is returned to the state system to raise the issue of credit for his jail time while in the state system, i.e., his allegation that he served time in S.C.I.-Camp Hill from October 30, 1997 to December 6, 1999. We agree with the Board that, where a new federal sentence must precede the serving of backtime, the date on which the service of backtime is set to begin cannot be known until the inmate is actually re-entered into state custody to serve the back-time, and therefore the Board is not now required to set a reparole reconsideration date. See Carter v. Rapone, 39 Pa.Cmwlth. 160, 394 A.2d 1092 (1978). Moreover, the Board agrees that, if Aston posted bail on the federal charges, any credit for the time spent at S.C.I.Camp Hill can be applied to his original sentence when he becomes available. Gaito v. Pennsylvania Board of Probation & Parole, 488 Pa. 397, 412 A.2d 568 (1980). His time at Camp Hill, therefore, is not lost to him; it just will not be considered by the Board until he has served his federal sentence and is again available to the Board. Accordingly, the Board’s preliminary objection is sustained and the petition for review is dismissed. ORDER AND NOW, this 3rd day of May, 2002, the preliminary objection of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby sustained and the petition for review is dismissed. . A demurrer may only be sustained when on the face of the complaint the law will not permit recovery. Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 151 Pa.Cmwlth. 266, 616 A.2d 1060 (1992), aff'd, 538 Pa. 276, 648 A.2d 304 (1994). All well-pled allegations must be accepted as true. Id. Mandamus will only lie where the petitioning party demonstrates a clear right to relief, a corresponding clear duty on the part of the party against which mandamus is sought, and the want of any other adequate remedy. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965). Further, mandamus can only be used to compel performance of a ministerial duty and will not be granted in doubtful cases. Id. . Although Alston styled his petition as a petition for writ of habeas corpus, because he actually seeks relief in mandamus, this Court does have jurisdiction in this matter. See, e.g., McGriff v. Pennsylvania Board of Probation & Parole, 149 Pa.Cmwlth. 638, 613 A.2d 688 (1992). . There is no statement in the file regarding when Alston was sent to federal prison. . The file does not contain any statements regarding when Alston was convicted of these charges. . Section 21a(a) provides: (a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, from which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his re-commitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. The board may, in its discretion, reparole whenever, in its opinion, the best interests of the prisoner justify or require his release on parole and its does not appear that the interests of the Commonwealth will be injured thereby. The period of time for which the parole violator ís required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator. If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases: (1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentence imposed upon him is to be served in any such State penal or correctional institution. (2) If a person is paroled from a county penal or correctional institution and the new sentence imposed upon him is to be served in the same county penal or correctional institution. In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed. 61 P.S. § 331.21a(a) (emphasis added).

MONTEMURO, J. ¶ 1 This is a pro se appeal from an order granting summary judgment in favor of defendant/Appellee Riley and Fañelli, P.C., in an action grounded on theories of breach of contract and fraud. The same order denied Appellant’s cross-motion for summary judgment. ¶ 2 The basis of this case is an alleged oral contract between Appellee, a law firm, and Appellant, a non-lawyer, governing a fee-splitting arrangement. In his Complaint, Appellant. contends that Appellee agreed to pay him a forwarding fee of one third of the compensation received from cases he referred, but ceased to,do so after recovering $150,000 in fees from damages in a product liability matter. Appellant also asserts that Appellee breached a second oral contract to pay him a salary for six months and then severance, instituted because of the impropriety of the first scheme. It is alleged that in each instance, Appellee engaged in fraudulent conduct to induce Appellant’s acquiescence. ¶ 3 Appellee filed preliminary objections to Appellant’s complaints and to each of three amendments, then unsuccessfully sought judgment on the pleadings. When discovery was completed, both parties moved for the entry of summary judgment. The trial, court granted Appellee’s motion, and this appeal followed. In reviewing a grant of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or manifest abuse of discretion. Nevertheless, the scope of review is plenary; the appellate court shall apply the same standard for summary judgment as the trial court ... The record is to be viewed in the light most favorable to the nonmoving party, and all doubts as to the presence of-a genuine issue of material fact must be resolved against the moving party. Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1165 (1997) (citations omitted). ¶ 4 Appellant raises two issues in this appeal, first arguing that the trial court erred in granting summary judg ment in favor of Appellee based on the doctrine of in pari delicto. As this Court found in Feld & Sons v. Pechner, Dorfman, Wolfee, Etc., 312 Pa.Super. 125, 458 A.2d 545, 548 (1983), The common law doctrine of in pan delicto (“in equal fault”) is an application of the principle that “ ‘no court will lend its aid to a man who grounds his action upon an immoral or illegal act.’ ” Fowler v. Scully, 72 Pa. 456, 467 (1872) (collecting authorities, and quoting YEATES, J., in Mitchell v. Smith, 1 Binn. 110, 121 (1804), who was in turn quoting Lord Mansfield in Holman v. Johnson, 98 Eng.Rep. 1120 (1775)). When the doctrine is applied, the result is to render the transaction between the parties “absolutely without any force or effect whatever.... The law will leave the parties just in the condition in which it finds them.” Pittsburg v. Goshorn, 230 Pa. 212, 227, 79 A. 505 (1911). And see Kuhn v. Buhl, 251 Pa. 348, 371, 96 A. 977 (1916); Burkholder v. Beetem, 65 Pa. 496, 505-506 (1870). ¶ 5 The trial court based its application of the doctrine on the fact that the agreement to share fees is violative of the Rules of Professional Conduct, and therefore unethical and immoral, although not illegal, since the Rules are not statutory. ¶ 6 Rule of Professional Conduct 5.4 prohibits the sharing or splitting of fees between a lawyer and a non-lawyer. The purposes of “this legal mandate,” as our Supreme Court observes, are “to maintain a lawyer’s independent professional judgment, unhampered by monetary obligation to a party other than his client,” and “to protect the Bar from the unauthorized practice of law by persons the system does not recognize as presently licensed to practice.” Disciplinary Counsel v. Jackson, 536 Pa. 26, 637 A.2d 615, 618 (1994) (quoting Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania, at 17). ¶ 7 Appellant argues that he was not “equal” to the law firm, and thus not equally responsible, as his conduct is not governed by the Rules of Professional Conduct, of which he was excusably ignorant. In fact, he intimates that his position is tantamount to that of a client, to whose money the lawyer is not entitled, even though the client may have acted illegally or immorally. He analogizes his situation with that of the appellants in Feld, supra, whose attorneys’ fees were returned by the court despite their having committed perjury and other transgressions on the advice of counsel. ¶ 8 However, Appellant was never a client of Appellee. His insistence that he was victimized by Appellee’s misrepresentations is barely specious. As the trial court aptly points out, although Appellant may, at the outset, have been unaware of the unethical character of the agreement, he did learn of it later and continued to engage in the same conduct. Indeed, the improper nature of the first agreement was the motivating factor for the second, the employment agreement, which was merely an attempt to avoid any consequences from the first. Appellant does not and may not claim that he was compelled to enter either. ¶ 9 Moreover, Appellant’s knowledge or ignorance of the unethical nature of the object is not controlling. The Supreme Court of Illinois, in declining to enforce a fee-splitting agreement between a lawyer and a non-lawyer, explained that, [although courts will generally not enforce contracts which are against public policy where the parties are in pari delicto, this is not to say a court must enforce an agreement when the parties are not in pari delicto. [T]he interest of the public, rather than the equitable standing of the individual parties, is of determining importance. Assuming, without deciding, that [Appellant] is correct in [his] contention that the mere difference in the status of the parties suffices to establish that they were not in pari delicto, we do not believe that the public interest will be served by accepting [his] argument and enforcing the contract. Under [Appellant’s] theory, every fee-sharing agreement between an attorney and a nonat-torney which violates [the fee-splitting prohibition] would be enforceable by the lay party since, by definition, such agreements will always involve an attorney and a nonattorney. Although consistent enforcement of such contracts against breaching attorneys might deter attorneys from entering fe'e-sharing agreements, presumably most lawyers are already deterred from such conduct by the existence of [the disciplinary rule] and by the possibility of sanctions that its violation carries. By refusing in every case to assist the lay party, the courts may deter laypersons as well as attorneys from attempting such agreements. We believe that, in this way the public will be protected more effectively from the potential harms posed by fee-sharing agreements. O’Hara v. Ahlgren, Blumenfeld and Kempster, 127 Ill.2d 833, 130 Ill.Dec. 401, 537 N.E.2d 730, 737-38 (1989) (citation omitted). ¶ 10 We see no reason to disagree with the Illinois Court’s position. ¶ 11 Appellant also argues that his arrangement with Appellee, which provided for “a salary over a six month period based on an annual rate of $70,000, followed by a severance payment of $25,000,” (Fourth Amended Complaint at ¶ 50) is permitted under the exception to the fee-splitting prohibition of Rule 5.4. Subsection (a)(3) of the Rule allows the sharing of legal fees between a lawyer and a non-lawyer under the following circumstances: Rule 5.4(a)(3). A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though a plan is based in whole or in part on a profit-sharing arrangement. ¶ 12 What is clearly contemplated by the exception is a formalized program to benefit employees based on the profitability of the firm. In Disciplinary Counsel v. Jackson, supra, our Supreme Court explained that the exception, which permits payment of profits earned by lawyers from fees, “is sustainable because there is no direct link between a specific fee and a specific payment to a non-lawyer.” Id. The Jackson Court noted that the exception did not apply because there, “that very evil,” the direct link, “is present.” Id. The same may be said of this case. ¶ 18 Order affirmed. . Appellant filed his Complaint in the Court of Common Pleas of Schuylkill County in January of 1999. In August of the same year, Appellant filed suit in the United States District Court for the Middle District of Pennsylvania pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq. The action was dismissed as frivolous and/or failure to state a claim on which relief could be granted in November, 1999, and Appellant’s motion for reconsideration was denied in December, 1999. . Because of its finding on this issue, the trial court declined to address the remaining arguments advanced by Appellee for the entry of summary judgment. . As the trial court also notes, we assume the existence of both agreements under the summary judgment standard requiring the record to be examined in the light most favorable to the nonmoving party. . Indeed, we deplore the cynical attitude demonstrated by attorneys who, with cavalier disregard of professional norms, enter into agreements such as the ones under examination here. Any inequality of responsibility between a lawyer and a non-lawyer in such situations is most notably demonstrated in the disparate penalties for violation of the rules: the non-lawyer may lose profits anticipated from the agreement, but the lawyer who is caught engaging in these prohibited activities runs the risk of losing his professional standing altogether.

OPINION BY Judge LEADBETTER. The Pennsylvania State Police (PSP) petition for review of the decision by the Office of Attorney General (OAG) holding that an order of the court of common pleas pursuant to Section 6105(d) of the Uniform Firearms Act (UFA), 18 Pa.C.S. § 6105(d), relieved Byron Stein of his disability from purchasing, owning or using firearms. We affirm. Byron Stein’s firearms disability under 18 Pa.C.S. § 6105 occurred as the result of his conviction in 1963 for larceny in con nection with the theft of an automobile. He served a three-year term of probation and paid restitution. Thereafter, he served for two years in the armed services and was honorably discharged. He married, raised three children and has been steadily employed for over thirty years. On May 3, 2000, the local sheriff denied Stein’s application for a license to carry a firearm under 18 Pa.C.S. § 6109 based upon the criminal record report provided by the PSP. Stein filed a challenge with the PSP on May 23, 2000 (assigned file no. 00-05-01878). The PSP confirmed the accuracy of its criminal history record on May 24, and stated that the issuance of a license to a person convicted of a crime punishable by imprisonment for a term exceeding one year is prohibited under 18 Pa.C.S. § 6109(e)(l)(viii). Stein took no further steps regarding the license. Rather, it appears that a few months later Stein sought to purchase a gun and, on July 5, 2000, was refused based on another PSP criminal record check that revealed the old conviction. Stein filed a second challenge with the PSP (assigned file no. 00-07-02327) and, on July 6, the PSP coiifirmed its decision stating as its reason that regardless of any relief that may be available to Stein from State firearms disability, he is disabled from owning or possessing a firearm under Section 922 of the Federal Gun Control Act of 1968, 18 U.S.C. § 922. Thereafter, by a letter received at the Office of Attorney General on July 17, 2000, Stein appealed the PSP confirmation. The OAG assigned an ALJ to conduct a hearing. Meanwhile, on July 28, Stein petitioned the court of common pleas pursuant to 18 Pa.C.S. § 6105(d) for relief from firearms disability. Following a hearing, at which the Berks County District Attorney asserted no objection, common pleas granted Stein’s request in an order dated October 17, 2000, which states in pertinent part: Byron G. Stein is granted an exemption and relief under Section 6105(d) from the conviction of the enumerated offenses set forth in 6105(b) on the basis that a period of more than ten (10) years has elapsed since the most recent conviction of a crime enumerated in subsection (b). Byron G. Stein shall hereafter be permitted to purchase, own, possess, sell or transfer a firearm in spite of the conviction of the 1963 offenses. In re Application of Byron G. Stein, (Berks County No. 00-7509, order dated October 17, 2000). At the hearing on May 15, 2001, the ALJ admitted the exemption order by common pleas without objection from PSP and Stein testified that he seeks enforcement of common pleas’ order so as “to have the right to buy, purchase or sell a firearm.” Based thereon, the ALJ granted Stein’s request in an order directing the PSP, in pertinent part: to take such remedial action with respect to [Stein’s] official criminal history record maintained by the Pennsylvania State Police so as to grant [Stein] the benefits of the Exemption Order referred to herein. [And] to provide [Stein] with an amended certified copy of his criminal history record information for purposes of facilitating compliance by both [Stein] and [PSP] with the provisions of the Uniform Firearms Act 18 Pa.C.S. § 6101, et seq. Stein v. Pennsylvania State Police, (Office of Attorney General No. FAD00270, order dated June 12, 2001). The PSP filed the present appeal. The PSP in both its brief and oral argument to this court misstates that the present appeal is from the denial of the license. Confusion as to which PSP decision was on appeal to the OAG apparently began when the PSP, in a post-appeal follow-up letter to Stein dated August 18, 2000, referenced the file number applicable to the “denial for a license to carry a firearm dated May 23[sic], 2000” (i.e., 00-05-01878) and restated the prohibition against issuance of a license to a convicted felon under Section 6109(e). The issuance or denial of a license under Section 6109 is a decision made by the local sheriff based not only on an investigation of the applicant’s criminal record history, but also takes into consideration the applicant’s character, reputation and the stated reasons for obtaining the license. See 18 Pa.C.S. § 6109. The sheriff’s decision is an adjudication by a local agency that is appealable to the court of common pleas under 2 Pa.C.S. § 754. See 18 Pa.C.S. § 6114. Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406 (1988). It would appear that Stein was entitled, alternatively, to appeal the accuracy of the PSP determination to the Office of Attorney General (OAG) within thirty days pursuant to 18 Pa.C.S. § 6111.1(e). Any such appeal, however, would determine only the validity of the report made and record maintained by the PSP, not the grant or denial of the license, which is a discretionary determination of the local sheriff. At all events, even if Stein intended to follow such a course with regard to the PSP’s record history confirmation of May 24 (relating to the license application), the time for such an appeal had long expired by the time of Stein’s July 17 appeal letter. Thus the only PSP determination within the OAG’s jurisdiction was that of July 6 (relating to the purchase application) and that is the only matter now before this court. In. its petition for review, the PSP assert that Stein remains under a firearms disability because the order entered by common pleas is not sufficient to relieve firearm disability under Section 922 of the Federal Act. However, in its brief to this court, the PSP shifts its argument, contending that the exemption from firearms disability granted by common pleas pursuant to 18 Pa.C.S. § 6105(d) does not relieve the prohibition against issuance of a license under 18 Pa.C.S. § 6109. Stein did not file a timely brief and, therefore, is precluded from briefing or arguing his case. PSP’s argument concerning the denial of Stem’s license application is both improper, in that it argues an issue not raised in the petition for review, and irrelevant, in that Stein did not appeal the criminal history record report that led to license denial. PSP asserts its relevant argument, i.e., that relief from State firearms disability does not relieve Federal disability under Section 922 in the petition for review and does not raise this contention in its brief. For this reason, the argument is waived. See Pa. R.A.P. 2116. See, e.g., Holland v. Department of Transp., Bureau of Driver Licensing, 656 A.2d 178 (Pa.Cmwlth.1995). Nevertheless, even if this argument had been preserved, it cannot prevail in light of this court’s en banc decision in Pennsylvania State Police v. Grogan, 790 A.2d 1093 (Pa.Cmwlth.2002), holding that a common pleas order granting an unqualified exemption from firearms disability under 18 Pa.C.S. § 6105 relieved both State and Federal firearms disability. Under the rule established in Grogan, the ALJ properly concluded that common pleas’ order of October 17, 2000 renders Stein eligible to purchase, own, possess, sell or transfer a firearm. Accordingly, we affirm. ORDER AND NOW, this 30th day of April, 2002, the order of the Office of Attorney-General in the above captioned matter is hereby AFFIRMED. . A license to carry a firearm is issued for the purpose of carrying a firearm concealed on or about one’s person or in a vehicle. See 18 Pa.C.S. § 6109(a). . Section 6105(d) provides for an exemption from disability by stating, in pertinent part, as follows: (d) Exemption. — A person who has been convicted of a crime specified in subsection (a) or (b) ... may make application to the court of common pleas of the county where the principal residence of the applicant is situated for relief from the disability imposed by this section upon the possession, transfer or control of a firearm. The court shall grant such relief if it determines that any of the following apply: (3) Each of the following conditions is met: (i) The Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant’s prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to the applicants eligible for relief. (ii) A period of ten years, not including any time spent in incarceration, has elapsed since the most recent conviction of the applicant of a crime enumerated in subsection (b) or a felony violation of The Controlled Substance, Drug, Device and Cosmetic Act. 18 Pa.C.S. § 6105(d). . At the hearing, the confusion continued unabated as to which PSP determination was before the ALJ, that of May 24 or that of July 6. The PSP announced, inappropriately, that it would establish grounds supporting the denial of a firearms license on May 23. Stein announced that he challenged the PSP's denial of his right to purchase a firearm. The ALJ correctly states that his decision resolves, "the appeal of the Petitioner, Byron G. Stein from the ruling of the Respondent, Pennsylvania State Police, dated July 6, 2000,” which is the PSP decision at file number 00-07-02327 concerning the "denial for a purchase/transfer of a firearm.” However, in his opinion, the ALJ incorrectly notes that the appeal is from the denial of Stein’s license application.

OPINION BY Senior Judge DOYLE. Jay-Lee, Inc. (Jay-Lee), Four G. Corp., Inc. (Four G) and Jules Greenberg (collectively, Appellants) appeal from an order of the Court of Common Pleas of Luzerne County that denied their appeal and affirmed the decision of the Zoning Hearing Board (ZHB) of the Municipality of Kingston (Kingston), which upheld a zoning officer’s denial of Appellants’ application for an occupancy permit and struck down Appellants’ challenge to the Kingston Municipal Zoning Ordinance (Ordinance). Jules Greenberg owns the property located at 481 Market Street in Kingston, Luzerne County. After Greenberg purchased the property in 1977, he operated a restaurant and lounge, which served alcoholic beverages under a permit issued by the Pennsylvania Liquor Control Board (PLCB). In 1980, he obtained an amusement permit, which allowed, for the first time, the use of live and recorded music on the premises. In 1985, Four G was incorporated and became the sole tenant of the premises. Four G obtained a license from the PLCB in 1993 and began to provide female dancers who, in compliance with PLCB regulations, were clad with “pasties” and “G-strings.” The name of the establishment was then changed to “Le Cabaret.” After Le Cabaret began operations; Kingston enacted Ordinance No. 1993-12, which became effective in December 1993. Ordinance No. 1993-12 was Kingston’s first attempt to regulate “adult entertainment.” Section 181-17(B)(4) of the Ordinance sets forth certain prohibited acts, and provides in pertinent part: (a) It shall be unlawful for any person or persons who own, operate, lease, manage or control ... or conduct any adult business to: Transact business without possessing a valid club permit; or Own, operate or conduct business that is located within one thousand (1,000) feet of the following: [a] A church. [b] A public or private elementary or secondary school. [c] A nursery school, kindergarten, child-care center, day nursery or day care center. [d] A university, college, vocational or business school. [e] A boundary of any residential district. [f] A public park adjacent to a residential district. [g] The property line of a lot devoted to any residential use. Kingston Code § 181-17(B)(4). The phrase “conduct any adult business” is defined in Section 181-17(B)(2) of the Ordinance to include any instance where a person “(c) Delivers or provides to any customer any ... entertainment ... on the adult business premises.” “Entertainment” is defined as: Any act or performance, such as a play, skit, reading, revue, pantomime, scene, song, dance, musical rendition or striptease, whether performed by employees, agents, contractors or customers. The term “entertainment” shall also mean bartenders, waiters, waitresses or other employees exposing “specified anatomical areas” or engaging in “specified sexual activities” in the presence of customers. Kingston Code § 181-17(B)(2). This section further defines “specified anatomical areas” as “(a) Less than completely and opaquely covered human genitals, pubic region, buttocks or female breast below a point immediately above the top of the areola, (b) Human male genitals in a dis-eernibly turgid state, whether or not covered.” Section 181-17(B)(2) also defines “specified sexual activities” as: “(a) Human genitals in a state of sexual stimulation or arousal, (b) Acts of human masturbation, sexual intercourse or sodomy, (c) Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.” Section 181-17(B)(3) provides that certain uses, including “[a]ny cabaret, club or tavern offering any entertainment showing specified sexual activities or specified anatomical areas,” shall only be permitted as special exception uses in the zoning districts designated as C-3 and M-l. Kingston Code § 181-17(B)(3). The district designated as C-3 refers to a general commercial zone; the M-l district is an area zoned for manufacturing uses. The premises at issue are located in a C-3 zoning district. Totally nude dancing had not been offered at any time on the premises either before or after the enactment of Ordinance No. 1993-12. On June 21, 1999, the PLCB informed Four G that it had granted its request to “delicense” the front portion of the premises so that it would not have to comply with PLCB regulations. Four G then leased that front portion of the premises to Jay-Lee, a corporation wholly owned by Green-berg, but the rear portion of the premises continued to be leased by Four G. On July 27,1999, Jay-Lee applied to Kingston for an occupancy permit in order to use the entire premises as an “Adult Entertainment Center,” offering totally nude entertainment. By letter dated October 6, 1999, Kingston denied the application on the grounds that Jay-Lee had not obtained a special exception and the requested use was prohibited by the Ordinance, specifically Section 181-17(B)(4). On appeal to the ZHB from Kingston’s denial of the occupancy permit, Greenberg and Four G joined in a request to obtain a permit, arguing that totally nude dancing should be allowed because it is essentially the same as the use which predated the enactment of Ordinance No. 1993-12, ie., dancing with “pasties” and a “G-string.” Appellants also challenged the validity of Ordinance No. 1993-12. The ZHB denied the appeal, holding that Kingston properly denied Appellants’ occupancy permit because the premises in dispute never in the past had been the site of entertainment showing “specified anatomical areas” or “specified sexual activities” as defined by Section 181-17(B)(2) of the Ordinance and that, to the contrary, Appellants had always operated within the constraints that the PLCB placed on the business. The ZHB also rejected Appellants’ argument that Section 181 — 17(B) of the Ordinance was constitutionally invalid because it allegedly failed to allow totally nude dancing anywhere in Kingston. On appeal, the Court of Common Pleas of Luzerne County, after considering the record, briefs, and arguments of counsel, affirmed the decision of the ZHB. Appellants bring the instant appeal. First, Appellants argue that totally nude dancing is similar to dancing with “pasties” and a “G-string” and that totally nude dancing is, therefore, a preexisting nonconforming use of the premises. Kingston counters by arguing that totally nude entertainment is not similar to “scantily clad” entertainment and that Appellants are not entitled to an occupancy permit for totally nude entertainment. Section 107 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10107, defines a nonconforming use as follows: a use, whether of land or of structure, which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or amendment, or prior to the application of such ordinance or amendment to its location by reason of annexation. The Pennsylvania Supreme Court has held that, in order to qualify a proposed use as a preexisting nonconforming use, the proposed use must be sufficiently similar to the preexisting nonconforming use so as not to constitute a new or different use. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d 54 (1993). The proposed nonconforming use need not be identical to the preexisting nonconforming use; all that is required is similarity in use. Id. In the instant case, in order to determine whether the use of totally nude entertainment is a preexisting nonconforming use, we must decide whether totally nude entertainment is similar to scantily clad entertainment. Appellants argue that Four G provided adult entertainment on the premises in the form of live female dancers attired in pasties and G-strings in compliance with PLCB regulations. Appellants contend that, when it originally did so, the Ordinance contained no restrictions, rules or regulations on adult businesses. Appellants assert that, since totally nude entertainment could have been provided prior to the enactment of Ordinance No. 1993-12, totally nude entertainment should be permitted under the present Ordinance as a continuation of a nonconforming use. In addition, they contend that adult entertainment in the form of exotic dancers and strippers has been provided on the premises since early 1993 and that the proposed use by Jay-Lee still involves strippers and exotic dancers but without pasties and G-strings, a distinction which Jay-Lee contends is “at best a hair splitting difference.” (Appellant’s Br. at 14). Basically, Appellants would have us hold that a prior potential use is the same, or sufficiently similar, as the requested use. We decline to do so and adopt the correct, proper analysis to apply in this case, which is to determine whether totally nude dancing is sufficiently similar to dancing with “pasties” and a “G-string.” Courts in the past have addressed this question, viz., whether totally nude dancing is sufficiently similar to dancing with “pasties” and a “G string,” albeit the anal-yses have been made in the context of interpreting different statutes. In Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 721 A.2d 84 (Pa.Cmwlth.1998), petition for allowance of appeal granted, 559 Pa. 724, 740 A.2d 1150 (1999), this Court decided whether female entertainers, who appeared to be bare-breasted but who “covered” their breasts with a substance that appeared to be transparent when dry, were providing entertainment that was “lewd, immoral or improper” as defined by the Pennsylvania Liquor Code. In that case, we distinguished between total nudity and partial coverage and found that the entertainment offered had violated the statute. Furthermore, in City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), the United States Supreme Court addressed the constitutionality of a public indecency ordinance that prohibited entertainers from performing in a “state of nudity5’ as opposed to dancing -with “pasties” and a “G-string.” In that case, the City of Erie, Pennsylvania, had enacted an ordinance that prohibited one from knowingly or intentionally appearing in public in a “state of nudity.” Id. at 283, 120 S.Ct. 1382, 146 L.Ed.2d 265. The Supreme Court determined that the Erie ordinance prohibiting public nudity was aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments and not at suppressing the erotic message conveyed by the nude dancing at issue in that case. The Court stated: “[E]ven if Erie’s public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such [‘bottle club’] establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis.” Id. at 294, 120 S.Ct. 1382, 146 L.Ed.2d 265. The Supreme Court concluded that Erie’s interest in combating the negative secondary effects associated with adult entertainment establishments was unrelated to the suppression ' of the erotic message conveyed by nude dancing. The Supreme Court of the United States distinguished between totally nude and partially clothed entertainers and upheld the ordinance as a constitutional exercise of municipal control. We, therefore, hold that totally nude entertainment is not sufficiently similar to entertainment offered with “pasties” and a “G string” so as to allow totally nude entertainment on the premises as a preexisting nonconforming use. In this appeal, since Appellants propose to offer totally nude entertainers who would exhibit the “specified anatomical areas,” as defined by the Ordinance, they would be required to obtain a special exception. Next, Appellants contend that Section 181-64(B) of the Ordinance violates the United States Constitution and the Pennsylvania Constitution on its face and as applied because the Ordinance fails to provide time constraints on a zoning officer’s action on a permit application, and thus acts as a prior restraint on speech. Moreover, they contend that the Ordinance is unconstitutional because it lacks a provision for prompt “judicial” review of a zoning officer’s decision to deny an occupancy permit. They further assert that, since the Ordinance does not address how and where an appeal from a zoning officer’s determination may be filed, this omission in the Ordinance acts to stifle expression of speech. Particularly, on this issue, Appellants contend that legal counsel for Jay-Lee wrote to various municipal officials, including the zoning officer, requesting an application to appeal to the ZHB but that the failure to provide him with the requested appeal form stifled Appellants’ egression. Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Thus, where a licensing scheme creates a “risk of delay,” such that “ ‘every application of the statute create[s] an impermissible risk of suppression of ideas,”’ the United States Supreme Court has permitted parties to bring facial challenges. Id. at 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. FW/ PBS, 493 U.S. at 224, 110 S.Ct. 596, 107 L.Ed.2d 603. The United States Supreme Court, in addressing prior restraints, has identified two scenarios that will not be tolerated. First, a licensing scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship. Id. at 224-25, 110 S.Ct. 596, 107 L.Ed.2d 603. For example, an ordinance that makes the peaceful enjoyment of constitutionally-guaranteed freedoms contingent upon the uncontrolled will of an official by requiring a permit or license which may be granted or withheld in the discretion of such official, is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Id. at 226, 110 S.Ct. 596, 107 L.Ed.2d 603. Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is not permissible. Id. There is no dispute that Section 181-64 of the Ordinance, which provides for the issuance of occupancy permits, does not have a provision that sets forth time limits within which the zoning officer must decide whether to grant or deny an occupancy permit upon application. However, Section 1 of the Act of July 9, 1976, P.L. 919, as amended, 53 P.S. § 4104, pro vides a period of ninety days within which a municipality must act to approve or disapprove an application for a permit regulating the operation of building. Therefore, since there was a time limit within which the zoning officer was required to issue the permit, we hold that the Ordinance does not place an unconstitutional prior restraint on speech when the Ordinance is read in conjunction with 53 P.S. § 4104. With regard to Appellants’ contention that the Ordinance contains no provision directing where an appeal may be filed, Section 181-62(E) provides as follows: “All appeals from decisions of the Zoning Officer shall be taken in the manner set forth in this chapter and as otherwise prescribed by the [MPC].” Kingston Code § 181-62(E) (footnote omitted). Section 615 of the MPC, 53 P.S. § 10615, provides the following: “All appeals from decisions of the zoning officer shall be taken in the manner set forth in this act.” Section 909.1 of the MPC, 53 P.S. § 10909.1, addresses who has jurisdiction over an appeal from a zoning officer’s decision. That section provides, in pertinent part, as foEows: “The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the foEowing matters ... (3) Appeals from the determination of the zoning officer, including, but not Emited to, the granting or denial of any permit....” Since the MPC specificaEy provides that the zoning hearing board has exclusive jurisdiction over all appeals from a zoning officer’s denial of a permit, we reject Appellants’ argument and hold that Section 181-64(E), in conjunction with the MPC, provides for adequate procedural safeguards for review of a zoning officer’s decision. EinaEy, Appellants argue that the Ordinance violates the United States Constitution and the Pennsylvania Constitution in that it faEs to provide for any location in Kingston for the establishment of adult entertainment uses. Kingston argues that a videotape of every C-3 and M-l zone in the municipahty, submitted by Appellants, was the only evidence submitted on this issue and that it is insufficient to establish that the Ordinance has effectively “zoned out” Appellants’ intended use. Before the ZHB, Jules Greenberg did introduce a videotape that he took whEe supposedly driving by every C-3 and M-l zone in Kingston. He testified that nowhere in the C-3 and M-l zones was there an area that was developed or that could be developed as an adult entertainment estabhshment without violating the distance constraints found in Section 181-17(B)(4) of the Ordinance. The sohcitor for Kingston, Harry P. Mattern, Esq., objected to the videotape on the ground that it was irrelevant since there was no evidence, such as the testimony of a surveyor, which established the distances portrayed on the tape. The ZHB considered this evidence and found that Appellants did not submit sufficient proof that the Ordinance fails to provide a zone for an adult entertainment center in which nude dancing may occur. We agree and hold as a matter of law that Appellants submitted insufficient evidence to establish a violation of either the United States or the Pennsylvania Constitutions. Accordingly, we affirm. Judge FRIEDMAN did not participate in the decision in this case. ORDER AND NOW, this 30th day of May, 2002, the order of the Court of Common Pleas of Luzerne County, at No. 8464-C of 2000, is hereby affirmed. . Ordinance No. 1993-12, entitled in part as an ordinance “Regulating the operation of bring your own bottle clubs and adult businesses,” amended the existing Ordinance by adding Section 181-17(B), which relates to adult entertainment special exception uses. . PLCB regulations do not permit totally nude dancing in licensed premises. Green-berg testified that he had only intended to request a Certificate of Occupancy for the front portion of 481 Market Street, not the whole premises. (Notes of Testimony, N.T., Hearing of Februaiy 8, 2000, Testimony of Jules Greenberg at 44). . Appellants filed an appeal with the Protho-notaiy of the Court of Common Pleas of Lu-zerne County on May 18, 2000. . In zoning appeals where, as here, the trial court has taken no additional evidence, this Court’s standard of review is limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law. Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732 (Pa.Cmwlth.2000); see also Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997). A conclusion that the zoning hearing board abused its discretion may be reached only if the zoning hearing board's findings are not supported by substantial evidence. Baker. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa.Cmwlth.1997). .Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. . As Kingston notes in its brief at page 6, courts have made a distinction between totally nude and partially clothed entertainers in the context of public indecency ordinances. In D’Angio v. Borough of Nescopeck, 34 F.Supp.2d 256 (M.D.Pa.1999), the United States District Court for the Middle District of Pennsylvania upheld a borough ordinance that prohibited nudity in public places. In that case, the Court recognized the distinction made in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), between dancers having to wear G-strings and pasties as opposed to totally nude entertainers. The Court thus found that performing totally nude could be constitutionally prohibited, but that dancing with G-strings and pasties is an exercise of free expression. Although the D’Angio court made this distinction in a different context of interpreting a public indecency ordinance, the distinction still remains viable here. . Section 181-64 of the Ordinance concerns occupancy permits for new uses and for existing uses. The relevant portion of the Ordinance concerning existing uses, Section 181— 64(B), provides, in part, as follows: (1) Upon written request from the owner, tenant or occupant, the Zoning Officer, after inspection, shall issue an occupancy permit for an existing use legally existing at the time this chapter is made effective, certifying the extent and kind of use and whether any such existing use conforms with the provisions of this chapter. (2) No change or extensions of use and no alterations shall be made in a nonconforming use or premises without an occupancy permit having first been issued by the Zoning Officer stating that such change, extension or alteration is in conformity with the provisions of this chapter. . The First Amendment to the United States Constitution provides, in pertinent part, as follows: “Congress shall make no law ... abridging the freedom of speech, or of the press ...." U.S. CoNST.Amend. I. . The Pennsylvania Constitution provides the following:' “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty....” Pa. Const. Art. I, § 7. . Appellants do not bear out their argument in their brief that the Ordinance violates the United States and Pennsylvania Constitutions “as applied.” Nevertheless, in the case at bar, Appellants applied for an occupancy permit on July 27, 1999, and Kingston issued a decision letter denying the request for an occupancy permit on October 6, 1999, seventy-one days after the application for a certificate of occupancy was filed. Kingston’s decision was timely issued and, in this respect, the Ordinance is not constitutionally violative as applied. See infra note 13. . Section 4104(a) provides, in pertinent part, as follows: A municipality which regulates the ... operation ... of buildings, structures or devices by means of an ordinance requiring the filing of an application, the payment of a fee and the issuance of a permit shall render a decision either approving or disapproving the application for a permit within 90 days after the application is filed unless the ordinance requires a decision within a lesser period of time, provided that any disapproval of the application shall be issued within said 90-day period containing a brief explanation setting forth the reasons for said disapproval and the manner in which the application can be corrected and/or modified to obtain the required approval. If no decision is rendered on the application within 90 days, the application shall be deemed to be approved and the permit shall be deemed to have been granted immediately.... 53 P.S. § 4104(a). . The note following 53 P.S. § 4104 indicates that Section 1102 of Act 1999-45, the Pennsylvania Construction Code Act, repeals 53 P.S. § 4104, effective 90 days following the publication of notice in the Pennsylvania Bulletin that the regulations required by Act 1999-45 have been finally adopted. A review of the Pennsylvania Bulletin from the effective date of Act 45 of 1999 to the present reveals that the regulations required by Act 45 have never been proposed, let alone finally adopted; therefore, the repeal of 53 P.S. § 4104 has never been effective. . We need not determine whether the zoning officer’s decision was timely herein, since Appellants have not raised that issue on appeal; however, we note that, pursuant to 53 P.S. § 4104, Kingston had until October 25, 1999, to approve or disapprove the application for the occupancy permit and, therefore, the zoning officer’s decision, dated October 6, 1999, was rendered in a timely manner.

LORD, Senior Judge. Joseph M. Criimnins appeals a Public School Employes’ Retirement Board (Board) decision adopting a hearing examiner’s recommendation that Crimmins’ application for membership in the Public School Employes Retirement System (PSERS) be denied. The sole question involved in this appeal is whether, under the circumstances, Crimmins, as the tax collector for the Haverford School District (School District), was an employee eligible for PSERS membership or an independent contractor. Crimmins, a member of the State Employees Retirement System by virtue of six and a quarter years of state service, applied in 1993 for “multiple service” eligibility. Multiple service is defined in the Public School Employes’ Retirement Code (Code) as “credited service of a member who has elected to combine his ... service in both the Public School Employes’ Retirement System and the State Employees Retirement System.” 24 Pa.C.S. § 8102. Crimmins was advised that to receive multiple service credit for his years as the School District tax collector, he had to apply to purchase and be credited with school service. Membership in the Public School Employes’ Retirement System is limited by Section 8301 of the Code, 24 Pa.C.S. § 8301, to “school employees”. Section 8102 of the Code, 24 Pa.C.S. § 8102, defines “school employee” as [a]ny person engaged in work relating to a public school for any governmental entity and for which work he is receiving regular remuneration as an officer, administrator or employee excluding, however, any independent contractor or a person compensated on a fee basis. In Zimmerman v. Commonwealth Public School Employes’ Retirement Board, 513 Pa. 560, 522 A.2d 43 (1987), the Supreme Court reaffirmed the broad factors to be examined in determining the difference between an employee and an independent contractor. The Court said the following factors were important. Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time. The cases demonstrate that no one factor is dispositive and that each case must be determined on its own facts. Id., 513 Pa. 560, 563, 522 A.2d 43, 45 (citations omitted). The hearing examiner made thirty-seven findings of fact. The Board adopted most of them, but made some changes and added some of its own findings. In the interest of clarity and completeness, we repeat the relevant findings made by the hearing examiner. 2. Claimant was appointed to the duties of tax collector for the Haverford School District (“School District”) when the former tax collector passed away, and was later reappointed to that position. 3. Claimant served as the Haverford School District tax collector from May 1972 to June 1974 and from June 1975 to June 1978. 4. Claimant received a salary of $8,000, paid biweekly, for each of the first four one-year periods, and was paid $7,999.94 for the last. 5. Claimant’s salary was paid on a W-2 form. 6. Federal income taxes and social security taxes were deducted from Claimant’s biweekly salary. 7. Claimant did not receive fringe benefits from the School District. By agreement of the School District and Haverford Township, the township provided Claimant with paid Blue Cross/Blue Shield medical insurance. 8. The School District did not make contributions to the Public School Em ployes’ Retirement System (“PSERS”) on Claimant’s behalf. 9. The School District provided its employes with fringe benefits including health care, insurance, paid vacation and sick leave, and made contributions to PSERS on their behalf. 10. The School District did not have a job description for Claimant. Claimant’s job duties were determined by statute, the Local Tax Collector Law, 72 P.S. § 5511.1 et seq. 11. The School District did not complete performance evaluations for Claimant. 12. The School District had job descriptions and completed performance evaluations for its full time employes. 13. Claimant did not have an office on School District property, but worked in an office provided by the township in the township municipal building. 14. The hours of the Claimant’s tax collector’s office in the township building were 9:00 a.m. — 4:00 p.m. and these hours were determined by the Claimant in cooperation with the township and school district. The township offices were open a half-hour longer than Claimant’s. 15. The School District did not reimburse the township for furnishing Claimant’s office. 16. Claimant hired his assistants and paid them from a checking account titled in the name of Joseph M. Crimmins, Tax Collector. 17. Claimant paid his employes’ fringe benefits including health insurance, unemployment compensation, and workers’ compensation. 18. Claimant set the work hours of his employes. 19. Claimant’s employes were not members of PSERS and he did not make contributions to PSERS on their behalf. 20. Claimant ordered the bills to be used in tax collection and had them printed, reflecting his office hours, and subsequently submitted them to the School District for approval and reimbursement. 21. The School District, pursuant to the Local Tax Collection Law, provided Claimant with the printing, envelopes, and postage required to dispatch the tax bills. 22. The School District did not provide Claimant with office furniture, supplies, copy machines, computers or software. 23. The School District, pursuant to the Local Tax Collection Law, purchased a surety bond covering Claimant. 24. As permitted by the Local Tax Collection Law, the School District required Claimant to turn over collected funds on a more frequent basis. 25. By letter dated November 23, 1993, SERS informed PSERS that Claimant had requested multiple service membership and requested information regarding Claimant’s status. 26. By memorandum dated December 3, 1993, PSERS informed SERS that Claimant had never contributed to PSERS. The Board added these findings: 4. Claimant’s annual salary for collecting school taxes was determined by vote of the School District’s board of directors. 5. Unlike its regular employees, the School District did not maintain time records for Claimant. 6. Claimant’s office was an elective position. The School District did not have the same right to hire or fire Claimant as it would have had with respect to a teacher or school administrator. 7. The School District did not dictate the details of how Claimant was to perform his duties as school tax collector. Our scope of review in this ease is limited to a determination of whether there has been a constitutional violation or an error of law or whether the necessary findings of fact are supported by substantial evidence. 72 Pa.C.S. § 704. Estate of McGovern v. Commonwealth State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). In this appeal, Crimmins contends that the Board made an error of law when it found he was an independent contractor. In support of this contention, Crimmins places great reliance on the case of Surowski v. Commonwealth Public School Employes’ Retirement System, 78 Pa.Cmwlth. 490, 467 A.2d 1373 (1983), in which the Board found that a tax collector who worked for both a city and a school district was an independent contractor. This Court reversed the Board’s decision and held that the tax collector was PSERS eligible. In that case, the tax collector was paid separately by both the city and the school district, his hours were set by the city, the school district reimbursed the city for its proportionate share of costs incurred by the city for supplies and a clerical staff. The tax collector also received benefits which were provided jointly by the city and the school district by agreement between them. The concurring opinion in that case pointed out that the tax collector had contributed to the pension system for thirty-two years. Crim-mins has made no contributions. The Board, on the other hand, relies on the Supreme Court’s Zimmerman decision, which held that a doctor who was present at particular schools from 9:00 a.m. until noon five days a week, and who received no benefits other than group life insurance, was not a school employee. In that case the Supreme Court held In those cases where physicians have been held to be employees the relevant criteria relied upon by the courts included the doctors’ full-time presence at the employer’s site; protection from personal liability stemming from the physician’s negligence; and the existence of comparable treatment by the employer of the physician and other employees in working conditions and fringe benefits. Budzichowski [v. Bell Telephone Co., 503 Pa. 160, 469 A.2d 111 (1983)] supra; Kinloch v. Tonsey, 325 Pa.Super. 476, 473 A.2d 167 (1984). These factors are substantially missing on this record. The Court then distinguished Surowski on the grounds that, there, the school district had supervisory control of the collector; the school district and city shared his full-time services; and that the applicant was a thirty-two year contributor to PSERS, while Dr. Zimmerman had not made contributions. In order to focus on the problem of this ease, we must make two observations first. Initially, we note that Crimmins was admittedly not a full-time employee of the School District. However, that fact does not prevent him from being an employee for PSERS purposes. Under the Code, part-time employees may exercise an option to become a member. Crimmins seeks to exercise that option. One further observation is necessary in order to answer the Board’s argument that, since certain School District actions were mandated by the Local Tax Collection Law — namely, the setting of Crimmins’ salary and its payment of the bond — those actions should not be considered. We disagree because the conditions and duties of employment are important in defining the relationship whether they are as a result of a statutory mandate or otherwise. We also recognize that, although Crimmins was not the typical school district employee subject to performance ratings and the like, this fact does not preclude the finding that Crimmins had employee status. With these thoughts in mind, we turn to deciding that status. As noted, the cases involving the distinction between an employee and an independent contractor are all very factually dependent and no one fact is determinative. Zimmerman. In this case, the following facts on their face indicate that Crimmins was an employee. First, he was paid by the School District, which set his salary and treated him like an employee by deducting federal taxes, using a W-2 form. Second, the School District provided him with the printing, envelopes and postage to dispatch tax bills. He had the bills printed and was then reimbursed by the school district. Third, the School District paid for his surety bond. Fourth, the School District required him to turn over collected funds on a more frequent basis than was required by the Local Tax Collection Law. Finally, by agreement between the School District and the township, the township provided medical insurance to Crimmins. On the other hand, the following facts support the conclusion that Crimmins was not an employee. First, the School District paid no expenses toward the office where the tax collector worked in the township building. Second, Crimmins hired assistants and paid them and their fringe benefits himself. The School District had no control or input into the terms of their employment. Third, the School District did not pay for Crimmins’ office furniture or equipment such as copy machines. Fourth, the School District did not have the right to fire him or supervise or evaluate his work as it would have had with respect to a teacher or school administrator; it kept no performance records on him. Fifth, his hours of work were determined in cooperation with the School District; it had no control over Crimmins’ absences or vacation schedule. We have carefully considered this case, which is not without its difficulties, and for the following reasons agree with the Board’s conclusion that Crimmins was not an employee for the purpose of PSERS. One indication of the independent arrangement Crimmins had is found in his testimony on the staff of the tax collector’s office. Q: Were there other people working in that office besides you? A: Yes. Q: How many others? A: That varied, but at least four. Q: At least four other people? A: Yes. Q: What were their responsibilities? A: They were my employees. Q: You got paid $8,000? Out of the $8,000, you paid these people monies to be there? A: Part of it, yes. And I got paid from the county and I got paid from the township. Q: So you actually wrote cheeks to these people? A: Yes. Q: On what kind of an account? What was the account entitled? What was the name on the cheeking account? A: Joseph M. Crimmins, Tax Collector. By first-class township code, the elected office of the tax collector becomes the treasurer and the tax collector for all taxes collected in that district. Q: These people that you were paying, did they have any, like, Blue Cross-Blue Shield benefits? A: One of them did. Q: One of them did? A: One or two, yeah. Q: Who paid for that? A: I did. Q: How, by paying the township, reimbursing the township? A: Yes. Q: Do you set the hours for these other people to come and go into work? A: Yes. Q: The number of other people that worked there besides yourself, that number was determined by you, not by the township or the school district? A: That’s correct. Q: Did you carry any kind of liability insurance in the event someone tripped and fell in the office? A: No; the township did. Q: Did you carry any— A: I carried unemployment on my people. Q: What about workmen’s comp.? A: Yes. Q: You paid for that out of your fees? A: Yes. (Notes of Testimony (N.T.), Administrative Hearing, May 17,1995, pp. 18-19, 27). While in certain circumstances it is possible that an employee may act to hire and supervise other employees and thus act as both employer and employee, it is not generally an employee who hires and pays workers’ wages and benefits or who has sole authority over their schedules; it is not an employee who carries unemployment and worker’s compensation insurance, but an employer. Thus, when Crimmins hired and paid wages and benefits of these staffers he was acting as an independent contractor-employer. Moreover, another indication of the measure of control Crimmins had over his own work, to the exclusion of the School District, can be found in the testimony he gave concerning his schedule. In response to inquiries by the hearing examiner and by the School District counsel on vacation and sick leave, Crimmins testified that he was not required to get School District approval. Crimmins would simply advise the School District business manager that he would be on vacation. (N.T., 5/17/95, pp. 16, 30-31). As well, on the hours of operation, Crimmins testified that he could fix them as he desired, and, although he felt the School District approved the schedule he had imprinted on the tax bills, “[i]t was my decision in cooperation with the township and the school and the county.” (N.T., 5/17/95, pp. 23-24). Crimmins, tax collector for the county, township and School District, performed no work on School District property other than to deliver to the school raw data on tax payments. The School District kept no records, no time sheets, and no job description of his position. All of these factors tend to establish that Crimmins’ performance of services was in the nature of an independent contractor rather than an employee. It is true that the School District business manager testified that the School District required tax collections be turned in earlier than was required by the Local Tax Collection Law. (N.T., 5/17/95, p. 39). However, this same requirement could easily have been made a condition of an independent contract for such services, and therefore is no strong indication that the School District exercised an employer’s control over Crimmins’ work. The record is not clear on whether Crim-mins was elected or appointed to the position of school district tax collector, This factor goes to the School District’s ability to terminate Crimmins, because our constitution provides for different methods of removing elected and appointed municipal public officers. PA. CONST. Art. 6, § 7. The confusion in the record does not impede our decision, however, for the ability to terminate is only one of many factors to be considered and does not override those several factors which indicate Crimmins was not a school district employee. Finally, we look to the fact that the School District issued a W-2 tax form to Crimmins and withheld FICA and federal taxes from his salary check. These factors are the strongest indicia of an employer-employee relationship. Indeed, were it not for factors indicating otherwise — particularly that Crim-mins hired, supervised and paid his own employees, presumably to do work for the three entities for which he collected taxes — the fact that the School District acted as an employer in remunerating Crimmins would lead to a different determination. Nonetheless, against this factor we must consider not only that Crimmins hired his own employees, but also that the School District exercised little, if any, control over his schedule (certainly no more control than that which could be embodied in a contract); that Crimmins received none of the benefits packages the School District gave to its employees; that Crimmins alone was responsible for the result of his work (collection of taxes), the School District playing no supervisory role in it; that Crimmins’ tax collection activities were distinct from the regular business of the School District and were additionally performed for other entities; and that township tax collectors are elected public officials, not subject to traditional, at-will termination as are the usual employees. Given the totality of the circumstances in this case, we hold that the Board was correct in its conclusion that Crimmins was not a PSERS eligible employee. The Order of the Public School Employees Retirement Board is therefore affirmed. ORDER AND NOW, this 14th day of November, 1996, the April 12,1996 decision of the Public School Employes’ Retirement System, at No. 1994-18, is hereby affirmed. . Public School Employees' Retirement Code, 24 Pa.C.S. §§ 8101-8534. . Section 8301 of the Code, 24 Pa.C.S. § 8301(a),(c). . Act of May 25, 1945, P.L. 1050, as amended, 72 P.S. §§ 5511.1-5852. . The record indicates that Crimmins was elected township tax collector and was appointed to fill a vacancy created by the death of the previous school district tax collector. It is unclear whether Crimmins was subsequently elected to the latter position.

SMITH, Judge. Dennis Fogarty and Mary M. Fogarty (the Fogartys) appeal from an order of the Court of Common Pleas of Pike County that granted a motion for summary judgment on behalf of Hemlock Farms Community Association, Inc. (HFCA), holding that HFCA has the power to levy special assessments for the construction of three capital improvements— a community mail office, an administration building and a community clubhouse — and that the Fogartys are obligated to pay their assessment. The questions presented are whether HFCA exceeded its authority under the Fogartys’ deed covenant by imposing the special assessments and whether HFCA violated the debt ceiling limitations set forth in Section 6.8(b) of its Bylaws when it incurred debt for the construction. In 1969 the Fogartys purchased a property in the Hemlock Farms Community in Blooming Grove Township, Pike County. Under a protective covenant contained in their deed, the Fogartys are required to become members of HFCA, which is an association comprised of all the homeowners in the Hemlock Farms Community. The deed covenant also requires the Fogartys to pay annual dues and fees, as well as assessments for control, maintenance and repair of streets, roads and recreational facilities. On July 14, 1990, the membership of HFCA passed a resolution that imposed special assessments upon all members to offset construction costs for the three improvements. HFCA’s Board of Directors estimated that the costs of the project would be $2,675,000. HFCA imposed a $151 assessment on the Fogartys in September 1990 and a $119 assessment in June 1991. The Fogar-tys refused to pay the assessments and filed an action in the trial court seeking a declaration that the assessments were invalid in that they were not authorized by the covenants in the Fogarty’s deed or by HFCA’s Bylaws. Following the close of discovery, both parties filed motions for summary judgment. The trial court granted summary judgment on behalf of HFCA and upheld the special assessments. The Fogartys appeal. The Fogartys contend that the trial court erred in determining that HFCA was authorized by the deed covenant and its Bylaws to impose these special assessments. In part, Paragraph 10 of the deed covenant provides: The Purchaser agrees to join the Hemlock Farms Community Association, the only qualification for election to membership being ownership or prospective ownership of a Lot or Lots or acreage within the development, and to maintain such membership, and pay (i) such annual fees or dues as the Association may by its by-laws prescribe, (ii) such assessments as the Association may charge for the repair and maintenance of the streets and roads and (iii) such assessments as the association may charge for control, maintenance and administration of beach and other recreational facilities, and (iv) fire service fee of $18.00 per year in respect of each and every Lot owned by the Purchaser on which a house has not been erected. The Fogartys contend that the deed covenant is non-restrictive. They cite Birchwood Lakes Community Ass’n, Inc. v. Comis, 296 Pa. Superior Ct. 77, 442 A.2d 304 (1982), for the proposition that if an agreement in a nonrestrictive covenant is not clearly expressed or is susceptible to more than one interpretation, the words of the deed must be construed most strongly against the grantor and most favorably toward the grantee, unless the grantee drafted the deed. Although the Fogartys do not challenge HFCA’s decision to construct the new improvements, they argue that HFCA must pay for these improvements through annual fees and borrowing as specified in the deed covenant. The Fogartys claim that Paragraph 10 does not authorize special assessments for these type of capital improvements but only authorizes special assessments for the maintenance and repair of streets and roads and for the control, maintenance and administration of the beach and other recreational facilities. The trial court, however, determined that the deed covenant did not prohibit the levying of special assessments and that HFCA is authorized by its Bylaws to levy special assessments. The trial court further determined that HFCA may, by the implied intent of the parties, levy authorized special assessments for the building of improvements that benefit all association members, in the absence of an express agreement prohibiting such assessments. To support its decision, the trial court relied on Meadow Run and Mountain Lake Park Ass’n v. Berkel, 409 Pa. Superior Ct. 637, 642, 598 A.2d 1024, 1027 (1991), appeal denied, 530 Pa. 666, 610 A.2d 46 (1992), where the Court held that: [Ajbsent an express agreement prohibiting assessments, when an association of property owners in a private development is referred to in the chain of title and has the authority to regulate each property owner’s use of common facilities, inherent in that authority is the ability to impose reasonable assessments on the property owners to fund the maintenance of those facilities. The Fogartys argue that Meadow Run and Mountain Lake Park Ass’n is distinguishable from the present case. In that case, the homeowners’ association passed a resolution assessing each homeowner $300 for the repair of dams and roads. The appellants argued that there was no specifically expressed deed covenant authorizing such an assessment. Nevertheless, the Superior Court reasoned that because all property owners’ deeds notified them that they had the right to use the facilities and that they were bound by certain rules regarding that right, there existed implied rules and regulations regarding the maintenance of those facilities. The Fogartys claim that the deed in the present case, in contrast, expressly limits the imposition of special assessments only to the maintenance and repair of roads and recreational facilities. The Fogartys also rely on the basic principle of contract law that the intent of the parties to a contract is to be determined solely from its express language and that any ambiguities or doubtful language must be construed most strongly against the drafter. Rusiski v. Pribonic, 511 Pa. 383, 515 A2d 507 (1986). They refer also to the maxim expressio unius est exclusio alterius to support their position that because the deed covenant specifically lists all obligations that the HFCA may require them to meet, special assessments for items not contained in the covenant are thereby excluded. On the other hand, HFCA contends that because it is a nonprofit corporation operating in the Commonwealth, it is governed by provisions of the Nonprofit Corporation Law of 1988 (NCL), 15 Pa.C.S. §§ 5101-6162. Specifically, HFCA relies on Section 5544(a) of the NCL, 15 Pa.C.S. § 5544(a), relating to fees, dues and assessments, which provides: (a) General rule. — A nonprofit corporation may levy dues or assessments, or both, on its members, if authority to do so is conferred by the bylaws, subject to any limitations therein contained. Such dues or assessments, or both, may be imposed upon all members of the same class either alike or in different amounts or proportions, and upon a different basis upon different classes of members. Members of one or more classes may be made exempt from either dues or assessments, or both, in the manner or to the extent provided in the bylaws. Noting that the Fogartys are required by the deed covenant to become HFCA members, HFCA refers to the following pertinent Bylaw provisions by which the Fogartys are governed: Section 2.4. Obligations of membership. The obligations of membership shall be: (b) To pay all dues, assessments and user fees, including those relating to receipt of water or other utility service, levied pursuant to the authority granted by these Bylaws. Section 3.1 Powers. Subject to the restrictions of these Bylaws, the Board of Directors shall: (b) Promulgate rules and regulations and levy dues, fees and special assessments in respect thereof and take any other lawful action in respect thereto. Section 6.3. Dues, fees and assessments, (a) Membership dues, fees, utility charges and assessments shall be fixed by the Board and vary reasonably as between improved, unimproved and adjacent lots. HFCA contends that, pursuant to these provisions, its Board of Directors has the power to promulgate and levy special assessments for various purposes and that the deed covenants refer strictly to the obligations of the buyers and do not impose any restrictions on corporate authority to make capital improvements. HFCA further argues that Meadow Run & Mountain Lake Park Ass’n supports the position that where no express agree ment prohibiting special assessments exists in the deed covenant and where property owners are required to join the association, the property owners are thereby bound by the Bylaws. This Court agrees with HFCA. In Meadow Run & Mountain Lake Park Ass’n, the Superior Court further stated: Residential communities such as Meadow Run and Mountain Lake Park, are “analogous to mini-governments” and as such are dependent on the collection of assessments to maintain and provide essential and recreational facilities. Holiday Pocono Civic Association, Inc. v. Bewick, 7 D. & C.3d 378 (1978). When ownership of property within a residential community allows the owners to utilize roads and other common areas of the development, there is an impled [sic] agreement to accept the proportionate costs for maintaining and repairing these facilities. Id., 409 Pa. Superior Ct. at 640, 598 A.2d at 1026. In the present case, all members of HFCA will benefit from the new mail office, administration building and clubhouse. Although the Fogartys’ deed does not mention an assessment for these improvements, it does not impose restrictions on the authority granted to HFCA under its Bylaws to construct such facilities. Therefore, absent language in the deed covenant prohibiting HFCA from levying special assessments for capital improvements, the Fogartys may be assessed their proportionate costs to construct the new improvements. The Fogartys further argue that the capital improvements made by HFCA were unauthorized because the debt created by HFCA violated the debt ceiling restrictions of the Bylaws. Section 6.8(b) of the Bylaws provides: Debt ceiling. No debts to finance capital expenses or capital projects shall be incurred which shall have the effect of increasing the annual debt service of the Association for interest and amortization above ten percentum (10%) of the annual operating expense budget for any one (1) year; provided, however, that where the Board determines that additional debt service is necessary in order to provide adequate water service to the membership, the Board may, by a two-thirds vote of its members, exceed the ten percent (10%) limitations set forth above, but the total debt service shall not exceed twenty percent(20%). The Fogartys assert that ten percent of the 1990 operating budget amounted to $281,-024.70. On April 27,1991, after raising nearly $800,000 through the special assessments, HFCA obtained a construction and term loan in the maximum amount of $1,875,000 from the First National Bank of Pike County. The loan required an annual payment of ten percent of the outstanding principal and interest at the rate of prime plus one percent. The prime rate on that date was nine percent. The Fogartys claim that the potential annual principal payment of $187,500 and accompanying interest payment of $187,500 amounted to $375,000, an amount that exceeds ten percent of the previous operating budget. To the contrary, HFCA contends that the Fogartys’ argument is premature in that HFCA’s borrowing did not exceed the debt limitation. This Court’s review of the record indicates that HFCA did not borrow the full $1,875,000 but, in fact, borrowed much less. The parties do not dispute that the annual debt never exceeded the debt ceiling in Section 6.8(b) of HFCA’s Bylaws. Declaratory judgment is available only where an actual controversy exists; it is not appropriate to determine rights in anticipation of events that may never occur. Pennsylvania Protection & Advocacy, Inc. v. Department of Education, 148 Pa.Cmwlth. 153, 609 A.2d 909 (1992). Such is the case here. HFCA never violated the debt ceiling, and, as a consequence, the Fogartys’ action for declaratory judgment on this issue was properly dismissed. In view of the foregoing, the order of the trial court is affirmed. ORDER AND NOW, this 15th day of November, 1996, the order of the Court of Common Pleas of Pike County is hereby affirmed. . This Court’s scope of review of an order granting or denying summary judgment is limited to determining whether the trial court abused its discretion or committed an error of law. City of Philadelphia v. Melendez, 156 Pa.Cmwlth. 271, 627 A.2d 234 (1993).

McEWEN, P.J.E. ¶ 1 This appeal has been taken from the judgments entered in favor of Glenn Hoffman and Sherry Robinson Hoffman following the denial of the post-trial motions filed by appellant, Kathleen Y. Troncelliti. We are constrained to vacate the judgment entered in favor of Sherry (Robinson) Hoffman and remand for a new trial as to her claim. ¶ 2 Sherry Robinson, on December 8, 1995, was a passenger in a van owned by her mother, and operated by her fiance, Glenn Hoffman, when appellant, Kathleen Y. Troncelliti, turned left into the path of the Robinson vehicle. Glenn Hoffman and Sherry Robinson, who were engaged but not married at the time of the accident, both sustained injuries as a result of the collision. ¶ 3 Sherry, on the date of the accident, was single and resided in her mother’s home but owned her own vehicle which was insured under a separate policy of insurance. The insurance policy under which Sherry Robinson was the named insured provided limited tort coverage, while the insurance policy upon her mother’s vehicle provided full tort coverage. Prior to trial the parties sought and obtained a ruling from the distinguished Judge Richard S. Lowe that Section 1705(b)(2) of the Motor Vehicle Financial Responsibility Law (MVFRL) provided for application of the full tort coverage of the insurance policy which had been issued upon the van owned by Sherry Robinson’s mother, under which Sherry Robinson was an “insured”, rather than the limited tort coverage of the policy applicable to the passenger car owned by Sherry Robinson, under which Sherry Robinson was a “named insured”. Thus, at trial, appellees were not required to establish that Sherry (Robinson) Hoffman sustained a “serious injury” in order to recover non-economic damages. ¶ 4 Appellant, Kathleen Y. Troncelliti, contends in this appeal that the trial court misinterpreted the express provisions of 75 Pa.C.S. § 1705(b)(2). The pertinent portion of the statute, Section 1705, defines “insured” and “named insured” as: “Insured.” Any individual residing in the household of the named insured who is: (1) a spouse or other relative of the named insured; or (2) a minor in the custody of either the named insured or relative of the named insured. “Named insured.” Any individual identified by name as an insured in a policy of private passenger motor vehicle insurance. 75 Pa.C.S. § 1705(f), and recites above, in Section 1705(b)(2): (b) Application of tort options.- (2) 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. 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. 75 Pa.C.S. § 1705(b)(2). ¶ 5 As the issue presented by the parties to this appeal is a question of law, our standard of review is plenary. The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(1). As this Court has noted, the repeal of the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, and the simultaneous enactment of the MVFRL, reflected a legislative “concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.” Paylor v. Hartford Ins. Co., 536 Pa. 583, 587, 640 A.2d 1234, 1235 (1994). This legislative concern over the increasing costs of automobile insurance is the public policy which is to be advanced when interpreting the statutory provisions of the MVFRL. Id. Donnelly v. Bauer, 553 Pa. 596, 606, 720 A.2d 447, 452 (1998). ¶ 6 However, when the words of the statute are clear, this Court may proceed “no further to discern the intent of the legislature.” Kmonk-Sullivan v. State Farm Mutual Automobile Insurance Co., 567 Pa. 514, 521, 788 A.2d 955, 959 (2001). Thus, we are required to vacate the judgment entered on the verdict of the jury and remand for a new trial, by reason of the express statutory mandate that: [t]he 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.... 75 Pa.C.S. § 1705(b)(2) (emphasis supplied). ¶ 7 This unambiguous statutory provision, contrary to the dicta in Berger v. Rinaldi, 438 Pa.Super. 78, 651 A.2d 553, 557 (1994), appeal denied, 544 Pa. 641, 664 A.2d 971 (1995), resolves the instant controversy in direct and certain fashion. ¶ 8 Simply' put, since Sherry (Robinson) Hoffman was, on the date of the accident, a NAMED INSURED under the policy of insurance applicable to her own vehicle, the provisions of Section 1705(b)(2) providing that the full tort option elected by her mother would apply to anyone who was NOT a NAMED INSURED under another policy, are clearly inapplicable. See: Schwartzberg v. Greco, 793 A.2d 945, (Pa.Super.2002). Sherry (Robinson) Hoffman, having specifically elected the limited tort option, is bound by that decision and may recover non-economic damages only if it is determined that she suffered “serious injury” as defined by 75 Pa.C.S. § 1702 as a result of the accident. See: Price v. Guy, 558 Pa. 42, 735 A.2d 668 (1999); 75 Pa.C.S. § 1705(d). ¶ 9 While it provides no part of the basis for our decision today, it merits mention that our interpretation of the terms of the statute is consistent with the legislative purpose of reducing premium costs for motor vehicle insurance. ¶ 10 We are, therefore, obliged to vacate only the judgment entered in favor of ap-pellee Sherry (Robinson) Hoffman and remand for a new trial at which she must establish “serious injury” as defined by 75 Pa.C.S. § 1702 or have her recovery limited solely to economic damages sustained as a result of the accident. ¶ 11 Judgment in favor of Glenn Hoffman affirmed. Judgment in favor of Sherry (Robinson) Hoffman vacated. Case remanded. Jurisdiction relinquished. . "We construe Section 1705(b)(2) as describing two, mutually exclusive scenarios. Such an interpretation is necessary to avoid sur-plusage:” Contrary to this suggestion in Berger, supra, 651 A.2d at 557, Section 1705(b)(2) is also applicable to any situation in which the claimant is an "insured” but not a "named insured” under two policies, such as when a child or non-driver who is not a named insured on any policy of insurance, but is an "insured” under a policy as a resident relative of a named insured, is injured while riding in a vehicle owned by an unrelated individual.

OPINION BY Senior Judge JIULIANTE. The Cambria County Deputy Sheriffs Association (Association) petitions for review of the October 16, 2001 order of the Pennsylvania Labor Relations Board (PLRB) that confirmed dismissal of the Association’s petition for representation. As the interested party, the Intervenor is Cambria County (County). The Association asks us to revisit the issue of whether deputy sheriffs are police officers for purposes of collective bargaining under Act 111 in light of some recent Vehicle Code cases. We affirm. On May 25, 2001, the Association filed a petition for representation with the PLRB requesting to represent a unit consisting of all full-time and regularly scheduled part-time “police officers,” including but not limited to the Chief Deputy, First Deputy and deputy sheriffs employed by the Sheriffs Department. Further, the Association requested that all managerial employees be excluded. The Association sought representation of the above-described unit under Act 111 and the Pennsylvania Labor Relations Act (PLRA). Currently, the employees in the proposed unit are represented by the Pennsylvania Social Services Union, Local No. 668, Service Employees International Union, AFL-CIO, CLC (PSSU). The deputies are part of a bargaining unit established under the Public Employe Relations Act (PERA), which consists of all full-time and regularly part-time non-professional, non-supervisory, court-related employees working in the offices of the Sheriff, Pro-thonotary, Register of Wills, Clerk of Courts and Juvenile Detention Home. It excludes all management level employees, supervisors, first-level supervisors, confidential employees and guards. In addition, the deputies’ wages and benefits are set forth in a collective bargaining agreement between the County and the PSSU, which expired on December 31, 2001. In a letter dated June 22, 2001, the Secretary of the PLRB dismissed the petition for representation on the grounds that deputy sheriffs are not “police” within the meaning of Act 111. The Association filed timely exceptions to the dismissal letter on July 11, 2001. On October 16, 2001, the PLRB dismissed the exceptions and made the Secretary’s decision declining to direct a hearing on the petition for representation absolute and final. In so determining, the PLRB concluded that the deputy sheriffs were not police officers for purposes of collective bargaining under Act 111. The Association’s timely petition for review to this Court ensued. The narrow issue before us is whether the PLRB erred in dismissing the Association’s petition for representation on the grounds that deputy sheriffs are not police officers within the meaning of Act 111. On review, we are limited to determining whether there was a violation of constitutional rights, error of law or whether the necessary findings of fact are supported by substantial evidence. Delaware County Lodge No. 27, Fraternal Order of Police v. Pennsylvania Labor Relations Board, 690 A.2d 754 (Pa.Cmwlth.1997). In Venneri v. County of Allegheny, 12 Pa.Cmwlth. 517, 316 A.2d 120 (1974) and Allegheny County Deputy Sheriffs Ass’n v. Pennsylvania Labor Relations Board, 95 Pa.Cmwlth. 132, 504 A.2d 437 (1986), this Court declined to hold that deputy sheriffs should be covered by Act 111. In the present case, the Association argues that the Supreme Court in two Vehicle Code cases, Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994) and Department of Transportation, Bureau of Driver Licensing v. Kline, 559 Pa. 646, 741 A.2d 1281 (1999), overruled Venneri and Allegheny County Deputy Sheriff’s Ass’n. In response, the County argues that Venneri and Allegheny County Deputy Sheriff’s Ass’n are still binding and that neither Kline nor Leet indicate that there is any new legislative authority for deputy sheriffs to act as police officers. To elucidate why we conclude that the PLRB did not err in determining that deputy sheriffs are still not police officers under Act 111, we outline below the issues and holdings of all four cases. In Venneri, the deputy sheriffs of Allegheny County filed a complaint in mandamus seeking to compel the county to appoint an arbiter in compliance with Act 111. Ultimately, the trial court determined that the deputy sheriffs were court-related employees and, therefore, subject to PERA. The sole issue before this Court was whether the deputy sheriffs were police officers within the meaning of Act 111. This Court affirmed the trial court, noting that “[e]ven a cursory legislative review leaves no doubt that the bulk of legislation dealing with the sheriff pertains to court related activities.” Id. at 126. Fui’-ther, we noted that “there was sufficient substantial evidence to permit the court below to determine that the deputy sheriffs of Allegheny County are so directly involved with and necessary to the courts of Allegheny County, that they are not policemen within the intent of Act 111, but would appear to be ‘court-related’ personnel within the intent of [PERA].” Id. at 127. Finally, we pointed out that deputy sheriffs were not required to render police services such as investigation of criminal activity for all of the citizens of Allegheny County in the same way that a citizen could demand such services from a police officer. In Allegheny County Deputy Sheriff’s Ass’n, this Court considered whether any changes had occurred since Venneri which would alter our conclusion that deputy sheriffs were not police officers for purposes of Act 111. We noted that, since Venneri, the sheriff’s office had continued to perform the same police-type functions, with the new additions of public safety programs, undercover work with a drug enforcement task force and undercover work with a related homicide investigative unit. Ultimately, however, we concluded that these new responsibilities were not sufficient in either quality or quantity to justify a conclusion that the deputy sheriffs status rose to the level of a police officer under Act 111. Thus, we affirmed the PLRB’s dismissal of the Association’s petition for investigation and certification of representatives under Act 111. In Leet, the Supreme Court considered the issue of whether a deputy sheriff from Armstrong County had authority in Pennsylvania to make a warrantless arrest for motor vehicle violations committed in his presence. (In the trial court, Leet had moved to suppress all physical evidence obtained by the municipal police officer following the deputy sheriffs allegedly unauthorized stop and detention of Leet.) The Supreme Court held that the common law powers of the sheriff include the power to enforce the Vehicle Code and that such powers have not been abrogated by statute or otherwise. “Indeed, such powers are so widely known and universally recognized that it is hardly necessary to cite authority for the proposition.” Id., 587 Pa. at 95, 641 A.2d at 303. The Court went on to state that “sheriffs have had the power and duty to enforce the laws since before the Magna Carta.” Id., 537 Pa. at 96, 641 A.2d at 303. The Court additionally found, however, that a sheriff or deputy sheriff would be required to complete the same type of training that is required of police officers throughout the Commonwealth. Thus, it remanded the case for a finding as to whether the deputy sheriff had completed the appropriate law enforcement training. Highly relevant to the case before us, the Leet Court in a footnote stated as follows: The issue of the status of a sheriff or deputy sheriff in labor relations law, specifically under Act 111 ... is not presented in this case. Whether a sheriff is a “policeman” entitled to compulsory binding arbitration under Act 111, as addressed in Venneri ..., is a question not determined by the sheriffs arrest powers and is a question we do not address in this case. Id., 537 Pa. at 95 n. 8, 641 A.2d at 303 n. 3. In Kline, the Supreme Court granted a petition for allowance of appeal to determine whether a Clinton County deputy sheriff, who had completed the deputy sheriffs basic training course, the driving while under the influence modules given to municipal police officers under Act 120, and training in field sobriety test administration, qualified as a “police officer” for purposes of enforcing the Vehicle Code under the rationale of the Court’s holding in Leet. The Court determined that, even though the deputy sheriff did not receive the exact same training as a municipal police officer would have received pursuant to Act 120, he completed the same type of training that was required by Leet for purposes of enforcing the Vehicle Code. Thus, the Court concluded that the deputy sheriff at issue was authorized to enforce the Vehicle Code. Having set forth in some detail the issues and holdings of the four cases at issue, we turn to the specific arguments of the parties. The Association argues that the current state of the law has changed and that the Supreme Court has definitively recognized that deputies are “authorized” police officers under Pennsylvania statutes, the only additional requirement being training and certification. It asserts that this statutory training authorizes deputies, with their common law powers, to perform those functions that the legislature has specifically designated for police officers. If there are any questions concerning that training, the Association maintains that such issues should be resolved in a factual presentation to the PLRB. The Association contends that the Secretary denied it the opportunity to present evidence as to training and certification in the present case. Thus, it requests that this Court reverse the final order of the PLRB and remand the case for a hearing on the issue of whether the proposed unit of police officers actually performs the functions of police officers within Act 111. The County argues that the Secretary properly found that the cases cited by the Association fail to indicate any new legislative authority for deputy sheriffs to act as police officers and fail to otherwise indicate that Venneri and Allegheny County Deputy Sheriffs Ass’n are no longer binding precedent. The County points out that neither Kline nor Leet involved Act 111 and that the Supreme Court in Leet specifically indicated that case’s inapplicability to Act 111. Moreover, the County contends that the PLRB acted consistently with valid prece dent. It notes that this Court in the 1997 case of Delaware County Lodge No. 27 quoted Venneri with approval when it dismissed the Fraternal Order of Police’s argument that park police were legislatively authorized to act as police officers under the Second Class County Code. This Court agrees with the County that the PLRB did not err in determining that Kline and Leet do not change the state of the law. Although not specifically set forth in earlier cases involving the issue of who is or is not a police officer within Act 111, “the PLRB and the courts apply a two-part test that requires the particular employees (1) be legislatively authorized to act as police, and (2) effectively act as police.” Delaware County Lodge No. 27, 690 A.2d at 756. Here, the PLRB concluded that the Association’s reliance on Kline and Leet was misplaced because, even though the Court in those cases once again recognized the common law authority of deputy sheriffs to make arrests, it failed to discover any legislative authority empowering them to act as police officers. In addition, the PLRB also cited the above-quoted footnote in Leet where the Supreme Court specifically stated that the issue of the status of a sheriff or deputy sheriff under Act 111 was not presented and that “[w]hether a sheriff is a ‘policeman’ entitled to compulsory binding arbitration under Act 111, as addressed in Venneri ... is a question not determined by the sheriffs arrest powers.” Leet, 537 Pa. at 95 n. 3, 641 A.2d at 303 n. 3. The PLRB thus concluded that, because the Association presented no statutory authorization subsequent to Venneri and Allegheny County Deputy Sheriffs Ass’n for deputy sheriffs to act as police officers, “those cases compel the conclusion that deputy sheriffs are not police for purposes of collective bargaining under Act 111.” (PLRB’s Final Order at 2.) We agree and, accordingly, affirm. ORDER AND NOW, this 4th day of June, 2002, the October 16, 2001 order of the Pennsylvania Labor Relations Board is hereby AFFIRMED. . Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1 — 217.10. . 75 Pa.C.S. §§ 101-9805. . Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13. . Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301. ' . Act 120, formerly the Act of June 18, 1974, P.L. 359, 53 P.S. §§ 740-749.1, was repealed and replaced by the Act of December 19, 1996, P.L. 1158. Similar provisions are now found at 53 Pa.C.S. §§ 2161-2171. . Act of July 28, 1953, P.L. 723 as amended, 16 P.S. §§ 3101-6302.

CIRILLO, President Judge Emeritus. Somerset Community Hospital appeals from the judgment entered in the Court of Common Pleas of Somerset County denying its post-trial motions. We affirm. This appeal involves two consolidated cases filed by Appellant-Somerset Community Hospital (“Hospital”) and Appellee-Deeter Ritchey Sippel Architects/Planners (“DRS”), The first action, filed by DRS against the Hospital, alleges breach of an oral and written contract, promissory estoppel and quantum meruit. The second action, filed by the Hospital against DRS, alleges breach of the same written contract. The facts underlying the two cases are as follows. On October 1, 1984, DRS and the Hospital signed a contract (“October agreement”) obligating DRS to perform architectural and planning services for renovations and additions to be made to the Hospital’s medical facilities. The October agreement set forth a total construction cost of $5,000,-000.00, with a fixed fee to be paid in increments of $375,000.00 to DRS. Shortly after entering into the agreement, the Hospital began directing and approving changes in the project which substantially changed and expanded the initial plans and resulted in a total construction cost increase of over $2,000,000.00. On January 12, 1985, the parties allegedly made an oral modification to the October agreement regarding the scope of services to be provided by DRS and the compensation to be received. At trial, DRS alleged that additional oral modifications were made to the October agreement, and presented evidence which discussed the additional work to be done by DRS, the Hospital’s intentions to approve this work, negotiations for revised fees for DRS’ services, and certain amounts already due to DRS. Relying on these discussions, DRS continued to perform architectural, planning, and design services which were requested by the Hospital. On July 15, 1986, the Hospital terminated its contract with DRS for failure to stay within the budgetary constraints of the October agreement. On August 11,1986, DRS submitted to the Hospital a written invoice which totaled $157,363.15 and represented the cost for services which it rendered from May 20, 1985 through July 15, 1986. When the Hospital refused to pay DRS, the first action involved in this consolidated appeal was filed by DRS. After trial, the jury returned a $46,000.00 verdict in favor of DRS. The court subsequently molded the verdict to reflect “prejudgment” interest accrued from June 12, 1986 until March 3,1995, at a rate of 6% per year — a total verdict of $70,086.16. After filing post-trial motions which were denied, the Hospital now appeals and raises the following issues for our review: (1) Did the trial court err in failing to direct the verdict or grant judgment notwithstanding the verdict in favor of Hospital on DRS’ claim, especially when the evidence established that there was no authorization of the parties to modify the written contract of October 1, 1984; that there was no meeting of the minds by authorized representatives of the parties as to the establishment of an essential term, such as price; and that DRS’ own evidence refuted the fact that there was an oral modification of architect fees in the amount of $450,000.00? (2) Did the trial court err in allowing DRS to amend its pleading and theory after the close of its case to allege an oral modification of a written contract on unspecified dates, at unspecified times, at unspecified places, with unspecified individuals, especially when the standard of proof required clear, precise and convincing evidence? (3) Did the trial court err in not granting a new trial where DRS was granted an amendment of its theory after the close of its case in chief and despite its pretrial projection utilized four or five days in the presentation of its case requiring the Hospital to shorten its trial presentation by two days to stay within the date certain time allocated for the case? (4) Where the parties contractually agreed to permit Hospital to withhold disputed payments until a “final court determination,” may interest be awarded before there is an obligation to make payment? (5) Where DRS failed to mitigate damages by not seeking a final court determination for over eight years, will prejudgment interest be awarded? (6) Did the trial court err in not granting the directed verdict of the Hospital on its claim for damages or granting a new trial where DRS had failed to perform its obli gations under the October 1, 1984 agreement by underestimating the construction costs, failing to stay within the budget restraints, preparing drawings that were inaccurate thereby requiring the Hospital to redesign the project and incurring a duplication of expenses for the project? Our standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 605 A.2d 373 (1992). The standard of review of a trial court’s grant or denial of a motion for a new trial is, generally, whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 428-29, 521 A.2d 413, 422 (1987). To reverse the trial court, this court must consider all the evidence in the light most favorable to the appellee and conclude that the verdict would be changed if another trial were granted. Robertson v. Atlantic Richfield Petroleum Prod. Co., 371 Pa.Super. 49, 537 A.2d 814 (1987). The Hospital first claims that the trial court erred by not directing a verdict or granting judgment in its favor. Specifically, the Hospital alleges that there was no evidence to establish that the parties modified the October agreement. The record belies this assertion. A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10 (1968). An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. Accu-Weather v. Prospect Communications, 435 Pa.Super. 93, 644 A.2d 1251 (1994). An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298 (1961). Viewing the evidence in the light most favorable to DRS, we find that the court correctly determined that the conduct of the parties and their representatives orally modified the October agreement, effectively waiving the clause prohibiting non-written modification of the parties’ written contract. Presently, the record evidences a multitude of minutes from meetings wherein representatives of both parties extensively discussed that DRS would continue to perform additional services, and that DRS would be compensated for such additional work. See Universal Builders, supra (where an owner requests that a builder do additional work, promises to pay for such extra work, and watches it performed knowing that it is not authorized in writing, he cannot refuse to pay on the ground that there was no written amendment to contract stating that the additional work was authorized under the parties’ contract). In a letter admitted at trial, the parties proposed that the architect’s fee would be increasingly modified. The meeting minutes also reflect extensive plans for the increase in the scope of the construction, for the use of additional architect plans, and for DRS’ compensation for such extra work. Accordingly, based upon the clear and convincing evidence of oral modification to the parties’ contract, the Hospital was not entitled to a judgment or verdict in its favor. See Wenrick, supra; see also East Texas Motor Freight, Diamond v. Lloyd, 335 Pa.Super. 464, 484 A2d 797 (1984) (it is within the province of the jury to define terms of parol modification of contract and, unless party’s version of modification is not supported, the court should not declare that modification did not exist). The Hospital next contends that the court erred by allowing DRS to amend its case theory after it rested and the Hospital moved for non-suit. Specifically, the trial court allowed DRS to amend Count II of its complaint by adding conduct and promises made between the parties on certain dates in order to prove that certain modifications of price terms from the October agreement had taken place. A party may, at any time, with consent of an opposing party or by leave of court, amend his or her pleading. See Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 619 A.2d 1021 (1987); Pa.R.C.P. 1033. A trial court has broad discretion in ruling on a party’s motion to amend the pleadings. Id. An amendment will not be allowed, however, when it is against a positive rule of law, where it states a new cause of action after the statute of limitations has run, or when it will surprise or prejudice the opposing party. Horowitz v. Universal Underwriters, 397 Pa.Super. 473, 580 A.2d 395 (1990). In its initial complaint, DRS alleged the following counts: quantum meruit, breach of a written contract, and breach of an oral contract. The pleading also recounted that the parties had entered into various negotiations and held a number of meetings where the parties agreed to perform additional architectural and planning services in order to expand the plans under the original October agreement. When the Hospital faded to remit payment for the reasonable value of the expanded services performed, the instant complaint was filed by DRS. We find that the Hospital was well aware that DRS originally claimed both breach of contract and oral modification. Cf. John Goffredo & Sons, Inc. v. S.M.G. Corp., 300 Pa.Super. 112, 446 A2d 255 (1982) (where contractor brought suit in assumpsit alleging only a breach of a written contract against owner, contractor could not amend pleadings, post-trial, to allege that parties had subsequently orally modified the contract and waived a provision of agreement; amendment introduced a completely new theory and cause of action). Additionally, the original complaint filed by DRS contained the same parties and evidence which were used throughout trial to prove DRS’ ease. The amendments related to certain dates and conduct by the parties which intended to supplement DRS' proof that an oral modification to the parties’ original written contract existed; they did not alter the measure of damages alleged by DRS, the defenses intended to be utilized at trial, or the measure of proof. We also are unable to find that the amendments alleged any new causes of action against the Hospital. See Ecksel, supra (where new amendment was based on same operative facts as original action and opposing party had received notice of party’s desire to increase claim for damages, court properly granted leave to amend pleading). Finally, the Hospital alleges that it was prejudiced by the amendments. Specifically, the Hospital claims that “[c]ross-exami-nation may have been conducted entirely differently as to the principal witnesses and no significant opportunity was available to investigate and address these new allega-tions_” This claim is lacking in definitiveness and unsupported in Appellant’s brief; we, therefore, cannot uphold a finding of prejudice. See Horowitz, supra (where party’s allegation that it would be prejudiced by amendment of opposing party’s pleading was no more that mere conjecture and speculation, amendment was proper); see also Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, 344 Pa.Super. 367, 496 A.2d 840 (1985) (prejudice suffered by party opposing amendments must prove that it suffered more than a detriment). The Hospital also asserts that it was greatly prejudiced because it was not given adequate time in which to present its case. We find this claim waived. The Hos pital never objected, at any point, to a lack of time in which it had to present its case. See Pa.R.C.P. 227 (if no objection is made, error which should have been corrected during trial by timely objection may not constitute a ground for post-trial relief; grounds not specified are deemed waived). Based upon the trial court’s broad discretion in matters of amendment and the facts of the case, we do not find that the trial court committed any abuse of discretion by allowing DRS to amend either its pleading or theory of the case. Feingold v. Hill, 360 Pa.Super. 539, 521 A.2d 33 (1987). The Hospital next claims that a provision of the parties’ October agreement should have precluded the court from molding the verdict to include the award of prejudgment interest. Specifically, the Hospital takes issue with the following contractual provision of the parties’ October agreement: 6.2 PAYMENTS WITHHELD. 6.2.1 Owner may mthhold all or any portions of payments otherwise claimed by the Architect [DRS] pursuant to this agreement which are in dispute between the parties until a final court determination is made of the Owner’s [Hospital] liability to Architect or Architect’s liability to Owner which can be set off or deducted from any amount which may otherwise be due from Owner to Architect or until such dispute is mutually resolved by agreement between Owner and Architect. It is well established that in contract cases, prejudgment interest is awarda-ble as of right. Thomas H. Boss Inc. v. Seigfreid, 405 Pa.Super. 558, 592 A.2d 1353 (1991). Our courts have generally regarded the award of prejudgment interest as not only a legal right, but also as an equitable remedy awarded to an injured party at the discretion of the trial court. Daset Min. Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984). “In claims that arise out of a contractual right, interest has been allowed at the legal rate from the date that payment was wrongfully withheld, where the damages are liquidated and certain, and the interest is readily ascertainable through computation.” Id. at 35, 473 A.2d at 595 (emphasis added). The basic premise underlying the award of prejudgment interest to a party centers upon the fact that the breaching party has deprived the injured party of using interest accrued on money which was rightfully due and owing to the injured party. Thomas H. Ross, supra. Our supreme court, in Penneys v. Pennsylvania Railroad Co., 408 Pa. 276, 183 A.2d 544 (1962), adopted section 337(a) of the Restatement of the Law of Contracts, to determine when interest is recoverable as contract damages. Section 354 of the Restatement (Second) of Contracts (formally § 337(a) of the Restatement of the Law of Contracts) states: (1) If the breach [of a contract] consists of a failure to pay a definite sum of money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled. (2) In any other ease, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due. Restatement (Second) of Contracts § 354 (1979). The comments to section 354 allow for exceptions to the general rule of interest payable as damages to a party injured by a contract breach. Specifically, one comment mentions that section 354 does not deal with the injured party’s right to interest under the terms of a contract because “[i]f the parties have agreed on the payment of interest, it is payable not as damages but pursuant to a contract duty that is enforceable.” Restatement (Second) of Contracts § 354 cmt. a. (1979) (emphasis added). Finally, comment b. to section 354 states that “if there is a period of time before performance is due, such as a definite or indefinite period of credit, interest does not begin to run until the period is over.” Id. at cmt. b. (1979). In order to resolve whether the court properly awarded prejudgment interest to DRS, we must answer two pivotal questions: (1) whether the parties’ contractual provision, which allows the Hospital to withhold payment, constitutes a “wrongful withholding]” of the sums owed for DRS’ performance under the October agreement, Daset Min. Corp., supra, and (2) whether section 6.2.1 of the parties’ October agreement suspends the Hospital’s duty to pay any breach of contract damages until the trial court finally determines which party was liable for breach of the contract. The paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent. Laudig v. Laudig, 425 Pa.Super. 228, 624 A.2d 651 (1993). In construing a contract, each and every part of it must be taken into account and, if possible, given effect. Wrenfield Homeowners Ass’n, Inc. v. DeYoung, 410 Pa.Super. 621, 600 A.2d 960 (1991). One part of a contract should not be construed so as to annul another provision of the same contract. Second Federal Sav. and Loan Ass’n v. Brennan, 409 Pa.Super. 581, 598 A.2d 997 (1991). Article 9, section 9.1 of the parties’ agreement states that: If ... termination is because of a breach of or non-performance by Architect, Architect shall receive no compensation other than compensation already paid and shall be subject to liability for damages for breach or nonperformance. If the termination [of this contract] is not based upon a breach of the agreement or nonperformance by Architect, then Architect shall be entitled to full compensation for all phases of the Project which have been completed at the time written notice of termination is received. Although the Hospital terminated its agreement due to an alleged breach by DRS for “not performing the services identified in accordance with the terms of the contract,” the court ultimately determined that because the Hospital had orally modified the October agreement, DRS was entitled to a judgment in its favor. As section 9.1 mandates, if DRS breached its contract with the Hospital, the Hospital would be entitled to breach of contract damages, which includes prejudgment interest as a right under basic principles of contract law. Thomas H. Ross, supra. Similarly, we find that the converse should be true for DRS as the injured party. Further, we find no provision in the parties’ October agreement stating that the parties had agreed on the payment or nonpayment of interest. Cf. Daset Min. Corp, supra (in absence of contractual provision, prejudgment interest in amount greater than legal rate of 6% could not be awarded). Additionally, we do not perceive the ability to withhold payment of compensation as “a definite or indefinite period of credit” as suggested by comment b. to § 354 of the Restatement’s (Second) of Contracts. When section 9.1 is read in light of the entire contract, and specifically, section 6.2.1, we find that the court properly awarded prejudgment interest to DRS. In order to best effectuate the reasonable intent of the parties, and in light of the equitable nature of awarding prejudgment interest, the court properly molded the verdict to reflect interest from the date that DRS completed the design phase of its work until the entry of judgment. See Fernandez v. Levin, 519 Pa. 375, 548 A.2d 1191 (1988). DRS was unjustly deprived by the Hospital’s wrongful withholding of money due for its completion of work under the parties’ October agreement. Because the amount owed to DRS for its performance was fully liquidated, certain, and readily ascertainable, Daset Min. Corp., supra, DRS was legally entitled to prejudgment as a matter of right. Thomas H. Ross, supra. In its remaining issue, issue five, the Hospital alleges an alternative argument supporting its claim that the trial court erred in awarding DRS prejudgment interest. Specifically, the Hospital claims that DRS breached its duty to mitigate damages by causing a substantial delay in moving this case forward. If DRS had not waited almost eight years for the court to enter a final judgment, the Hospital asserts that the harm which DRS suffered from the alleged contract breach could have been prevented. It is well established that a party who suffers a loss due to the breach of a contract has the duty to make reasonable efforts to mitigate his losses. Bafile v. Borough, of Muncy, 527 Pa. 25, 588 A.2d 462 (1991) (citations omitted). The burden to prove this duty to mitigate is placed on the party who actually breaches the contract; the breaching party must show how further loss could have been avoided through the reasonable efforts of the injured party. Pontiere v. James Dinert, Inc., 426 Pa.Super. 576, 627 A.2d 1204 (1993). An injured party, however, is not obligated to mitigate damages when both it and the liable party have an equal opportunity to reduce damages. Loyal Christian Ben. Ass’n v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). The Hospital relies on Penneys v. Pennsylvania Railroad Co., 408 Pa. 276, 183 A.2d 544 (1962), to support its mitigation argument. In Penneys, our supreme court held that because the trial court had been presented with no evidence indicating whether plaintiff or defendant had caused a delay of almost seven years from the alleged contract loss until the entry of a judgment, prejudgment interest was properly awarded to the plaintiff. The Hospital claims that the Pen-neys holding implicitly finds that “if there had been evidence indicating that the plaintiff had caused the delay, the plaintiff would have been precluded from recovering prejudgment interest.” The Penneys court stated: Although it may appear unreasonable to require appellant to pay interest for a long period when it had no control over the litigation, it appears equally unreasonable to deprive appellees of the fruit of the use of their money during a period when they also had no control over the course of the litigation. Id. at 280,183 A.2d at 546 (emphasis added). The Hospital claims that the only activity on the case by DRS for nearly six years was the taking of one deposition. The docket reflects that between December 10,1990 and November 15, 1993 there was no recorded activity on the case. On November 15, 1993, the court ordered a hearing on the inactive status of the case. On January 3, 1994, the docket lists the filing of a pretrial statement. The record then reflects that upon the motion of the Hospital, the cases were consolidated on January 23,1995. Although the docket may appear to have been inactive for almost three years, the record contains a November 28, 1990, court order directing the Appellant-Hospital to comply with DRS’ discovery requests. In addition, in December of 1993, the court ordered that an inactive status hearing be continued until a later date because the parties had presented “good cause.” There is no testimony from this status hearing in the record. Accordingly, we can discern neither the reasons for delay, nor which party caused the lengthy delay in finalizing this action. Penneys, supra. Unrecognized by appellant is the fact that as an original plaintiff in this consolidated matter, it had just as much of a duty to diligently prosecute this case as DRS. Courts have the discretion to dismiss a case when a plaintiff has failed to diligently prosecute an action, and, as a result, caused a defendant prejudice, unfairness and anxiety. Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995). See James Bros. Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968) (a court may enter a judgment non pros where (1) a party has shown a lack of due diligence by failing to proceed with reasonably promptitude; (2) there is no compelling reason for the delay; and, (3) the delay has caused prejudice to the adverse party); see also Penn Piping, Inc. v. Ins. Co. of North America, 529 Pa. 350, 356, 603 A.2d 1006, 1007 (1992). Under the present facts of this case we cannot find that DRS had a duty to mitigate damages when the Hospital was equally responsible for actively proceeding in prosecuting this matter. Loyal Christian, supra. The trial court neither abused its discretion nor committed an error of law. Stevenson, supra. Finally, the Hospital contends that the court erred in not directing a verdict in its favor or granting it a new trial on its claim for damages. Having already determined that the court properly found that the Hospital breached an oral modification to the parties’ October agreement, the court did not abuse its discretion in refusing to grant a new trial on the issue of damages. In light of the entire contract, especially article 9, section 9.1, supra, DRS was entitled to damages for breach under the contract. Judgment affirmed. . Generally, orders dismissing post-trial motions following a jury trial are interlocutory and non-appealable until judgment has been entered on the docket. Johnston the Florist v. TEDCO Constr. Corp., 441 Pa.Super. 281, 657 A.2d 511 (1995) (en banc); see also Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981). In the present case, on January 11, 1996, the prothono-tary, at the direction of the Hospital, reduced the order denying the Hospital’s post trial motions to judgment. See Pa.R.A.P. 301 (no order shall be appealable until it has been entered upon the appropriate docket in the lower court). Accordingly, this order is properly before us on appeal. . The trial court granted the Hospital a non-suit on the quantum meruit and promissory estoppel claims. . The date of June 12, 1986 represents the day that the Hospital completed the "Design Development Phase” of the parties' October agreement. March 3, 1995 is the date on which the jury verdict, in DRS' favor, was rendered. . Issues two and three have been consolidated in our appellate review, as both issues relate to the law of amendment of pleadings and theory of a case. . Article 12, section 1 of the parties’ October agreement states: This agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This agreement may be amended only by written instrument signed by both Owner and Architect. . Even if we were to review this argument, we would find it meritless. The record reveals that tile court asked, on repeated occasions, whether the jury could convene for extra trial sessions. In fact, the jury was finally excused in mid-afternoon on Saturday, March 4th. The court and DRS perceptively note that appellant had several hours of available court time and the option to continue to try its case instead of resting in the early afternoon on Saturday. . We distinguish the present case from the situation where there has been a delay from the close of trial until the date final judgment is entered. See Alberici v. Safeguard Mut. Ins. Co., 444 Pa.Super. 351, 664 A.2d 110 (1995); Thomas H. Ross, Inc. v. Seigfreid, 405 Pa.Super. 558, 592 A.2d 1353 (1991). In Thomas H. Ross, supra, the cross-appellant claimed that the trial court improperly suspended his interest payments -in a breach of contract action, where the trial court had caused a delay of over two years in entering final judgment after the close of trial. Presently, the appellant does not argue that the trial court was the cause of the delay in entering final judgment. Rather, the Hospital asserts that the appellee caused the delay up to and including the entry of judgment. Although these arguments differ, each compels the same result — affirming the award of prejudgment interest.

RODGERS, Senior Judge. Ralph Vandermark (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief. Petitioner’s counsel has filed an application for leave to withdraw his appearance on behalf of Petitioner on the ground that the appeal is frivolous and has submitted a letter in support of the application. For reasons set forth in this opinion, we deny counsel’s petition for leave to withdraw without prejudice and direct counsel to refile the application once he has complied with the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). We will first address counsel’s petition to withdraw his appearance and the “no-merit letter” filed with it. In Turner, the Pennsylvania Supreme Court set forth the proper procedure to be followed when court-appointed counsel seeks to withdraw representation because issues raised by the petitioner are frivolous. In subsequent cases, Turner has been interpreted as requiring counsel to file a “no-merit letter” containing (1) the nature and extent of counsel’s review, (2) the issues the petitioner wishes to raise, and (3) counsel’s analysis in concluding that the petitioner’s appeal is frivolous. Epps v. Pennsylvania Board of Probation and Parole, 129 Pa.Cmwlth. 240, 565 A.2d 214 (1989). These requirements must be satisfied by court-appointed counsel before the court will consider any request by counsel to withdraw an appearance on behalf of an individual under the jurisdiction of the Board. Plant v. Pennsylvania Board of Probation and Parole, 680 A.2d 47 (Pa.Cmwlth.1996). In reviewing an application for leave to withdraw, this Court must make an independent evaluation of the proceedings before the Board to determine whether the petition er’s appeal is wholly frivolous. Strothers v. Pennsylvania Board of Probation and Parole, 124 Pa.Cmwlth. 1, 554 A.2d 1017 (1989). In this regard, we are mindful that this Court has previously determined that counsel must fully comply with the procedures outlined in Turner to ensure that each of the petitioner’s claims has been considered and that counsel has a substantive reason for concluding that those claims are meritless. Hont; see also Wesley v. Pennsylvania Board of Probation and Parole, 150 Pa. Cmwlth. 54, 614 A.2d 355 (1992). In the present case, Petitioner’s petition for review raises only one issue: whether the hearing officer allowed an inaccurate police report, which constituted hearsay, to be introduced into evidence at Petitioner’s violation hearing. Meanwhile, counsel’s “no-merit letter” addresses two other issues: whether the Board imposed excessive backtime and whether the Board’s decision is supported by substantial evidence. In Hont, this Court faced a fundamentally similar situation. In that case, the petitioner’s petition for review raised three issues on appeal; yet, counsel’s “no-merit letter” addressed only one of the issues raised in the petition for review. Because counsel failed to specifically address two of the contentions raised by the petitioner, this Court concluded that counsel’s “no-merit letter” was defective. As in Hont, counsel’s “no-merit letter” in the instant action fails to address the issue raised by Petitioner in his petition for review. Because the “no-merit letter” is defective, we deny counsel’s petition to withdraw from representation of Petitioner. Furthermore, 'until such time as counsel complies with the requirements of Turner, we will not carry out an independent examination of the merits of Petitioner’s appeal. ORDER NOW, November 18, 1996, the application for leave to withdraw filed by counsel of record is hereby denied without prejudice and counsel is directed to refile the application once he has complied with the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).

LORD, Senior Judge. In this procedurally unusual case, Richard and Marianne Kolb, t/a Powderboume Sportsmen’s Club, Inc. (Owners), appeal a Montgomery County Court of Common Pleas order that affirmed findings and conclusions of the Upper Hanover Township (Township) Zoning Hearing Board (Board) supporting the denial of Owners’ zoning application and reversed a deemed Board approval of their application. Owners operate a gun club on their thirty-nine acre property within the Township. The Township’s zoning officer cited them for constructing sporting clay target cages/shooting stations in 1990 within one hundred feet of their property setback area, in violation of the Township’s 1987 zoning ordinance. Owners appealed to the Board, claimed a nonconforming use and applied for a variance. The Board held hearings on October 12 and 19, 1994, at which Alan and Deborah Gryshuk, Jeffrey and Kimberley Jagiela and Roy and Karen Musselman (Neighbors), who reside in surrounding residential homes, appeared to protest Owners’ use of the property. At a meeting on December 14, 1994, the Board orally delivered a decision that the shooting cages were structures and/or outdoor use facilities under the Township’s ordinance, that Owners did not show a lawfully existing use within the one-hundred-foot setback area required by the ordinance and that Owners failed to prove the elements necessary for a variance. On January 18, 1995, the Board issued written findings of fact and conclusions of law. On January 26, 1995, Owners notified the Board that they were asserting a deemed approval of their application, due to the Board’s delay in issuing its decision. Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10908(9). They filed with the trial court a mandamus action asserting a deemed approval while also filing an appeal from the Board’s actual decision denying their application. Neighbors petitioned to intervene in both actions. On February 24, 1995, Neighbors filed a notice of appeal from deemed approval with the trial court, seeking reversal of that approval should it be found to exist, and Owners intervened. In October 1995, the trial court granted a motion for peremptory judgment filed by Owners in their mandamus action, finding a deemed approval to exist. The court issued a writ of mandamus ordering the Township to issue all permits and approvals to Owners within ten days, and at the same time also scheduled argument on Neighbors’ appeal from deemed approval. Without taking additional evidence, the court subsequently granted Neighbors’ appeal and “dissolved and reversed” the deemed approval. Owners now appeal the latter trial court decision to this Court. In this case and Koutrakos v. Newtown Township Zoning Hearing Board, 685 A.2d 639 (Pa.Cmwlth.1996), this Court has attempted to deal with various types of zoning decisions and to make a clear summary of the functions, options and requirements of a trial judge when he or she undertakes the disposition of a zoning appeal. These cases should also serve as reminders to zoning boards, in the exercise of their civic duty, to hold hearings within 60 days of a hearing request and render decisions, accompanied by findings of fact, within 45 days of the conclusion of the hearings. The first issue we address here is whether the trial court erred in granting Neighbors’ zoning appeal after the court had already issued a writ of mandamus for permits arising from the Board’s deemed approval of Owners’ application. Owners assert that the Board’s untimely decision resulted in a deemed approval, which created a conclusive presumption that the Board decided Owners’ application in their favor, and the writ of mandamus established the trial court’s decision that Owners’ right to approvals was clear. They argue from this that the court’s unappealed mandamus decision collaterally estopped the further challenge and the contrary court decision now appealed. See Johnston v. Upper Macungie Township, 162 Pa.Cmwlth. 170, 638 A.2d 408 (1994); Fincher v. Middlesex Township, 64 Pa.Cmwlth. 355, 439 A.2d 1353 (1982). The Township responds that the cases Owners cite are distinguishable and collateral estoppel is inapplicable here. It argues that the writ of mandamus determined only the existence of a deemed approval, which was timely appealed and left open the merits of the case; the writ did not decide the merits of Owners’ application, as the court recognized in scheduling Neighbors’ appeal for argument when it issued the writ. See Foltz v. Monroeville, 5 Pa.Cmwlth. 304, 290 A.2d 269 (1972). The Township maintains that an appeal of the mandamus order would have been a duplicative waste of court costs and counsel fees. We agree with the Township’s position. There is no doubt that the trial court granted mandamus in favor of Owners. However, this is as it should be, because there is also no' doubt that Owners were entitled to a deemed approval. A deemed approval under section 908(9) indisputably existed because the Board did not render a written decision or findings within 45 days after the last hearing in this matter. Thus, just as Owners requested, the trial court established in the mandamus action that there was a deemed Board approval. We emphasize that a deemed zoning board approval no more cuts off the right to an appeal on the merits than would a timely board decision approving an application. Section 908(9), while allowing for deemed approval, also provides that “[njothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.” 53 P.S. § 10908(9). The lack of a timely Board decision leading to deemed approval, not the substantive merits of the ease, was the sole subject issue litigated in the mandamus action. That is not the same, substantive issue Neighbors were entitled to appeal under section 908(9) and which was in fact litigated in Neighbors’ zoning appeal. The trial court obviously was aware of this and held open the merits of the case, even scheduling argument on them in the same order granting mandamus. As the court has persuasively stated, the mandamus decision was a necessary step here to determine whose appeal of the Board’s decision would be taken. If Owners were not entitled to mandamus, because there was no deemed approval and instead the Board’s denial of Owners’ application was effective, then Owners’ appeal of that denial would be heard. If mandamus was appropriate, and there was a deemed Board approval, then Neighbors’ appeal of that approval would be heard, as was the case here. We also accept the trial court’s explanation that, when it later “dissolved and reversed” the deemed approval, it did not determine that Board approval did not exist by operation of law, but instead overturned such approval on the merits and necessarily ended the mandamus order for the issuance of permits. The trial court’s action here is not a matter of first impression. Indeed, our decision in Foltz both explains and supports it. In that case, an applicant for a building permit filed a complaint in mandamus. He requested that the permit be issued because a zoning board decision denying it was adopted one day beyond the statutory 45-day period and, thus, there was a deemed approval. We held in favor of the applicant and adopted the following trial court statement: The statutory appeal challenges the content of the decision rendered while the mandamus action brought under the statute assaults the inaction of the Board. We are not persuaded that the availability of a remedy promulgated to challenge the content of a decision adequately affords this plaintiff the opportunity to challenge the failure to render a decision within the proper period of time. For the reasons set forth above, we hold that plaintiffs complaint states a cause of action in mandamus. Foltz, 290 A.2d at 272 (footnote omitted). We then held: We have affirmed the holding of the court below that the [zoning board] issued a decision by operation of law on January 25, 1971 which was not affected by a resolution adopted by the Board on the following day. Intervenors had the right to appeal that decision and in fact they attempted to do so after the lower court had made a determination in this mandamus action. .. .[T]he existence of the right to an appeal disposes of the Intervenors’ contention that we have deprived them of that right. Id. at 272-273. Further, a decision upon which Owners themselves rely, to support a scope of review argument that we discuss next, follows Foltz and expresses the fallacy of Owners’ collateral estoppel argument. See Southland Corp. v. Warrington Township Zoning Hearing Board, 36 Pa. D. & C.3d 59 (1985). The trial court in Southland made the following well reasoned statements in rejecting what is essentially the same contention Owners now advance: If such were the case, a zoning board need never act whenever it determines to grant the relief applied for, secure in the belief that its decision can never be overturned. The resulting anomalous conclusion is obvious. If the board enters its decision in appropriate form in writing 45 days after the last hearing granting the relief, all aggrieved parties have standing and would have the opportunity to appeal that decision and test its merits in a court of law. However, by waiting until the 46th day, the zoning hearing board would be able to cut off such rights of review. It is inconceivable to us that the legislature could have contemplated or intended such a result. The obvious purpose of the “deemed approval” provisions of the [MPC] was to compel zoning hearing boards to act in a timely manner so that the rights of property owners not be prejudiced by delay.... We do not believe that it was ever intended by the legislature to give the applicant a windfall in the form of protection from review of the merits of the application, merely because the zoning hearing board was dilatory. Id. at 62-63. Against the foregoing authority, there is nothing to suggest that Neighbors, who in an exercise of caution had already appealed a deemed approval in the event such approval existed, were required to appeal the trial court’s mandamus decision that the approval existed or otherwise challenge the fact of deemed approval. Neighbors apparently suspected that the Board’s untimely decision would constitute a deemed approval under the MPC and thus proceeded directly to file a precautionary appeal with the trial court after Owners asserted that such approval existed. Neighbors did not premise their zoning appeal on a claim that deemed Board approval did not exist. Therefore, collateral estoppel may not be invoked to preclude a review of the merits of Owners’ application. Based on our discussion, we hold that the writ of mandamus determined only the existence of a deemed approval, which approval was properly appealed on the merits. Thus, the procedure in this case was correct and there was no collateral estoppel. The next issue for our consideration is whether the trial court erred in conducting a substantial evidence review of the Board’s decision instead of making its own findings. Our resolution of this issue compels us to order a remand. Owners argue that, since the Board’s decision was untimely and a deemed approval therefore existed, the Board’s decision and its late-filed findings constituted a nullity. Thus, Owners submit, the trial court should have made its own factual findings instead of “adopting” the Board’s findings as supported by substantial evidence. Faulkner v. Moosic Borough Board of Adjustment, 154 Pa. Cmwlth. 616, 624 A.2d 677 (1993); Southland. The Township contends that the trial court, despite some of the language in its opinion, in fact made its own findings, in compliance with Faulkner. According to the Township, the court independently reviewed the record, and on close reading its own findings and opinions are replete in its decision. The Township alternatively suggests that, even if the trial court did not conduct the proper review, this error was harmless, because the court would obviously reach the same decision were we to remand the case for the court to make its own findings. We are compelled to agree with Owners on this issue for the following reasons. First, we reiterate that this is indisputably a case of deemed approval, as the Board did not render a timely decision. This Court has clearly held that the trial court is the fact-finder when it reviews a deemed zoning board approval. Faulkner. It is also true that a trial court is the fact-finder when a board has not made findings. See, e.g., Koutrakos. These tenets certainly guide us here. However, they are not precisely on point, and therefore further discussion is required, notwithstanding the suggestion of the Township itself that Faulkner is controlling. This is because the Board made written findings of fact, which were included in the record certified to the trial court, and it does not appear that the court in Faulkner had board findings before it. The question thus arises for the first time as to a trial court’s scope of review in such a situation. We recognize that Section 1005-A of the MPC, which the trial court relied upon for not making its own findings, provides: If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. 53 P.S. § 11005-A. We also note our holding in Bishop Nursing Home v. Middletown Township Zoning Hearing Board, 162 Pa. Cmwlth. 118, 638 A.2d 383 (1994), petition for allowance of appeal denied, 538 Pa. 675, 649 A.2d 676 (1994) that a trial court did not err by refusing to make its own findings where there were late-filed zoning board findings in the record. However, Bishop is inapposite because deemed approval was not involved there, as it is here. The late-filed findings in that case apparently followed a timely board decision. We would be allotting insufficient import to the statutory mandate of deemed approval were we to hold that, regardless of section 908(9) and such approval, a trial court not taking additional evidence is always precluded by section 1005-A from making its own findings whenever the record before it includes findings. Mindful of the nature of a deemed approval, which we have discussed above, we must consider that the effect of such approval, to which Owners here are entitled, might be undermined if we were to move away from the holding in Faulkner. A board, even though its decision in essence has already been made for it by operation of law, caused by its own delay, could subsequently limit the trial court’s scope of review by merely filing findings at some time before the record is transmitted. Inequities could arise, as to both applicants and protestants taking a precautionary appeal, where the board — after failing to make a timely decision — nonetheless sets forth untimely findings, and those findings are then unequivocally afforded the same deference as findings of a timely, effective board decision on appeal. We are provided no reason why a board’s findings should survive when its very decision has been nullified. We then return to the fact that Faulkner plainly states the trial court makes its own findings where there is a deemed approval, and there is no expression in that decision of any exception when a zoning board has set forth findings following the date of deemed approval. The conclusion we reach in light of these considerations is that the holding in Faulkner is applicable under the circumstances presented, i.e., the proper course in reviewing a deemed approval is for the trial court to make its own findings even if there are zoning board findings in the record. Thus, it was incumbent upon the trial court here to render its own findings and conclusions. The pertinent question now to be addressed is whether the court complied with this standard. This question is readily answered. We cannot properly say that the trial court made its own findings, as opposed to reviewing the Board’s findings and conclusions for substantial evidence. The court cited those findings and conclusions extensively in its opinion and purported to review them for substantial evidence. An examination of the language in the opinion shows the Township’s contention that the court acted as fact-finder to be simply untenable given the court’s unambiguous statements to the contrary. Indeed, as alluded to above, the court specifically rejected the claim that it was to find its own facts. Thus, we are bound to conclude that the court erred here. It may very well be that the trial court completely agreed with the Board’s late-filed findings and, employing the correct scope of review, would still decide the substantive merits of this case exactly as it already has. However, we simply cannot declare this an absolute certainty. The court erred in acting as fact-reviewer instead of fact-finder and we are therefore constrained to remand this case to the court for its own specific findings and conclusions on the record made before the Board. For these reasons, we do not reach and we express no opinion as to Owners’ two remaining, substantive contentions on the merits, pertaining to evidence of nonconforming use and estoppel. Accordingly, the trial court’s order is vacated and this case is remanded for further proceedings. ORDER AND NOW, this 21st day of November, 1996, the order of the Court of Common Pleas of Montgomery County, No. 95-03918, dated November 27, 1995, is hereby vacated and this case is remanded for further proceedings consistent with the foregoing opinion. Jurisdiction relinquished. . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11201. . "The board ... shall render a written decision or ... make written findings on the application within 45 days after the last hearing before the board... .Where the board fails to render the decision within the period required by this subsection ... the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed ... to an extension of time.” 53 P.S. § 10908(9). . Given Neighbors’ appeal of the deemed approval, the court's concomitant order for the issuance of permits was unnecessary, confusing and should have been omitted. Nevertheless, the court properly created a situation equivalent to one where a zoning board grants approvals on the merits and protestants appeal. . As quoted above, we noted in Foltz that the protestants therein attempted to appeal a deemed approval after it was established by a mandamus order. . By contrast, the trial court in Fincher, in a decision granting mandamus, found that a particular article of the MPC was inapplicable. We thus held that collateral estoppel prevented a party from relitigating the applicability of that article in a subsequent zoning appeal. The Johnston decision is also distinguishable, in that it involved a landowner's failure to appeal the merits of a zoning violation. . Moreover, section 1005-A itself refers to a "board or agency whose decision or action is brought up for review.” Strictly speaking, this does not apply to a deemed approval situation, since then the decision before the trial court for review is one created by operation of law, as opposed to whatever actual decision — deemed ineffectual — a board may have made.

PELLEGRINI, Judge. Donald Watkins (Watkins) petitions pro se for review of a decision of the Pennsylvania Board of Probation and Parole (Board) which granted in part his request for administrative review. On April 23, 1991, Watkins was sentenced to serve three to six years at the State Correctional Institution at Graterford, Pennsylvania, based on a charge of possession with intent to distribute a controlled substance. On the same date, Watkins was also sentenced to serve two additional concurrent terms of two to five years for the offense of criminal conspiracy, and one to two years for possession of a controlled substance with intent to distribute. Watkins’ sentence carried a maximum expiration date of February 2, 1997. On February 11, 1994, Watkins was released on parole subject to certain conditions, as set forth in 37 Pa.Code § 63.4. On July 13, 1994, Watkins was arrested on charges of simple assault, aggravated assault, reckless endangerment of another person and terroristic threats. Watkins received notice of a Board hearing charging him with criminal parole violations and technical parole violations of conditions 2 and 5A. After his conviction on the charges of ter-roristic threats and simple assault, the Board’s hearing examiner conducted a revocation hearing. As a result, the Board revoked Watkins’ parole on both technical and criminal parole violations. The Board, in its revocation decision, imposed 18 months back-time for technical violations of both condition 2 and condition 5A. No aggravating circumstances were addressed in the revocation decision. Watkins requested administrative relief challenging the finding of a violation of condition 2, arguing that there was no evidence to support that violation that he had not changed his residence, and that the hearing examiner told him that charge would be dropped. He asserted that he should only serve six to twelve months backtime for the technical violation of Condition 5A. The Board notified Watkins by letter that his petition for administrative relief was granted to the extent addressed in its order. Apparently agreeing with Watkins, the Board’s order modified the recommitment portion of its prior order by removing all references to condition 2. However, the Board added the aggravating reason “assaultive offense while on parole” and did not change the amount of backtime imposed. Watkins then filed this appeal. Watkins contends in this appeal that the Board abused its discretion in adding an aggravating reason and in not reducing back-time due to the elimination of one of the violations for which it was imposed. The presumptive range for a violation of condition 5A is only six to twelve months. 37 Pa.Code § 75.4. Watkins argues, therefore, that his backtime should have been reduced from 18 months to 12 months. The review of a petition for administrative relief was explained in Burgess v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 282, 568 A.2d 268, 269-70 (1989), petition for allowance of appeal denied, 525 Pa. 613, 577 A.2d 545 (1990): [T]he two member or three member revocation panel is the ultimate fact finder in revocation proceedings. 61 P.S. § 331.4(b). The panel deciding requests for administrative relief is not a fact finder. Its scope of review is to determine whether there is substantial evidence to support the finding, an error of law has been committed, or constitutional rights were violated. Section 4(d) of the Pennsylvania Probation and Parole Act, although retaining the appeal nature of the petition for administrative review, allows the panel for the Board to determine if de novo review is appropriate: (Emphasis added). Although the Board is specifically permitted to review requests for administrative relief de novo, the panel must issue an order to that effect. Unless the Board expressly orders that the matter will be heard de novo, the revocation panel must only review the revocation decision on a substantial evidence standard. On petition for administrative relief, without an order for de novo review, new or additional findings on aggravating circumstances cannot be made in order to support backtime imposed. Having determined that the finding of a violation of condition 2 was not supported by substantial evidence, as evidenced by the order removing all references to that condition from the Board’s order, the backtime imposed, which was for a single violation of condition 5, should have been reduced. An interested party may appeal a revocation decision within thirty days of the board’s order. The decision shall be reviewed by three board members appointed by the chairman or the chairman’s desig-nee. If practicable, at least two of the board members reviewing the decision must not have been on the panel whose decision is being appealed. The three board members deciding the appeal may affirm, reverse or remand the decision of the panel or may order the matter be heard de novo. The Board argues that it is within its discretion to add aggravating reasons after the recommitment order is issued, citing the decision in Wolfe v. Pennsylvania Board of Probation and Parole, 94 Pa.Cmwlth. 200, 503 A.2d 483 (1986). We held in Wolfe that the Board may provide written justification for deviating from the presumptive range after it hands down its order so long as the record supports the deviation. Wolfe is inapplicable here. This case is distinguishable because the Board, rather than inadvertently omitting written justification for a deviation, initially based its backtime on two distinct technical violations and the backtime was within the presumptive ranges for the combined violations. Because one of those technical violations was not supported by the record, the Board was not providing justification for a prior deviation from the presumptive range, which would have been within its discretion in originally imposing backtime, but rather, is attempting to exercise discretion as to the remaining technical violation at a point when it has no discretion. Moreover, Wolfe was decided before the amendment to Section 4 of the Parole Act which added the above-quoted language limiting the Board’s actions on appeal or administrative relief. Accordingly, the decision on administrative relief is vacated and the case is remanded for the reversal of backtime imposed for a violation of condition 2. ORDER AND NOW, this 31st day of October, 1996, the order of the Pennsylvania Board of Probation and Parole, dated October 4, 1995, Parole No. 9445-X, is vacated and the case is remanded for the Board to reverse the back-time imposed for the violation of condition 2 which was subsequently removed. Jurisdiction relinquished. . This case was reassigned to the authoring judge on September 10, 1996. . Condition 2 states that the parolee may not move from his approved residence without permission. Condition 5A states that the parolee shall abstain from the unlawful possession or sale of narcotics and dangerous drugs and from the use of controlled substances. . The criminal violations and backtime imposed for those violations are not at issue here. . Our scope of review of a decision of the Board is limited to a determination as to whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether the constitutional rights of the parolee were violated. Gaito v. Pennsylvania Board of Probation and Parole, 128 Pa.Cmwlth. 253, 563 A.2d 545 (1989), petition for allowance of appeal denied, 525 Pa. 589, 575 A.2d 118 (1990). . Watkins also argues that the Board’s order violated the doctrine of res judicata, violated his due process rights and obstructs his appeal rights. . Act of August 6, 1941, P.L. 861, as added by Section 2 of the Act of October 9, 1986, P.L. 1424, 61 P.S. § 331.4(d). . Although the Board’s regulations distinguish between appeals of revocation decisions and petitions for administrative review, there is nothing in the Parole Act to indicate that Section 4(d) applies only to appeals of revocation hearings as that term is defined in the regulations. 37 Pa. Code § 73.1. . In Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d 235 (Pa.Cmwlth.1995), this court affirmed a Board’s decision where a designee of the chairman of the Board solely performed administrative review, summarily denying all relief requested and affirming the backtime imposed by the Board panel in the revocation decision. In that case, we interpreted the second sentence of Section 4(d) of the Parole Act — -"[tille decision shall be reviewed by three board members appointed by the chair-mem or the chairman’s designee" — to allow the assistant chief counsel, acting as the chairman’s designee, to alone review administrative decisions usually left to three member panels. Although that holding has not been questioned before us, we believe that it does not follow from Williams that a designee of the chairman could perform de novo review of the revocation decision of a panel. See Timothy P. Wile, Pennsylvania Law of Probation and Parole, § 15:6 fn 60.2 (supp. April 1996). .Because we vacate and remand, we need not address Watkins’ argument on res judicata and we refrain from reaching his constitutional issues. Where a case can be decided on noncon-stitutional grounds, a reviewing court should not decide constitutional questions. Gwynedd Development Group, Inc. v. Department of Labor and Industry, 666 A.2d 365 (Pa.Cmwlth.1995), petition for allowance of appeal granted, but limited to other grounds, 544 Pa. 218, 675 A.2d 1220 (1996).

ORDER PER CURIAM. AND NOW, this 14th day of November, 1996, the Petition for Allowance of Appeal is GRANTED. The decision of the Superior Court is REVERSED and the ORDER of the trial court entered on April 4, 1994 suppressing physical evidence is REINSTATED. See Commonwealth v. Matos, 543 Pa. 449, 672 A2d 769 (1996). Jurisdiction is relinquished. CASTILLE, J., is filing a dissenting statement.

TAMILIA, Judge: Maria Conforti appeals from the judgment entered following the April 30, 1996 Order denying her motion for judgment notwithstanding the verdict. Following a nonjury trial in this replevin action, a verdict in the amount of $2,850 plus interest and costs was entered in favor of appellee. The facts of this case, as set forth by the trial court, are as follows. Prior to May 26,1995, the plaintiff, Karen Sue Haws, lived in a house at 2941 Leechburg Road, Lower Burrell, Pennsylvania. Her boyfriend lived at 2939 Leech-burg Road, an adjacent dwelling, and at her request, stored in his larger home various items, furniture and appliances belonging to the plaintiff. Both houses were owned by the same landlords and prior to May 26th both homes were sold to the defendant, Maria Conforti. While in the process of moving on May 26th, Ms. Haws sought to retrieve her stored furnishings from the house at 2939, but was unable to do so because the house was locked. The plaintiff tried to engage the services of a locksmith to assist her in removing the property in the presence of a constable, but that plan was thwarted when the defendant appeared at the house and forbid any entry. Both the plaintiff and the [constable] testified that they could see the plaintiffs property inside the house at 2939 on May 26th when they looked through the various windows on the first floor. In June there were two separate proceedings before a district justice between the plaintiff and defendant [and] the replevin action was filed [on September 14, 1995]. [A verdict in the amount of $2,850 was entered on December 6, 1995, following a nonjury trial.] (Slip Op., Ackerman, J., 4/30/96, pp. 1-2.) When reviewing the propriety of an Order denying a motion for judgment n.o.v., our sole duty is to determine whether there was sufficient, competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be drawn from the evidence and rejecting all unfavorable testimony and inferences. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 546 A.2d 639 (1988), alloc. denied, 522 Pa. 576, 559 A.2d 37 (1989). On appeal, appellant claims the trial court erred in denying her motion for judgment n.o.v. “since plaintiff presented no evidence to establish that defendant was in actual or constructive possession of her personalty when she commenced her action of replevin.” (Appellant’s brief at 9.) Specifically, appellant is claiming that although evidence was presented by appellee and the constable indicating that appellee’s goods were in appellant’s possession on May 26, 1995, there was no evidence presented that she possessed the goods when appellee filed suit, on September 14, 1995. In support of this proposition, appellant directs our attention to two cases. In the first, Commonwealth v. Dean, 245 Pa.Super. 322, 369 A.2d 423 (1976), appellant sought return of $80 which the police had seized from him and given to the owner of a store, whom appellant allegedly defrauded by passing a worthless cheek. In affirming the dismissal of appellant’s replevin action, this Court held: [T]he Commonwealth, the named defendant, is no longer in possession of the subject matter sought, having turned over such funds to the victim. It is fundamental to an action of replevin that the defendant be in actual or constructive possession of the property which is the subject of the action. Id. at 325, 369 A.2d at 425. In the second case cited by appellant, Winner v. Messinger, 165 Pa.Super. 507, 69 A.2d 172 (1949), appellee, a bottled gas company, brought a replevin action against appellant, an assignee of the accounts of appellee’s dealer, to recover equipment which appellant had leased to customers. The trial court found in favor of appellee. In reversing the lower court on the basis that the customers, rather than appellant, were in possession of the equipment, this Court held: An action of replevin cannot be maintained against one not in actual or constructive possession of the property sought to be recovered, so that the defendant, if judgment be rendered against him, may make delivery thereof to the plaintiff. Id. at 511, 69 A.2d at 174. Instantly, the trial court rejected, on the following basis, appellant’s claim that Dean and Winner require the dismissal of appellee’s replevin action: In both the Dean and Winner cases cited by the defendant, the property of the plaintiffs, at the time the actions were filed, was in the possession of identifiable third parties who were not defendants to the action. That is an important distinction when compared to the facts of this case. The defendant had control and possession of the plaintiffs property in May, she refused all attempts by the plaintiff to enter the house where the property was, and now denies knowledge of where the property was in September. Under these circumstances, I conclude that the defendant’s possession of the plaintiffs property was continuing in nature. (Slip Op. at 3-4.) In so holding, the court relied upon 2 ALR2d 1044 § 2, Proof of prior possession, which provides: [I]t would in many cases present a well-nigh insuperable obstacle if the plaintiff were required to furnish testimony that he or his witnesses actually saw the property in the possession of the defendant at the exact time an action for its recovery was commenced. Many reasons suggest themselves why it would be impossible to furnish such testimony, such as that the defendant might transfer or hide the property or might deny the plaintiff the right of inspection, or that the property might consist of a large number of items necessitating an inventory. Accordingly, the general rule — that possession, being a fact continuous in its nature, when its existence is once shown, is presumed to continue until the contrary is proved — has been given application in this connection. It is the generally accepted rule that possession of personal property by the defendant, proved to exist at some time prior to the commencement of an action to recover such property, is presumed to continue until the contrary is established; and such proof, if not explained or overcome, is sufficient to establish possession in the defendant at the commencement of the action. Id; (emphasis added). We agree with the trial court that this provision suggests the proper resolution of the instant case. In this regard, we note that the court “found as a fact that the plaintiffs property was in the defendant’s house in May” and “did not accept as credible the testimony of the defendant’s son that it was never in the house nor is it logical to conclude that somehow it was removed from the house without the knowledge or consent of the defendant.” (Slip Op. at 3.) Thus, according to the court as finder of fact, possession of appellee’s property was “once shown” when it was seen by appellee and the constable on May 26, 1995. As indicated above, according to 2 ALR2d 1044, § 2, such possession “once shown, is presumed to continue until the contrary is proved[.]” Rather than attempting to prove that she lost possession after May 26, 1995, appellant, via her son’s testimony, claimed that she never had possession of appellee’s property. This claim was rejected by the trial court, whose role it was to determine the credibility of witnesses, and we will not disturb this determination. See Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989). Appellant claims that the presumption of continuous possession suggested by 2 ALR2d 1044, § 2, is inapplicable because “2 common threads” (appellant’s brief at 12), of the rule are not present in the instant case. According to appellant, these threads are: (1) prior possession was not in dispute; and (2) the prior possession was close in time to when the suit was filed. Appellant has not directed our attention to any authority indicating that these “threads”, which do not appear in the text of 2 ALR2d 1044, § 2, are formal requirements of the presumption’s applicability. Further, imposition of the first factor would defeat the utility of the presumption because a replevin defendant, like appellant herein, will often deny he or she ever possessed plaintiffs property. Under appellants’ theory, such a denial would preclude the presumption of continuous possession, and thus defeat the very purpose for which the presumption was developed, to overcome defendant’s denial that he possessed plaintiffs property. As to appellant’s contention that the presumption of continuous possession applies only where “the prior possession was close in time to when the suit was filed”, we reiterate that the text of the rule contains no such requirement. Under the rule, when possession is “once shown, [it] is presumed to continue until the contrary is proved[.]” Further, we note that in the instant case less than four months elapsed from the time appellant’s possession was established, May 26, 1995, until appellee commenced suit, September 14, 1995. At least one other jurisdiction has applied the presumption of continuous possession despite a longer delay. See Wails v. Farrington, 27 Okla. 754, 116 P. 428 (1911) (defendant’s possession was established on February 15, 1904 and suit was commenced on December 9, 1904). Thus, we find no error in the trial court’s conclusion that ap-pellee established appellant’s actual or constructive possession of her property. Having rejected appellant’s sole claim on appeal, we affirm the judgment entered following the Order denying her motion for judgment n.o.v. Judgment affirmed.

OPINION BY Senior Judge DOYLE. Realen Valley Forge Greenes Associates (Realen) appeals from an order of the Court of Common Pleas of Montgomery County that affirmed a decision of the Zoning Hearing Board of Upper Merion Township (Board) denying Realen’s challenge to the validity of the Township’s zoning ordinance under Sections 909.1 and 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §§ 10909.1, 10916.1(a). After careful review of the record, we affirm. Realen is the equitable owner of a parcel of land (Property), approximately 135 acres in size, legally owned by Hankin Family Partnership. The Property is situated in Upper Merion Township, upon which a privately-owned golf club has been located since the 1920s. The Property is part of the Township’s Agricultural Zoning District (AG district), and has been so designated since 1953, when the AG district was created. The original AG district was approximately 3100 acres and included the Property and surrounding parcels of land. Since 1953, however, most of the surrounding parcels have been rezoned as Commercial, Administrative and Research, Suburban Metropolitan, or other uses. The Property is the fifth largest parcel of land in the Township and is considerably larger than the immediately surrounding parcels: the next largest is merely thirteen acres in size. The Property is also bounded by roads on every side and its physical characteristics have remained unchanged since 1953. The current section of the Upper Merion Township Zoning Ordinance pertaining to the uses permitted in the AG district, Section 165-10, permits four uses by right, eleven additional uses by special exception, and permits two other uses by conditional use. The four uses permitted by right are single-family detached dwellings, conversion of single-family detached dwellings, agriculture, and municipal use. The eleven uses permitted by special exception are (a) educational, religious, philanthropic use, excluding correctional or penal institution; (b) day camp; (c) hospital, convalescent home, sanatorium; (d) club, fraternity house or lodge; (e) passenger station for public transportation, telephone central office, other public utility use; (f) radio and television transmitting station and towers; (g) laboratory for scientific, agricultural or industrial research; (h) community center, noncommercial park, athletic field, recreational use; (i) golf course, excluding golf driving range and miniature golf course; (j) riding academy; (k) cemetery. The uses permitted by conditional use are Cluster residential development and Personal care facility. On November 13, 1997, pursuant to Sections 909.1 and 916.1 of the MPC, Realen submitted to the Board a challenge to the constitutional validity of the ordinance, contending that the AG zoning of the Property constitutes unlawful spot zoning, is arbitrary and irrational, and constitutes unlawful special legislation. The Upper Merion Township Board of Supervisors (Supervisors) entered the action as a party in opposition to Realen’s challenge, and the Board held fourteen public hearings on the matter. On August 13, 1999, the Board issued an order and fifty-one page opinion, in which it made extensive findings of fact and conclusions of law, and denied Real-en’s challenge, concluding that the ordinance provides for various reasonable and legitimate uses of the Property, that the zoning of the Property reflects consideration of public health, safety, and morals, and therefore the zoning classification was not arbitrary or irrational and did not constitute spot zoning or special legislation. Realen appealed the Board’s decision to the Court of Common Pleas of Montgomery County. On December 1, 2000, Common Pleas affirmed the decision of the Board and Realen subsequently filed the present appeal before this Court. On appeal, Realen presents five issues for our consideration: 1) whether Common Pleas erred in failing to determine that the AG zoning of the property unreasonably restricts its use; 2) whether Common Pleas erred in failing to determine that the AG zoning of the Property was spot zoning; 3) whether Common Pleas erred in failing to determine that the AG zoning of the Property was special legislation; 4) whether Common Pleas erred in failing to determine that the Board’s decision was not supported by substantial evidence; and 5) whether Common Pleas erred in failing to determine that the motivation of the Township was relevant when considering the validity of the zoning of the Property. We begin our analysis by noting that a zoning ordinance is presumed valid, and one challenging the constitutionality of an ordinance bears a heavy burden to overcome that presumption; furthermore, the challenging party must clearly establish that the ordinance provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals, and general welfare. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); In re Apgar, 661 A.2d 445 (Pa.Cmwlth.1995). If the constitutionality of an ordinance is debatable, the legislative judgment of the governing body must control. Schubach; Kirk v. Zoning Hearing Board, 713 A.2d 1226 (Pa.Cmwlth.1998), petition for allowance of appeal denied 558 Pa. 624, 737 A.2d 745 (1999). In the present case, Realen has failed to meet its burden. First, Realen argues that the current zoning of the Property is unconstitutional because it unreasonably restricts the use of the Property to its present use as a golf course. Specifically, Realen contends that the Board lacked substantial evidence to support a finding that the property could be used as anything other than a golf course and that the Board erred in determining that any proposed use does not necessarily need to comply with the Township Comprehensive Plan. We disagree. It is well settled that, in zoning cases, the Board is the finder of fact with exclusive province over matters of credibility and weight to be afforded the evidence. In re Brickstone Realty Corp., 789 A.2d 333 (Pa.Cmwlth.2001). As such, the Board may reject even uncontradicted testimony if the Board finds it to be lacking credibility. Vanguard Cellular System, Inc. v. Zoning Hearing Board 130 Pa.Cmwlth. 371, 568 A.2d 703 (1989), petition for allowance of appeal denied, 527 Pa. 620, 590 A.2d 760 (1990). Here, the Board made 140 findings of fact and cited specific evidence in support of each material finding. Realen, however, relying extensively on testimony not relied on by the Board, claims that no reasonable fact finder could have found as the Board did because Real-en’s witnesses were of such a high caliber and the Supervisors’ own expert land-planning witness, John Rahenkamp, on cross-examination, contradicted his direct testimony regarding viable uses of the property. These claims lack merit. The “caliber” of a witness goes directly to credibility and the weight a fact finder will place on that witness’ testimony. As we have stated, credibility and weight of evidence are properly determined by the Board, not this Court. Therefore, we will not question the findings of the Board in this regard. Regarding Realen’s contention that the Supervisors’ land-planning expert’s testimony was incompetent because he allegedly contradicted himself on cross-examination, we are unpersuaded. In support of its contention, Realen cites the following testimony of Mr. Rahen-kamp, elicited on cross-examination: Q. Okay. So I would hope then that you would agree that none of the uses that are permitted by right in the Agricultural District could viably be developed or are appropriate on the golf course property? A. Yes. As a matter of right, uses are very limited or not practical uses. It’s a fairly unique site, therefore, the special exception and conditional uses were more appropriate, yes. (Notes of Testimony, N.T., Testimony of John Rahenkamp at 781-82). A review of the record, however, indicates that Rahen-kamp expressed a similar opinion on direct examination. On direct examination, Ra-henkamp testified as follows: Q. In your opinion, is the single-family detached dwelling use[, a use allowed as of right,] a viable use for this property? A. Marginally so. It’s obviously not an ideal site for large lot single-family homes. Could it be used for that, yes. But its [sic] not an ideal use. (N.T., Rahenkamp Testimony at 682). Ra-henkamp indicates that, although not an ideal use, the Property may be used for single-family detached dwellings, and he adds, on cross-examination, that the Property is better suited for the special exception and conditional uses. We fail to see any contradiction or any other reason to question the competence of Rahenkamp’s testimony. As such, the Board properly relied on Rahenkamp’s testimony as substantial evidence to support its findings regarding potential uses of the property. Realen continues, however, by suggesting that, although the property could viably be developed under four special exception uses and both conditional uses, the property is still unreasonably restricted because the procedure for procuring permission for a special exception or conditional use requires compliance with the comprehensive plan, and the comprehensive plan, which designates the property as “Parks, Recreation, and Open Space,” (Upper Merion Township Comprehensive Plan-1986, Ch. VII at 28), contradicts the special exception and conditional uses. In making its argument, Realen acknowledges that there is a long line of cases instructing that a comprehensive plan simply recommends desirable approaches to land utilization and that it is the zoning ordinance, being regulatory in nature, which controls the actual uses that can be made of the property. See County of Adams v. Department of Environmental Protection, 687 A.2d 1222 (Pa.Cmwlth.1997); Schatz v. New Britain Township Zoning Hearing Board of Adjustment, 141 Pa.Cmwlth. 525, 596 A.2d 294 (1991); Appeal of Molnar, 64 Pa.Cmwlth. 578, 441 A.2d 487 (1982); Michaels Development Co. v. Benzinger Township Board of Supervisors, 50 Pa.Cmwlth. 281, 413 A.2d 743 (1980); Nicholas Heim & Kissinger v. Harris Township, 31 Pa.Cmwlth. 357, 375 A.2d 1383 (1977); Appeal of FPA Corp., 25 Pa.Cmwlth. 221, 360 A.2d 851 (1976); Forks Township Board of Supervisors v. George Calantoni & Sons, Inc., 6 Pa.Cmwlth. 521, 297 A.2d 164 (1972). Nevertheless, Realen, relying on this Court’s decision in Levin v. Board of Supervisors, 669 A.2d 1063 (Pa.Cmwlth.1995), contends that, when a zoning ordinance specifically requires that a prospective special exception or conditional use comply with a comprehensive plan, the desirable land uses enumerated in the comprehensive plan become regulatory and control the use of the land. Again, we must disagree. In Levin, we determined that if an ordinance sets out criteria that “shall be” used in making the evaluation of a proposed conditional use, then those criteria are not merely a guide but are specific requirements that must be addressed before a conditional use is permitted. Levin, however, did not address the specific issue presented here, where one section of an ordinance lists specific land uses allowed by special exception or conditional use, and another section of the ordinance requires, for the grant of a special exception or conditional use, compliance with seemingly contradictory general guidelines in a comprehensive plan. As we have stated, when there is a conflict between the uses enumerated in an ordinance and a utilization recommendation contained in the comprehensive plan, the uses listed in the ordinance will prevail because the ordinance is regulatory in nature. In spite of this, Realen seems to suggest that the recommendations made in the comprehensive plan become regulatory because, when compliance with a comprehensive plan is required, the uses listed in the comprehensive plán are incorporated into the ordinance by reference. This argument, however, ignores the nature of the comprehensive plan; regardless of whether the ordinance in question requires compliance with the comprehensive plan, the comprehensive plan itself is still simply a general guide that recommends land utilization. Furthermore, the rules of statutory construction instruct that specific provisions of an ordinance will prevail over general provisions. See 1 Pa C.S. § 1938; Heck v. Zoning Hearing Board, 39 Pa.Cmwlth. 570, 397 A.2d 15 (1979). Thus, the uses specifically listed in Section 165-10 of the ordinance prevail over any general recommendation made through the comprehensive plan, even if it is somehow incorporated into the ordinance. The Board relied on substantial evidence and .committed no error of law in finding that the Property can be developed for uses as of right, special exception, and conditional use, and therefore Realen is not unreasonably restricted in its use of the Property. Next, Realen contends that the AG zoning of the Property represents arbitrary and discriminatory spot zoning. Specifically, Realen argues that, because the Property is surrounded by properties that are zoned differently, it has become a veritable island of singular zoning, lacking distinguishable characteristics that would justify different treatment from that afforded the surrounding properties. We disagree. “Spot zoning” has been defined by our Supreme Court as [a] singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment. In re Mulac, 418 Pa. 207, 210, 210 A.2d 275, 277 (1965) (emphasis added). Thus, for there to be discriminatory spot zoning, a property that is treated differently from surrounding land must be “indistinguishable” in character. Here, however-, the Board found that the Property is unique and distinguishable in several respects from the surrounding properties. (Board’s Op., Findings of Fact Nos. 40-42, at 7, 8). Two notable differences found by the Board were that the Property is considerably larger than the surrounding proper ties and the Property is completely surrounded by roadways. (Findings of Fact Nos. 61-62). Realen acknowledges that the Property is larger than the surrounding properties but suggests that all of the other factors the Board used to distinguish the Property are insufficient, and that distinguishing a property based solely on its size is not allowed under Pennsylvania law. In support of its argument, Realen relies on the following language from our Supreme Court’s decision in Mulac, 418 Pa. at 210, 210 A.2d at 277: Clearly, the size of the property involved is only one of the determining factors. What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an “island” having no relevant differences from its neighbors. In Mulac, however, the Supreme Court was referring to the previously held notion that only small properties could be the subject of spot zoning. Here, however, the Board did not suggest that the property could not be the subject of spot zoning because of its large size; the Board considered the size of the property relative to the size of the surrounding properties in order to establish whether size was a distinguishing characteristic; it found that it was. The Board’s reliance on the size of the property to show that it is unique or distinguishable is justified. Moreover, Realen’s argument fails because the size of the property was not the sole distinguishing characteristic. Attacking the Board’s finding with regard to the Property’s distinguishing characteristic of being surrounded by roadways, Realen mischaracterizes the finding and states, “[t]he Board also attempts to rely upon the proximity of the Property to roads to justify the ... different treatment. ...” (Realen’s Br. at 82) (emphasis added). The Board, however, did not rely on the Property’s “proximity” to roadways; instead, the Board found that “[t]he subject property is completely surrounded by roadways. None of the surrounding properties are surrounded by roadways as the subject property is.” (Board Op., Finding of Fact No. 42, at 8). Realen does not suggest that the surrounding properties are surrounded by roads as is the Property; Realen simply indicates that the surrounding properties have “access” to the same roads or are located on one of the surrounding roads. Thus, Realen has failed to show that the fact that the Property is completely surrounded by roads is not a justifiable distinguishing aspect. The Board found that the AG zoning of the Property is proper and that the Property is distinguishable from surrounding properties such that it has not been the subject of illegal spot zoning. Substantial evidence supports the Board’s findings in this regard and, therefore, we shall not disturb them. Realen’s final contention is that, in evaluating its special legislation claim, the intention of the Supervisors should have been considered with regard to the validity of the AG zoning of the Property. We have held, however, that “the state of mind of the legislative body in enacting a zoning ordinance is irrelevant to a determination of its validity. Rather, the legislation must stand or fall on its own terms.... ” Apgar, 661 A.2d at 448 (citing Klein v. Council of the City of Pittsburgh, 164 Pa.Cmwlth. 521, 643 A.2d 1107 (1994); Nichols v. City of Corry, 53 Pa.Cmwlth. 248, 417 A.2d 836 (1980)). Therefore, the Board and Common Pleas properly refused to consider the intent of the Supervisors. Based on the foregoing analysis, we hold that Realen has failed to establish that the ordinance in question is either arbitrary and unreasonable or that it lacks a relationship to the Township’s public health, safety, morals, and general welfare; succinctly, Realen has failed to meet its burden and the ordinance was properly found to be constitutionally valid. Accordingly, the order of the Court of Common Pleas of Montgomery County is affirmed. ORDER NOW, June 4, 2002, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby affirmed. . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Sections 909.1 and 916.1 were added by the Act of December 21, 1988, P.L. 1329. . In a zoning case, where Common Pleas has taken no additional evidence, our standard of review is limited to determining whether the zoning hearing board abused its discretion, committed an error of law, or made findings of fact not supported by substantial evidence. Puleo v. Zoning Hearing Board, 722 A.2d 789 (Pa.Cmwlth.), petition for allowance of appeal denied, 559 Pa. 671, 739 A.2d 168 (1999). . Furthermore, in Levin there was no conflict between the general policy requirements stated in the township's comprehensive plan and the property owner's use of the subject property; in fact, the specific use in Levin was also in complete harmony with the conditional use and special exception uses permitted on the property. Unlike Levin, however, Realen's proposed use of the Property in this case conflicts with the comprehensive plan and is clearly not permitted by conditional use or special exception. . We decline to determine if the ordinance at issue in the present case actually requires compliance with the comprehensive plan or whether a conflict exists between the allowed uses and utilization recommendations in the comprehensive plan. Such an analysis is not necessary based on our reasoning above. . The Board also noted that the Property was a neighborhood unto itself, and the natural features of the property, which have not changed since the creation of the AG district in 1953, are unique compared to the surrounding properties. (Findings of Fact Nos. 43-54). . The belief that only small properties could be the subject of spot zoning was rejected by our Supreme Court in Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 311, 211 A.2d 514, 519 (1965), in which the Court stated, "[i]t makes no difference whether it is a 1/4 acre lot or a 50 acre industrial complex area which is the subject of the rezoning. If it is aimed at preventing a theretofore legal use of an integrated unit owned by one common interest, the action cannot be supported as valid rezoning.”

OPINION BY Judge PELLEGRINI. Harry’s Holiday Park Lounge, Inc. (Licensee) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) granting the Pennsylvania State Police, Bureau of Liquor Control Enforcement’s (Bureau) motion to quash Licensee’s appeal to the trial court because it was without jurisdiction to hear the appeal because the appeal should have been directed to the Liquor Control Board pursuant to Section 471(b) of the Pennsylvania Liquor Code (Code). On October 18,1999, Licensee, as holder of a restaurant liquor license, was issued a citation by the Bureau for various violations of the Code, including failure to require patrons to vacate the premises after hours on December 31, 1998, and permit ting patrons to possess and/or remove alcoholic beverages from the premises in violation of Section 499(a) of the Code, 47 P.S. § 4-499(a). On April 25, 2000, the ALJ found Licensee to be in violation of the Code as charged and fined it $,1500, suspended its Sunday Sales Permit for a period of one year, and directed Licensee to place a notice on its premises informing the public of the suspension. Rather than filing an appeal to the Liquor Control Board as required by Section 471(b) of the Code, Licensee appealed to the trial court. The Bureau then filed a motion to quash contending that Licensee’s appeal was not properly before the trial court. Because the language of Section 471(b) is clear that appeals from an adjudication of an administrative law judge must be filed with the Liquor Control Board and not the Court of Common Pleas, the trial court granted the motion to quash and dismissed the case. This appeal by Licensee followed. On appeal, Licensee contends that the trial court should not have quashed the appeal from the ALJ but instead should have transferred the appeal to the Liquor Control Board pursuant to 42 Pa.C.S. § 5103. Section 5103(a) of the Judicial Code provides in pertinent part that “[i]f an appeal ... is taken to or brought in a court ... which does not have jurisdiction of the appeal ... the court ... shall not quash such appeal or dismiss such matter but shall transfer the record to the proper tribunal.” (Emphasis added). Section 5103(d) of the Judicial Code goes on to define “tribunal” as: [A] court or district justice or other judicial officer of this Commonwealth vested with the power to enter an order in a matter, the Board of Claims, the Board of Property, the Office of Administrator for Arbitration Panels for Health Care and any other similar agency- 42 Pa.C.S. 5103(d). The question then is whether the Liquor Control Board is a “tribunal” as that term is used in the provision. To determine whether a “similar agency” is a “tribunal” as that term is used in Section 5103, the agency must be a commonwealth agency with statewide jurisdiction, and its jurisdiction must involve subjects traditionally identified with the judiciary. Barrier v. Board of Supervisors of South Middleton Township, 113 Pa.Cmwlth. 444, 537 A.2d 922 (1988). In Barner, in which we interpreted the language of Section 5103 as precluding the transfer of an improperly filed case from the court of common pleas to the zoning hearing board, we stated: [T]he definition of “tribunal” set forth in Section 5103(d), rather than mirroring the general definition, limits its application to agencies similar to “the Board of Claims, the Board of Property [and] the Office of Administrator for Arbitration Panels for Health Care.” We observe that these tribunals are all Commonwealth agencies with statewide jurisdiction. Moreover, the original jurisdiction of each of these tribunals involves subjects which one would traditionally identify with the judiciary: the Board of Claims deals with certain contract claims against the Commonwealth, the Board of Property has jurisdiction over actions in the nature of quiet title or ejectment against the Commonwealth and the Office of Administrator for Arbitration Panels for Health Care was created to handle medical malpractice cases. In short, the tribunals included in the definition of Section 5103(d) are Commonwealth agencies which deal with subjects which are also, in other instances, within the original jurisdiction of courts. In our opinion, these characteristics render local zoning hearing boards dissimilar from the agencies specified in Section 5103(d). We think that the General Assembly’s reference to the specific tribunals in Section 5103(d) reflects its intent, while gradually liberalizing the transfer powers of courts, to continue to prohibit transfers between courts and zoning hearing boards. Id. at 925. (Footnotes omitted). In this case, although the Liquor Control Board is a Commonwealth agency possessing statewide jurisdiction, it does not have original jurisdiction of subject matters which are also within the original jurisdiction of the courts. Unlike contract claims against the Commonwealth that the Board of Claims hears, actions in the nature of quiet title or ejectment against the Commonwealth that the Board of Property hears or medical malpractice cases which are before the Office of Administrator for Arbitration Panels for Health Care, all of which involve matters which otherwise would be in the judicial system, the Liquor Control Board is an administrative agency that regulates the sale of liquor under the Code, and absent that regulation, by default, liquor control would not become a judicial matter. Because it is not a “tribunal” as that term is defined in Section 5103(d) of the Judicial Code, the trial court properly refused to transfer the appeal to the Board. Accordingly, the order of the trial court quashing Licensee’s appeal is affirmed. ORDER AND NOW, this 9th day of May, 2002, the order of the Court of Common Pleas of Allegheny County, dated June 11, 2001, is affirmed. . Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-471. .Section 471 (b) provides in pertinent part: In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the adjudication of the administrative law judge, there shall be a right to appeal to the board. The appeal shall be based solely on the record before the administrative law judge. The board shall affirm the decision of the administrative law judge if it is based on substantial evidence; otherwise, the board shall reverse the decision of the administrative law judge. In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses. 47 P.S. § 4-471(b). . This Court’s scope of review of the trial court's order is limited to determining whether there is substantial evidence to support the findings of fact and whether the trial court abused its discretion or committed an error of law. Pittsburgh Stadium Concessions, Inc. v. Pennsylvania Liquor Control Board, 674 A.2d 334 (Pa.Cmwlth.1996). . Even if Section 5103 of the Code does not apply, Licensee contends that Pa. R.A.P. 1503, which allows an erroneously filed notice of appeal to be treated as a petition for review, is applicable and precluded the trial court from dismissing the case. However, because the Rules of Appellate Procedure apply only to procedures in the Supreme Court, the Superior Court and the Commonwealth Court, Licensee’s contention is without merit. McNeilis v. Department of Transportation, 119 Pa.Cmwlth. 272, 546 A.2d 1339 (1988). . Section 104(c) of the Code, 47 P.S. § 1-104(c), states, inter alia, that: Except as otherwise expressly provided, the purpose of this act is to prohibit the manufacture of and transactions in liquor, alcohol and malt or brewed beverages which take place in this Commonwealth, except by and under the control of the board as herein specifically provided, and every section and provision of the act shall be construed accordingly. . Licensee also cites to Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Board, 547 Pa. 210, 689 A.2d 910 (1997) and Rocco v. Workers' Compensation Appeal Board (Parkside Realty Construction), 725 A.2d 239 (Pa.Cmwlth.1999) to support its contention that transfer is proper. However, because Shovel involved an erroneously filed appeal with the Board of Claims which may be properly transferred pursuant to 42 Pa.C.S. § 5103, and Rocco involved a request to amend improvidently filed notice of appeal pursuant to Pa. R.A.P. 1503, both cases are inapplicable.

OPINION BY Senior Judge KELLEY. The Pennsylvania Liquor Control Board (Board) appeals from a final order of the Court of Common Pleas of Dauphin County (trial court) which reversed the Board’s decision denying the Two Sophia’s, Inc. t/a The Pub’s (The Pub) liquor license renewal application under the Liquor Code. We vacate and remand. The Pub was issued a liquor license by the Board for its establishment at 14^16 S. Dewberry Street and 316 Blackberry Street, Harrisburg, Pennsylvania. The Pub filed an application to renew its license for the two-year licensing term beginning in March 2000. The Board’s Bureau of Licensing (Licensing Bureau) notified The Pub that it had objections to- the renewal application and that a hearing would be held on the objections. An administrative hearing was held on July 28, 2000 and September 6, 2000 before a hearing examiner designated by the Board. The hearing examiner received evidence and accepted testimony. The hearing examiner recommended that the Board renew The Pub’s license. Upon reviewing the record of the proceedings as well as the report of the hearing examiner, the Board, by letter dated February 14, 2001, denied The Pub’s renewal application. The Pub appealed the Board’s decision to the trial court. Thereafter, the Board issued a detailed opinion regarding its reasons for refusing the renewal of the liquor license. A hearing was held before the trial court on May 30, 2001. At the hearing, the Board offered into evidence the record of the proceedings before the hearing examiner. The trial court refused to receive the record into evidence and told the Board to proceed with its case. The Board was not prepared to call witnesses or present evidence and requested a continuance, which the trial court denied. By order dated May 30, 2001, the trial court reversed the Board’s decision and ordered the renewal of The Pub’s liquor, license. The Board now files the present appeal. The sole issue presented for our review is whether the trial court committed an error of law and abused its discretion in refusing to accept into evidence the record of the hearing held before the Board’s hearing examiner. The Board contends that the trial court committed an error of law and an abuse of discretion in refusing to accept into evidence the record of the hearing held before the Board’s hearing examiner. We agree. Hearings upon refusal of licenses, renewals, or transfers are governed by Section 464 of the Liquor Code, 47 P.S. § 4-464. Section 464 of the Liquor Code provides that following an administrative hearing, any applicant who is aggrieved by the refusal of the Board to issue any such license or to renew or transfer any such license may appeal to the court of common pleas of the county in which the premises or permit applied for is located. The section continues: The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, of which notice shall be given to the board. The court shall either sustain or overrule the action of the board and either order or deny the issuance of a new license or the renewal or transfer of the license or the renewal of an amusement permit to the applicant. Section 464 of the Liquor Code (emphasis added). The crux of issue before us is what is the appropriate scope of review for a trial court from a decision by the Board not to grant, renew or transfer a licensee’s liquor license pursuant to Section 464 of the Liquor Code. The Board maintains that the trial court is to review the matter de novo and issue its own findings and conclusions based upon the established record. In support of this position, the Board relies upon Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Kelly’s Bar, Inc., 536 Pa. 310, 639 A.2d 440 (1994), and Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge, Inc., 536 Pa. 254, 639 A.2d 14 (1994). The Pub, relying upon the statutory language, maintains that the trial court is authorized to actually hear the matter anew by conducting a de novo hearing. The Supreme Court recently clarified that in appeals arising under Section 464 of the Liquor Code, the trial court may make its own findings and reach its own conclusions based upon those findings even when the evidence it hears is substantially the same as the evidence presented to the Board. Pennsylvania Liquor Control Board v. Richard E. Craft American Legion Home Corp., 553 Pa. 99, 718 A.2d 276 (1998); Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029 (Pa.Cmwlth.1999). As recognized by this Court in Bartosh, the Supreme Court has apparently signaled that its holding in Cantina Gloria’s Lounge is to be applied without limitation in all licensing appeals under Section 464 of the Liquor Code, as well as in citation/enforcement appeals under Section 471, 47 P.S. § 4-471. Bar- tosh. We note, however, that the issue regarding the proper scope of review in Section 464 appeals has not been squarely addressed by the Supreme Court. In Cantina Gloria’s Lounge, our Supreme Court addressed the proper scope of review in appeals arising under Section 471 of the Liquor Code. Section 471 of the Liquor Code applies to the revocation and suspension of liquor licenses. Section 471 of the Liquor Code provides, in relevant part: In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses [under Section 464 of the Liquor Code]. 47 P.S. § 4-471 (emphasis added). In Cantina Gloria’s Lounge, the licensee contested the fines and suspension of its liquor license for alleged violations of the Liquor Code. A hearing on the citations was held before an administrative law judge (ALJ). Based upon the testimony and evidence presented, the ALJ upheld the citations. The licensee appealed to the Board, which affirmed. From this decision, the licensee appealed to the trial court. At this hearing, the Board entered the transcript of the proceedings before the ALJ as its case and rested. The licensee presented the testimony of five witnesses. The trial court also heard from four other witnesses, whose testimony was found to be corroborative and offered no new facts. The trial court was of the opinion that because it could find no new facts or an abuse of discretion in the actions of the ALJ, that it was required to affirm the ALJ’s order and consequently entered an order to that effect. The licensee appealed the trial court’s order to this Court, which also affirmed. On appeal, the Supreme Court reversed. The Supreme Court held that an appeal from a decision of the Board pursuant to Section 471 required the court of common pleas to conduct a de novo review, and in the exercise of its statutory discretion, to make independent findings and conclusions. The Court opined: If anything, de novo review by the judicial branch assures litigants that license suspensions based on violations of the Liquor Code will only be enforced when neutral judicial officers, detached from the bureau charged with the task of monitoring and enforcing the liquor laws of this Commonwealth are satisfied that violations have, in fact, been established. Id., 536 Pa. at 262, 639 A.2d at 18. “Citation hearings, then, are to be conducted in the same way that hearings are conducted in license application hearings, with the same rights and guarantees and rather than repeating the directions, the Legislature chose to rely on our ability to refer to § 464 for guidance in this circumstance.” Id. at 264, 639 A.2d at 19. “Section 464 appeals are de novo on questions of law and fact, administrative discretion and such other matters as are involved and allow the court of common pleas to sustain or over-rule the board, without regard to whether the same or different findings of fact or conclusions of law are made.” Id. at 265, 639 A.2d at 19. The Supreme Court held that “[biased upon its de novo review, the trial court may sustain, alter, change, modify or amend the board’s action whether or not it makes findings which are materially different from those found by the board, as presently done in § 464 appeals.” Id, at 265, 639 at 19-20. The Supreme Court remanded the matter to the trial court so that it could exercise its own statutory discretion and determine for itself whether it is appropriate to sustain, alter, change or modify the penalty imposed based upon the facts it has already found at the de novo hearing held in the matter. Id. The Supreme Court applied the holding in Cantina Gloria’s Lounge to Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Kelly’s Bar, Inc., 536 Pa. 310, 639 A.2d 440 (1994). Kelly’s Bar was also a citation action arising under Section 471 of the Liquor Code. Following an evidentiary hearing on the contested citations before an ALJ, the ALJ and the Board affirmed. The licensee then filed an appeal in the court of common pleas, which reversed. The trial court concluded that the Commonwealth had not satisfied its burden of proof because it submitted nothing more than the record of the proceedings before the ALJ and Board as its case. The court reasoned that as its review of the matter, under Section 471 of the Code, 47 P.S. § 4-471, was de novo, it required the Commonwealth to present something more than the record of the proceedings taken before the ALJ and Board to establish a case against the licensee. The case ultimately reached our Supreme Court. The Supreme Court held that the trial court is required to conduct a de novo review of orders of the Board in enforcement actions arising under Section 471 of the Liquor Code, but is not required to retry the case in its entirety. Kelly’s Bar. In conducting de novo review, the Supreme Court held that the trial court must accept the record of the administrative proceedings into evidence, if offered. Id. The Supreme Court stated “[i]n this case, the trial judge recognized the proper scope of review as being de novo but misunderstood the full import of the review. The trial court apparently felt that the Commonwealth had to retry the case in its entirety rather than relying upon the record created before the Administrative Law Judge. This was error.” Id. at 314, 639 A.2d at 442. “The trial court has the duty of receiving the record of the proceedings below, if introduced in evidence, together with any other evidence that is properly received, and then make its own findings of fact, conclusions of law and assess the appropriate penalty, if any.” Id. at 314, 639 A.2d at 442. By failing to accept the record, the Supreme Court determined that the trial court erred. Id. The case was remanded to the trial court “so that it can exercise its own statutory discretion, to make its own findings of fact and conclusions based on the record submitted by the Board and the additional evidence it received during the de novo hearing....” Id. at 314, 639 A.2d at 442. Based upon our reading of Craft American Legion and Cantina Gloria’s Lounge, the scope of review in Section 464 and Section 471 appeals is the same, i.e. de novo. As the scope of review is the same, the holding in Kelly’s Bar that the trial court must accept the record of the administrative proceedings into evidence, if offered, appears to be applicable for appeals arising under both Section 471 and Section 464 of the Liquor Code. In the case before us, the trial court recognized- the proper scope of review as being de novo. However, the trial court chose to retry the case in its entirety rather than accepting the record created before the hearing examiner, which was offered into evidence by the Board. In this regard, the trial court erred. While this Court commends the trial court’s desire to completely retry the matter in order to give fresh consideration of the admissibility of evidence, assess the credibility of witnesses firsthand, and to ask questions of a witness, we are nevertheless bound by Kelly’s Bar that the trial court has the duty of receiving the record of the proceedings before the Board, if introduced into evidence. We emphasize that the trial court is not limited to reviewing the established record and is permitted to hear additional testimony and evidence in the exercise of its statutory discretion. The trial court may make its own findings and reach its own conclusions based upon the evidence presented. Accordingly, the order of the trial court is vacated and this case is remanded to the trial court for proceedings consistent with this opinion. ORDER AND NOW, this 30th day of May, 2002, the order of the Court of Common Pleas of Dauphin County (trial court), at No. 91 M.D. 2001, dated May 30, 2001, is vacated and this matter is remanded to the trial court for proceedings consistent with this opinion. The supersedeas order issued by the trial court on June 14, 2001 shall remain in full force and effect until further order of the court. . , Jurisdiction relinquished. . Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101-8-803. . By order dated June 14, 2001, the trial court reinstated an automatic supersedeas in favor of The Pub thereby enabling The Pub to continue the operation of its business during the appeal. . Heretofore, this Court followed the standard enunciated in the Beach Lake United Methodist Church v. Pennsylvania Liquor Control Board, 126 Pa.Cmwlth. 71, 558 A.2d 611 (1989), Ball Park’s Main Course, Inc. v. Pennsylvania Liquor Control Board, 163 Pa.Cmwlth. 636, 641 A.2d 713 (1994), petition for allowance of appeal denied, 539 Pa. 655, 651 A.2d 542 (1994) and Rosing v. Pennsylvania Liquor Control Board, 690 A.2d 758 (Pa.Cmwlth.1997), line of cases for the appropriate scope of review to be applied in licensing appeals. Bartosh. These cases held that a trial court may not substitute its own findings for those made by the Board when the evidence heard by the trial court is substantially the same as the evidence heard before the Board. Id. In light of Craft American Legion, these cases have been implicitly overruled. See G.C.P. Enterprises, Inc. v. Pennsylvania Liquor Control Board, 555 Pa. 545, 725 A.2d 749 (1999) (Citing Craft American Legion, the Supreme Court issued a per curiam order that granted a petition for allowance of appeal and reversed this Court’s decision which cited Ball Park and Beach Lake as authority for the appropriate scope of review and reversed the trial court’s decision to overrule the Board’s denial of the license renewal application.); Bartosh. . In Pennsylvania Liquor Control Board v. Can, Inc., 664 A.2d 695 (Pa.Cmwlth.1995), petition for allowance of appeal granted, 543 Pa. 391, 671 A.2d 1135 (1996), this Court determined that the holding in Cantina Gloria’s Lounge applied only to Section 471 appeals and that the Supreme Court's discussion in that case of the scope of review applicable to Section 464 appeals was dicta and not controlling. This Court, following the precedent set by Beach Lake, Ball Park and Rosing, held that unless the trial court has different evidence before it, the trial court is limited in a Section 464 appeal to determining whether the Board committed a clear abuse of discretion in denying renewal of a liquor license and is not permitted to conduct de novo review. Can. The Supreme Court granted the petition for allowance of appeal limited to the issue of what is the appropriate scope of review for a trial court from a decision by the Liquor Control Board not to renew a licensee's liquor license pursuant to Section 464 of the Liquor Code. Can, 543 Pa. at 391, 671 A.2d at 1135. Unfortunately, this issue has never been addressed by the Supreme Court. . De novo review contemplates an independent evaluation of the evidence, which has already been presénted. In essence, “de novo review” means that the reviewing court will reappraise the evidence in the record and has the authority, in the exercise of its statutory discretion, to make independent findings of fact and conclusions of law. Cantina Gloria’s Lounge. Most important, the reviewing court has the authority to sustain, alter, change, modify or amend a decision of the Board, even if that court does not make findings of fact that are materially different from those found by the Board. Id.; Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988). . We note, however, that the trial court is not restricted to reviewing the established record, but may hear new evidence. See Craft American Legion, 553 Pa. at 102, 718 A.2d at 277 (“The trial court conducted a de novo hearing at which the new president of the appellant’s board testified.”); Kelly’s Bar, 536 Pa. at 314, 639 A.2d at 442 (court must make its own findings of fact and conclusions based upon the "record submitted by the Board and the additional evidence it received during the de novo hearing”); Cantina Gloria’s Lounge (additional testimony was heard by the trial court). To conclude otherwise would be to ignore the statutory language in Section 464, which expressly provides that "the court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved.”

PER CURIAM. ¶ 1 On February 28, 2002, Appellant filed a praecipe for entry of judgment on the jury verdict in favor of Appellee, and judgment was entered on the same date. Appellant then filed a notice of appeal on March 1, 2002. Appellee has filed a motion to quash this appeal as untimely. ¶ 2 On November 26, 2001, a jury trial resulted in a verdict in Appellee’s favor. Appellant filed a timely motion for post-trial relief, see Pa.R.C.P. 227.1, and on January 15, 2002, the trial court entered the following order: “AND NOW, this 15th day of January, 2002, upon consideration of [Appellant’s] Post-Trial Motion, all responses thereto, and oral argument before this Court; it is hereby ORDERED AND DECREED that the Post-Trial Motion is DENIED. JUDGEMENT is entered in favor of [Appellee] and against [Appellant].” Appellant, however, did not file a notice of appeal from this order and, instead, filed a praecipe for entry of judgment on February 28, 2002. ¶ 3 The January 15th denial of Appellant’s motion for post-trial relief and entry of judgment was final and immedi ately appealable. Cf. Yon v. Yarus, 700 A.2d 545, 546 (Pa.Super.1997) (order denying post-trial motions is not appealable until order is reduced to judgment); Somerset Cmty. Hosp. v. Allan B. Mitchell & Assocs., Inc., 454 Pa.Super. 188, 685 A.2d 141, 144 n. 1 (1996) (orders dismissing post-trial motions following jury trial are interlocutory and nonappealable until judgment has been entered). Since the January 15th entry of judgment was final and appealable, Appellant’s notice of appeal should have been filed on or before February 14, 2002. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty days after the entry of the order from which the appeal is taken). ¶ 4 Appellant’s subsequent praecipe for entry of judgment was superfluous and unnecessary. See, e.g., Weiser v. Bethlehem Steel Corp., 358 Pa.Super. 10, 508 A.2d 1241, 1244 n. 6 (1986) (where appellant filed notices of appeal from verdict, denial of post-trial motions and judgment, appeal from verdict quashed as interlocutory and appeal from judgment quashed as superfluous; entry of judgment on order denying post-trial motions rendered that order appealable); compare Pa.R.C.P. 227.4(2) (prothonotary shall, upon praecipe of a party, enter judgment when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so) (emphasis added). ¶ 5 Consequently, we hold that where a trial court denies a party’s post-trial motions and unequivocally enters judgment in the same order, that order is immediately appealable and an appeal should be filed within thirty days of its entry on the trial court docket. Since Appellant in the instant matter instead filed a praecipe for entry of judgment approximately one month later, and then filed an appeal from the entry of judgment thereon, this appeal is untimely. ¶ 6 Appellee’s motion to quash this appeal as untimely is granted. Appeal quashed. ¶ 7 KLEIN, J. concurs in the result. . The instant procedural situation differs from that presented in Friedman v. Kasser, 293 Pa.Super. 294, 438 A.2d 1001 (1981), wherein the trial court order merely stated that the decree nisi “shall be entered on prae-cipe”, but no final decree was ever entered. This Court stated: "A lower court’s direction to enter a specified order, unaccompanied by actual entry of the specified order on the docket, is interlocutory and not appealable and must be reduced to judgment and docketed before an appeal can be taken.” Id., 438 A.2d at 1002. See also Pa.R.A.P. 301(c), (d). In the present matter, the trial court’s order clearly states: “Judgement is entered in favor of [Appellee] and against [Appellant].” (Emphasis added).

ORDER PER CURIAM. AND NOW, this 26th day of April, 2002, upon consideration of the application of Appellant to discontinue appeal pursuant to Pa.R.A.P.1973(a), it is hereby ORDERED that said application is GRANTED and the appeal discontinued.

OPINION NEWMAN, Justice. When state government determines that an intended use of private property conflicts with legitimate public purposes, there can be no doubt concerning the power of the government to prohibit the private use. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124-125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Machipongo Land and Coal Co., Inc. v. Commonwealth, 544 Pa. 271, 676 A.2d 199, 202 (1996). Indeed, “[l]ong ago it was recognized that ‘all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.’” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491-492, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (quoting Mugler v. Kansas, 123 U.S. 623, 665, 8 S.Ct. 273, 31 L.Ed. 205 (1887)). However, in our constitutional democracy, government’s power to protect the public is tempered by the level of intrusion upon individual property rights. The United States Constitution provides: No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. Similarly, the takings clause in the Pennsylvania Constitution provides: [N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured. Pa. Const. art. I, § 10. On the other hand, the responsibility of government to protect the environment from private inju ry is also clear. Pa. Const. art. I, § 10 provides that: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. In this case, we are required to weigh the governmental obligation to protect the environment against the individual right to do as one wishes with property one owns. Specifically, this case asks us to determine whether the designation of the Clear-field County Goss Run Watershed as unsuitable for minn^, (“UFM”), pursuant to Section 4.5 of the Pennsylvania Surface Mining Conservation and Reclamation Act (“PaSMCRA”), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.4e(b), was so unduly oppressive so as to constitute a taking. The Regulation, its Origins, and Purposes In 1980, the General Assembly amended the PaSMCRA to comply with the Federal Surface Mining Control and Reclamation Act (FSMCRA), 30 U.S.C. § 1201, which required states that wished to regulate mining to meet specific federal requirements. Among those requirements, was one directing states to create a mechanism to designate certain lands as UFM. 30 U.S.C. § 1272. In Section 1201(c), Congress explained that FSMCRA was necessary to protect the environment, its water and its streams from pollution caused by mining. Section 1201(c) provides: [M]any surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting government programs and efforts to conserve soil, water, and other natural resources. 30 U.S.C. § 1201(c). In Hodel v. Virginia Surface Mining and Reclamation Ass’n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), where the U.S. Supreme Court rejected a claim that the FMCRA was facially unconstitutional, the Court also explained the purposes of the FMCRA by quoting U.S. Senate and House Committee reports. Those reports detailed the need for legislation to protect the environment from the “adverse effects of surface coal mining.” Id. at 279, 101 S.Ct. 2352. The Senate Report concluded that: [Surface] coal mining activities have imposed large social costs on the public ... in many areas of the country in the form of unreclaimed lands, water pollution, erosion, floods, slope failures, loss of fish and wildlife resources, and a decline in natural beauty. Hodel, 452 U.S. at 279, 101 S.Ct. 2352 (quoting S.Rep. No. 95-128, p. 50 (1977)). The House Report noted the effect on streams. It stated: Acid drainage which has ruined an estimated 11,000 miles of streams; the loss of prime hardwood forest and the destruction of wildlife habitat by strip mining; the degrading of productive farm land; recurrent landslides; siltation and sedimentation of river systems.... Hodel, 452 U.S. at 279-280, 101 S.Ct. 2352 (quoting H.R.Rep. No. 95-218, p. 58 (1977), 1977 U.S.C.C.A.N. 596, (quoting H.R.Rep. No. 94-1445, p. 19 (1976)). Pennsylvania codified the federal criteria to be used to determine whether land should be deemed unsuitable for mining. 52 P.S. § 1396.4e(b). 52 P.S. § 1396.4e(b) provides: (b) Pursuant to the procedures set forth in this subsection, the department may designate an area as unsuitable for all or certain types of surface mining operations if such operations will: (1) be incompatible with existing State or local land use plans or programs; (2) affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific and esthetic values and natural systems; (3) affect renewable resources lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products and such lands to include aquifers and aquifer recharge areas; or (4) affect natural hazard lands in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology. The General Assembly recited that the purpose of the PaSMCRA is to “prevent ... the pollution of rivers and streams,” protect wildlife and the environment generally, and to maintain jurisdiction over instate mining activities. 52 P.S. § 1396.1. Additionally, the regulation sought to “strike a balance” between the environment and ensuring a ready supply of coal. Id. The UFM Designation and the Property of Machipongo Land and Coal Co., Inc., the Victor E. Erickson Trust and Joseph Naughton Pursuant to 52 P.S. § 1396.4e(b), in May of 1989, the Brisbin Recreation Board and the Locust Grove Sportsmen Club filed a petition with the Pennsylvania Department of Environmental Resources (“DER”) requesting that the Goss Run Watershed (the “Watershed”) be declared unsuitable for mining. The Petition sought a UFM designation for the entire area of the Goss Run stream extending to a point below the Brisbin Dam. The regulation, which would have the effect of prohibiting the mining of coal in a large portion of the Watershed, affected the rights of the owners of property in the UFM area. Those property owners included Appellees, Machipongo Land and Coal Co., Inc., the Victor E. Erickson Trust and Joseph Naughton (Collectively, the “Property Owners”). Machipongo Land and Coal Co., Inc. (“Machipongo”) is a Pennsylvania corporation, doing business in Clearfield County, Pennsylvania. Machipongo owns in fee simple 373 acres within the UFM area and 200 acres outside of the area. (R. 260a, 403a-405a, 414a). It also owns a coal estate of 1000 acres in Clearfield County outside of the UFM area. (R. 260a). Arthur Minds, a Machipongo Vice President, testified at trial that sometime around 1915 or 1917 his grandparents acquired the Machipongo property. (R. 1037a). He said that his grandfather was in the coal business and that Machipongo now holds the property for future coal development. Id. Machipongo stipulated that it did not know what its predecessors in title paid for the property (R. 263a) and the record does not disclose whether Machipongo paid anything for its interest. Machipongo has owned the property for approximately forty-eight years and owned it on May 23,1992, the effective date of the UFM designation. (R. 263a). The parties also stipulated that Machiongo has used land within the UFM area for purposes other than coal mining. Specifically, Ma-chipongo has sold timber and entered into leases for gas development. Id. at R. 262a-263a. The Naughton/Erickson Property Owners also own property in the UFM area. They own a coal estate of fifty-two acres •within the UFM area and a fee simple title to 1,150 acres and 250 acres of coal estate situated outside of the UFM area. (R. 260a). The parties also stipulated that the Naughton/Erickson Property Owners have used their land for purposes other than coal mining, including entering into leases for gas development. (R. 263a). The Naughton/Erickson property is owned jointly. Specifically, Joseph Naughton owned a 1/5 interest and Victor E. Erickson owned the remaining 4/5 interest. (R. 256a, 260a, 263a). Joseph Naughton obtained his interest through a series of deeds dated February 17, 1961 as a distribution from the Estate of William Henry Naughton, who obtained his interest pursuant to deeds dated April 26,1945. (R. 260a). Victor E. Erickson was one of four people who obtained an interest in the land in the 1940s from the Elk River Coal Co. (“Elk River”). Elk River was affiliated with the Berwin & White Coal Co., where Victor E. Erickson had been a long-time employee responsible for closing mines and disposing of company property. (R. 104a-105a). Victor E. Erickson then purchased the interests of the other three for an unknown sum. (R. 105a). In 1984, Victor E. Erickson transferred his interest to the Victor E. Erickson Trust, retaining a life estate for himself, followed by a life estate in his wife. (R. 288a-303a). Upon the death of Victor E. Erickson and his wife on August 23, 1985 and March 26, 1991 respectively, the beneficiaries of the Victor E. Erickson Trust were the sole owners of their interest in the property. (R. 1077a). The Victor E. Erickson Trust was the owner of the Erickson interest on the date DER designated the property UFM. Id. On December 16, 1994, the beneficiaries of that trust created a new trust, the Erickson Family Trust, to which they transferred their interest in the land. (R. 256a). The beneficiaries of the Erickson Family Trust were the same people who, in 1992, originally commenced this lawsuit, in their capacity as remainder beneficiaries of the Victor E. Erickson Trust. (R. 1077a). On January 5, 1990, Property Owners requested and were granted leave to intervene in the DER administrative proceedings. (R. 257a). At the public hearing, Property Owners presented fact and expert witnesses. (R. 258a-259a). After the hearing, DER conducted a technical study to determine whether to designate the Watershed as UFM pursuant to the criteria set forth in 52 P.S. § 1396.4e. (R. 258a). According to the Commonwealth Court, the study concluded that surface mining of coal within the Watershed had a “high potential to cause increases in dissolved solid and metal concentrations in Goss Run that would adversely affect the use of the stream as an auxiliary water supply” and “a significant potential to disrupt the hydrologic balance causing decreases in the net alkalinity of discharges ... destroying the habitat for wild trout populations.” Machipon- go Land and Coal Co., Inc. v. Commonwealth, No. 248 M.D.1992, slip op. at 3 (Pa.Cmwlth. August 21, 2000) (emphasis added). Consequently, DER recommended that the Environmental Quality Board (“EQB”) approve a regulation designating the surface mineable coals located within the Watershed upstream of the Brisbin Dam as UFM. The EQB approved the proposed regulation. The regulation provides: The surface mineable coal reserves within the Goss Run Watershed upstream of the Brisbin Dam, including a small tract of land within the watershed of the West Tributary to Goss Run, a total of approximately 555 acres, are designated unsuitable for all types of surface mining activities. 25 Pa.Code § 86.130(h)(14). Procedural History In 1992, Property Owners sued the Commonwealth of Pennsylvania, DER, EQB and DER Secretary Arthur A. Davis (collectively, the “Commonwealth”). Property Owners claimed that the regulation took their property without compensation. They requested that the Commonwealth Court declare the regulation invalid and refer the case to the Common Pleas Court for a determination of damages pursuant to the Eminent Domain Code. Machipongo Land avid Coal Co., Inc. v. Commonwealth, 155 Pa.Cmwlth. 72, 624 A.2d 742, 746 (1993) (Machipongo I). In response to the 1992 complaint, the Commonwealth filed preliminary objections and a demurrer. Id. at 745. The court considered the arguments of the parties and determined that the section of the PaSMCRA at issue was not facially unconstitutional; Id. at 750, but that the Environmental Hearing Board (“EHB”) should determine whether its application to the Property Owners constituted a taking. Id. at 753-755. The court also held that because it would have been futile to seek further administrative relief, Property Owners did not fail to exhaust their administrative remedies. Id. at 751. Property Owners appealed to this Court. Machipongo Land and Coal Co., Inc. v. Commonwealth, 538 Pa. 361, 648 A.2d 767 (1994) (Machipongo II). We affirmed the Commonwealth Court’s determination that Property Owners need not have pursued further administrative relief before seeking redress from the courts. Id. at 769. However, we disagreed with the holding of the court to the extent that it stated that the EHB was the proper forum in which the case should proceed. Instead, we determined that the Court of Common Pleas of Clearfield County had jurisdiction. Id. at 770. Thereafter, we granted reargument to consider whether the Commonwealth Court or the Court of Common Pleas should have jurisdiction over further proceedings to resolve the issue of whether the “state action taken pursuant to its police powers [had] gone too far and constitute[d] a de facto taking requiring the state to provide just compensation.” Machipongo Land and Coal Co., Inc. v. Commonwealth, 544 Pa. 271, 676 A.2d 199, 203, n. 3 (1996) (Machipongo III). We observed that the Judicial Code provides that the Commonwealth Court shall have jurisdiction over all civil actions against the Commonwealth, but shall not have jurisdiction in eminent domain proceedings. Id. (citing 42 Pa.C.S. § 761). We then examined the nature of the action against the Commonwealth to determine whether it fell within the eminent domain exception to the jurisdiction of the Commonwealth Court. Machipongo III, 676 A.2d at 202. Because the PaSMCRA, the basis for the regulation the Property Owners challenged, was promulgated pursuant to the police power and not the power of eminent domain, we determined that the exception to jurisdiction did not apply. Id. at 202-203. Consequently, we vacated our prior Order only to the extent that it had remanded the case to the Court of Common Pleas. Instead, we returned the matter to the Commonwealth Court to consider whether the regulation constituted a taking. Property Owners then filed a petition for review with the Commonwealth Court. They challenged the designation of their property as UFM. Machipongo Land and Coal Co., Inc. v. Commonwealth, 719 A.2d 19 (Pa.Cmwlth.1998) (Machipongo IV). The Commonwealth moved for summary judgment, asserting that the designation was a proper exercise of police power and was not unduly oppressive. Id. at 23. Property Owners argued that the regulation had deprived them of the right to mine their coal and that it was a taking because it denied them all economic use of their property. Id. The Commonwealth Court recited factors that the U.S. Supreme Court has identified as relevant to the determination of whether a categorical taking had occurred: • whether the public interest requires regulatory interference with the property right; • whether the regulation is reasonably related to that goal; • whether the amount of property taken deprives an owner of all economical viable uses of the property, measured by what is taken (the numerator) against what was left (the denominator); • whether the property owner’s actions or proposed actions would cause a nuisance. Id. at 26 (citing Lucas v. South Carolina Coastal Council, 605 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). The Court then discussed the problems courts have had in determining what parcel of land to use as the denominator in the third factor articulated above. Machipongo IV, 719 A.2d at 26. Citing John E. Fee, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L.Rev. 1536 (1996), the Commonwealth Court decided to use the coal estates within the UFM area as the denominator. Machipongo IV, 719 A.2d at 29. Because the takings equation compares the use taken away by the regulation with all the possible uses, the decision to use the coal estates as the denominator guaranteed a taking unless application of the following three considerations, listed by the Commonwealth Court, made the property valueless. Those considerations were: 1. whether the regulated land had value prior to the regulation; 2. whether the regulated land has a separate use from the non regulated contiguous parcel(s); and 3. if the regulated land has value separate from the contiguous land, whether all of its economic benefit is gone. Id. at 28. The Commonwealth Court explained that the purpose of the considerations was to ensure that it did not find a taking if the subject land did not have any value. That is, if the land did .not have value before the regulation, there is no taking because the government should not be.deemed to take.property that has no independent value. On the other hand, if the land had value separate from unregulated contiguous land, and the regulation made the land valueless, the regulation would constitute a taking. Id. The Commonwealth Court then cited to Pennsylvania cases that have held that Pennsylvania recognizes separate estates in the same piece of land including: surface; coal/mineral; and support. The court reasoned that because the estates in land may be separated for purposes of ownership, the coal estate should be used as the parcel to determine whether a taking has occurred. Because it found that issues of fact existed; though, as to whether the coal estate had any independent value, the court denied the summary judgement motion. Id. at 30. Senior Judge Rodgers dissented. He would have granted summary judgment in favor of the Commonwealth because he believed that the majority improperly used the coal estates as the denominator in the takings equation. Machipongo IV, 719 A.2d at 30. He explained that: [the Commonwealth Court] has acknowledged that for the purpose of deciding taking issues under the federal constitution, the vertical division recognized in Pennsylvania law that coal, surface, and the right to support are three separate estates is without significance. Id. In his view, the alternative uses of the property and the fact that the regulation affected a relatively small portion of their property foreclosed the finding of a taking. It is undisputed that the petitioners in this case have other uses for their properties, including the sale of oil and gas rights, the sale of timber, and the sale of land for residential and other uses. The petitioners have therefore failed to adduce any evidence of a taking under federal law. Id. Consequently, Senior Judge Rodgers would have held that the regulation was not a taking. Id. at 31. After denying the summary judgment motion, the Commonwealth Court addressed the question of whether the Commonwealth would be allowed to introduce evidence at trial that the proposed mining activities would constitute a public nuisance. Machipongo Land and Coal Co., Inc. v. Commonwealth, No. 248 M.D.1992, slip op. at 2 (Pa.Cmwlth. October 28, 1999) (Machipongo V). The Commonwealth argued, pursuant to Lucas, supra., that if the Property Owners’ proposed actions constituted a nuisance, the regulation could not be a taking. Rejecting that argument, the Commonwealth Court declined to permit the Commonwealth to present evidence of nuisance because it held, as a matter of law, that the proposed actions of Property Owners could not rise to the level of a public nuisance. Machipongo Land and Coal Co., Inc. v. Commonwealth, No. 248 M.D.1992, slip op. at 8 (Pa.Cmwlth. August 21,2000) (Machipongo VI). The case proceeded to trial where Property Owners claimed that the regulation was a taking with regard to their coal rights as to three separate sections of the UPM area. Because the Commonwealth Court had already determined that the coal estates (as opposed to the property as a whole) were to be used as the takings denominator, the only fact that the Commonwealth Court deemed to be at issue was “whether there ... [was] sufficient mineable coal, in amount and quality, for ... [Property Owners] to economically mine each of those reserves.” Id. at 12-18. The Commonwealth Court did not address the issue of compensation. Instead, it explained that “if any and all of the reserves are economically mineable, then the UFM designation for that portion of the coal reserves deemed mineable will be stricken.” Id. After consideration of de-tañed scientific evidence of the economic viability of mining coal in the UPM area, the Commonwealth Court determined that “because ... the proposed [Naughton/Er-ickson] Surface Mine and the Machipongo Underground mine [we]re economically viable, ... the ... designation [as UFM with regard to those areas] is stricken from the regulation.” Id. at 37-88. However, “because the Machipongo Surface Mine ... [is] not economically feasible, nothing was taken and the designation for that area remains in place.” Id. at 38. Therefore, the Commonwealth Court struck the regulation with regard to part of the UFM area but not with regard to the entire area. The parties appealed the Order of the Commonwealth Court. On September 26, 2001, we directed the parties to file supplemental briefs to address the following additional issues: (1) whether the regulatory designation of certain areas as unsuitable for mining amounted to a regulatory taking; (2) if such a taking has occurred, by what means may damages be sought, and; (3) whether such a taking constitutes a personal right that passes to a successor in interest. Machipongo Land and Coal Co., Inc. v. Commonwealth, Nos. 112 and 119 MAP 2000, Per Curiam Order at 1 (Pa. September 26, 2001). Discussion The Commonwealth contends that Erickson, a Property Owner, lacks standing to pursue its takings claim because the beneficiaries of the Victor E. Erickson Trust, the owner of the Erickson interest on the date DER designated the property UFM, transferred their interest in the Erickson property to the Erickson Fanuly Trust. (R. 256a). The question is whether the transfer to the Erickson Family Trust divests Erickson of its standing to pursue a takings claim. The U.S. Supreme Court has recently addressed the issue of standing in the context of another takings case. See Palazzolo v. Rhode Island, 5B3 U.S. 606, 121 5.Ct. 2448, 150 L.Ed.2d 592 (2001). Palazzolo is instructive in this case because it sets forth the position of the U.S. Supreme Court on the issue of whether a party who does not own regulated property on the effective date of a regulation, but later acquires it, has standing to assert a takings claim. Therefore, we turn to the facts of Palazzolo. In 1957, Shore Gardens Inc., a corporation that Mr. Palazzolo formed with some associates, purchased land in Westerly, Rhode Island. After the purchase, Mr. Palazzolo bought out the other investors and became the sole shareholder. In 1971, Rhode Island created the Rhode Island Coastal Resources Management Council, which enacted regulations that prohibited budding in wetlands unless there was a compelling public purpose for an exception. Id., 121 S.Ct. at 2456. In 1978, the corporation was dissolved for failing to pay its taxes. As a result, by operation of Rhode Island Law, Mr. Palaz-zolo became the owner. Mr. Palazzolo submitted a proposal to the Coastal Council for permission to fill eleven of his remaining eighteen acres to build a beach club. Id. The Coastal Council denied his application and the lower courts upheld the denial. On appeal, the Rhode Island Supreme Court held, among other things, that he lacked standing to raise an objection to the regulation because he became the owner of the property after the enactment of the regulations. The U.S. Supreme Court reversed. Although the justices addressed the standing issue in several separate Opinions, a majority held that Mr. Palazzolo had standing to raise the takings claim notwithstanding that ownership of the property was transferred to him after the effective date of the regulation. 121 S.Ct. at 2457. In regulatory taking cases that do not involve a physical invasion of private property, Justice Kennedy, Justice Thomas, and Chief Justice Rehnquist declined to adopt a “blanket rule” that would prevent a subsequent owner from asserting a taking claim. 121 S.Ct. at 2463. Justice O’Connor concurred and explained that the time of ownership should inform the Court’s investment-backed expectation analysis and should not bar the claim of Mr. Palazzolo even though his corporation (and not Mr. Palazzolo) was the owner of the property on the effective date of the regulation. 121 S.Ct. at 2465-2466. Justice Scalia would go even further. In his “view, the fact that a restriction existed at the time the purchaser took title ... should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking.... [He further stated that a] ... taking ... is not absolved by the transfer of title.” 121 S.Ct. at 2468. He reasoned that a taking is a constitutional claim that affects owners of land, and would not let the passage of title bar that claim. Accordingly, a majority of the U.S. Supreme Court has held that the Palazzolo transfer of ownership, which occurred as a matter of law and transferred ownership from a corporation to an individual after the effective date of the regulation, did not prevent the individual from asserting a takings claim. A similar result should follow in this case. Consequently, we hold that where ownership of the Erickson property transferred from one trust to another with no new beneficiaries and where the regulation did not authorize a physical invasion of private property, the change in ownership does not divest Erickson of standing to assert its takings claim. Takings Analysis The problem of balancing governmental power to regulate the permissible uses of private property with individual property rights is not a new one, but it is a problem that has not been solved despite multiple attempts to formulate a rule that would apply in all situations. The U.S. Supreme Court recognized that it has: quite simply ... been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Penn Central, 438 U.S. at 124, 98 S.Ct. 2646. Nevertheless, our Opinions and the Opinions of the U.S. Supreme Court have set forth some guiding principles. If a regulation authorizes a physical invasion of private property, no matter how slight, the U.S. Supreme Court has consistently concluded that a taking has occurred. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 422, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (holding that a New York law requiring building owners to permit cable companies to install cable facilities on their premises constituted a taking). Clearly, “[a] taking may more readily be found when the interference with property can be characterized as a physical invasion by government[.]” Penn Central, 438 U.S. at 124, 98 S.Ct. 2646. In this case, we are not unsympathetic to the claim of Property Owners that the regulation “had the same effect as if the Commonwealth had mined the coal and hauled it away.” Property Owners’ Main Brief at 13. The reality is, however, that the regulation did not authorize the removal of any coal or any physical invasion of or access to their land. Indeed, as this Court explained in Commonwealth v. Plymouth Coal Co., 232 Pa. 141, 81 A. 148 (1911), aff'd, 232 U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713 (1914), requiring landowners to leave coal in the ground is not the equivalent of an appropriation of that coal. Plymouth Coal, 81 A. at 151. In holding that the statute at issue in Plymouth Coal did not constitute a taking, we said: The coal itself is not taken. The property right affected by the statute is not ownership, but use, of the material thing — the right to mine it out. Nor does the state take that right for public use. The act does not transfer the right to mine out the coal from the owner to some one else, for the public benefit, but prohibits that right from being exercised by anyone.... Id. Furthermore, not all regulations that affect private property require the government to purchase the land in order to regulate its permissible uses. Indeed, the government would quickly bankrupt itself if, every time it made a rule that affected private property rights, it had to purchase the property. Keystone Bituminous Goal Assn. v. DeBenedictis, 480 U.S. 470, 491, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). The U.S. Supreme Court has explained the utilitarian philosophical basis for permitting government to enact legislation that affects private property rights as follows: Under our system of government, one of the State’s primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. These restrictions are properly treated as part of the burden of common citizenship.... [T]he Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it. Id. (internal citations omitted). Indeed, in this case we are mindful of the potential for extended litigation and extraordinary cost to the Commonwealth if compensation is required for all UFM designations. The often repeated maxim that “[gjovernment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law” rings truer today than ever. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 168, 67 L.Ed. 322 (1922). We have also recognized that the government may enact laws that have significant impact on private property rights without the need to compensate the affected landowner. Miller & Son Paving, Inc. v. Plumstead Township, 552 Pa. 652, 717 A.2d 483 (1998), cert. denied, 525 U.S. 1121, 119 S.Ct. 903, 142 L.Ed.2d 902 (1999). In Miller, we held that a landowner was not entitled to payment from the township that had prevented the operation of a quarry because “other viable uses [of the land] existed.” Id. at 486. We explained, “that a ’ taking does not result merely because a regulation ... deprive[s] the owner of the most profitable use of his property. Otherwise all zoning regulations could be categorized as ‘takings’ in the sense that the owner is not completely free to use his property as he chooses.” Id. at 486. Our view is consistent with repeated holdings of the U.S. Supreme Court: It is, to be sure, undeniable that the regulations here prevent the most profitable use of appellees’ property. Again, however, that is not dispositive. When we review regulation^], a reduction in the value of property is not necessarily equated with a taking. Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (reviewing federal statute prohibiting the sale of products derived from eagles even if obtained before the statute’s enactment); Penn Central, 438 U.S. at 124, 98 S.Ct. 2646 (discussing landmark designation that prohibited construction of building over New York’s Grand Central Station); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (examining application of town ordinance that prohibited a land owner from operating a sand and gravel pit notwithstanding that he had, for thirty-five years prior to the ordinance, used the land for that purpose); and Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 668 (1928) (reviewing order requiring the removal of cedar trees to protect neighboring apple orchards from disease). Although none of the foregoing governmental actions were found to constitute a taking, at some point, a regulation “goes too far.” Pennsylvania Coal Co., 260 U.S. at 415, 43 S.Ct. 158. A regulation goes too far when it forces “some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole.” Palazzolo, 121 S.Ct. at 2458 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). This fairness and justice standard, although amorphous, necessarily guides our analysis. The Standards: the Lucas Test and the Traditional Takings Analysis In non-appropriation/non-physical invasion cases, the U.S. Supreme Court applies two tests to determine whether a taking has occurred. Palazzolo, 121 S.Ct. at 2457. The first test addresses the “relatively rare” situation in which a land use regulation deprives the owner of all use of his or her property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). The second “test” is the more traditional takings analysis, which becomes applicable if the regulation does not rise to the level of a Lucas taking. The U.S. Supreme Court explained that: [A] regulation which “denies all economically beneficial or productive use of land” will require compensation under the Takings Clause. Lucas, 505 U.S. at 1015,112 S.Ct. 2886_Where, [however] a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending upon a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Penn Central, [438 U.S.] at 124, 98 S.Ct. 2646. Palazzolo, 121 S.Ct. at 2457. The U.S. Supreme Court has recently described this second test as an analysis pursuant to “the principles set forth in Penn Central.” Palazzolo, 121 S.Ct. at 2457 (internal citation omitted) (remanding consideration of a land use regulation — that did not rise to the level of a Lucas taking — to the Rhode Island Supreme Court for further proceedings consistent with Penn Central). We will analyze this case based on the foregoing framework. First, we ask whether the regulatory action “ ‘denies [the Property Owners of] all economically beneficial or productive use of land.’ ” Palazzolo, 121 S.Ct. at 2457 (quoting Lucas, 505 U.S. at 1015, 112 S.Ct. 2886). If it does, unless the use constitutes a nuisance, we will find that a taking has occurred. If not, we will consider whether, at this juncture, it is appropriate for this Court to undertake the Penn Central analysis. Takings Denominator Pursuant to either analysis, there is a threshold question, frequently referred to as the “denominator problem,” which must be answered:, what is the parcel against which the takings tests are applied? See Keystone, 480 U.S. 470 at 479, 107 S.Ct. 1232, 94 L.Ed.2d 472. For if we define the area broadly, almost no government action — no matter how intrusive — will be found to be a taking. See John E. Fee, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L.Rev. 1535, 1536 (1996). Similarly, if we define the land too narrowly, virtually all government action that affects private property will be a taking that requires compensation and government will be inhibited from enacting necessary legislation. Id. Because property is conceptualized as a “bundle” of “property rights”, see Loretto v. Teleprompter Manhattan CATV, Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), courts have had to struggle with what has been réferred to as “severance” issues in defining the relevant parcel. See Marc R. Lisker, Regulatory Takings and the Denominator Problem, 27 Rutgers L.J. 663, (Spring 1966) (“the Lisker Article”). In other words, the courts have been called upon to consider whether some of the property rights in the bundle may be severed from the others and viewed separately as the relevant parcel. Severance issues have involved the following: (1) the horizontal, physical division of property — is the relevant parcel all the land in a given geographic area that one owns or some smaller portion of that acreage, Florida Rock Industries v. United States, 791 F.2d 893 (Fed.Cir.1986); (2) the vertical division of property — can the parcel be divided among air rights, surface rights, and mineral rights, Penn Central, 438 U.S. at 130, 98 S.Ct. 2646 and Keystone, 480 U.S. at 470, 107 S.Ct. 1232; or (3) the temporal division of property — can the property be viewed in discrete temporal units, Tahoe-Sierra Pres. Council Inc. v. Tahoe Reg. Planning Agency, 535 U.S. -, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). Resolving the denominator problem profoundly influences the outcome of a takings analysis. Again, the more narrowly the relevant parcel is defined, the more likely is the finding of a taking under either test, and vice versa. See Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1180 (Fed.Cir.1994). In this case, defining the relevant parcel raises horizontal and vertical severance issues. Vertical Conceptualization of Property The U.S. Supreme Court has expressly rejected Pennsylvania’s division of estates within a single parcel of land for the purposes of takings analysis. Keystone, 480 U.S. at 479-480, 500, 107 S.Ct. 1232 (citing Andrus). Specifically, the Court stated: Pennsylvania property law is apparently unique in regarding the support estate as a separate interest in land that can be conveyed apart from either the mineral estate or the surface estate. Petitioners therefore argue that even if comparable legislation in another State would not constitute a taking, the Subsidence Act has that consequence because it entirely destroys the value of their unique support estate. It is clear, however, that our takings jurisprudence forecloses reliance on such legalistic distinctions within a bundle of property rights. Keystone, 480 U.S. at 500, 107 S.Ct. 1232 (emphasis added). Accordingly, the U.S. Supreme Court held that the property as a whole was the unit of inquiry. Similarly, in Penn Central, where the city’s landmark ordinance prohibited Grand Central Station from constructing an office building over the station, the Court refused to separate surface rights from air rights. The Court explained: “Taking” jurisprudence does not divide a single property into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses ... on the nature and extent of the interference with rights in the parcel as a whole — here the city tax block designated as the landmark site. Penn Central, 438 U.S. at 130-181, 98 S.Ct. 2646 (emphasis added; internal quotations omitted). Notwithstanding the clear rejection by the federal high court of Pennsylvania’s division of estates, the U.S. Supreme Court, until recently, has left room for doubt as to whether the Court would always apply the “property as a whole” rule. In a footnote, and admittedly in dictum, the Lucas court observed that when a regulation’s interference with the use of property approaches, but does not reach, the level where 100% of a portion of property is made valueless, “it is unclear” whether the Court would view the regulation as an impermissible deprivation of the portion or an appropriate “diminution in the property as a whole.” Lucas, 505 U.S. at 1016-1017, n. 7, 112 S.Ct. 2886. While the holdings of the U.S. Supreme Court have consistently supported the use of the “property as a whole” rule, the footnote in Lucas and the following statement in Palazzolo demonstrate that at least some members of the Court have misgivings about whether to apply that test in all situations. The Court recently addressed the issue of the appropriate property for takings analysis as follows: [Petitioner] argues, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. This contention asks us to examine the difficult, persisting question of what is that proper denominator in the takings fraction.... Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole, see, e.g. Keystone, 480 U.S. at 497, 107 S.Ct. 1232; but we have at times expressed discomfort with the logic of this rule, see Lucas, 505 U.S. at 1016-1017, n. 7, 112 S.Ct. 2886, a sentiment echoed by some commentators, see, e.g., Epstein, Takings: Descent and Resurrection, 1987 Sup.Ct. Rev. 1, 16-17 (1987); Fee, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L.Rev. 1535 (1994). Whatever the merits of these criticisms, we will not explore the point here. Petitioner did not press the argument in the state courts, and the issue was not presented in the petition for certiorari. The case comes to us on the premise that petitioner’s entire parcel serves as the basis for this takings claim, and, so framed, the total deprivation argument fails. Palazzolo, 121 S.Ct. at 2465 (internal citations modified and/or omitted). Notwithstanding the Court’s misgivings, it declined to accept the invitation of Palazzolo to overrule the “property as a whole” rule. Id., 121 S.Ct. at 2448. While the Court explained that it viewed the property as a whole because, at all times before the briefing of the ease the parties discussed the property as a single parcel; the Court also did not overrule Keystone or Penn Central. Instead, the Court viewed the property as a whole and determined that there had been no Lucas taking. Palazzolo, 121 S.Ct. at 2465. Nevertheless, the Lucas footnote and the statement in Pa-lazzolo have made clear that some members of the Court have retreated from the absolute application of the “property as a whole” rule. Lucas, 505 U.S. at 1016-1017, n. 7, 112 S.Ct. 2886. Notwithstanding the foregoing misgivings of some members of the U.S. Supreme Court, that Court recently reaffirmed the validity of the property as a whole rule. Tahoe-Sierra Preservation Council v. Tahoe Reg. Planning Agency, 535 U.S. -, 122 S.Ct. 1465, 1480-81, 152 L.E.2d 517 (2002). In Tahoe-Sierra, Petitioners sought to divide their interests in land into temporal parts to claim -that the statute, which imposed a temporary moratorium on development of private property surrounding Lake Tahoe, caused the restricted temporal portion of their property to become valueless. Id. at 1482-83. The Court declined to allow Petitioners to so divide their property. Id. It held that the moratorium did not constitute a Lucas taking because a fee simple interest in property may not be temporally divided for the purpose of takings analysis. Id. at 1482-84. The Court held that, when viewed as a whole the properties at issue retained value and that the temporary development prohibition did not rise to the level of a Lucas taking. The Court explained: Petitioners’ “conceptual severance” argument is unavailing because it ignores Penn Central’s admonition that in regulatory takings cases we must focus on “the parcel as a whole.” We have consistently rejected such an approach to the “denominator” question.... Thus, the District Court erred when it disaggregated petitioners’ property into temporal segments corresponding to the regulations at issue and then analyzed whether petitioners were deprived of all economically viable use during each period. ... Id. at 1482-84 (internal citations omitted). Following Tahoe-Sierra, there can be no dispute that the “property as a whole” rule remains controlling. As we have noted above, the U.S. Supreme Court has not instructed conclusively how the denominator problem should be resolved. However, that Court has refused to allow: vertical severance of the mineral estate in Keystone; vertical segmentation of air and surface rights in Penn Central; or temporal division of property in Tahoe-Sierra. Thus, in this case, the relevant parcel cannot be vertically segmented and must be defined to include both the surface and mineral rights. Horizontal Conceptualization of Property We now address the manner in which the property of the Property Owners is to be horizontally defined. The Commonwealth Court selected the coal estates in the UFM area as the property at issue and disregarded surface rights and all other geographic areas. In contrast, the Commonwealth parties argued in favor of using all of the Property Owners’ property in Clearfield County. It seems that the selection of the Commonwealth is overly inclusive and the selection of Property Owners and the Commonwealth Court is overly restrictive. It is difficult to imagine that either rule would prove satisfactory in all cases. Instead, we adopt a “flexible approach, designed to account for factual nuances”. Loveladies Harbor, 28 F.3d at 1181. Pursuant to this approach, a variety of factors for defining the relevant parcel should be considered, without making one factor more important than any other. These factors would include, but would not be limited to: unity and contiguity of ownership, the dates of acquisition, the extent to which the proposed parcel has been treated as a single unit, the extent to which the regulated holding benefits the unregulated holdings; the timing of transfers, if any, in light of the developing regulatory environment; the owner’s in vestment backed-expectations; and, the landowner’s plans for development. Id. See also Florida Rock Industries, 791 F.2d at 893; District Intown Properties Ltd. Partnership v. District of Columbia, 198 F.3d 874 (D.C.Cir.1999). However, because all of these factors are not part of the record, we remand to the Commonwealth Court for it to have the responsibility of considering the relevant facts and identifying the appropriate horizontal conceptualization of the property to use in both the Lucas and Penn Central analy-ses. Lucas Analysis We now turn to the Lucas test and a consideration of the issue concerning whether Lucas requires a finding that a taking has occurred. Lucas stands for the proposition that regulations that deprive an owner of “all economically beneficial or productive use of land” are takings unless the use constitutes a public nuisance or are caused by the nature of the use and the owner could have expected that the government might prohibit it. Lucas, 505 U.S. at 1027-1029, 112 S.Ct. 2886. Therefore, to conduct a Lucas analysis, we need to determine whether the subject regulation “deprives a landowner of all economically beneficial” use of his or her property. If so, the regulation will constitute a taking unless state property law independently prohibits the use. Id. at 1027, 112 S.Ct. 2886. Property Owners conceptualize this case as a Lucas categorical taking. They claim that because they own coal estates in the UFM area and are not permitted to mine that coal, all of their interest in the land has been taken. The Commonwealth Court implicitly agreed when it decided to use the coal estates within the UFM area as the property affected by the regulation. Machipongo IV, 719 A.2d at 29. That court explained that it used the coal estate because Pennsylvania recognizes three separate estates in the same piece of land: surface, coal/mineral, and support. It reasoned that because the estates in land may be separated for purposes of ownership, the coal estate could be separated from the whole to determine whether a taking had occurred. As we have stated, though, the relevant parcel must be defined to include both the surface and mineral rights of the parties. We also have remanded the determination of the appropriate horizontal extent of the properties to the Commonwealth Court. Nevertheless, and notwithstanding the limited information available, we can perform the Lucas analysis with regard to the Ma-chipongo property and identify the relevant Lucas issues concerning the property of the Naughton/Erickson property owners. To do so, we return to a consideration of the property owned by the Property Owners. Machipongo owns 373 acres in fee simple within the UFM area and 1000 acres outside of the UFM area. (R. 260). Within the UFM area, Machipongo owns surface rights as well as mineral rights. The regulation, therefore, does not “deprive ... [it] of all economically beneficial” use of its property (Lucas, 505 U.S. at 1027, 112 S.Ct. 2886) because Machipongo admits that it benefits from its surface rights by selling timber (R. 262a) and entering into leases for gas development. (R. 263a). Further evidence of the value of the Machipongo surface estate is clear from the record. Specifically, in 1994, in what Machipongo contends was a “forced sale”, Machipongo received $60,000 for 35.93 acres of its property. (R. 47a). It, therefore, appears that if Machipongo sold the remaining 373 acres of undeveloped land within the UFM area, at the same price per acre as the 1994 sale, it would earn, in 1994 dollars, at least $622,878. Clearly, the regulation does not deny Ma-chipongo “all economically beneficial” use of its property. Accordingly, we find that the regulation, as it relates to Machipongo, passes the Lucas test. Lucas, 505 U.S. at 1027, 112 S.Ct. 2886. Inconsistent factual information regarding the property of the Naugh-ton/Erickson Property Owners requires us to remand th& case for the Lucas analysis regarding their property. As far as we are able to determine, their property includes a coal estate of fifty-two acres within the UFM area and fee simple title to 1,160 acres and 250 acres of coal estate situated outside of the UFM area. (R. 260a). Based on the briefs and the record, it appears that within the UFM area the Naughton/Erickson Property Owners own only coal estates and do not own surface rights in the UFM area. This would appear to distinguish them from the Machipongo Property Owners. However, contrary to that understanding, the Commonwealth Court refers to the Property Owners’ surface rights in the UFM area. Specifically, it explains: Because we have determined that only the regulated land is to be considered in determining the denominator, we must next determine how to treat [Property] Owners’ coal estate in the UFM designated area. The Commonwealth suggests we should calculate the denominator based on finding [Property] Owners’ rights in the coal estate are just part of the bundle of rights they own in land. If we were to do so, there would be no taking because [Property] Owners do not dispute that they still have surface rights that can be used and they would not be deprived of all economical beneficial use of their land. If, however, we were to agree with [Property] Owners that it did not matter what other estates in land they owned because the coal estate was •treated as a separate estate, then there would be a taking because they would be deprived of their right to mine that land. Machipongo IV, 719 A.2d at 28 (emphasis added). Because we are unsure whether the Naughton/Erickson Property Owners own surface rights within the UFM area, and because the Commonwealth Court has not yet defined the limits of the horizontal extent of the property of the Naugh-ton/Erickson Property Owners, which may or may not be greater than the UFM area, we are unable to properly conduct a Lucas analysis with regard to them. We, therefore, remand the Lucas determination to the Commonwealth Court to render a decision consistent with this Opinion. Traditional Takings Analysis Because the regulation, as to Machipon-go (and possibly to Naughton/Erickson Property Owners as well) survives Lucas, a traditional takings analysis must be performed. See Palazzolo, 121 S.Ct. at 2457. The traditional analysis focuses on several criteria designed to balance public interest against private rights. In Penn Central, the U.S. Supreme Court set forth the factors as follows: The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations[; ] ‡ ‡ ‡ The character of the governmental action ... [whether there is a] physical invasion ... [or whether the regulation is reasonably related to the promotion of the general welfare; and,] [Whether] the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land. Penn Central, 438 U.S. at 124, 125, 98 S.Ct. 2646. It is the task of a court performing a traditional takings analysis to determine whether the regulation, based on the foregoing considerations, is unduly oppressive and forces “some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole.” Palazzolo, 121 S.Ct. at 2458 (quoting Armstrong v. United States, 364 U.S. at 49, 80 S.Ct. 1563 (1960)). In the context of the summary judgment motion, the Commonwealth Court did not conduct a full Penn Central takings analysis. Machipongo IV, 719 A.2d at 29. Instead, it focused on the coal estates in the UFM area and relied predominantly on the takings equation. Indeed, the purpose of the trial was limited to the issue of whether the coal estates could be profitably mined. Machipongo VI, 719 A.2d at 25-26. The U.S. Supreme Court determined that although the regulation at issue in Palazzolo did not rise to the level of a Lucas taking (because the property, when viewed as a whole, retained value), it remanded the case to the Rhode Island Supreme Court for a determination of whether a Penn Central taking had occurred. Palazzolo, 121 S.Ct. at 2457. While some evidence relevant to the traditional takings analysis was adduced during the trial in the instant case, to determine whether the UFM area could be economically mined, the relevant facts were never presented to the Commonwealth Court for the purpose of conducting a traditional takings analysis. Subject to the issue of nuisance, which we address in the next section, we believe that the Commonwealth Court should conduct a trial to consider the facts relevant to the determination of whether the regulation is a taking pursuant to the traditional takings analysis. Nuisance The Commonwealth Court prevented the Commonwealth from presenting evidence regarding whether the proposed use of the land would constitute a nuisance. Machipongo V, slip op. at 2. Notwithstanding that the Commonwealth Court recognized that “polluting the waters of the Commonwealth is a public nuisance!,]” it declined to consider the Commonwealth’s evidence that the proposed use would constitute a nuisance. Id. at 7. The Commonwealth Court explained that the water was adequately protected by PaSMCRA regulations that require appli cants for permits to show that there is no presumptive evidence that mining would pollute surrounding waters. Id. However, regardless of the protections offered in those regulations, there is nothing that prevents the state from enacting a law that makes explicit its right to prohibit activity, which would already be contrary to existing law. See Lucas, 505 U.S. at 1030, 112 S.Ct. 2886. Furthermore, it is clear that if a regulation prohibits behavior that could be abated or prohibited by general principles of state property law, there is no need for the state to provide compensation to prevent the use. Id. at 1027-1029, 112 S.Ct. 2886. In Lucas, the U.S. Supreme Court explained that even where the regulation prohibits “all economically beneficial use of land,” there is no taking if the use could be abated or prohibited by general principles of state property law. Id. at 1029, 112 S.Ct. 2886. That is to state, [i]n light of our traditional resort to “existing rules or understandings that stem from an independent source such as state law” to define the range of interests that qualify for protection as “property” under the Fifth and Fourteenth Amendments, this recognition that the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by those “existing rules or understandings” is surely unexceptional. Id. at 1030, 112 S.Ct. 2886 (internal citations omitted). In fact, the U.S. Supreme Court remanded Lucas to the South Carolina Supreme Court and directed it to determine whether, pursuant to state law, the prohibited use constituted a nuisance or violated state property law. Id. The rules and understandings as to the uses of land that are acceptable and unacceptable have changed over time. The fact that sewage was once strewn into city streets does not give rise to a permanent reasonable expectation that such behavior can continue indefinitely. In another takings case, the U.S. Supreme Court explained this concept as follows: It is true, when the defendants ... purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, ... the supervision of the public health and the public morals is a governmental power, continuing in its nature, and to be dealt with as the special exigencies of the moment may require; and that, for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself. Mugler v. Kansas, 123 U.S. 623, 669, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (internal citations and quotations omitted) (holding that a state statute that prohibited manufacture of alcoholic beverages was not a taking even though such manufacture was legal before the statute). While the owner of land might once have been permitted to mine his land without regard to the effect that it had on public streams, as evidenced by the spoilage of “11,000 miles of streams” in this country, that expectation is, and has been for some time, no longer reasonable. Despite the fact that one may have purchased property with the expectation to use it in such a manner that was acceptable before the purchase, there may come a point in time when the original owner’s expectations may no longer be reasonable. The Commonwealth Court has repeatedly applied Section-821B of the Restatement (Second) of Torts to guide its determinations as to whether a use of property constitutes a public nuisance. See, e.g., Muehlieb v. City of Philadelphia, 133 Pa.Cmwlth. 133, 574 A.2d 1208 (1990). That Restatement section provides as follows: (1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Restatement (Second) of Torts § 821B. Therefore, the issue is whether the proposed mining would unreasonably interfere with a right of the general public. Reasonableness is essentially a factual inquiry, which we will not address, but whether there is public right, is an issue of law. This Court has expressly held that the public has a right not to suffer acid mine discharge into its public waters, and that such discharges constitute a public nuisance as a matter of statutory and common law. Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871, 880 (1974) (Barnes & Tucker I). In Barnes & Tucker I, we reversed a decision of the Commonwealth Court that rejected the Commonwealth’s nuisance causes of action. We held that common law authorized the abatement of acid mine drainage that pollutes public waters. Id. at 881-882. We also observed that The Clean Stream Law, 35 P.S. § 691.1 et seq., provides a statutory basis for the finding that acid mine discharge may rise to the level of a public nuisance. The discharge of sewage or industrial waste or any substance into the waters of this Commonwealth, which causes or contributes to pollution as herein defined or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance. Barnes & Tucker I, 319 A.2d at 880 (quoting section 3 of The Clean Streams Law, Act of June 22, 1937, P.L.1987, as amended, 35 P.S. § 691.3). In reaching that conclusion, we relied on Pennsylvania R.R. Co. v. Sagamore Coal Co., 281 Pa. 233, 126 A. 386 (1924), where we granted an injunction to prevent mine owners from discharging acid mine water into a stream used by the railroad and the public as a water supply. Id. at 387. We stated: “[i]t has always been under our law, a nuisance to pollute a stream from which the public gets its supply of water.” Id. at 391. The General Assembly’s definition of pollution, although circular for our purposes in that it uses the word nuisance, provides useful guidance. Section 1 of The Clean Streams Law, 35 P.S. § 691.1. The Section defines pollution as follows: “Pollution” shall be construed to mean contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, including but not limited to such contamination by alteration of the physical, chemical or biological properties of such waters, or change in temperature, taste, color or odor thereof, or the discharge of any liquid, gaseous, radioactive, solid or other substances into such waters.... 35 P.S. § 691.1. There is further statutory support for a finding that it is against the law of this Commonwealth and a nuisance to pollute public waters in section 401 of the Clean Streams Law, 35 P.S. § 691.401, which provides that: It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined. Any such discharge is hereby declared to be a nuisance. In Barnes & Tucker I, we repeated that “corruption of water which affects the public use of a stream or menaces the public health becomes a public nuisance which the Commonwealth may seek to abate.” Barnes & Tucker I, 319 A.2d at 882. The Commonwealth Court, therefore, incorrectly held that there was no authority that would permit the Commonwealth to prohibit a property owner from mining just because it would destroy the population of trout in Goss Run. Machi-pongo V, slip op. at 7. While the Commonwealth' contends that mining would, in addition to destroying the trout population, adversely affect the use of the stream as a water supply (R.3a) the nature of the public use of the water should not be the focus of our inquiry. To the contrary, we have explained that “we believe that the public has a sufficient interest in clean streams alone regardless of any specific use thereof ... [to warrant] injunctive relief.” Barnes & Tucker I, 319 A.2d at 882 (preserving the water from acid mine runoff despite the fact that the only use of the water was recreational). Accordingly, if the Commonwealth is able to show that the Property Owners’ proposed use of the stream would unreasonably interfere with the public right to unpolluted water, the use, as a nuisance, may be prohibited without compensation. Property Owners correctly point out that in the past we have held that if a nuisance is only anticipated and not a nuisance per se, the party seeking to prevent the use must show that the nuisance is “practically certain [to occur], not merely probable.” Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748, 752 (1976). However, although mining is not a nuisance per se, pollution of public waterways is. The key to protecting our water is to prevent pollution from occurring. The General Assembly has expressly stated that not only is its desire to restore polluted waters but “[i]t is the objective of the Clean Streams Law ... to prevent further pollution of the waters of the Commonwealth.” 35 P.S. § 691.4(3) (emphasis added). It is beyond dispute that the resources needed to correct pollution once it has occurred are far greater than those needed to prevent it. While it is true that mining per se is not a nuisance, experts need not wait until acid mine water flows out of mines in the UFM area to predict the likely results of mining this land. If the Property Owners are correct that additional mining would not pollute the Watershed, then there is no nuisance. Then again, if the Commonwealth can prove that mining the UFM area would pollute Goss Run, the cause of the nuisance can be prohibited. We see no reason to require the Commonwealth to prove that the alleged pollution is practically certain to occur. It is enough if the Commonwealth can prove what its technical study found, that further mining in the UFM area had a “high potential to cause increases in dissolved solid and metal concentrations in Goss Run that would adversely affect the use of the stream as an auxiliary water supply” or had “a significant potential to disrupt the hydrologic balance causing decreases in the net alkalinity of discharges ... and destroying the habitat for wild trout populations.” Machipongo VI, 719 A.2d at 21. Therefore, we remand this case to the Commonwealth Court to consider evidence that the proposed use would constitute a nuisance. If, after a factual inquiry that court determines that the Property Owners’ activities would unreasonably interfere with the public right to unpolluted water, the ruling of the court based upon decisions of this Court and the U.S. Supreme Court should be clear. Lucas, 505 U.S. at 1027-1029, 112 S.Ct. 2886; Barnes & Tucker I, 319 A.2d at 881-882. The government is not required to pay Property Owners to refrain from taking action on their land that would have the effect of polluting public waters. Indeed, despite our conviction that private property rights are to be strongly protected, we are struck by the impropriety of taking action that would require the General Assembly to pay someone not to pollute public water or destroy public fisheries. Conclusion We, therefore, reverse the Commonwealth Court’s determination that a taking occurred and remand this case to the Commonwealth Court to: (1) horizontally define the relevant property: (2) conduct the Lucas analysis with regard to the property of the Naughton/Erickson Property Owners; (3) conduct the Penn Central analysis with regard to the property of both Property Owners; and, if necessary, (4) determine whether the proposed use would constitute a nuisance or would otherwise violate state property law. We do accept, however, the Commonwealth Court’s determination that property without value cannot be taken. The Commonwealth Court considered detailed scientific evidence of the economic viability of mining coal in the UFM area and determined that “the Machipongo Surface Mine ... [was] not economically feasible.” Ma-chipongo VI, slip op. at 38. Therefore, the Commonwealth Court declined to find a taking with regard to the Machipongo Surface Mine. The Commonwealth Court’s legal reasoning on this issue is sound and there is no basis here to alter its factual findings. Accordingly, the Property Owners are not entitled to compensation with regard to the Machipongo Surface Mine. Finally, Property Owners have requested that we identify the appropriate forum for a hearing on damages. However, because we have reversed the determination of the Commonwealth Court that a taking occurred and because it is not clear, at this juncture, whether a taking will be found, we decline to render an advisory opinion as to the appropriate forum to consider damages. Former Chief Justice FLAHERTY did not participate in the decision of this case. . Effective July 1, 1995, the General Assembly renamed the Department of Environmental Resources the Department of Environmental Protection. 71 P.S. § 1340.101. . The final regulation was substantially more limited than the proposal. Specifically, the UFM designation did not extend past the Bris-bin Dam. The regulation also provided that it did not apply to areas within the UFM area where DER had previously permitted mining, including the Bonita and Cowfer permit areas. 25 Pa.Code § 86.130(h)(14). . Section 1 of the PaSMCRA provides, in pertinent part, that: "[the] act shall be deemed to be an exercise of the police powers of the Commonwealth for the general welfare of the people of the Commonwealth^]” 52 P.S. § 1396.1. Regulations promulgated pursuant to the police power are distinguishable from those issued pursuant to the eminent domain power of the Commonwealth. In Machipongo III, 676 A.2d at 202, this Court quoted its decision in Appeal of White, 287 Pa. 259, 134 A. 409 (1926), where we stated that: [P]olice power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use.... Id. at 411. . However, the approach of the law review article was never intended to apply in vertical segmentation cases. Specifically, the article explained that: [ujnder a rule of substantiality, however, the ability of the owner to define the parcel would be limited in two important ways. First the rule would apply only to horizontal divisions of land. Under clear Supreme Court precedent, a property owner would have no authority to divide property rights into uses, easements, servitudes or the like. In addition, under the authority of [Penn Central, 438 U.S. 104, 98 S.Ct. 2646] and Keystone, courts must consider all air, surface, and subsurface rights of a particular parcel as a single bundle of property rights. Fee, 61 U. Chi. L.Rev. at 1558 (emphasis added). . Erickson Surface Reserves: a 27-acre area west of the Bonita Surface Mining Pit; Ma-chipongo Surface Reserves: a 35-acre area within the Watershed east of Goss Run and southeast of the Bonita Surface Mining Pit; and, Machipongo Underground Reserves: a 96-acre area west of Goss Run within the Goss Run UFM designation. . Although we are not bound by the decisions of the U.S. Supreme Court on issues of standing (see ASARCO Inc. v. Radish, 490 U.S. 605, 109 S.Ct. 2037, 2045, 104 L.Ed.2d 696 (1989)), we find the reasoning of that Court persuasive. . This Court has consistently relied upon the decisions of the U.S. Supreme Court when considering takings issues. We have stated: [a]n examination of our caselaw reveals that this Court has continually turned to federal precedent for guidance in its "taking” jurisprudence, and indeed has adopted the analysis used by the federal courts. United Artists' Theater Circuit, Inc., v. City of Philadelphia, 535 Pa. 370, 635 A.2d 612, 616 (1993) (upholding a Philadelphia historic landmark ordinance, this Court applied Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) test and held that, with regard to a landmark designation, the takings clause in the Pennsylvania Constitution does not provide more extensive protections than those offered by the U.S. Constitution). . At issue in Plymouth Coal was the Anthracite Mining Act, Act of June 2, 1981, P.L. 183, as amended, 52 P.S. § 264 (repealed 1965), which required owners of adjoining mines to maintain a coal barrier between the mines. We held that the statute did not violate the takings clause of the Pennsylvania Constitution. Id. 81 A. at 151, 152. . In addition to. the instant UFM designation, the Commonwealth has designated sixteen other areas as UFM. See 25 Pa.Code § 86.130 b(l)-(17). . The Supreme Court affirmed the Third Circuit's determination that: To focus upon the support estate separately when addressing the diminution of the value of plaintiffs’ properly caused by the Subsidence Act therefore would serve little purpose. The support estate is more properly viewed as only one "strand” in the plaintiff's "bundle” of property rights, which also includes the mineral estate. Keystone, 480 U.S. at 480, 107 S.Ct. 1232. . We note with approval that Justice O’Con-nor, in her Palazzolo Concurring Opinion, observed that an evaluation of the reasonableness of a claimant’s investment-backed expectations should take into consideration whether the land owner owned the property on the effective date of the regulation as well as the “regulatory regime in place at the time the claimant acquires the property ... [that is, the extent of previous government regulation of the area].” Palazzolo, 121 S.Ct. at 2466. Consistent with the observation that the regulatory regime at the time the claimant acquires property is relevant to the inquiry, we have observed that: The Legislature has long regulated the quality of the waters in the Commonwealth. ... In addition, ... Congress, ha[s] ... made extensive efforts to remove the pollution from our nation’s waters. National Wood Preservers, Inc. v. Commonwealth, 489 Pa. 221, 414 A.2d 37, 44 (1980) (citations omitted). . Upon the U.S. Supreme Court’s remand of the Penn Central takings analysis, the Rhode Island Supreme Court, in turn, remanded the case to its Superior Court to conduct the analysis. Palazzolo v. State ex rel. Tavares, 785 A.2d 561 (R.I.2001). . Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 279-280, 101 S.Ct. 2352 (1981) (quoting 1976 & 1977 U.S. House of Representatives reports, discussed infra.) . Similarly, upon our review of the Commonwealth Court's abatement order we held, [G]iven our determination that the Commonwealth is validly employing its police power in a reasonable manner to abate the immediate public nuisance, there can be no finding of an unconstitutional "taking” by the imposition of the present abatement order. ... Commonwealth v. Barnes & Tucker Co., 472 Pa. 115, 371 A.2d 461, 467 (1977) (Barnes & Tucker II).

JOHNSON, J.: ¶ 1 Neil McGinley and Theresa McGin-ley (“the McGinleys”) appeal the trial court’s order granting a petition to enforce settlement filed by the Estate of Stephen J. Haiko (“the Estate”). The McGinleys contend that the court erred in ordering enforcement because the parties had never entered a cognizable settlement of the underlying claim. The McGinleys argue in the alternative that if a settlement is deemed to exist, any right the Estate had to enforce its provisions was waived when the Estate failed to file an appropriate objection during the McGinleys’ subsequent Chapter 7 bankruptcy. Finally, the McGinleys contend that the court reached its findings on the basis of legally insufficient evidence. We conclude that the McGinleys have failed to establish trial court error. Accordingly, we affirm the court’s order. ¶ 2 This matter arises out of the McGin-leys’ alleged default on a promissory note payable to Haiko. Haiko was Neil McGin-ley’s grandfather. In 1990, Haiko advanced the McGinleys $149,900 to buy a marital residence. As a condition of the advance, Haiko required the McGinleys to execute the promissory note at issue here, agreeing to repay Haiko $75,000. The note provided generous repayment terms, but also allowed confession of judgment in the event the McGinleys failed to pay the obligation. ¶ 3 In 1995, Haiko (“Decedent”) died intestate, and the court appointed his son, John J. Haiko, (“Administrator”) administrator of the Estate. Administrator is Neil McGinley’s uncle. Neil was one of six lawful beneficiaries of the Estate and his share was valued at approximately $ 12,500. Theresa was not a beneficiary. Prior to distribution of the Estate, Administrator discovered the McGinleys’ promissory note and demanded payment of the outstanding principal. Although the McGinleys asserted that they had satisfied the note, they were able to document pay- ment of only $4500. Consequently, in 1997, Administrator confessed judgment. ¶ 4 The judgment remained undisturbed for approximately two years until March 1999, when the trial court granted the McGinleys’ petition to open the judgment and scheduled the matter for trial. During ensuing months the parties, through counsel and family members, sought to negotiate a settlement. Neil authorized his former counsel, Basil Koudelis, Esquire, to accept any offer of settlement that would allow him merely to forfeit his share of the Estate in exchange for Administrator’s agreement to discontinue the action on the promissory note. ¶ 5 On November 24,1999, Neil contacted Koudelis and apprised him that a family member had convinced the Estate to accept forfeiture in lieu of repayment of the note. Subsequently, counsel for the Estate verified that his client had agreed to the forfeiture arrangement, and on December 1,1999, counsel apprised the court that the matter had been settled. At Neil’s request, Koudelis drafted a settlement agreement and release to conform with the terms the parties had accepted. During the following week, Neil appeared at Kou-delis’s office, conferred with counsel, and took the written agreement, stating that he wished to confer with Theresa. Thereafter, Neil signed the agreement but did not return it to counsel. ¶ 6 On May 31, 2000, Administrator filed a petition to enforce the settlement agreement. On June 9, 2000, the McGinleys sought protection under Chapter 7 of the United States Bankruptcy Code and the trial court stayed the action on the note pending disposition of the bankruptcy petition. In that petition, the McGinleys claimed Neil’s interest in the Estate as exempt property under 11 U.S.C. § 522(d)(5), notwithstanding Neil’s pending forfeiture of the interest under the terms of the settlement agreement. Ostensibly to protect the interest of the Estate, Administrator filed a proof of claim, but did not file an objection to the MeGin-leys’ claim of exemption. Thereafter, the Bankruptcy Court, by order of September 21, 2000, discharged the McGinleys’ debts and closed the bankruptcy proceeding. The trial court lifted the stay it had imposed on these proceedings and Administrator filed a renewed petition to enforce settlement. ¶ 7 Upon consideration, the trial court originally denied Administrator’s petition in an order dated May 18, 2001 and entered of record on May 22, 2001. More than thirty days later, on June 27, 2001, the trial court granted reconsideration of that order and scheduled argument. After an additional thirty days, the court granted enforcement of the settlement in an order dated July 27, 2001. The court determined that the parties had reached an agreement by which Neil forfeited his interest in the Estate in exchange for forgiveness of the sum owed on the promissory note. The court concluded accordingly that Neil’s interest in the Estate was unaffected by the bankruptcy and remained subject to the antecedent settlement. The McGinleys then filed this appeal. ¶ 8 The McGinleys raise the following questions for our review: I. WHETHER THE TRIAL COURT FAILED TO GRANT RECONSIDERATION OF ITS OWN ORDER WITHIN A TIMELY MANNER? II. WHETHER THE PROPERTY CLAIMED AS EXEMPT PURSUANT TO 11 U.S.C. § 522(D)(5) UNDER THE UNITED STATES BANKRUPTCY CODE, FOR WHICH AN OBJECTION IS NOT TIMELY FILED CONSISTENT WITH THE FEDERAL RULES OF BANKRUPTCY PROCEDURE, AND EFFECTIVELY ADMINISTERED IN A CHAPTER 7 BANKRUPTCY, IS SUBJECT TO A FURTHER DISPOSITION BY A STATE COURT FOLLOWING THE CONCLUSION OF THE BANKRUPTCY CASE? III.WHETHER THE FINDINGS OF THE COMMON PLEAS COURT ARE BASED ON SUBSTANTIAL EVIDENCE SUFFICIENT TO SUPPORT A CONCLUSION THAT A SETTLEMENT EXISTED WITH ONE DEFENDANT PRECLUDING THE PROPERTY RIGHTS OF THERESA McGINLEY? Brief for Appellant at 4. ¶ 9 The McGinleys’ first question raises an issue of jurisdiction. The McGinleys argue that by the time the court entered its July 27 order, it had no authority to act under the Rules of Court because more than thirty days had elapsed after entry of the order that denied Administrator’s petition. Brief for Appellant at 10. The time within which a trial court may grant reconsideration of its orders is a matter of law, of which our review is plenary. See Kramer v. Schaeffer, 751 A.2d 241, 245 (Pa.Super.2000); Pa.R.A.P. 1701(b)(3)(ii). If the trial court erred in its application of the law we are empowered to correct that error. See Kramer, 751 A.2d at 245. ¶ 10 Initially, we note that the underlying order from which the McGinleys measure the time elapsed prior to appeal is the order denying Administrator’s petition to enforce the settlement. That order was interlocutory and not subject to a right of appeal by any party. See Friia v. Friia, 780 A.2d 664, 666 (Pa.Super.2001). Rule of Appellate Procedure 1701(b)(3), upon which the McGinleys rely to establish a timeliness requirement for reconsideration, prescribes the trial court’s authority where the underlying order is on appeal. See Pa.R.C.P. 1701(b) (Authority of a trial court or agency after appeal). The McGinleys cite no authority to establish that the constraints prescribed by Rule 1701(b)(3) apply to an interlocutory order from which the aggrieved party does not have a right of appeal. Assuming, however, that the McGinleys reliance on Rule 1701 is not misplaced, we conclude nonetheless that the court’s order granting reconsideration was timely filed. ¶ 11 Pennsylvania Rule of Appellate Procedure 1701(b)(3) vests authority in the trial court to grant reconsideration of its orders “within the time prescribed by [the Rules] for the filing of a notice of appeal[.]” Pa.R.A.P. 1701(b)(3)(ii). Appellate Rule 903 prescribes the time for appeal to be “within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). The Rules prescribe further that, in civil cases, the date of entry of an order “shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given,” sent by regular mail. See Pa.R.A.P. 108(b) (Date of Entry of Orders); Pa.R.C.P. 236 (Notice by Prothono-tary of Entry of Order, Decree, or Judgment). Accordingly, a trial court’s order granting reconsideration is timely if entered within thirty days of the date on which notice of the underlying order was mailed. ¶ 12 A trial court’s order grant ing reconsideration must state expressly and unequivocally that reconsideration is-granted; issuance of a rule to show cause or entry of a hearing date on the motion will not suffice to satisfy the mandate of the Rules. See Cheathem v. Temple University Hospital 743 A.2d 518, 520 (Pa.Super.1999); Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912, 913 (.1989). Once the court grants reconsideration, “the time for filing a notice of appeal or petition for review begins to run anew,” regardless of whether the court’s order amounts to a reaffirmation of its prior determination. Pa.R,A.P. 1701(b)(3). Consequently, an aggrieved party may appeal the underlying order within thirty days after the entry of the order granting reconsideration and an appeal from such an order. will be deemed timely. See Schoff v. Richter, 562 A.2d at 913. ¶ 13 Upon application of the governing law, we conclude that the trial court acted in a timely manner, expressly granting reconsideration. Although, as the McGin-leys argue, the court docketed the original order denying enforcement on May 22, 2001, the trial court prothonotary first sent notice of the order on May 30, 2001. Reproduced Record (R.R.) at 3a. Twenty-eight days later on June 27, 2001, the trial court filed its subsequent order granting reconsideration. The order stated explicitly that “reconsideration of this Court’s Order dated May 18, 2001 shall be and the same is GRANTED.” Trial Court Order, Pagano, J., 6/27/01. Because the order granted reconsideration within thirty days of the date on which the prothonotary sent notice of the underlying order, any applicable appeal period commenced to run anew. Pa.R.A.P. 1701(b)(3). Accordingly, the court’s subsequent order entered on July 27, 2001, enforcing the settlement between the parties, fell within the time prescribed by Rule 1701(b)(3)(h). Contrary to the McGinleys’ assertion, the court’s order is legally operative and binding on the parties. Therefore, we are able to consider the McGinleys’ remaining issues. ¶ 14 In their second question on appeal, the McGinleys contend that the trial court erred in enforcing the settlement because Neil’s interest in the Estate is protected by their discharge in bankruptcy. Brief for Appellants at 10. The McGinleys argue that they declared Neil’s interest in the Estate as exempt property under 11 U.S.C. § 522(d)(5), and that Administrator did not object to the exemption. The McGinleys conclude accordingly that Neil’s interest is not now subject to-the claims of the Estate. Brief for Appellants at 11 (quoting Taylor v. Freeland & Kronz, 503 U.S. 638, 643, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (stating “[ujnless a party in interest objects, the property claimed on such list is exempt”)). ¶ 15 Upon review of applicable law, we conclude that the exemption in bankruptcy does not control the disposition of Neil’s interest in the Estate. Rather, property fights, such as those claimed by the McGinleys, are defined by state law. See Western United Life Assurance Co. v. Hayden, 64 F.3d 833, 837 (3rd Cir.1995) (applying Pennsylvania law to determine property interest of debtor in annuity payments assigned to third party prior to commencement of bankruptcy); In re Sparkman, 9 B.R. 359, 363 (Bankr.E.D.Pa.1981) (applying Pennsylvania law to determine whether debtor had property interest in real estate sold at sheriffs sale prior to commencement of bankruptcy). Bankruptcy does not create interests in property, but acts merely to protect and apportion those in existence when the bankruptcy petition is filed. See Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56, 59 (1982); Sparkman, 9 B.R. at 362 n. 3. If, under state law, a debtor does not have a property interest in disputed property upon filing a bankruptcy petition, he cannot shelter that property under provisions of the Bankruptcy Code. See Foulke, 454 A.2d at 59 (refusing to apply automatic stay under Section 362(a) of Bankruptcy Code where debtor was divested of property interest prior to commencement of bankruptcy); id. at 363, 454 A.2d 56 (same). “The Bankruptcy code does not bar proceedings in a case in which the Bankruptcy debtor has no interest in the property at issue.” Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500, 508 (1984). ¶ 16 The McGinleys assert that exemption of Neil’s interest from the claims of creditors in bankruptcy protects that interest from disposition in a subsequent state court proceeding. In view of the foregoing cases, this assertion is simply incorrect. The existence and extent of any interest the McGinleys had in Neil’s share of the Estate is a matter of state law properly determined by the trial court in a state proceeding. See id. Here, the trial court determined, and the record demonstrates, that Neil had forfeited his interest in the Estate many months prior to the date on which the McGinleys filed their bankruptcy petition. Because the property did not belong to Neil or to the McGinleys collectively, the Bankruptcy Court could not act to exempt the property. See Foulke, 454 A.2d at 59; Sparkman, 9 B.R. at 363. ¶ 17 Accordingly, the McGinleys’ reliance on Taylor is misplaced. In Taylor, the U.S. Supreme Court recognized as exempt the proceeds of a legal action the debtor had pending in state court when she filed her petition for protection in bankruptcy. See 503 U.S. at 640, 112 S.Ct. 1644. There was no dispute in Taylor that the debtor and her counsel in the state court action had an unqualified claim to the money eventually paid to satisfy the action. The debtor had not agreed to forfeit or assign her share of the proceeds prior to filing her petition for bankruptcy. Consequently, when she later claimed an exemption of the proceeds, the claimant’s failure to object to the exemption waived its right to access the property after discharge. See id. Because the facts in Tay lor are distinguishable from those at issue here and because Neil’s putative interest in the Estate was properly subject to determination by the trial court, we find no error in the court’s refusal to recognize the McGinleys’ claim of exemption. The McGinleys may not use the Bankruptcy Code to lay claim to assets to which they are not otherwise entitled under state law. ¶ 18 In their third and final question on appeal, the McGinleys challenge the sufficiency of the evidence underlying the trial court’s determination that Neil had forfeited his interest in the Estate prior to the bankruptcy. Brief for Appellants at 12. The court made its determination on the basis of the affidavit of the McGinleys’ former attorney, Basil Koudelis. Significantly, the McGinleys do not object to the court’s reliance on the affidavit; they contend instead that the affidavit does not support the findings and conclusions of the trial court. Brief for Appellants at 12 (“The [cjourt is mistaken in its understanding of what the Koudelis affidavit established.”). The McGinleys argue also that Theresa McGinley “had a colorable interest as a beneficiary of the Estate,” as a consequence of which any forfeiture required her consent. ¶ 19 We note initially that the McGinleys do not set forth any citation to authority or legal discussion to support their contentions that Theresa had a “col-orable interest” in the Estate or that the court erred in finding that Neil had forfeited the interest. The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority. See Pa.R.A.P. 2119(b); Estate of Lakatosh, 441 Pa.Super. 138, 656 A.2d 1378, 1381 (1995) (concluding that appellant had waived issue raised on appeal as corresponding argument in brief included only general statements without appropriate citation to authority). Without a reasoned discussion of the law against which to adjudge the McGinleys’ claims, our ability to provide appellate review is hampered. “It is not this Court’s function or duty to become an advocate for the appellant[].” Commonwealth v. Birdseye, 432 Pa.Super. 167, 637 A.2d 1036, 1043 (1994). Accordingly, we deem the McGinleys’ assertion of evidentiary insufficiency waived. See Pa.R.A.P. 2119(b) (Citations to authorities); 2101 (Conformance with Requirements); Estate of Lakatosh, 656 A.2d at 1381; Birdseye, 637 A.2d at 1043. ¶ 20 For the foregoing reasons, we affirm the trial court’s order enforcing settlement, mandating forfeiture of Neil’s interest in the Estate. ¶ 21 Order AFFIRMED.

JOHNSON, J. ¶ 1 This matter is before the Court on cross-appeals from judgments entered for the plaintiffs in five asbestos cases consolidated for trial. The respective plaintiffs, Charlotte Andaloro, James J. and Francis L. Greenhalgh, Edward C. and Doris Burkett, Ralph and Elizabeth Swan, and Harold and Marion Ruby (collectively “Plaintiffs”), assert that the trial court erred in molding the verdict to reflect the appropriate pro rata distribution of liability between the numerous defendants. Defendant and cross-appellant John Crane, Inc. contends that the court erred in refusing to enter judgment notwithstanding the verdict on the basis that Plaintiffs failed to establish exposure to John Crane products and failed to present adequate expert testimony on causation. In the alternative, Crane demands remittitur and raises putative procedural errors, impugning the consolidation of the cases as well as the court’s charge during the liability phase of the trial. For the following reasons, we affirm in part and vacate in part. ¶ 2 Plaintiffs commenced the underlying actions against the named defendants following medical diagnoses of mesothelioma or asbestosis in each of the plaintiff husbands. Additionally, Plaintiffs filed claims with the Manville Personal Injury Settlement Trust for compensation from Trust assets pursuant to the Trust Distribution Process. See In re Joint Eastern and Southern Districts Asbestos Litigation, 878 F.Supp. 473 (E.D.N.Y.1995). Prior to trial, one defendant filed for bankruptcy protection and the court dismissed several others from the actions in which they were named. At the commencement of trial, Plaintiffs’ claims against the Trust remained open. The Trust had not reached a settlement with any of the plaintiffs. ¶ 3 These matters proceeded to trial in two phases before the Court of Common Pleas of Philadelphia County. The court conducted reverse-bifurcated trials, a jury in the first phase determining damages (Phase I) and a new jury in the second phase considering the issue of liability (Phase II). In Phase I of the trial, the jury assessed damages as follows: to An-daloro, $1,000,000; to Greenhalgh, $800,000; to Swan, $750,000; to Ruby, $200,000; and to Burkett, $50,000. The jury also awarded damages for loss of consortium to Mrs. Andaloro for $30,000. ¶ 4 Following assessment of damages in the respective cases, the trial court consolidated the. matters for the remaining phase of trial pursuant to Pa.R.C.P. 213(a). In Phase II, a second jury identified John Crane products, as well as those of various other defendants, as the specific cause of Plaintiffs’ injuries. The court molded the Andaloro, Greenhalgh, Swan, and Ruby verdicts to reflect the dismissal or absence from the record of various other defendants. The court then divided the verdict equally among the defendants remaining and apportioned a full share of the verdict to the Manville Trust. Because the claims against the Manville Trust had not been settled, there was no settlement release to control the manner in which the resulting setoff or reduction in the verdict would be calculated to account for the Trust’s contribution. Although Plaintiffs sought to have the contribution set off pro tanto, to reflect the actual amount the Trust would pay, the court applied a pro rata set-off, effectively reducing the amount of the verdict by one full share without regard to the actual amount of the Trust’s contribution. As the Trust’s actual contribution is generally nominal relative to the amount of the award of damages, the award of a pro rata set-off effectively reduced the amounts of the respective Plaintiffs’ recoveries; ¶ 5 Following trial, John Crane filed a Motion for Post-Trial Relief incorporating requests for judgment notwithstanding the verdict (judgment n.o.v.), or in the alternative, a new trial. John Crane posed the additional alternative of remittitur in the Greenhalgh and Swan cases. Plaintiffs too sought post-trial relief, contending that the court erred in determining the number of shares to be apportioned in the Green-halgh and Swan cases, and applying the set-off for the Manville Trust’s share pro rata, rather than pro tanto. The court denied both motions and added damages for delay pursuant to Pa.R.C.P. 238. Plaintiffs and John Crane filed their respective appeals. As both cross-appellants pose multiple questions, we shall dispose of Plaintiffs’ appeal in its entirety before proceeding to John Crane’s cross-appeal. ¶ 6 Plaintiffs raise the following questions for our review: 1. Did the [trial] court err in molding the Greenhalgh verdict by assigning verdict shares to the defendants with whom the plaintiffs had not settled and who were either dismissed pretrial or not represented at trial, and by determining that Defendant John Crane, Inc., was entitled to a pro rata setoff for a share of the verdict assigned to the Manville Personal Injury Settlement Trust? 2. Did the [trial] court err in the Anda-loro case by determining that defendant John Crane, Inc., was entitled to a pro rata setoff for a share of the verdict assigned to the Manville Personal Injury Settlement Trust? 3. Did the [trial] court err in molding the Swan verdict by assigning ver- diet shares to defendants with whom the plaintiffs had not settled and who were dismissed pretrial, and by determining that defendant John Crane, Inc., was entitled to a pro rata setoff for a share of the verdict assigned to the Manville Personal Injury Settlement Trust? 4. Did the [trial] court err in the Ruby case by determining that defendant John Crane, Inc., was entitled to a pro rata setoff for a share of the verdict assigned to the Manville Personal Injury Settlement Trust? Consolidated Brief of Appellees and Cross-Appellants (Brief for Appellants) at 7. Before proceeding, we note that all of Plaintiffs’ questions on appeal impugn the trial court’s apportionment of a pro rata verdict share to the Manville Trust, thus allowing a pro rata setoff to the other defendants. This legal issue is dispositive of Plaintiffs’ appeal; accordingly we shall address it generally as to all questions before considering any remaining issues. ¶ 7 Apportionment of liability between joint tortfeasors poses a question of law. See Baker v. AC & S, 562 Pa. 290, 755 A.2d 664, 667 (2000) (hereafter “Baker II”). Accordingly, our scope of review of questions of apportionment is plenary, prescribing that we consider the issue de novo. See id. Our standard of review provides that we may reverse the trial court’s decision upon a showing of abuse of discretion or error of law. See id., n. 4. ¶ 8 As a general matter, the law of Pennsylvania provides that joint tortfea-sors are jointly and severally liable to the plaintiff to pay awards of damages arising out of the injury to which their activity contributed. See Baker II at 668. Our Supreme Court has determined, however, that when, a plaintiff settles his or her claim with the Manville Trust, the terms of the settlement release govern the allocation of liability between the remaining defendants. See id. at 667. Accordingly, the release also determines the amount of the set-off against liability to which the remaining defendants are entitled due to the Trust’s participation. See id. at 669. If a plaintiffs agreement with the Trust provides that the setoff shall be pro rata, then a full equal share is deducted from the amount of the verdict for which the remaining defendants may be held accountable. See Baker II, 755 A.2d at 668; Baker v. AC&S, Inc., 729 A.2d 1140, 1147 (Pa.Super.1999) (hereafter “Baker I ”). One full share of equal value shall be assessed against each party, including the Trust, and the full value of the Trust’s share shall be deducted from the verdict. See id. Even if, as is customary, the amount paid by the Trust is markedly less than the value of a full pro rata share, the remaining defendants are entitled to offset the value of a full share against the verdict amount. The defendants are thus accorded a redúction in their respective contributions based on the share attributed to the Trust regardless of whether the Trust paid the value of a full share in settlement. The plaintiff may not recover the shortfall in the Trust’s payoff from the remaining defendants. ¶ 9 If, however, the release is designated pro tanto, any subsequent verdict shall be reduced only by the actual amount paid by the Trust and the remaining amount of the verdict divided equally between the defendants held liable. See Baker I, 729 A.2d at 1147-48. Apportionment of the verdict, pro tanto, thus enables the plaintiff to collect the entire amount of the verdict, notwithstanding the lesser value of the Trust’s contribution, as the amount exceeding that contribution is apportioned equally between the remaining defendants. In this manner, a settling plaintiff is assured recovery of the full amount of the verdict regardless of the lesser amount paid by the Trust. The remaining defendants are then subject to a greater proportionate share of liability, which they may not recover from the Trust. See Baker I, 729 A.2d at 1151. ¶ 10 In this matter, the trial court recognized the respective mandates of Baker I and Baker II in cases where the plaintiff had entered a settlement agreement with the Manville Trust prior to the entry of a verdict. Trial Court Opinion, 7/17/00, at 7. The court concluded, however, that where as here, Plaintiffs’ claims against the Man-ville Trust remain unresolved, apportionment of the verdict is “problematic,” as “there is no telling as to whether the release and settlement [with the Manville Trust] will be pro rata or pro tanto.” Consequently, the court determined to apportion the verdict against the defendants pro rata, concluding: “in view of the speculative nature of any future releases, this [c]ourt will adopt common practice and assign a full share to Johns-Manville.” Trial Court Opinion at 8. The court concluded further: “There is no authority which precludes such disposition when there is no release.” Trial Court Opinion at 8. ¶ 11 Plaintiffs assert that the court’s determination constituted an error of law, as liability between defendants to asbestos claims involving the Manville Trust is properly apportioned pro tanto pursuant to the Trust Distribution Process (TDP) and the Uniform Contribution Among Tortfeasors Act (UCATA), 42 Pa. C.S. § 8326. Brief for Appellants at 20. We agree. Contrary .to the trial court’s conclusion, the TDP provides a specific formula to determine the amount of a set-off attributable to the participation of the Manville Trust in the absence of a settlement agreement. Accordingly, we recognized in Baker I, that “if the [plaintiff] obtains a verdict against the co-defendant, the co-defendant can obtain a ‘set-off or reduction in verdict in respect to the Trust whether or not the [plaintiff’s] direct claim against the Trust has been resolved.” 729 A.2d at 1146 (citing TDP § H.l(c), H.2.) (emphasis added). See also In re Joint Eastern and Southern Districts Asbestos Litigation, 878 F.Supp. 473, 591 (E.D.N.Y.1995) (directing that “set-off credit shall be the preferred method of satisfying Co-Defendant claims, regardless of whether the Trust and claimant [i.e. plaintiff] have liquidated the underlying claim”) (emphasis added). ¶ 12 Calculation of the appropriate set-off amount is prescribed by the Trust Distribution Process as follows: 3. Calculation of set-off. The manner of calculating set-off shall be based on whether the claim has been liquidated by the Trust and the applicable law of contribution and verdict reduction or settlement credit. (a) Calculation of Trust’s payment. In situations where the amount of the Trust’s payment or expected payment to a claimant is relevant to the set-off calculation, that amount shall be determined as follows: ‡ ‡ (ii) Unliquidated claims. Where the claim, has not been liquidated, the amount of the Trust’s payment to the claimant (the “Unliquidated Trust Payment”) shall be the amount of the Scheduled Value, as further described in this TDP, for the applicable disease category, multiplied by the pro rata share in effect at the time the set-off is being applied (as described above in Section G). TDP § H.3.(a)(ii), 878 F.Supp. at 591-92. Thus, contrary to the trial court’s conclu sion that the “speculative nature of any future releases” precluded determination of a set-off value, TDP section 3(a)(ii) provides a specific formula for the necessary calculation. ¶ 13 Upon review of the Schedule of Asbestos-Related Disease Categories and Values established by TDP section H.3.(a)(ii), see TDP § D, we note the following scheduled values: Category . Scheduled Disease Value I Bilateral Pleural Disease $ 12,000 II NondisabHng Bilateral Interstitial Lung Disease $ 25,000 III Disabling Bilateral Interstitial Lung Disease $ 50,000 IV Other Cancer $ 40,000 V Lung Cancers (One) $ 60,000 VI Lung Cancers (Two) $ 90,000 VII Malignant Mesothelioma $200,000 TDP § D, 878 P.Supp. at 585. The multiplier mandated by section H.3.(a)(ii), and specified by section G.1.(b), is 10%. See TDP § G.1.(b), 878 F.Supp. at 588 (“The initial pro rata share has been set at ten percent (10%) by the Trust with the concurrence of the SCB and the Legal Representative, after consultation with the Special Advisor.”). Accordingly the set-off value of any claim not settled by the Man-ville Trust prior to entry of the verdict is ten percent of the scheduled value for the disease with which an individual claimant/plaintiff is afflicted. For Franklin An-daloro, who, prior to his death, was afflicted with Malignant Mesothelioma, the set-off value is thus ascertainable as $20,000 ($200,000 x 10%). For the remaining Plaintiffs, suffering from Disabling Bilateral Interstitial Lung Disease (Asbestosis), the set-off value is fixed at $5,000 ($50,000 x 10%). ¶ 14 Further consideration of the TDP and applicable Pennsylvania law establishes that the foregoing set-off amounts are properly applied to the verdict pro tanto when factoring the contribution amounts due from the defendants found liable at trial. For purposes of evaluating contribution calculations among joint tort-feasors, the TDP creates categories into which the respective states are divided based upon the law applied in those states to determine contribution. See Baker I, 729 A.2d at 1145 (citing TDP § H.3.(b), (c), (d), (e), (f)). “The TDP does not expressly categorize Pennsylvania or any other state,” but instead provides that the law of the state shall determine the category into which it falls. Id. In Baker I, we determined that Pennsylvania is neither a pure pro rata nor pro tanto state, but instead falls into the category prescribed by TDP section H.3.(f), “States with multiple set-off rules.” See id. Section H.3.(f) provides that: In some states, different set-off rules (pro tanto, pro rata or apportionment) govern different causes of action or parts thereof or different elements of damages. In such states the applicable law shall govern which set-off rules apply to each cause of action or part thereof and each element of damages. TDP § H.3.(f) (emphasis added). ¶ 15 Plaintiffs advocate that to the extent the TDP “deems” a settlement with the Trust for the purpose of set-off calculation, the Court should properly apply pro visions of the “Uniform Contribution Among Tort-feasors Act” that prescribe the effect of a settlement release of one tortfeasor on the liability of joint tortfea-sors. Brief for Appellant at 20-21. Where the parties to such a release have not specified the effect of the release on contribution and set-off, this section establishes a pro tanto default. The specific language of this provision is as follows: § 8326. Effect of release as to other tort-feasors A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid. 42 Pa.C.S. § 8326 (emphasis added). ¶ 16 Plaintiffs urge that because any “deemed” release under the TDP is necessarily silent concerning the manner in which the Trust’s unliquidated payment is to be set off against the verdict, the foregoing provision requires that it be applied pro tanto. Brief for Appellant at 21. We conclude that such treatment is consistent both with the law of joint and several liability as recognized in Pennsylvania and with our Supreme Court’s enunciated policy to favor complete compensation of injured parties. ¶ 17 “In strict liability actions, liability is ... apportioned equally among joint tortfeasors.” Baker II, 755 A.2d at 669. “Yet, the declaration that liability is to be apportioned equally ... is not synonymous with the proposition that a tortfea-sor may be compelled to pay only its share of the judgment and no more.” Id. In Pennsylvania, joint tortfeasors, including those in strict liability actions, are jointly and severally hable. Thus, the plaintiff may recover the entire damages award from only one of the joint tortfeasors. That tortfeasor’s recourse for paying more than its proportionate share of the verdict is to sue the nonpaying joint tortfeasors in contribution. Id. (emphasis added). Accordingly, a tort-feasor’s right to contribution from other tortfeasors does not affect, in any way, the right of the plaintiff to recover the entire award of damages. Such an arrangement reflects Pennsylvania’s commitment, often reaffirmed in the decisions of our appellate courts that “the plaintiff should be fully compensated for his injuries.” Baker I, 729 A.2d at 1151. In this manner, the plaintiff is assured a complete recovery in accordance with the finding of the jury, while the burden of enforcing individual contributions falls on the defendant that satisfied the verdict. ¶ 18 We recognize that contribution for the benefit of other joint tortfeasors is not available against the Manville Trust under the terms of the TDP. See id. at 1152. Thus, treatment of the Manville Trust Un-liquidated Payment as a pro tanto rather than pro rata setoff against the verdict, will impose a greater monetary obligation upon John Crane, Inc. and any other remaining defendants. Nonetheless, the consideration of whether a defendant is in fact able to collect the requisite contribution from the Trust or any joint tortfeasor is secondary to Pennsylvania’s “longstanding legislative intent and judicial affirmation that ... as between the rights of victims and competing tortfeasors, the rights of victims shall be paramount.” Baker I, 729 A.2d at 1151. This consideration is reinforced in actions based on strict liability, which arise from the premise that “as between an innocent consumer and a manufacturer of a defective product, the manufacturer should bear the loss.” Id. at 1152 n. 34. ¶ 19 Were we to affirm the trial court’s pro rata set-off of the Manville Trust’s liability, we would effectively deprive the injured Plaintiffs of their right to compensation in the interest of enforcing the rights of defendant tortfeasors to limit their liability to a stated share of the verdict. The plaintiffs would collect markedly less compensation while the defendants would experience a windfall in the form of a reduction in liability. Such a result is openly hostile to the stated objectives of joint and several liability as a system of compensation. See Baker II, 755 A.2d at 669. Cf. Baker I, 729 A.2d at 1151 (“A non-settling joint tortfeasor should not receive a release of its joint and several liability to the plaintiff simply because another joint tortfeasor settled for less than his or her allocated share of liability.”). We conclude accordingly that where the Manville Trust has not settled a plaintiff’s claim prior to entry of a verdict against other joint tortfeasors, the value of the set-off available to the joint tortfeasors based on the Trust’s unliquidated contribution, shall be calculated under the foregoing provisions of the TDP and applied to the verdict pro tanto. As the trial court in this matter declined to calculate the value of the Trust’s unliquidated contribution and applied a pro rata set-off, we conclude that the court erred. Accordingly, we vacate the judgment and remand the matter for redetermination of the appropriate set-off. ¶ 20 Additionally, Plaintiffs Greenhalgh and Swan assert that the trial court erred in assigning pro rata verdict shares to defendants with whom Plaintiffs had not settled and who were either dismissed pretrial or not represented at trial. Brief for Appellants at 16, 24-25. Initially, we find no discernible prejudice to Plaintiffs regardless of the number of pro rata shares the trial court assigned for purposes of contribution among the defendants. As we have recognized in the preceding discussion, every defendant found hable is liable jointly and severally to any of the plaintiffs in whose actions it was named. See Baker II, 562 Pa. 290, 755 A.2d 664 (reaffirming that “the plaintiff may recover the entire damages award from only one of the joint tortfeasors”). Moreover, Plaintiffs acknowledge this proposition in their brief. Brief for Appellants at 18. Nonetheless, we shall address Plaintiffs’ allegations of error to promote judicial economy on remand. ¶ 21 In Greenhalgh, the jury found fourteen defendants hable and the court apportioned pro rata shares between twelve defendants after deducting two companies, one of which Greenhalgh had not sued, and one that had been dismissed prior to the completion of trial. Green-halgh argues that the court should have excluded another three companies, Hajoca Plumbing ’ Co., McCardle-Desco, Inc., and Keeler/Dorr Ohver, Inc., from allocation of pro rata shares. Greenhalgh argues that following the addition of these parties to the record, Plaintiffs determined not to pursue them and did not receive settlements from them. Nonetheless, the court allocated to them pro rata shares of the verdict. Upon review of the record, we note that Plaintiffs never released these defendants from the action notwithstanding any intentions they may have had. Consequently, these parties remained on the record when the verdict was rendered. Plaintiffs provide no authority to establish that the court’s allocation of verdict shares is error under these circumstances. We conclude accordingly that Plaintiffs have failed to demonstrate error in this regard. See Pa.R.A.P. 2119(a) (requiring that appellant provide pertinent authority to dem onstrate entitlement to relief sought); See Miller v. Miller, 744 A.2d 778, 788 (Pa.Super.1999) (establishing that appellant bears the burden of persuasion to demonstrate his entitlement to the relief he requests). ¶ 22 In Swan, the jury found seventeen defendants liable, including John Crane. The court apportioned the verdict between fourteen defendants, reflecting the dismissal of four defendants prior to trial and the addition of one full pro rata share for the Manville Trust. Swan asserts that the court should have reduced the number of shares by one more to account for a total of five defendants the court acknowledged on the record had been either dismissed or never properly sued. Brief for Appellant at 25. The court, in its Pa.R.A.P.1925(a) opinion, acknowledges this point. Trial Court Opinion at 13-14. Accordingly, we need not address the matter further subject to the trial court’s correction of the verdict slip as necessary upon remand. ¶ 23 We shall now proceed to the assertions raised by defendant John Crane, Inc. in its cross-appeal. John Crane states the following questions for our review: I. Whether the defendant is entitled to judgment notwithstanding the verdict where the Plaintiff failed to offer any admissible evidence that the defendant’s product was defective or that any alleged defect proximately caused his injuries[?] II. Whether the defendant is entitled to new trials where reversible error was committed during both phases of the trials, including highly prejudicial remarks to the jury concerning the plaintiffs’ alleged pain and suffering; an erroneous refusal to sever highly dissimilar cases and the delivery of a jury charge that was legally erroneous, and that effectively excused the plaintiffs from meeting their burden of proof[?] III. Whether the defendant is entitled to a remittitur of the Greenhalgh and Swan verdicts where those verdicts were excessive in light of the plaintiffs’ injuries!?] IV. Whether the verdicts should be molded to reflect a pro rata set-off based on a share of liability attributable to the Manville Trust!?] Brief for Appellee at 2. We find no necessity to address Cranes fourth question, as appropriate set-off for the share of liability attributable to the Manville Trust is thoroughly discussed in our disposition of Plaintiffs’ appeal. Accordingly, we shall confine our discussion to the issues raised in Crane’s questions I, II, and III. ¶ 24 Before proceeding, we note that although Crane designated only four questions in its statement of the questions involved, each question incorporates multiple issues and sub-issues, many of which would be more properly raised and discussed as separate questions. Had Crane presented its questions in this fashion, the indiscriminate nature of its assignments of error would be more readily apparent. Under such circumstances we are reminded of the well-chosen words of the Honorable Ruggiero Aldisert of the United States Court of Appeals for the Third Circuit: With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness. Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378, 1380 n. 1 (1995) (quoting Aldi-sert, The Appellate Bar: Professional Competence and Professional Responsibility — A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982)). ¶ 25 In its first question on appeal, Crane asserts that the trial court erred in refusing to grant judgment n.o.v., on the premise that Plaintiffs “failed to offer any admissible- evidence that the defendant’s product was defective or that any alleged defect proximately caused his injuries.” Brief for Cross-Appellant at 2. ¶ 26 Crane posits that the testimony adduced from Plaintiffs’ expert witnesses was not admissible, as it exceeded the fair scope of their respective reports. Brief for Cross-Appellant at 12-13. Crane argues also: 1) that the experts’ testimony did not have an adequate basis in fact, Brief for Cross-Appellant at 16; 2) that the substance of their testimony did not enjoy general acceptance in the scientific community so as to satisfy the standard for admissibility in Frye v. United States, Brief for Cross-Appellant at 20; and 3) in the Andaloro case, was based on facts not in evidence, Brief for Cross-Appellant at 23. ¶ 27 We conclude initially, that Crane has faded to preserve for appellate review its claim that the causation theories advanced by Plaintiffs’ experts were not generally accepted in the scientific community. Brief for Cross-Appellants at 20. “In order to preserve an issue for appellate review following a civil verdict, the issue must first be raised in a post-trial motion.” Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa.Super.1998). Upon review of the post-trial motion Crane filed following entry of the verdict after the Phase II trial, we find no assertion impugning general acceptance of the theories or methodology espoused by Plaintiffs’ experts.' Accordingly, we decline further consideration of this issue. See id.; Pa.R.A.P. 302(a) (Requisites for Reviewable Issue), 2101 (Conformance with Requirements). ¶ 28 Crane’s remaining claims of error in the admission of expert testimony are mer-itless. In its first such claim, Crane contends that the respective experts’ testimony exceeded the fair scope of their pretrial reports. Crane’s argument appears to be based on the witnesses’ testimony that every exposure to asbestos was a substantial contributing factor to Plaintiffs’ development of disease. Brief for Cross-Appellant at 14, 15, 16. Crane argues that this testimony exceeds the scope of the respective expert reports because the experts had not opined in writing what specific level or frequency of exposure would foster disease. We find no merit in this claim. ¶ 29 “[I]n determining whether an expert’s trial testimony falls within the fair scope of his pre-trial report, the trial court must determine whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” Tiburzio-Kelly v. Montgomery, 452 Pa.Super. 158, 681 A.2d 757, 765 (1996) (citations omitted). The “fair scope rule” is not, however, a trap for the unwary, requiring that every word a witness utters on the stand be traceable to his or her pre-trial report. [I]n deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pre-trial report and his trial testimony is of a nature which would prevent the adversary from making a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Feden v. Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa.Super.2000) (original emphasis) (quoting Chanthavong v. Tran, 452 Pa.Super. 378, 682 A.2d 334, 340 (1996)). ¶ 30 In this case, Plaintiffs’ experts opined in their reports that Plaintiffs suffered exposure to asbestos dust and that their exposure was a substantial contributing factor in the development of their respective pleural diseases. See Reproduced Record (R.R.) at 619a (Ruby); 626a (Andaloro); 629a (Swan); 3223a-3225a (Greenhalgh); 3230a-3232a (Burkett). Ruby’s expert, Stanley L. Altshuler, M.D., provided a detailed record of Ruby’s work history and expressed the following theory of causation: Mr. Ruby is a seventy-three year old gentlemen with asbestosis and asbestos-related pleural disease. Asbestos dust inhalation in the workplace has caused his abnormal x-ray findings. Asbestos dust inhalation has contributed to his shortness of breath and reduction in diffusion capacity. R.R. at 619a. Swan’s expert also provided detailed context for his opinion, recording the patient’s symptoms and exposure history followed by a conclusion on causation: It is my professional opinion that the asbestos exposure which Mr. Swan sustained during the course of his employment is a substantial contributing factor to his development of asbestos-related pleural disease and pulmonary asbestosis. The shortness of breath which Mr. Swan suffers is substantially caused by his exposure to asbestos. R.R. at 629a. Other reports stated similar conclusions on behalf of Andaloro, Green-halgh and Burkett. Although the reports did not impose any specific limit on the quantity or frequency of exposure necessary to develop disease, they made Plaintiffs’ theory of causation amply clear. Moreover, the experts’ trial testimony was not inconsistent with the reports. We conclude accordingly that the discrepancy between the experts’ pre-trial reports and their trial testimony is not “of a nature which would prevent the adversary from making a meaningful response.” Feden, 746 A.2d at 1162. Rather, given the reports’ full context, including Plaintiffs’ exposure histories and specific statement of causation, we find ample information upon which Crane could rebut Plaintiffs’ assertions of causation. See Tiburzio-Kelly, 681 A.2d at 765. We conclude accordingly that the experts’ testimony was not outside the “fair scope” of their respective reports and the trial court did not err in admitting it. ¶ 31 Crane also contends that the testimony of Plaintiffs’ respective experts was conjectural and therefore incompetent and inadmissible. Brief for Appellee at 16 (citing Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635, 637 (1976)). Crane argues that the court should not have allowed the three witnesses to testify on liability and causation because they were not familiar with the specific physical properties of John Crane asbestos. Brief for Appellant at 16. Consequently, they could not state the specific lengths of asbestos fibers contained in John Crane products, the levels of respira-ble asbestos released from John Crane products, or the concentration of fibers from John Crane products in the air Plaintiffs inhaled. Id. at 17-19, 357 A.2d 635. Because the experts could not quantify these specific values, Crane concludes that their opinions had no basis in fact. ¶ 32 We conclude that Crane’s argument has no basis in law. Crane’s assertion derives from the premise that quantification of the levels of asbestos exposure a plaintiff suffered is a prerequisite to a determination of causation and hence, liability. Crane provides no authority for such a premise, nor are we aware of any. In point of fact, Pennsylvania law provides that causation of asbestos-related injuries is shown upon proof that the plaintiff inhaled some fibers from the products of the defendant manufacturer. See Lilley v. Johns-Manville Corp., 408 Pa.Super. 88, 596 A.2d 203, 207 (1991); Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398, 405 (1989). “Our case law includes no requirement that a plaintiff in an asbestos case prove through [expert testimony] how many asbestos fibers are contained in the dust emissions from a particular asbestos containing product.” Junge v. Garlock, 427 Pa.Super. 592, 629 A.2d 1027, 1029 (1993). Similarly, the plaintiff need not demonstrate the specific lengths of fibers contained in a manufacturer’s product, the length of fibers he inhaled, or the overall concentration of fibers in the air. Cf. Junge, 629 A.2d at 1029. Because these elements are not legally necessary to a determination of causation, an expert’s inability to testify about them does not render his testimony incompetent on the issues of causation and liability. Accordingly, the trial court did not err in allowing the jury to consider the testimony of Plaintiffs’ three expert witnesses. ¶ 33 Also in support of its first question on appeal, Crane argues that the evidence adduced in the Andaloro case to establish product identity and exposure was legally insufficient to establish a basis for relief under our holding in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (1988). Brief for Appellee at 8-12. On this basis Crane' seeks entry of judgment n.o.v. “Entry of judgment n.o.v. on the basis of evidentiary insufficiency is appropriate only in a clear case, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper.” Coward v. Owens-Corning, 729 A.2d 614, 622 (Pa.Super.1999). “Thus, in considering the trial court’s order denying judgment n.o.v., we must determine merely whether competent evidence of record supports the elements of the underlying cause of action.” Id. In asbestos litigation, evidence is sufficient to establish product identity where the record shows that plaintiff inhaled asbestos fibers shed by that manufacturer’s specific product. See Lilley, 596 A.2d at 207. The evidence [of exposure] must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact with it was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it. See Samarin v. GAF Corp., [ ] 391 Pa.Super. 340, 571 A.2d 398, 405 (citing Eckenrod, [ ] 375 Pa.Super. 187, 544 A.2d [50,] 52 ([1988]). “A plaintiff must establish more than the presence of asbestos in the workplace. He must prove that he worked in the vicinity of the product’s use.” Eckenrod, [544 A.2d] at 52. However, he need not demonstrate the specific level or duration of his exposure. Junge v. Garlock, Inc., [ ] 427 Pa.Super. 592, 629 A.2d 1027, 1029 (1993)[.] Coward, 729 A.2d at 622-23 (internal citations modified for form). ¶ 34 Upon consideration of the evidence adduced to establish that Franklin Andaloro was exposed to products manufactured by John Crane, Inc., we find the evidence legally sufficient to establish both exposure and product identity. Prior to his death from mesothelioma, Andaloro attested that he had worked with asbestos products for a period of eight years at the Philadelphia Naval Ship Yard. R.R. at 468a. He recalled cutting asbestos packing for application to valve stems while he trained apprentices, and he remained in the area during clean-up when the other workers’ use of brooms and blowers caused the air “to get dusty somewhat.” R.R. at 468a-472a. He remembered specifically that the name “Crane packing” appeared on some of the packages of material he and the other workers used. R.R. at 502a. Although John Crane urges in its brief that such a designation can only denote another defendant in whose moniker the name “Crane” also appeared, its assertions bear more properly on the weight of the evidence and, accordingly, have no bearing on this issue of legal sufficiency. We conclude, consequently, that John Crane has failed to establish any basis for entitlement to judgment n.o.v. Its assertions to the contrary are of no merit. ¶ 35 In its second question on appeal, John Crane asserts that the trial court made prejudicial commentary on the evidence in the damages phase of the trial, erred in charging the jury that asbestos products “are inherently dangerous” and “require adequate warnings,” and erred in consolidating the cases for trial. This question argues three different issues. In support of its first issue, Crane asserts that the court prejudiced the jury when it stated during the closing charge that “these three men went through a very harrowing experience.” Brief for Appellee at 23. Crane argues that the court’s statement was sufficient basis for a mistrial and that the court’s refusal to grant a mistrial over counsel’s objection mandates award of a new trial. Brief for Cross-Appellant at 24. Crane provides no discussion, however, of the circumstances under which a mistrial is properly granted so as to demonstrate any basis for a finding of trial court error and award of a new trial. Consequently, we find this assertion waived. See Pa.R.A.P. 2119(a) (requiring citation to pertinent authority); Estate of Lakatosh, 656 A.2d at 1381 (concluding that appellant had waived issue raised on appeal as corresponding argument in brief included only general statements without appropriate citation to authority). ¶ 36 Crane’s second issue concerns the court’s statement to the jury that asbestos products “are inherently dangerous” and “require adequate warnings.” Crane contends that “[b]y instructing the jury that ‘asbestos products are inherently dangerous products,’ and that ‘asbestos products require adequate warnings,’ the court essentially eliminated Plaintiffs’ burden of proof, excusing them from the duty to show that John Crane’s products were unreasonably dangerous without warnings.” Brief for Appellee at 29. ¶ 37 Crane’s argument misconstrues the content and purpose of the court’s instruction. The court’s statement that “[a]sbestos containing products are inherently dangerous products” signals the court’s recognition of the legal question to be answered by the trial judge before a strict liability case may proceed to the jury. See Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1026 (1978) (determining that issue of whether a product is “unreasonably dangerous” is question of social policy properly determined by trial judge as a matter of law). Judge Halbert explained his position correctly and succinctly as follows: [A]sbestos proceedings are strict liability actions. In this light, it is proper for this court to make an initial determination that asbestos is inherently dangerous within the context of explaining strict liability. To hold otherwise would undermine the precedential basis for trying asbestos actions ... statewide. Trial Court Opinion at 16. ¶ 38 In this instance, the trial court made the statement in question while framing the issue for the jury’s consideration of whether John Crane’s product, which the court had determined to be dangerous as a matter of law, was defective due to lack of adequate warnings. R.R. at 3136a-3137a. We conclude that the court’s discussion was proper and consistent with our Supreme Court’s direction. See Azzarello, 391 A.2d at 1026. Crane’s argument to the contrary is not supported by Pennsylvania law and is therefore without merit. ¶ 39 Also in support of its second question, Crane asserts that the trial court erred in refusing to sever the five cases at issue in this appeal prior to the Phase II trial. Brief for Appellee at 27. Crane argues that the trial of the asbestosis claims of Burkett, Greenhalgh, Ruby, and Swan with the mesothelioma claim of Franklin Andaloro prejudiced the defense by the introduction of extreme images of Mr. Andaloro’s distress. Id. (“It is extremely prejudicial to consolidate cases featuring different asbestos-related diseases, especially where some of the injured parties are alive and some have died of their asbestos-related diseases.”). ¶ 40 Initially, we note that Crane provides no authority in support of its conclusion that prejudice necessarily inured to the defense. Secondly, Crane fails to demonstrate that any prejudice actually accrued. Indeed, the bifurcated manner in which this case was tried renders prejudice far less likely than it might otherwise have been. As the trial court explained: [B]y the time the Phase II proceeding was heard, separate juries had already determined that each of the Plaintiffs sustained a compensable asbestos-related injury and had already determined the amount of damages. Since Andaloro was grouped separately from the other cases during the Phase I proceeding, the fact that Andaloro had mesothelioma would in no way impact upon the prior determination that the other claimants-had asbestos-related maladies. Given these circumstances it can hardly be asserted that the jury, as a matter of sympathy, awarded the remaining parties greater damages due to the fatal disease suffered by Andaloro. The Phase II proceeding was limited to determining which defendants were responsible. Trial Court Opinion at 15. We find the trial court’s reasoning on this issue unassailable. Crane cannot show prejudice as a result of the trial court’s decision not to sever these cases prior to the Phase II proceeding and consequently, has failed to demonstrate reversible error. See McClintock v. Works, 716 A.2d 1262, 1264 (Pa.Super.1998) (reaffirming that a new trial may be granted only upon showing of trial court error that controlled the outcome of the case). ¶ 41 Finally, in its third question on appeal, Crane asserts that the trial court erred in refusing to grant remittitur on the verdict in the Greenhalgh and Swan cases. Brief for Cross-Appellant at 30-35. Again we conclude that this contention is of no merit and has been adequately addressed in the opinion of the trial court. The court stated the following rationale: Under prevailing case law authority, the Court may only grant a remittitur when an award is so excessive that it shocks our sense of justice. See Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084, 1098 (1990). To prevail on a petition for remittitur, it is incumbent upon the aggrieved party to establish that the verdict resulted from partiality, prejudice, mistake or corruption. See id. In asbestos actions such as the case at bar, ... the Superior Court, in Giordano v. AC & S, Inc., 446 Pa.Super. 232, 666 A.2d 710, 713 (1995), adopted the position that excessiveness should be considered from the perspective of the size of the judgment attributable to the individual defendant rather than the amount of the award at large. Regardless of whether the entire verdict or proportion attributable to each unsettled defendant is considered, the criteria for a remittitur is not satisfied. In [the Andaloro case], the injuries proved fatal and Andaloro suffered greatly before succumbing to mesothelioma. Trial Court Opinion at 20. Although the court tailored its discussion to the Andalo-ro case, we conclude that the same treatment is appropriate in the Greenhalgh and Swan cases. ¶ 42 James Greenhalgh suffers from pleural thickening and pulmonary asbestosis with lung scarring that has continued to deteriorate with the passage of time. Even the mildest exertion renders Mr. Greenhalgh short of breath, curtailing his activities with family and even the simple pursuit of gardening. Given the continued deterioration of Greenhalgh’s condition and the manner in which it limits his enjoyment of life, the trial court did not err in refusing to grant remittitur of Greenhalgh’s $800,000 award. ¶ 43 Similarly, Ralph Swan suffers from asbestosis and severe restrictive lung disease. Due to shortness of breath, he encounters difficulty even in tossing a ball with his grandchildren, and must stop to rest after walking only about one block. He lives in fear that his condition will deteriorate and result in his death. In view of the difficulty Mr. Swan sustains in daily living, we find no error in the trial court’s refusal to grant remittitur of his $750,000 award. Accordingly, we find no merit in John Crane’s request for relief. ¶ 44 For the foregoing reasons, we VACATE the judgment of the trial court and REMAND these cases for apportionment of damages pro tanto in accordance with this Opinion. We AFFIRM the trial court’s disposition of all other issues raised in these appeals.

JOHNSON, J. ¶ 1 Leslie and Clarence Brisbine appeal the trial court’s grant of Outside In School of Experiential Education, Inc.’s (OISEE) Motion for Summary Judgment. The Brisbines contend that the trial court erred in concluding that OISEE did not have a duty to the Brisbines or their son, Shawn, who was killed while a passenger in a car driven by Robert Nicholas Baker, an OISEE student. Furthermore, the Brisbines contend that the trial court erred in concluding that OISEE’s conduct was not a substantial factor in the death of Shawn Brisbine. For the foregoing reasons, we affirm the trial court’s grant of OISEE’s summary judgment motion. ¶ 2 The Brisbines’ son, Shawn, thirteen, died when a car driven by Baker collided with a tree at approximately 4:00 a.m. on Sunday, September 3, 1995. At the time of the accident, Baker should have been attending OISEE’s Phase II weekend program as ordered by the Westmoreland County Juvenile Court. ¶ 3 OISEE contracted with Westmore-land County to provide court ordered educational and rehabilitative services to juveniles in part to avoid out of home placement for juvenile delinquents. The weekend program required parents to deliver the children to a drop-off location at the Greensburg Armory at 6:00 p.m. on Friday. The children would then be returned to their parents’ care the following Sunday at noon. ¶4 OISEE was aware that Baker had an extensive history with the Westmore-land County Juvenile System and with law enforcement authorities in Clearfield County. Baker had been adjudicated delinquent and dependent a number of times as recently as August 15, 1995, a few weeks before the accident. Baker had a history of taking his mother’s car without either her permission or a license. He had set fire to his mother’s back porch, thrown pennies at another’s car, run away from two shelters in which he had been placed by the court, and previously failed to complete an OISEE weekend program. Additionally, his mother admittedly enabled some of his behaviors, failed to report his misconduct and could not control him. As of August 1995, Baker was placed at the Y.M.C.A. Youth Shelter awaiting an opening in a residential drug and alcohol program.' While at the Y.M.C.A. shelter, Baker successfully attended the OISEE program for the two weekends prior to the weekend of the accident. After a hearing on August 15, 1995, the Westmoreland County Juvenile Court Master recommended that Baker be returned to his mother’s custody on August 27th. Furthermore, the Master recommended that Baker attend OISEE’s weekend program. The Master’s, recommendations were approved by order of the court. ¶ 5 Baker should have been attending the OISEE program from, Friday afternoon at 6:00 p.m. until noon the following Sunday. Baker’s mother had made arrangements for her brother to transport Baker to the OISEE program while she attended a concert. On Saturday morning, Baker’s mother discovered that Baker had not gone to the program, but she did not report his absence. Instead she sent Baker to his grandmother’s where he stole his mother’s car. Later that evening, Baker’s mother took her keys away from her son. Unknown to his mother, Baker had made a second set of keys to the car. In the early hours of Sunday morning, Baker used the duplicate keys to drive himself and his neighbor, Shawn Brisbine. Both teenagers were killed in the subsequent accident. ¶ 6 The Brisbines filed a wrongful death and survivor benefits action against Baker’s mother and later against OISEE. The trial court denied OISEE’s first Motion for Summary Judgment in June' 2000. In February 2001, the court allowed OI-SEE to re-brief and reargue its Motion for Summary Judgment and then granted the motion based on a lack of a duty due to Shawn by OISEE and because OISEE was not a substantial factor in Shawn’s death. The Brisbines now appeal the trial court’s grant of summary judgment. ¶ 7 The Brisbines present the following questions for our review: I. Whether [OISEE] had a duty of care to [the Brisbines’ decedent] under the circumstances of this case? II. If a duty existed from [OISEE] to the [Brisbines’ decedent], would any negligent conduct of OISEE be a substantial factor in bringing about harm to the [the Brisbines’ decedent] as a matter of law? Brief for Appellant at 4. ¶ 8 When reviewing grants of summary judgment, we must “examine the record in a fight most favorable to the nonmoving party, accepting as true all well-pleaded facts and giving that party benefit of all reasonable inferences which can be drawn from those facts.” Winwood v. Bregman, 788 A.2d 988, 984 (Pa.Super.2001). We will reverse a grant of summary judgment only if the trial court committed an error of law or abused its discretion. See id. In their first question, the Brisbines assert that the trial court erred in failing to find a duty owed by OISEE to their son. Brief for Appellant at 25. The Brisbines assert that the trial court erred in not considering, and therefore in not finding, a “special relationship” between OISEE and Baker. Brief for Appellant at 25. The Brisbines note that the agreement between OISEE and Westmoreland County states that OI-SEE “shall retain responsibility for physical custody of the child during the period of placement.” Brief for Appellant at 28. The Brisbines contend that, as a result of the asserted “special relationship,” OISEE had a duty under the Restatement (Second) of Torts Sections 315(a) and 819 to ensure that Baker attended the program and to prevent him from harming others during the placement period. Brief for Appellant at 25-31. ¶ 9 The Brisbines analogize OISEE’s asserted duties in conjunction with the Juvenile Act to the duty the Pennsylvania Supreme Court has imposed on mental health institutions to prevent patients from harming third parties. Brief for Appellant at 29-30. The Brisbines assert that OISEE should have been aware of an increased risk of problems considering Baker’s history of arson, car theft and joyriding. Brief for Appellant at 33-34. ¶ 10 The trial court concluded that the contract between OISEE and Westmore-land County did not create a duty to the Brisbine family as beneficiaries of the contract, and the Brisbines do not contest the court’s conclusion. Trial Court Opinion, 7/3/01, at 2-4; Brief for Appellant at 21. Although the trial court did not specifically address the Brisbines’ claims of duty under Sections 315 and 319, the trial court did conclude that OISEE did not have a duty under the common law to the Bris-bines. Trial Court Opinion, 7/3/01, at 7-9. We agree. ¶ 11 To establish a common law cause of action in negligence, “the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff and the plaintiff suffered an actual loss or damage.” Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa.Super.2000). Generally, there is no duty to control the acts of a third party unless the “defendant stands in some special relationship with either the person whose conduct needs to be controlled or in a relationship with the intended victim of the conduct, which gives the intended victim a right to protection.” Id. (citing Emerich v. Philadelphia Ctr. for Human Dev., Inc., 554 Pa. 209, 720 A.2d 1032 (1998)). See also RESTATEMENT (SECOND) OF TORTS § 315. A special relationship is limited to the relationships described in Sections 316-319 of the Restatement (Second) of Torts. See Brezenski, 755 A.2d at 40-41. The enumerated relationships specified in the Restatement are a parent’s duty to control a child (Section 316); a master’s duty to control a servant (Section 317); a possessor of land’s duty to control a licensee (Section 318); and the duty of those in charge of individuals with dangerous propensities to control those individuals (Section 319). See RESTATEMENT (SECOND) OF TORTS §§ 316-319. Section 319 is the only section arguably applicable to the present case: SECTION 319. DUTY OF THOSE IN CHARGE OF PERSON HAVING DANGEROUS PROPENSITIES One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. RESTATEMENT (SECOND) OF TORTS § 319. The comment to Section 319 states two situations to which the section applies. The first situation involves an actor who “has charge of one or more of a class of persons to whom the tendency to act injuriously is normal.” RESTATEMENT (SECOND) OF TORTS § 319, cmt. a. The second situation occurs when an actor has charge of a person who has a “peculiar tendency” to act injuriously “of which the actor from personal experience or otherwise knows or should know.” Id. ¶ 12 The Brisbines rely on the Pennsylvania Supreme Court’s decision in Goryeb to support their argument under Section 319. Brief for Appellants at 31-30 (citing Goryeb v. Com. Dept. of Public Welfare, 525 Pa. 70, 575 A.2d 545 (1990)). In Goryeb, the Supreme Court held that a mental health institution was hable to a third party who was killed by a former patient improperly released from treatment. See Goryeb, 525 Pa. 70, 575 A.2d 545. The court’s decision to impose liability was supported by sections of the Mental Health Procedures Act (“MHPA”), 50 P.S. §§ 7101-7508, specifically addressing when individuals employed by mental health facilities may be liable for the consequences of treatment or discharge decisions. See id. at 548-549. Furthermore, the court in Goryeb imposed a duty on the institution to those the patient shot based on the language of the liability section of the MHPA. Id. at 549. The relevant section stated that a person committing willful misconduct or gross negligence in treating or discharging decisions shall be “hable for such decision or for any of its con sequences.” See id. at 549 quoting 50 P.S. § 7114(a) (emphasis in original). The Brisbines suggest that the Juvenile Act invoked by the agreement between OISEE and Westmoreland County is similar to the MHPA. Brief for Appellant at 30. However, the Brisbines fail to direct our attention to any similar section of the Juvenile Act addressing liability of service providers. ¶ 13 Furthermore, we can easily distinguish the facts of Goryeb and the instant case. In Goryeb, a mental health facility determined that a patient posed a “clear and present danger to himself and others” and was “severely mentally disabled and in need of treatment.” See id. at 546. The facility then improperly released the patient. See id. at 546. One week later, the patient shot three persons in addition to himself, one fatahy. Id. at 546-547. In this case, OISEE did not have physical custody of Baker during the weekend. Additionally, the fact that the Westmore-land County Court considered Baker able to live at home with his mother during the week does not suggest that Baker was a highly dangerous person. Therefore, we conclude that OISEE did not have a “special relationship” with Baker as defined by Sections 315 and 319 of the Restatement (Second) of Torts. ¶ 14 Alternatively, if there was no special relationship between OISEE and Baker, the Brisbines claim that OISEE had a duty to protect the public from potential harm resulting from OISEE’s actions. Brief for Appellant at 31-38. The Brisbines claim that the accident was a reasonably foreseeable consequence of OI-SEE’s failure to report Baker’s absence from the program. Brief for Appellant at 35. The Brisbines claim that OISEE knew that Baker’s mother had difficulty controlling Baker and that Baker had a history of taking his mother’s car for joyrides. Brief for Appellant at 34-35. Accordingly, the Brisbines conclude that it was reasonably foreseeable that if he took the car he might get into an accident causing injury. Brief for Appellant at 32, 35. The Brisbines argue that a jury could conclude that a reasonable person in OISEE’s situation would have contacted authorities, which they claim was required by the Juvenile Act and the contract with West-moreland County. Brief for Appellant at 23, 36. ¶ 15 The Brisbines argue that Goryeb and this Court’s decision in Evanuik v. Univ. of Pittsburgh W. Psychiatric Inst. and Clinic (“WPIC”), 234 Pa.Super. 287, 338 A.2d 636 (1975) support the imposition of a duty on OISEE. Brief for Appellant at 37. As previously discussed, Goryeb is easily distinguished from the present case. Additionally, we note that this Court in, Evanuik did not discuss WPIC’s duty and in fact a jury found WPIC not liable for injuries resulting from an escaped patient. See Evanuik, 234 Pa.Super. 287, 338 A.2d 636. Clearly, Evanuik does not provide authority for imposing a duty in this case. ¶ 16 The Brisbines further state that the trial court erred in relying on the Pennsylvania Supreme Court’s decision in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000). Brief for Appellant at 36-37. The Brisbines conclude that Al-thaus is not relevant outside the context of sexual abuse cases. Brief for Appellant at 36-37. We strongly disagree. ¶ 17 Whether a duty exists is a question of law for the trial court to decide. See Herczeg v. Hampton Township Mm. Auth., 766 A.2d 866, 871 (Pa.Super.2001). In Althaus, the Supreme Court specified the factors a trial court should consider when determining whether to impose a duty in any negligence action as follows: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. ¶ 18 The trial court concluded after considering the Althaus factors, that it was “inescapable” that OISEE did not have a duty of care owed to the Brisbines. Trial Court Opinion, 7/3/01, at 8. The court based its conclusion on the foreseeability factor. The court found that the accident was not foreseeable because “[t]he set of circumstances that came about to cause the accident could not have been reasonably foreseen by any entity or individual other than [Baker] or Shawn Brisbine.” Trial Court Opinion, 7/3/01, at 8. ¶ 19 We agree with the trial court’s conclusion. Additionally, we note that other Althaus factors also strongly point in favor of not imposing a duty on OISEE. First, OISEE had no relationship with the Bris-bines. Secondly, OISEE’s weekend program has substantial social utility, as the courts and the legislature clearly favor the creation of such programs to rehabilitate delinquents back into the mainstream of society. Thirdly, as the trial court noted, this accident was hardly foreseeable as the court not two weeks prior to the accident considered Baker to pose a low enough risk to society to return him from the Y.M.C.A. shelter to his mother’s custody for all but two days a week. Therefore, we find no error in the trial court’s conclusion. Even if the Brisbines could show that the agreement with Westmoreland County required OISEE to call authorities and that such a call could have resulted in Baker not having access to the car on the fateful night, we would still conclude that OISEE did not owe a duty to Shawn as a result of their failure to call authorities. ¶ 20 As we conclude that OISEE owed no duty to Shawn Brisbine or his parents, we need not address the Brisbines second claim of error concerning whether OI-SEE’s actions were a substantial factor in Shawn’s death. Therefore, for all the foregoing reasons, we affirm the trial court’s grant of summary judgment to OISEE. ¶ 21 Order AFFIRMED.

OPINION BY Senior Judge FLAHERTY. Common Sense Adoption Services (CSAS) petitions for review from five decisions of the Department of Public Welfare’s (DPW) contracting officer, that were issued in response to five bid protests filed by CSAS with DPW. All protests concern the award of the Statewide Adoption Network Contract (SWAN) to Diakon Lutheran Social Ministries (Diakon). We affirm. On December 11, 1999, DPW issued a Request for Proposal No. 14-99(RFP) inviting proposals for the administration of the SWAN program for the Commonwealth for the period from July 2000 to June 2005. The SWAN program supports adoption services for special needs children who are in the custody of county children and youth agencies. The Commonwealth Procurement Code (Code), 62 Pa.C.S. §§ 101-4509 is the applicable law. The Field Procurement Handbook (Handbook) written by the Department of General Services (DGS) is also applicable. The Code specifies that when an RFP is used, the relative importance of the evaluation factors shall be fixed prior to the opening of the proposals. 62 Pa. C.S. § 513(e). The RFP’in this case set forth mandatory requirements and designated Sandra Gallagher, an employee of DPW, and director of SWAN, as the project officer. On January 14, 2000 DPW held a pre-proposal conference in reference to the RFP and thereafter mailed prospective bidders written answers to questions posed at the conference. In addition, in response to a question posed at the pre-proposal conference, DPW also forwarded to prospective bidders an audit report (1999 audit) performed by the Bureau of Financial Affairs of DPW of the then current contractor of SWAN, CSAS. On February 16, 2000, Diakon, CSAS and two other organizations submitted proposals in response to the RFP. The RFP required that each proposal be separated into three sealed parts. The three parts consisted of the technical, cost and SERB portions. The Handbook provides that when proposals are opened, the technical proposals are distributed to the evaluation committee, the cost portion remains sealed until the evaluation committee meets and the SERB portion is forwarded to the DGS’s Bureau of Contract Administration and Business Development. The evaluation committee in this case consisted of 7 voting and 3 non-voting members. The committee met on March 17, 2000 and discussed and revised tentative scores they had prepared for the technical proposals. After the committee arrived at its final scores, the cost proposals were unsealed and a representative from the Governor’s Budget Office converted the proposals into points. In addition, the technical scores were also converted into points so that the top-ranked proposal (Diakon) received 7000 points and the other scores were proportionately increased. The committee then accepted the SERB scores without modification or adjustment. Diakon obtained the highest score and the committee recommended to the Secretary of Public Welfare (Secretary Houston) that Diakon’s proposal be accepted. Secretary Houston then reviewed the proposals and ultimately approved Diakon on April 19, 2000 as the contractor for SWAN. On May 3, 2000 DPW notified CSAS that its proposal was not selected and that Diakon was chosen. DPW executed a contract with Diakon and on July 1, 2000, Diakon began its performance of the contract. Also in July, CSAS met with DPW for an exit conference. ■ A debriefing conference was also held on July 24, 2000 which was attended by Gallagher and an attorney for DPW. At this time, Gallagher read aloud the evaluation committee’s comments regarding CSAS’s proposal. On July 24, 2000 CSAS submitted the first of five bid protests. Such protests must be filed within 7 days after the protestant knows or should have known of the facts giving rise to the protest, 62 Pa.C.S. § 1711(a). Because the protests were not resolved by mutual agreement, the contracting officer, after conducting an informal conference, issued five written decisions in accordance with 62 Pa.C.S. § 1711(c). The relief sought by CSAS in each bid protest was the termination of the SWAN contract with Diakon because of irregularities. The remedies available under 62 Pa.C.S. § 1743(1) include ratification, modification or termination. The contracting officer refused to terminate the contract. This appeal followed. In this case, Secretary Houston issued a written decision selecting Diakon for the SWAN contract. Because Secretary Houston issued a written determination selecting Diakon in accordance with the Section 613(g) of the Code, our review is governed by Section 561 of the Code. Section 561 provides that determinations required by the following sections, which includes Section 513(g) relating to competitive sealed proposals, “are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law....” In its first issue CSAS argues that the proposals were improperly scored. CSAS maintains that the Code and Handbook require that the importance of evaluation factors in an RFP are to be fixed prior to the opening of proposals. 62 Pa.C.S. § 513(e) and Handbook, Part I, Chapter 6, B.2.d.2.c. Although the RFP required bidders to submit technical, cost and SERB sections, the RFP did not include any information as to the importance or weight to be given to each factor. Although internal memorandum of DPW evidences that 70% was attributable to technical, 20% to cost and 10% to SERB, no such mention was made in the RFP. Moreover, although DPW adjusted the technical and cost scores, it failed to adjust the SERB to a 1000 point scale. Had it done so, the Central Susquehanna Intermediate Unit (CSIU) proposal would have been awarded the contract. Initially, DPW responds that the importance of each evaluation factor was fixed before the opening of the proposals as is evidenced by internal memorandum. CSAS’s chief argument is that the RFP did not detail the weight each factor would be given. We observe however, that the Code does not require the RFP to set forth the formula which will be applied in ranking the proposals. Rather, the Section 513(e) of the Code states that “[t]he relative importance of the evaluation factors shall be fixed prior to opening the proposals.” (Emphasis added.) Here, DPW did fix the formula prior to the opening of the bids, as such DPW did not violate the mandate of the Code. As to the computation of the SERB score, DPW argues that CSAS failed to raise this issue before the administrative agency or in its administrative appeal to this court. We agree. A review of the protests filed with the contracting officer reveals that CSAS did not raise the failure to convert the SERB score as an issue, nor is the issue included in CSAS’s administrative appeal to this court. Because CSAS failed to raise the issue in its protest, the issue is waived. S.T. v. Department of Public Welfare, 681 A.2d 853 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997). Moreover, the issue is not listed in CSAS’s petition for review and issues not raised in the petition for review are not properly before this court and. we will not address them. McGrath v. State Board of Dentistry, 159 Pa.Cmwlth. 159, 632 A.2d 1027 (1993). The second issue presented is whether members of the evaluation committee had conflicts of interest. Diakon’s proposal contained the name of Sandra Gallagher, the SWAN program director and a non-voting member of the committee as a reference. The Diakon proposal also listed Eileen West, a voting member of the committee as a reference. CSAS argues that 62 Pa.C.S. § 2301 requires that “public employees discharge their duties impartially.” Here, Gallagher and West, at a minimum should have disclosed their association with Diakon. In addition, CSAS alleges that Gallagher held influence over a voting member of the committee, Robin Linn, who was a subordinate of Gallagher’s. DPW responds that neither Sandra Gallagher nor Eileen West authorized or had any knowledge that Diakon listed them as references. In this case, the RFP required bidders to list the 'name, address and phone number of customers to describe prior experience “that demonstrates [that the offeror] can operate a complex program ... and can successfully manage funds of this magnitude.” (R.R. 19a.) The RFP further required the offeror to provide “the name, address and telephone number of the responsible official of the customer, company, or agency who may be contacted” to confirm the prior experience. (R.R. at 19a-20a.) We agree with DPW that because Diakon had done work for DPW in the past, Diakon properly identified Gallagher and West as individuals who could provide verification of prior work experience. Merely because Diakon identified Gallagher and West, as well as all other contact individuals using the term “client reference”, it does not follow that Gallagher and West were representing Diakon. Because the RFP required offer-ors to list prior work experience and individuals who could be contacted to verify such, Diakon properly complied with this requirement by listing among others, Gallagher and West as individuals who could confirm prior work experience. In addition, CSAS’s allegation that Gallagher influenced Linn, a voting member of the committee, to favor Diakon is not supported by the record. Specifically, the fact that Linn did not favor Diakon is evidenced by the fact that in voting on the proposals Linn gave the highest rating not to Diakon but to Central Susquehanna. As such, there is no evidence that Gallagher somehow influenced Linn to treat Diakon favorably. Next CSAS maintains that DPW permitted the evaluation committee to consider factors not specified in the RFP. The RFP establishes the common standard that ensures fair and just competition between the bidders. The Handbook sets forth those conditions that should be included in every RFP. The Handbook explains that a fair competition necessitates an understanding on the part of all competitors of the basis upon which the award will be made. This is also essential to assure the proposals will be as responsive as possible so the agency can obtain the best possible proposal. No other factors or criteria shall be used in the evaluation. Handbook, Part I, Chapter 6. Here CSAS maintains that the evaluation committee considered two factors not enumerated in the RFP. First, they considered CSAS’s 1999 audit and in addition Sandra Gallagher improperly addressed the evaluation committee. Specifically, she gave her opinion as to issues and concerns DPW had with CSAS. As to the 1999 audit report, the contracting officer determined and DPW argues that all issues relating to the 1999 audit were untimely raised because the 1999 audit report was distributed to all offerors, including CSAS on January 21, 2000, as part of the written answers to questions received during the pre-proposal conference. In accordance with Part I, Chapter 6.B.5.d of the Handbook “[t]hese answers constitute a formal amendment to the RFP.” Because CSAS received answers to the pre-proposal questions, which contained the 1999 audit, CSAS was on notice that the 1999 audit became a formal amendment to the RFP. As such, in accordance with 62 Pa.C.S. § 1711(a) CSAS had seven days from the time it received the answer to file a protest because Section 1711 provides that “[a]ll protests under this subsection must be made within seven days after the protestant knows of should have known of the facts giving rise to the protest.” Although CSAS maintains that it did not know that the committee actually received a copy of the 1999 audit report until July 24, 2000, as discussed by the contracting officer, in accordance with the Handbook all answers provided in response to pre-proposal questions including the 1999 audit, became a formal amendment to the RFP. As such, because CSAS was on notice that the 1999 audit constituted a formal amendment to the RFP and because CSAS failed to file a protest within seven days of receiving same, the issue was untimely raised. The next issue presented is whether DPW should have disqualified 2 of the 4 bid proposals because they did not meet the minimum bidding requirements. CSAS argues that an award in the competitive bidding context must be overturned if mandatory requirements in the bid instructions are not followed. Conduit & Foundation v. City of Philadelphia, 41 Pa.Cmwlth. 641, 401 A.2d 376 (1979). Here, the RFP specifically informed bidders not to include “cost data” in their proposals. Specifically, Part I-2B of the RFP stated “AH cost data for the proposal shall be submitted in a separate sealed envelope 'within the sealed proposal and kept separate from the technical proposal. Failure to meet.this requirement will result in automatic disqualification of the proposal.” CSAS argues that Diakon’s proposal should have been disqualified because in the technical section of its proposal Diakon included a letter from Mellon Bank stating that “Mellon Bank, N.A. is pleased to make available $1,000,000 discretionary line of credit to Tressler Lutheran Services.” CSAS maintains that this constituted cost information that should not have appeared in the technical proposal. The contracting officer found and we agree that the Mellon Bank letter simply indicated that the bank was giving a line of credit, it did not mention the amount of the bid. As per the requirements of the RFP, Diakon submitted its cost proposal in a separate sealed envelope. This situation is distinguishable from one on which CSAS relies. The line of credit in this case did not disclose the cost that would be charged by Diakon and therefore did not violate the bidding requirements. CSAS also maintains that the CSIU proposal should have been disqualified because it failed to provide a line of credit as required by the RFP. We again agree with the contracting officer that CSAS failed to timely raise this issue. Specifically, CSIU’s proposal was made available to CSAS on September 6, 2000. As CSAS failed to file a protest with respect to this issue until October 26, 2000, which is beyond the seven day requirement set forth in 62 Pa.C.S. § 1711(a), the issue is waived. Next we will address whether DPW improperly refused to disclose competing of-ferors’ proposals following the execution of the SWAN contract. Although Part I, Chapter 60, D.l of the Handbook provides that once a contract has been executed, all bids are subject to disclosure and are thus public records, DPW, for two months, refused to disclose the contents of the bids to CSAS. CSAS argues that such a clear violation permits this court to terminate the SWAN contract pursuant to 62 Pa.C.S. § 1743(1). Although we agree with CSAS that DPW violated the Handbook when it initially .refused to disclose the contents of the other offerors’ proposals, we also agree with the contracting officer that the issue is now moot as DPW has made the proposals available and in addition, CSAS is not aggrieved by DPW’s post award response to its request for access to competitors’ proposals. Specifically, in order to be aggrieved for purposes of the Procurement Code, the acts or omission of which that person complains must be connected with the “solicitation or award of a contract.” 62 Pa.C.S. § 1711(a). The process of soliciting and awarding the SWAN contract was completed June 2000, when Diakon executed the contract. This issue concerns events that occurred in July of 2000, after the procurement process was completed. As such, CSAS is not aggrieved. CSAS next alleges that it was error for the evaluation committee not to participate in the debriefing conference. CSAS maintains that it requested the identities of the evaluation committee members from DPW on July 17, 2000 and requested that DPW have the evaluation committee members in attendance at the July 24, 2000 debriefing as required by Part I, Chapter 6, B.lO.a of the Handbook. The Handbook provides that “[i]f requested by nonselected offerors, the issuing office will arrange a debriefing conference(s), as required. The Evaluation Committee will participate in the debriefing.” Handbook, Part I, Chapter 6.B.10.a. DPW again responds that in order to be aggrieved for purposes of the Procurement Code, the acts or omissions of which that person complains must be concerned with the “solicitation or award of a contract.” 62 Pa.C.S. § 1711(a). We agree. Here, DPW executed its contract with Diakon in June 2000, and the debriefing meeting referenced by CSAS occurred in July 2000. The manner in which the debriefing conference was conducted has nothing to do with the solicitation or award of the contract and thus falls outside the scope of § 1711(a). Therefore, the events relative to the debriefing conference do not cause CSAS to be aggrieved. Moreover, as DPW has since provided the names of the committee members, that issue is moot. In the alternative, we agree with the contracting officer that the Handbook’s participation requirement had been satisfied as a result of the evaluation committee’s participation in preparing the written debriefing. The Handbook distinguishes between the explanation of the strength and weaknesses of the offeror’s proposal, known as debriefing, and the meeting at which that explanation is presented known as the debriefing conference. Thus “[i]t is strongly recommended the debriefing be written beforehand and read to the offeror during the debriefing conference.” Handbook, Part I, Chapter 6, B.lO.c. Here, the committee participated in the preparation of the written debriefing, i.e. by providing their comments on the proposals to the project officer, who then records those comments in her notes. The project officer, Gallagher, then attended a meeting with CSAS and read the written debriefing to CSAS’s representatives. The final issue raised is whether the Diakon contract should be terminated. CSAS maintains that the contract with Diakon should be terminated because it is not in the best interest of the Commonwealth to affirm the contract in light of the fact that DPW violated the Procurement Code. Because DPW failed to follow the Procurement Code and Handbook, there is no way to actually determine whether it received the best possible proposal. The Code specifies that, after the execution of a contract, if it is determined that the solicitation or award was in violation of the law, the contract may be affirmed if it is in the best interest of the Commonwealth, the contract may be modified or the contract may be terminated. 62 Pa.C.S. § 1743(1). Although no violation of the law occurred in the solicitation or award of the contract, there is no excuse for the Department’s carelessness in adhering to its own Handbook provisions on prompt disclosure of proposals, participation in debriefing by Evaluation Committee members, etc., which may have avoided this litigation. However, there is no proof in the record that the Department regularly engages in such deviations and, more important, as the contracting officer determined, even if CSAS was in any way aggrieved, ratification of the contract is in the best interest of the Commonwealth. Specifically, Diakon was selected for the SWAN contract based on the merits of its proposal, and continued performance by Diakon advances the interests of the Commonwealth. In accordance with the above, we affirm the determinations of the contracting officer. ORDER Now, May 28, 2002, the written determinations of the contracting officer dated November 17, 2000, November 22, 2000, January 4, 2001, January 9, 2001 and February 26, 2001 are affirmed. . CSAS administered the SWAN program from July 1995 to June 2000. . SERB’S are small businesses "whose economic growth and development have been restricted based on social and economic bias.” Handbook, Part I, Chapter 2. . CSAS submitted the remaining bid protests on July 31, 2000, September 12, 2000, September 13, 2000 and October 26, 2000. . This section is applicable, where as here, the person awarded the contract has not acted fraudulently or in bad faith. .Later in CSAS’s argument, it alleges that CSIU should have been disqualified. If CSIU were disqualified, Diakon would then have the most total points if the SERB score were adjusted to a 1000 point scale. However, CSAS also argues that Diakon should have been disqualified and that CSAS would then have the most total points. . Although CSAS maintains that it raised this issue in the cover letter which accompanied Bid Protest # 4, no mention is made in that letter that DPW failed to properly convert the SERB scores. . Nonetheless we also observe that the RFP required each offeror to include a description of relevant past experience. Names of individuals, agencies and phone numbers were requested. As such offerors were on notice that input from clients would be contained and considered. As such CSAS’s prior experience with DPW, via the -1999 audit was a proper consideration for the evaluation committee. . CSAS also contends that DPW, at the pre-proposal conference, -orally amended the RFP to provide that no dollar values should be given in the credit line section. DPW responds that these purported facts are not in the record, CSAS did not preserve this issue in its petition for review and the facts that are in the record contradict CSAS's assertion of the oral modification.

LORD, Senior Judge. Kathleen Shepherd petitions this Court for review of a Workmen’s Compensation Appeal Board (Board) order affirming a referee’s decision denying her petition to set aside a final receipt pursuant to the applicable provisions of the Workers’ Compensation Act (Act), Act of June 2, 1916, P.L. 736, as amended, 77 P.S. §§ 1 — 1041.4. The referee found as fact that, on May 13, 1977, Shepherd suffered a work-related left knee injury for which Bowen McLaughlin-York (employer) issued a notice of compensation payable. The parties also executed a supplemental agreement. On November 9, 1979, Shepherd signed a final receipt that provided she had returned to work on November 5, 1979. In this last regard, the referee specifically found: 7. Claimant, upon return to work on November 6, 1979, presented to the company nurse, Anita Wright, a certificate from Dr. Nachtigall which indicated “light work”. 8. Additionally, the Claimant indicated to the company nurse she wore a knee brace which was evidence [sic] on sight. 9. Anita Wright informed Traveler’s Insurance of the Claimant’s return to work and her work restrictions. 10. Traveler’s Insurance, after being informed of all circumstances, forward [sic] a Final Receipt to the Employer’s company nurse. 11. Anita Wright, the company nurse, called Claimant to her office on November 9,1992 [sic]. 12. Claimant never read the “pink piece of paper” prior to signing. 13. Claimant believed the pink piece of paper only acknowledged receipt of her final check but did not read what she was signing. 14. Anita Wright cannot recall any statements she made to Claimant. (Footnote added). The referee also found that, in October 1984, Shepherd had filed a claim for an October 1982 aggravation of her original work injury; that she never told her then counsel about signing the pink piece of paper; and that he never asked her how her last claim had ended. Shepherd filed her petition to set aside a final receipt on January 8, 1992. (See Referee’s Findings of Fact Nos. 1-17, May 12,1993, pp. 2-3). Further, the referee concluded, inter alia, that Shepherd had experienced a loss in wages from August 16, 1979 to November 5, 1979 and for three days after May 13, 1977 due to her original work-related injury; the three-year time limit for filing a set aside petition applied; and Shepherd did not show that the employer and insurer had committed fraud. (See Referee’s Conclusions of Law Nos. 3-5, May 12,1993, p. 3). On appeal, the Board affirmed the referee’s decision denying Shepherd’s petition, but did so on other grounds. The Board decided that Shepherd had met her burden of proving that the final receipt should be set aside, because she convinced the referee she had not completely recovered from her work injury. Nevertheless, the Board determined that her petition was untimely because it was not filed within five hundred weeks of her return to work, citing as authority Bellows v. Workmen’s Compensation Appeal Board (Shabloski), 663 A.2d 267 (Pa.Cmwlth.1995), appeal denied, 544 Pa. 614, 674 A.2d 1076 (1996). Shepherd now comes before us, arguing that the employer fraudulently obtained a final receipt; therefore, the three-year time limitation for setting aside a final receipt no longer applies, and she could bring this action at any time. Alternatively, she asserts that, if a time limitation does apply, because the employer’s fraud effectively voided the final receipt, she had five hundred weeks from the day she discovered or reasonably should have discovered the fraud to file for benefits, also rendering her claim timely. Section 434 of the Act, 77 P.S. § 1001 provides: A final receipt, given by an employe or dependent entitled to compensation under a compensation agreement notice or award, shall be prima facie evidence of the termination of the employer’s liability to pay compensation under such agreement notice or award: Provided, however, That a referee designated by the department may, at any time within three years from the date to which payments have been made, set aside a final receipt, upon petition filed with the department, or on the department’s own motion, if it be shown that all disability due to the injury in fact had not terminated. We explained in Auerbach v. Workmen’s Compensation Appeal Board (Auerbach), 80 Pa.Cmwlth. 301, 471 A.2d 596, 598 (1984) (emphasis added) that “[t]he time period provided by Section 434 is an absolute bar to the right to obtain additional compensation and courts may not extend the period unless the claimant proves that the receipt was procured by means of fraud, intentional or unintentional deception, or other improper action of the employer.” See also Crawford v. Workmen’s Compensation Appeal Board (Peugot Contracting), 134 Pa.Cmwlth. 89, 577 A.2d 966, 968 (1990). As previously set forth, the referee in this ease found that the employer and its insurer did not behave fraudulently toward Shepherd. The referee reached this conclusion even though she also found the employer’s nurse had informed the insurer of Shepherd’s work restrictions before it forwarded a final receipt, and that Shepherd did not read what she was signing and believed that the pink piece of paper merely recognized receipt of her last cheek. In Crawford, a case cited by both parties, the claimant filed a modification petition which the referee considered as a petition to set aside a final receipt. The claimant also filed a specific loss claim. The referee found that the insurer knew the claimant continued to suffer from a work-related disability and he had not resumed work, yet it “badgered” the claimant until he eventually signed the final receipt. The referee decided that the insurer acted fraudulently in preparing the final receipt and in providing it to the claimant to sign. We noted that, despite his having signed the final receipt, the claimant did not seem to know what it meant. This Court then stated: We conclude, that when an insurance company prepares a final receipt signifying that the claimant has recovered from his injuries and regained his full earning power, knowing that the claimant is still disabled, and the claimant signs without knowing the significance of the final receipt, the insurance company’s actions constitute fraudulent conduct, warranting that such final receipt be set aside. Id., 577 A.2d at 969. Given our determination in Crawford, we hold that, based on the facts as the referee found them, she should have concluded as a matter of law that the employer and/or its insurer behaved fraudulently toward Shepherd. Of course, the next question is what, if any, time limitation applies given the fraudulent procurement of the final receipt, and the many years that have passed since the receipt was executed. Our research has uncovered no case precisely on point, but, even so, we believe the reasoning of David B. Torrey and Andrew E. Greenberg to be sound when they write in § 12.66 of Pennsylvania Workers’ Compensation: Law and, Practice (1995), “[t]he principle applied with regard to the final receipt is one of estoppel. Accordingly, the three-year limitation should recommence after a fraudulent procurement when the claimant knows, or reasonably should know, of the fraud.” In a footnote to the above statement, the authors cite this Court’s case of Dudley v. Workmen’s Compensation Appeal Board (Township of Marple), 80 Pa.Cmwlth. 233, 471 A.2d 169 (1984), affirmed, 510 Pa. 283, 507 A.2d 388 (1986). We stated there: The concept of estoppel to plead the bar of the statute of limitations, as it has developed through years of jurisprudence, now clearly embraces the view that the limitations period should not run against those who are not aware, and could not reasonably be charged with knowledge, that they have been misled.... The “discovery rule,” applicable to medical malpractice actions, is a closely related application of estoppel principles where fraud or deception, intentional or otherwise, may cause a potential plaintiff to fail to file a claim within the statutory period. That doctrine provides that “where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence.” DeMartino v. Albert Einstein Medical Center, Northern Division, [313] Pa. Superior Ct. [492], [498-499], 460 A.2d 295, 298 (1983), quoting Petri v. Smith, 307 Pa. Superior Ct. 261, [269], 453 A.2d 342, 346 (1982). Dudley, 471 A.2d at 172. It is clear, then, that if Shepherd did not file her petition to set aside the final receipt within three years of when she knew or reasonably should have known of the employer’s fraud that her petition is time-barred. , Naturally, here, the question remains when exactly did Shepherd know, or by reasonable diligence — for example — in pursuing her interim claim — should she have known of the employer’s fraud? Consequently, we vacate the Board’s decision and remand this case to the Board for remand to the referee (now Workers’ Compensation Judge) for findings of fact and conclusions of law regarding when Shepherd knew, or reasonably should have known, of the employer’s fraud, and whether Shepherd’s petition is barred by the three-year limitation period. Because of the long lapse of time and the fact that this record reveals that Shepherd returned to work in 1979 without any loss of wages, the employer may choose to file, if it desires, an appropriate petition to suspend, modify or terminate the benefits which might accrue to Shepherd as a result of any grant of the set aside petition. See Moltz v. Workmen’s Compensation Appeal Board (McDonald’s Corporation), 119 Pa.Cmwlth. 354, 547 A.2d 491, 492 (1988), appeal denied, 521 Pa. 632, 558 A.2d 533 (1989) and appeal denied, 521 Pa. 632, 558 A.2d 533 (1989). ORDER AND NOW, this 18th day of November, 1996, the order of the Workmen’s Compensation Appeal Board, No. A93-1493, dated May 6, 1996, is hereby vacated and the case is remanded to the Board for remand to the Workers’ Compensation Judge for findings of fact and conclusions of law consistent with this opinion. Jurisdiction Relinquished. . This is an obvious typographical error; the date was November 9,1979. . Our scope of review is limited to determining whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were unsupported by substantial evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (1988). . See Section 306(b) of the Act, 77 P.S. § 512 in conjunction with Section 413 of the Act, 77 P.S. § 772. . For these reasons and others, we reject the Board's reliance on Bellows to dismiss Shepherd’s petition to set aside the final receipt. The issue there was "when the period of limitations begins to run on a reinstatement petition when there is no documentary evidence of a formal termination or suspension of the claim but Claimant did not receive compensation after he returned to work at no loss of wages.” Id., 663 A.2d at 267. In the end, we concluded that the employer was entitled to a suspension of the claimant’s benefits as of the date the claimant returned to work with no loss of earnings. Moreover, because the claimant in that case had not filed his reinstatement petition within five hundred weeks from the date his benefits were suspended as required under Section 413 of the Act, we upheld the Board’s order disallowing the reinstatement petition. In Bellows, however, there was no evidence that the claimant had signed a final receipt, so that case is obviously distinguishable from the one now at bar. . As well, in Hartung v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 49 Pa.Cmwlth. 240, 410 A.2d 1301 (1980), we explained that section 413 has no applicability to final receipts.

PER CURIAM. AND NOW, this 27th day of November, 1996, appellants’ Petition to Stay Mandate or Remand of Record, Petition for Reargument, Petition to Amend Pleadings, Petition to Reinstate Complaint is DENIED.

ORDER PER CURIAM. AND NOW, this 18th day of November, 1996, Appellant’s Motion for Leave to File Supplement to Jurisdictional Statement is granted; the direct appeal is quashed.

CIRILLO, President Judge Emeritus: James Heistand appeals from a judgment of sentence entered in the Court of Common Pleas of Bucks County for violation of section 403(b) of the State Ethics Act. 65 P.S. § 403(b). We affirm. James Heistand owned and operated a roofing and sheet metal company located in Bensalem, Pennsylvania. In June of 1993, through a sealed bidding process, Heistand was awarded a contract by the Bensalem School District (“Bensalem”) to re-roof the Struble Elementary School. Subsequent to the award, Heistand and Bensalem executed a standard written contract known in the industry as an AIA. (American Institute of Architects) contract. Pursuant to the contract, the the architect supervising the project was required to approve the progress of the work prior to disbursement of installment payments provided for under the contract. While working on the project, Hei-stand occasionally came in contact with Thomas Donahue, the then assistant Facilities Manager of Bensalem. Donahue was charged with the supervision of essentially all of the contracting for construction and repair work for Bensalem. Although Heistand only knew Donahue casually, he offered to “loan” Donahue $ 7,295.00 for the initiation fee and membership dues to Spring Mill Country Club, of which he was also a member. There were, however, no terms such as interest rates or repayment schedules attached to the loan. Donahue accepted Heistand’s offer. On July 29, 1993, an invoice was sent to Heistand from Spring Mill for Donahue’s dues. Immediately thereafter, Donahue authorized disbursements in the amount of $159,750.00 under the contract, but without the approval of the project architect. On August 9, 1993, Heistand executed a second contract with Bensalem for another re-roofing project. On August 10, 1993, Heistand paid Donahue’s country club dues. A grand jury convened to investigate the activities of twelve individuals including Hei-stand and Donahue. Both Heistand and Donahue were subpoenaed to testify. Only after Donahue was subpoenaed did he repay Heistand, a full fourteen months after the loan was made. On February 15, 1996, Hei-stand was charged with bribery in official and political matters , commercial bribery and conflict of interest. A jury trial ensued after which Heistand was found guilty solely of conflict of interest. Heistand was sentenced to pay a fine of $5000.00. This appeal followed. Heistand raises one issue for our consideration: Is the evidence sufficient to support a finding that appellant, a private citizen, possessed an “understanding” within the meaning of 65 P.S. § 403(b), that his gift or loan to a public employee would influence the judgment of the public employee? In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994)(citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Heistand argues that the evidence was insufficient to prove that he had an “understanding,” within the meaning of 65 P.S. § 403(b), that his payment of Donahue’s dues would influence Donahue, because he received no favorable treatment as a result of the payment, did not conceal his payment to Spring Mill Country Club, and did not benefit in any way from this payment. Section 403(b) of the State Ethics Act provides: No person shall offer or give to a public official, public employee ... anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror’s or donor’s understanding that the vote, official action, or judgment of the public official or public employee ... would be influenced thereby. 65 Pa.C.S.A. § 403(b) (1989) (emphasis added). Section 403(b) requires that a donor or offeror have an understanding that a public official’s judgment will be influenced by the acceptance of something of value from the donor or offeror. 65 Pa.C.S.A. § 403(b) (1989); Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439 (1987). Unlike a charge of bribery, it is not necessary for the prosecution to prove that a direct benefit flowed from the donor’s or offeror’s gift or loan. See Cherpes, supra, (explaining the distinction between conflict of interest and bribery; stating that the purpose of section 403(b) is to assure the public that the financial interests of public officials would not conflict with their duty to place the interests of the public before all other considerations; conflict of interest standard is a much higher duty than the simple duty to refrain from engaging in bribery.) The record indicates that Heistand, a contractor, paid country club membership and dues for Donahue, a mere casual acquaintance. Donahue was a public official whose office was charged with contracting and executing building and repair work for the Ben-salem school district. Curiously, at the time Heistand offered to pay Donahue’s dues, his contracting company was under contract to complete a re-roofing job for a Bensalem school. In addition, immediately after Hei-stand made the offer to pay for Donahue’s dues, and again at a later date, Donahue authorized disbursements without first obtaining the architect’s consent, in violation of Heistand’s contract with Bensalem. Finally, subsequent to the payment of Donahue’s dues, Heistand was awarded another contract by Bensalem, albeit by sealed bid. Thus, the jury apparently concluded that Heistand had tempted Donahue with forbidden fruit, a membership to Spring Mill Country Club worth $7,285.00, the purpose of which was to gain preferential treatment on the present project as well as future ones. Viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, we con-elude that a jury could find that Heistand paid for Donahue’s membership and dues with the understanding that Donahue, in his capacity as facilities manager, would be influenced thereby. Thus, we are satisfied that the elements of section 403(b) have been proven beyond a reasonable doubt. Jarman supra; Swann, supra. Heistand also contends that the jury improperly weighed his testimony that he did not possess an “understanding” his payment of Donahue’s dues would influence Donahue’s judgment. A mere conflict in the testimony of witnesses, however, does not render the evidence insufficient because “it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.” Commonwealth v. Moore, 436 Pa.Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted). Due to the discrepancies in testimony regarding whether the payment was a loan as well as the difficulty in believing that someone would loan or give another person whom he hardly knew over seven thousand dollars, the jury was well warranted in discounting Heistand’s testimony. Moore, supra Judgment of sentence affirmed. . In August of 1993, after the facilities manager, John Hanson, retired, Donahue was promoted to facilities manager of Bensalem. . 18 Pa.C.S.A. § 4701(a)(1) (1983). . 18 Pa.C.S.A. § 4108(c) (1983). . 65 Pa.C.S.A. § 403(b)(1989). . In his brief, Heistand seems to assert that because he is not a public official, the stringent purpose of the conflict of interest statute should not apply to him. In essence, he would have this court construe “understanding that the judgment of the public employee will be influenced thereby” to mean an understanding that he will receive a direct benefit. As this court has stated previously, the conflict of interest statute has a different purpose than the bribery statute. Cherpes, supra. The conflict of interest statute was enacted to avoid even the appearance of impropriety by public officials. Id. Moreover, the conflict of interest statute clearly states that "no person shall offer a public official ...” (emphasis added) indicating that it is irrelevant whether the person charged is a private citizen or public official. 65 Pa C.S.A. § 403(b) (1989). Heistand’s argument, therefore, lacks merit. . At trial, Heistand tried to characterize this payment as a loan to Donahue. To support this characterization Heistand offered testimony of both himself and Donahue that Donahue personally dropped off a payment of $1,500.00 one week after the loan was made along with the returned check dated August 17, 1993. The prosecution, however, established that Donahue was on vacation in New Jersey on that date. In addition, there was no evidence of any loan terms and the balance of the loan was not repaid until after Donahue and Heistand were subpoenaed to testify at the grand jury.

KELLY, J. ¶ 1 In this appeal we must determine whether counsel appointed to assist Appellant with his first PCRA petition provided meaningful representation, where appointed counsel filed an amended petition, but did not address the apparent untimeliness of Appellant’s petition or respond to the PCRA court’s notice of intent to dismiss Appellant’s petition as untimely. We hold that to provide meaningful representation, appointed counsel must at least address the timeliness of a PCRA petition and determine whether the petition fits any exception to the PCRA’s timeliness provision, where the subject petition is untimely on its face. ¶2 The relevant facts and procedural history of this appeal are as follows. In 1995, authorities charged Appellant with 27 counts of sexual abuse involving three minor children of Appellant’s ex-paramour. The information was later amended to 23 counts. Following a jury trial on May 16, 1996, the trial court granted a directed verdict in favor of the defense on one count of involuntary deviate sexual intercourse (IDSI) and one count of aggravated indecent assault. The jury convicted Appellant on each of the 21 remaining counts of sexual abuse. ¶ 3 The trial court sentenced Appellant to an aggregate term of fifteen-to-thirty years’ incarceration on July 8,1996. After trial, the public defender was permitted to withdraw and the court appointed new counsel. Newly appointed counsel filed a notice of appeal on August 5, 1996 and a post-sentence motion the next day. A hearing on the motion was twice scheduled and twice postponed. When the trial court did not address Appellant’s post-sentence motion within 120 days, the motion was denied by operation of law. (See Pa. R.Crim.P. 720 (formerly Rule 1410)). In the interim, Appellant had withdrawn his notice of appeal to this Court. ¶ 4 Appellant filed a new notice of appeal on January 15, 1997. On appeal, Appellant raised various claims of trial counsel’s ineffective assistance, including an allegation that counsel was ineffective for failing to call an expert witness at trial. This Court remanded the matter for an evidentiary hearing on that claim. Commonwealth v. Perez, 701 A.2d 781 (Pa.Super.1997)(Table). ¶ 5 The trial court held a hearing on October 9, 1997 and subsequently denied Appellant’s claim on June 18, 1998. Appellant filed another appeal and this Court affirmed Appellant’s judgment of sentence on March 23, 1999. Commonwealth v. Perez, 737 A.2d 1277 (Pa.Super.1999)(Table). On April 28, 1999, Appellant filed a petition for allowance of appeal with our Supreme Court, but that petition was returned as untimely. ¶ 6 On December 26, 2000, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel to represent Appellant on January 4, 2001. The court’s order allowed newly appointed counsel forty-five days to file an amended petition. On March 19, 2001, appointed counsel filed an amended petition. The amended petition did not address the apparent untimeliness of Appellant’s original petition. On May 1, 2001, the PCRA court gave Appellant notice of its intent to dismiss the petition as untimely, affording Appellant twenty days to show good cause why the petition should not be dismissed. ¶ 7 Appellant’s counsel did not file a response to the PCRA court’s notice of intent to dismiss. However, Appellant filed a pro se response arguing his PCRA petition was timely. The trial court dismissed Appellant’s petition on June 20, 2001. This appeal followed. ¶ 8 Appellant raises the following issues on appeal: WHETHER APPELLANT [HAS] A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL TO FILE AND LITIGATE HIS FIRST PCRA PETITION? WHETHER THE ASSISTANCE RENDERED BY APPELLANT’S COURT APPOINTED COUNSEL [WAS] SUFFICIENT TO DISCHARGE EFFECTIVE ASSISTANCE OF COUNSEL? WHETHER THE PCRA COURT [ERRED] IN DISMISSING APPELLANT’S UNCOUNSELED PETITION FOR POST CONVICTION RELIEF? WHETHER APPELLANT’S PCRA PETITION WAS FILED TIMELY ACCORDING TO THE RULES OF APPELLATE PROCEDURE 903(A)? WHETHER APPELLANTfS] PCRA PETITION COMPORTS WITH THE TIMELINESS REQUIREMENTS UNDER THE AMENDED ACT, 42 PA.C.S.A. § 9545(B)(3)? WHETHER THIS APPEAL OF DENIAL OF PCRA RIGHTS IS TIMELY? (Appellant’s Brief at 14). ¶ 9 Initially, we note, “[o]ur review of a post-conviction court’s grant or denial of relief is limited to determining whether the court’s findings are supported by the record and the court’s order is otherwise free of legal error.” Commonwealth v. Yager, 454 Pa.Super. 428, 685 A.2d 1000, 1003 (1996) (en banc), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997); Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). We grant great deference to the findings of the PCRA court and will not disturb findings that are supported by the record. Yager, supra; Gas-kins, supra. ¶ 10 As a prefatory matter, we must determine whether the instant appeal is timely, where Appellant’s notice of appeal was docketed thirty-six days after the order denying PCRA relief was entered on the docket. Pursuant to Rule 903(a), “[T]he notice of appeal.. .shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa. R.A.P. 903(a). Time limitations on the taking of appeals are strictly construed and cannot be extended as a matter of grace. Commonwealth v. Hottinger, 370 Pa.Super. 527, 537 A.2d 1, 3 (1987), appeal denied, 520 Pa. 614, 554 A.2d 507 (1988). ¶ 11 However, our Supreme Court has recognized: The pro se prisoner’s state of incarceration prohibits him from directly filing an appeal with the appellate court and prohibits any monitoring of the filing process. Therefore... a pro se prisoner’s appeal shall be deemed to be filed on the date that he delivers the appeal to prison authorities and/or places his notice of appeal in the institutional mailbox. Smith v. Pennsylvania Bd. Of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996). The Supreme Court formally adopted what is now known as the “prisoner mailbox rule” in Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997). Pursuant to that rule, “we are inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities....” Id. at 63, 700 A.2d at 426. ¶ 12 In the instant case, Appellant’s notice of appeal was docketed on July 26, 2001, six days beyond the thirty-day appeal period prescribed by Pa.R.A.P. 903(a). However, Appellant alleges he sent his notice of appeal for filing on July 15, 2001. As support for this contention, Appellant submits a copy of a certified mail receipt. The receipt demonstrates that Appellant’s notice of appeal was sent to the “Lancaster County Clerk of Courts” on July 16, 2001. Additionally, Appellant’s notice of appeal is dated July 15, 2001. We conclude, therefore, Appellant has sufficiently demonstrated that he deposited his notice of appeal in the prison mail system on or about July 16, 2001. As that deposit was within the thirty-day period provided by Pa.R.A.P. 903(a), we deem Appellant’s present appeal timely. See Jones, supra. We now turn to Appellant’s issues on appeal. ¶ 13 In his first two issues, Appellant argues he was entitled to the effective representation of counsel on his first PCRA petition, even though the petition was untimely on its face. Although Appellant was appointed counsel, Appellant alleges appointed counsel’s performance was deficient such that Appellant was effectively denied representation. Appellant concludes he was deprived of his right to assistance of counsel and requests a remand. We agree. ¶ 14 “The denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel.” Commonwealth v. Albrecht, 554 Pa. 31, 43, 720 A.2d 693, 699 (1998). An indigent petitioner is entitled to appointment of counsel on his first PCRA petition, even where the petition appears untimely on its face. Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super.2000); Commonwealth v. Ferguson, 722 A.2d 177 (Pa.Super.1998); Commonwealth v. Hampton, 718 A.2d 1250 (Pa.Super.1998). See also Pa.R.Crim.P. 904 (formerly Rule 1504). In such cases, counsel is appointed principally to determine whether the petition is indeed untimely, and if so, whether any exception to the timeliness requirements of 42 Pa. C.S.A. § 9545(b) applies. See Guthrie, supra; Ferguson, supra. ¶ 15 The right to counsel on an indigent petitioner’s first PCRA petition is not limited to the mere naming of an attorney. Hampton, supra. To have any meaning, the rule also requires appointed counsel to provide meaningful representation. Id. As this Court has recently stated: “when appointed counsel fails to amend an inarticulately drafted pro se [post-conviction] petition, or fails otherwise to participate meaningfully, this court will conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement....” [Commonwealth v.] Ollie, 450 A.2d [1026,] 1028 [Pa.Super.1982] quoting Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980) (internal quotation marks omitted). Both this Court and our Supreme Court have recognized that a post-conviction petition is effectively uncoun-selled under a variety of circumstances whenever omissions of record demonstrate that counsel’s inaction “deprived the petitioner ‘the opportunity of legally trained counsel to advance his position in acceptable legal terms.’ ” Sangricco, supra, at 133, 415 A.2d at-68, quoting [Commonwealth v.] Fiero, [462 Pa. 409,] 413, 341 A.2d [448,] 450 [ (1975) ]. Though the foregoing decisions predate adoption of the Post Conviction Relief Act and current Rules of Criminal Procedure 1504 and 1507, this Court has held more recently that “one constant remains as a holdover, from the prior law: an indigent -defendant shall be availed the opportunity to secure the appointment of counsel to aid in the perfection of his first petition seeking post-conviction collateral relief.” [Commonwealth v.] Kaufmann, 592 A.2d [691,] 698 [ (Pa.Super.1991) ]. We find also that, as under our prior law, “[t]his rule is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.” Fiero [, supra at] 413, 341 A.2d [at] 450. Accordingly, where, as under our prior case law, the record fails to demonstrate meaningful participation by counsel appointed to represent an indigent petitioner filing his first petition, we will remand for appointment of new counsel. Hampton, supra at 1253-54 (emphasis added). Therefore, where an appellant’s right to representation has “been effectively denied by the action of court or counsel, the petitioner is entitled to a remand to the PCRA court for appointment of counsel to prosecute the PCRA petition. The remand serves to give the petitioner the benefit of competent counsel at each stage of post-conviction review.” Commonwealth v. Kenney, 557 Pa. 195, 202, 732 A.2d 1161, 1164 (1999). ¶ 16 In the instant case, this Court affirmed Appellant’s judgment of sentence on March 23,-1999. His judgment of sentence became final on or about April 22, 1999, - upon expiration of the time period allowed for an appeal to our Supreme Court. Appellant filed his first and only PCRA petition on December 26, 2000. This petition was untimely on its face as it was filed more than one year from the date Appellant’s judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b); The PCRA court then appointed counsel to represent Appellant. Appointed counsel filed an amended petition, but did not file a brief addressing the issues raised in the amended petition, or cite any relevant law in support of the issues raised. ¶ 17 More importantly, none of the issues presented in counsel’s amended petition addressed the timeliness of Appellant’s original PCRA petition. See generally Hampton, supra. Also, counsel did not respond when the PCRA court notified Appellant of its intent to dismiss the petition as untimely. Id. Appointed counsel has not considered whether Appellant’s petition is indeed untimely on its face or whether the petition fits one of the three enumerated exceptions to the timeliness provisions. See Guthrie, supra; Ferguson, supra. Neither has counsel filed a no merit letter addressing the timeliness of the petition. See Hampton, supra. ¶ 18 When counsel is appointed to represent a petitioner on a PCRA petition that is untimely on its face, appointed counsel’s first duty is to consider the timeliness of the appeal. See Guthrie, supra; Ferguson, supra. Appellant is entitled to have counsel’s legal expertise and knowledge applied to this issue. See generally id. Counsel’s failure to discuss the timeliness issue in any way rendered his representation virtually meaningless. See Hampton, supra; Guthrie, supra; Ferguson, supra. Therefore, Appellant was effectively denied the assistance of counsel on his first PCRA petition. Id. Nothing in this decision should be construed as creating another exception to the PCRA timeliness requirements. Our decision today is intended only to ensure that petitioners are afforded the assistance of counsel on all aspects of their first PCRA petition, especially the timeliness of such a petition. ¶ 19 Based upon the foregoing, we hold that counsel appointed to assist an indigent petitioner on an apparently untimely PCRA petition must at least investigate whether the petition is indeed untimely, and if so, whether the petition fits one of the exceptions to the PCRA’s timeliness provisions. Accordingly, we reverse the order of the PCRA court and remand the case for appointment of new counsel to assist Appellant in pursuing his first PCRA petition. See Kenney, supra. ¶20 Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished. . 18 Pa.C.S.A. § 3123(5). . 18 Pa.C.S.A. § 3125(1). . These convictions consist of four additional counts of IDSI; three counts of rape (18 Pa.C.S.A § 3121(1)); three counts of statutory rape (18 Pa.C.S.A. § 3122); three counts of indecent assault (18 Pa.C.S.A. § 3126(a)(1)); two counts of indecent assault of a person with a mental disability (18 Pa.C.S.A. § 3126(a)(6)); three counts of corruption of minors (18 Pa.C.S.A. § 6301(a)); two additional counts of aggravated indecent assault; and one count of criminal attempt (18 Pa. C.S.A. 901(a)).

POPOVICH, Judge: This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County, which was entered after a jury convicted appellant of theft, receiving stolen property and conspiracy. We reverse. Appellant first alleges that the trial court erroneously denied his motion to suppress physical evidence. Appellant maintains that all physical evidence seized from the vehicle in which he was riding should be suppressed because: (1) The investigative stop was illegal; (2) the officers’ sighting of a remote CD changer in the vehicle was an illegal search; and (3) the written consent to search form was tainted by the initial illegal search. When a criminal defendant appeals a ruling of a suppression court, this court will consider the prosecution’s evidence and any of the appellant’s evidence which is uncontra-dicted. Commonwealth v. Wells, 441 Pa.Super. 272, 657 A.2d 507 (1995), appeal denied 542 Pa. 668, 668 A.2d 1131. The suppression court’s ruling will only be reversed if its legal conclusions were erroneous. Id. We apply the foregoing standard to the relevant facts and procedural history summarized as follows: On October 11, 1995, the Middletown Township Police Department was informed that an attempted automobile theft might be in progress at the Summit Trace Apartments. Suppression Hearing, 3/6/96, p. 15. While Officer Kucinski was patrolling in the township, he received a radio transmission at 12:10 a.m. in which he was informed about the attempted theft. Suppression Hearing, 3/6/96, p. 14. The individual who originally contacted the police saw the suspects return to the apartment complex. After observing the suspects a second time, the witness was able to give the police more specific information. N.T., 3/6/96, pp. 42-45. Subsequently, Officer Kucinski received a second radio transmission at 12:21 a.m. in which he was told the three suspects were thought to be male and were seen leaving the complex in a dark-colored Jeep Wrangler. The witness was not able to identify the race of the suspects nor the direction in which they were traveling. Suppression Hearing, 3/6/96, pp. 16-19. As he was driving to the apartment complex, Officer Kucinski slowed to cross over railroad tracks and passed a vehicle which was traveling in the opposite direction. Officer Kucinski identified the vehicle as a dark-colored Jeep Wrangler with three male occupants. Suppression Hearing, 3/6/96, pp. 19-20. Officer Kucinski observed the vehicle at 12:27 a.m. at a location approximately three miles from the Summit Trace Apartments, traveling on a road leading away from the crime scene. Suppression Hearing, 3/6/96, p. 20. At that point, Officer Kucinski proceeded to make an investigative stop of the vehicle. Suppression Hearing, 3/6/96, p. 21. Officer Kucinski instructed appellant and the other two occupants to exit the vehicle. Officer Kucinski and three other officers obtained identification from the suspects. The officers discovered that the Jeep Wrangler was owned and registered to the driver’s únele. N.T., 3/6/96, pp. 26-27. The officers conducted a protective search of each person. One of the officers retrieved an envelope from a pocket of the driver of the Jeep Wrangler. The envelope contained vehicle registration information which matched a vehicle which was owned by a resident of Summit Trace Apartments. Suppression Hearing, 3/6/96, pp. 22, 41. At this point appellant and the other suspects were arrested, handcuffed and placed in the patrol vehicles. Suppression Hearing, 3/6/96, pp. 24r-25. The officers observed through a window of the Jeep an object which was later identified as a remote CD changer. The object was not removed from the vehicle at that time. Suppression Hearing, 3/6/96, p. 34. Officer Kucinski testified that the remote CD changer was observed after the suspects were arrested. Suppression Hearing, 3/6/96, pp. 24-25. The suspects were subsequently taken to the police station. The driver of the Jeep Wrangler was given Miranda warnings and then he signed a consent form which gave the officers permission to search the vehicle. Suppression Hearing, 3/6/96, pp. 29-30. Also, Detective Sproehnle informed appellant of his Miranda rights. Appellant then waived his right to have an attorney present and gave a statement to the detective. In his statement, appellant admitted that he rode in the Jeep Wrangler to a shopping center across from the Summit Trace Apartments. Appellant claimed that he remained in the vehicle at all times. N.T., 3/6/96, pp. 7-9. Appellant and the two other individuals were charged with theft, receiving stolen property and conspiracy. Appellant filed pre-trial motions to suppress the physical evidence and his statement. The trial court suppressed evidence of the envelope found during the paydown of a co-defendant but permitted appellant’s statement and the CD remote changer to be admitted. Appellant was subsequently tried without a jury and found guilty of all charges. In order to analyze whether the ruling of the suppression court was valid, we must first determine whether or not the investigative stop was valid. A police officer may stop a vehicle if he has reasonable grounds to believe that the occupants were involved in criminal activity. Commonwealth v. Wells, 441 Pa.Super. 272, 657 A.2d 507 (1995), Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigative stop is considered a “seizure”, therefore it must comply with the constraints contained within the Fourth Amendment of the United States Constitution. Commonwealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216 (1995). In Wells, supra., this Court held that a investigative stop of a vehicle was proper where an officer observed a vehicle which matched the description of a vehicle involved in a recent abduction and which was located one-half mile from the site of the crime. In another similar case, this court held that an officer properly stopped a vehicle after receiving information about a robbery that occurred less than two blocks away and where the suspect’s vehicle matched the description given to the officer. Commonwealth v. Monroe, 356 Pa.Super. 109, 514 A.2d 167 (1986), appeal denied 525 Pa. 644, 581 A.2d 570. In the present case, the officer was driving to Summit Trace Apartments in response to a report of an attempted auto theft. While driving to the apartment complex, Officer KueinsM received a second report in wMch he was told that three suspects were seen leaving the apartment complex in a dark-colored Jeep Wrangler. The suspects were thought to be males. Suppression Hearing, 3/6/96, pp. 16-19. Within six minutes of receiving the second report, Officer KueinsM passed a vehicle wMch matched the description and which was occupied by three males. The officer knew that it was possible to leave the apartment complex on the road wMch the suspects were traveling. Suppression Hearing, 3/6/96, pp. 19-20. Based on the officer’s observations and information wMch he possessed about the suspect vehicle, it was reasonable to suspect the occupants of the veMcle had committed the recent crime. Our next inquiry relates to the validity of the Terry search. After stopping the veMcle, Officer KueinsM instructed appellant and the other occupants to exit the veMcle so that the officers could perform a protective search of each person. During the pat-down search of the co-defendants, an officer removed an envelope from a pocket of one of the co-defendants. An officer may perform a limited search of an individual to detect weapons if he reasonably believes criminal activity is afoot and that the person may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This is one exception to the general rule that warrantless searches are presumed unreasonable. Under Terry, police officers have limited authority to search an individual. The justification for the search is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably. designed to discover guns, kmves, clubs, or other Mdden instruments for the assault of the police officer. Terry, 392 U.S. at 29, 88 S.Ct. at 1884. The UMted States Supreme Court has recently expanded the scope of the Terry search through the adoption of the “plain-feel” exception. In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the court held that an officer may seize non-threatening contraband during a Terry search if the contraband is detected through the officer’s sense of touch. The contraband must be “immediately apparent” from the officer’s pat-down in order for the “plain-feel” exception to apply. Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993). Based upon the information which linked appellant to the reported crime, it was appropriate for the officers to perform a protective search of appellant and the co-defendants. However, we agree with the lower court that the officer exceeded the scope of the protective search as far as the removal of the envelope was concerned. Clearly, there is no evidence to substantiate that the officer perceived the envelope to be a weapon or identifiable contraband. We find that such evidence was properly suppressed. Our final inquiry in regard to the ruling of the suppression court relates to evidence obtained after the illegal seizure of the envelope. After the envelope was illegally seized from the co-defendant and the suspects were arrested, the officers observed the remote CD changer on the floor of the Jeep Wrangler. Subsequently, the three individuals were taken to the police station where the driver of the Jeep Wrangler consented to a search of the vehicle, and appellant gave a statement to Detective Sproehnle. Appellant claims that such evidence was “fruit of the poisonous tree” and therefore inadmissible. Where evidence is obtained subsequent to an illegal search, such evidence will be held inadmissible unless it is sufficiently distinguishable from the original illegality. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Commonwealth v. Germann, 423 Pa.Super. 393, 621 A.2d 589 (1993) (evidence was tainted because the police would not have arrested defendant-motorist or impounded the vehicle if contraband had not been discovered through the illegal search). A proponent of subsequently discovered evidence must demonstrate that it is not tainted by the illegal search. Commonwealth v. Mesa, — Pa.Su per. -, 683 A.2d 643 (1996). But for the illegally obtained evidence, the police in the present case would not have had probable cause to arrest appellant. We find that all evidence obtained after the illegal search of the envelope was acquired through the exploitation of the illegally obtained evidence. Judgment of sentence is vacated, and this case is reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished. . At some point during the stop the officers were informed that a vehicle break-in had occurred as opposed to an attempted automobile theft. Suppression Hearing, 3/9/96, p. 23. The officers received a radio transmission in which they were told that certain articles were missing from a vehicle at the apartment complex. When questioned about this radio transmission at the Suppression Hearing, Officer Kucinski testified that he could not recall if they received specific information about the stolen articles. Suppression Hearing, 3/6/96, p. 23. . Detective Sproehnle testified that at the time of the investigative stop the officers believed the object was a pager. Suppression Hearing, 3/6/96, p. 34. . During cross-examination at the Suppression Hearing, Officer Kucinski was questioned as follows: Q. And Officer Kneiss found the sticker; correct? A. Sticker and registration card. Q. On Mr. Bell; correct? A. Correct. Q. They were placed under arrest and placed in your vehicle; correct? A. Well, Mr. Smith was placed in my vehicle. Q. Officer Kneiss and Officer Burnett searched the car; is that correct? A. I don't believe there was an actual search at the scene. I know that they looked inside there, but I don’t think anything was taken out of it at the scene. Q. Well, you testified at the preliminary hearing that a CD remote was found at the time of the stop. Do you recall this? A. I believe that was laying on the floor with a couple of cellular telephones. Q. And you noticed that at the scene of the stop; correct? A. Correct. Q. And that was after these individuals were handcuffed and placed in your vehicles; correct? A. Correct. Suppression Hearing, 3/6/96, pp. 25-26. . The lower court concluded that the remote CD changer was admissible because it was found in plain view. Under the "plain view” exception to the warrant rule, a warrantless search will be valid if the officer was lawfully present and inadvertently observed the object linked to the criminal activity. Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 ... (1992). We reject this argument. Even if the officers were legally present and inadvertently viewed the remote CD changer, they had no reason to know the object was related to criminal activity. The testimony is unclear as to when the officers received information about the stolen objects. Furthermore, it is not clear what information the officers obtained about those objects. As previously noted, Officer Sproehnle testified that the officers thought the remote CD changer was a pager as opposed to a remote CD changer. . Because this case is being remanded for a new trial, it is not necessary for this Court to address appellant’s allegations of ineffectiveness of trial counsel.

ORDER PER CURIAM: AND NOW, this 4th day of December, 1996, upon consideration of the Certificate of Admission of Disability by Attorney that the respondent-attorney is suffering from disability by reason of physical infirmity which makes it impossible for him to prepare an adequate defense to a complaint of professional misconduct brought against him in connection with Office of Disciplinary Counsel file No. C4-95-90, it is hereby ORDERED that John Howard Mudrak is immediately transferred to inactive status pursuant to Rule 301(e), Pa.R.D.E. for an indefinite period and until further Order of this Court. Respondent shall comply with Rule 217, Pa.R.D.E. All pending disciplinary proceedings against the respondent-attorney shall be held in abeyance, except for the perpetuation of testimony, and until a determination is made of the respondent-attorney’s capacity to aid effectively in the preparation of a defense or continue to practice law, pursuant to Rule 301(d), Pa.R.D.E.

ORDER PER CURIAM: AND NOW, this 13th day of December, 1996, the Petition for Allowance of Appeal is GRANTED, limited to the issue of whether 75 Pa.C.S. § 3731(a)(5) is unconstitutional. Petitioner’s conviction under 75 Pa.C.S. § 3731(a)(5) and her judgment of sentence are vacated pursuant to Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996) and the matter is remanded to the trial court for further action consistent with this Order. Jurisdiction is relinquished.

ORDER PER CURIAM: AND NOW, this 27th day of November, 1996, the direct appeal is quashed. ZARPALA, J., did not participate in the consideration or decision of this matter.

OPINION BY Judge LEAVITT. Thomas S. White, Mark G. Trombetta, M.D., Robert E. Faust, Leonard C. High-ley, and H. Scott Hawkins are residents (Residents) of Upper St. Clair Township (Township). Residents brought suit in the Court of Common Pleas of Allegheny County (Trial Court) to challenge the construction of a 350-foot high communications tower in Boyce Park, a public park located in the Township. Boyce Park was conveyed to the Township by the County of Allegheny (County) under a deed that limited the use of the property to recreation, conservation and historic purposes, and the Residents asserted that a communications tower was inconsistent with these deed restrictions. The Trial Court dismissed the complaint by a series of orders sustaining preliminary objections and granting summary judgment; these orders have been appealed to this Court. We reverse in part and affirm in part. HISTORY OF THE CASE Since its acquisition by the Township in 1985, Boyce Park has remained an undeveloped parcel of land. The park consists of approximately 200 acres of rolling hills, meadows, forest, and wetlands traversed by hiking trails; it serves as a preserve for wild flora and fauna. The Township’s 1995 Comprehensive Plan designated Boyce Park for public recreation, which it described as “natural open space,” and recited the Township’s commitment to preserve its open space. In 1995, a representative of Robert Crown Vd/b/a Crown Communications and Barbara Crown (collectively Crown) approached the Township about Crown’s interest in constructing a communications tower in the Township. By August of 1995, Crown had fixed upon a location in Boyce Park for the project, which was next to an existing tower of 180 feet built in 1992 that provided the Township with certain emergency communications support. Coincidentally, the Township decided that its existing emergency communications system was inadequate. Crown proposed to replace it in exchange for an easement in Boyce Park. On April 1, 1996, the Board of Commissioners of the Township enacted Ordinance 1710 authorizing Township officials to complete negotiations with Crown for the construction of a state-of-the-art communications tower and to enter into a lease of Township realty for that purpose. Ordinance 1710 did not identify the Township realty under consideration for the lease. On May 6,1996, the Board of Commissioners enacted Ordinance 1712 consisting of numerous amendments to the Zoning Code, one of which exempted the Township — and its lessees — from all provisions of the Zoning Code. On June 28, 1996, the Township entered into a lease agreement (Lease) with Crown for an initial term of 25 years with an option to renew for three successive terms. The Lease was for .428 acres of the approximately 200 acres that make up Boyce Park, and it obligated Crown to install, maintain and operate a 350-foot high communications tower and to provide the Township a public communications system for 911, police, fire and emergency medical services. In addition to the tower, Crown was required to erect three adjoining buildings for equipment and to encircle the parcel with an eight-foot high cyclone fence topped with barbed wire. Finally, Crown was to pay the Township annual rent of $2500 for its occupancy of the .428 acres of Boyce Park with a possibility of a future rent increase if the Lease is extended into additional terms. Crown has stipulated that at the time of the execution of the Lease, it was aware of the deed restrictions relating to the uses for Boyce Park. (R.R. 433a). Excavation and clearing of the property began in July of 1996, and on September 27, 1996, the tower was delivered to the site. By October 7, 1996, the tower reached a height of 200 feet, at which point regulations of the Federal Aviation Administration required that it be lighted. The tower then became noticeable to the Residents. By the end of October, the structure was complete. On November 8 and 10, 1996, two of the Residents, White and Trombetta, filed appeals with the Zoning Hearing Board claiming that the tower conflicted with the Township’s R LI Low Density Zoning District. After a hearing, the Zoning Hearing Board held that the protests were timely filed; that the tower violated the Zoning Code; that Ordinances 1710 and 1712 were improperly enacted; but that Crown had vested rights to continue its use of the property. On November 20, 1996, the Residents filed a five count complaint (Complaint) with the Trial Court seeking declaratory and injunctive relief to have the Lease declared null and void and to have the tower removed. Residents also sought alternative relief in the form of a writ of mandamus. The Township and Crown filed preliminary objections to the Complaint, asserting, inter alia, that the Residents lacked standing, that the Residents faded to state a cause of action (on grounds of laches, estoppel, waiver and inapplicability of a statute) and that the Court lacked subject matter jurisdiction. On February 7, 1997, the Trial Court entered an order sustaining some of the preliminary objections and overruling others. From that point, the procedural history becomes a point-counterpoint series of filings that include: answers with new matter, an amended complaint, new preliminary objections, cross-motions for summary judgments, a motion for leave to amend the complaint and various motions for reconsideration. In the end, all five counts of the Complaint were dismissed. Four of the Trial Court’s orders are before us: the order of February 7, 1997, the order of June 24, 1998, the order of December 16, 1998, and the order of June 28, 2000. On June 11, 2001, the Trial Court entered a Statement in Lieu of Opinion. The issues raised by Residents in their appeals to this Court are as follows: 1) whether their status as residents and taxpayers of the Township gives them standing to challenge the use of Boyce Park for purposes other than those specified in the deed; 2) whether Residents may compel the Township to make application under the Donated or Dedicated Property Act or enforce the Township’s duty under the act; 3) whether the Township and Crown were required to file a subdivision and development plan pursuant to the Township Subdivision and Development Ordinance; and 4) whether the Township was required under its Home Rule Charter to use competitive bidding procedures in its acquisition of emergency communications service. Crown has participated in this appeal, but the Township has not. STANDING In its order of February 7, 1997, the Trial Court held that the Residents had standing to challenge the alleged violations of the deed restrictions set forth in Count I of their Complaint. Subsequently, in its order of June 28, 2000, the Trial Court reversed itself, holding that the deed created a charitable trust that could be enforced by the Attorney General or by a person with a special relationship to the trust but not by the Residents, whose interests were found not to be sufficiently “special.” In their appeal, Residents contend that their interests as residents and taxpayers are sufficient to confer standing but, in any case, standing can certainly be found in them allegation of reduced property values caused by the nearby, unsightly tower, which allegation the Trial Court refused to allow by amendment to the Complaint in its June 28, 2000 order. Residents also charge that the Trial Court violated the “law of the case” doctrine by reversing itself on the issue of standing, when no new facts had emerged to justify this reversal. To do its standing analysis, the Trial Court relied upon case law precedent where members of the public have sought to amend, or to preserve from change, the terms of a charitable trust established by private persons. These include Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953) (wherein an editor of the Philadelphia Inquirer sought to increase the hours of public access to the Barnes Foundation’s art gallery) and Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981) (wherein the society sought to continue its right to occupy the chapel). Each case analyzed the question of standing and held firm to the principle that a member of the general public lacks standing to enforce a duty owed by a charitable organization. The reason is that if one individual may interpose in a private charity’s operation, another may to the contrary, and there would be no end to litigation and strife. At issue here, however, is a public park. The standing analysis is different in cases where citizens seek to protect a park, a town square or other land dedicated to a particular public purpose from degradation or intrusion by an inconsistent public or private use. It is that body of case law that provides the appropriate authority in this case. Real property may be dedicated to public use in a variety of ways. Dedication may be express or it may be implied from the acts of the parties, and it need not take a particular form. Dedication may be found in a single act, such as the giving of a deed or the recording of a plan, or it may be found from a series of acts, all consistent with and pointing to the intention to dedicate. Dedication, like a contract, requires both offer and acceptance, and once there is acceptance, in whatever form it takes, dedication is irrevocable. Borough of Ridgway v. Grant, 56 Pa.Cmwlth. 450, 425 A.2d 1168, 1170 (1981). Here, the dedication of Boyce Park is apparent from the acts of the County and of the Township. The County conveyed 200 acres of land to the Township so long as the property was used for recreation, conservation and historic purposes and required those restrictions to be recorded in the deed of conveyance. When the Township paid the County $1.00 to receive the conveyance, it accepted the terms of the dedication, and the dedication became irrevocable. The dedication can be found in the restrictions recorded in the deed, and it can be found expressed in the Township’s Comprehensive Plan of 1995. While the dedication of Boyce Park may be described as a trust, it is not a technical trust. BogeRT explains the difference. While many cases and statutes describe the municipality as holding the dedicated land in trust, it is believed that the word “trust” is used in a non-technical sense, as denoting merely an obligation arising out of the acceptance of the dedicated property, and not as meaning that the city became a trustee for charitable purposes. It is commonly accepted that any taxpayer can proceed in equity to enjoin the waste, destruction, misuse, or abuse of the property of a municipal corporation. Many of the suits against muniei-palities to compel the application of dedicated land to the special purpose for which it was dedicated are brought by taxpayers as such, on the usual theory of improper use of public property and consequent financial loss to the taxpayers. Equity takes jurisdiction because of the inadequacy of the remedy at law, and not because of any trust. Bogert, supra § 34, at 408-409 (emphasis added). In Borough of Ridgway, this Court described the dedication of land to a public park as a “charitable trust,” but it went on to apply land dedication case law. 425 A.2d at 1170. In short, while it was not error for the Trial Court to call thé legal arrangement by which Boyce Park was created a “charitable trust,” it was error to treat it as a technical trust or charity to which the principles announced in Estate of Nevil would apply. When the Township decided that the dedication of the .428 acres in question no longer served the public interest, it had recourse. Under Section 4 of the Donated or Dedicated Property Act, Act of December 15, 1959, P.L. 1772, 53 P.S. § 3384, the Township was free to apply to orphans’ court for approval to apply the property to a different public purpose. In the absence of this application, and a court order of approval for another use, the Township was obligated to ensure that the use of the .428 acres of Boyce Park at issue here was consistent with a recreation, conservation or historical purpose. Indeed, under Pennsylvania law, the Township’s obligation to uphold the dedication is absolute, not discretionary. A political subdivision lacks authority to assent to the use of public land for any purpose— even a public purpose — other than the intended purpose, no matter how exigent the circumstances. In Meig’s Appeal, 62 Pa. 28 (1869), our Supreme Court held that the Borough of York had no power to “assent” to the erection of federal military barracks and hospitals on the York Common during the “war of rebellion” and, to the contrary, that it was the duty of the Borough to prevent their erection. In an appeal of an injunction issued to prevent the City of Pittsburgh’s effort to sell a dedicated public square, known as Diamond Square, our Supreme Court held The applicable principle of law is well stated in 3 Dillon, Municipal Corporations, 5th Ed., Sec. 1102: “A municipal corporation has no implied or incidental authority to alien, or to dispose of for its own benefit, property dedicated to or held by in trust for the public use or to extinguish the public uses in such property, nor is such property * * * [or the proceeds of sale thereof available for] the payment of the debts of the municipality.” This has been the law of Pennsylvania for over a century. Hoffman v. City of Pittsburgh, 365 Pa. 386, 391, 75 A.2d 649, 651 (1950) (footnotes and citations omitted) (emphasis in original). Not only is the sale of dedicated public land prohibited, so is the lease of dedicated public land. A municipality has been found to lack authority to lease dedicated public property to private concerns where the lease would be inconsistent with the terms of the dedication. Ormsby Land Co. v. City of Pittsburgh, 276 Pa. 68, 119 A. 730 (1923). The question, then, is what persons have standing to enforce the terms of a dedication. This has been directly addressed by our appellate courts. In Board of Trustees of Philadelphia Museums v. Trustees of University of Pennsylvania, 251 Pa. 115, 96 A. 123 (1915), our Supreme Court considered the question of standing to enforce a dedication and found it to he in citizens and taxpayers. By enactment of several ordinances, the City of Philadelphia had dedicated certain tracts of land to be used as gardens and park, free to the public at all times, on which lands museums were built. Subsequently, the City of Philadelphia repealed these ordinances in order to convey these lands, subject to an easement on behalf of the museums, to the University of Pennsylvania. The Supreme Court held that “taxpayers and citizens” had standing to bring a suit in equity to nullify the sale of dedicated public property to a private institution, even a charitable non-profit institution. It reasoned that because the city had ... appropriated money for the care, maintenance and improvement of at least portions of the land in question, every citizen and taxpayer has an interest, not only by virtue of his being one of the public to whom the property has been donated, but also by virtue of his contribution as a taxpayer towards the funds, which have been used in improving the ground. A sale of the property, if improper, is therefore a question in which taxpayers have an interest and which they have a right to contest. Id. at 122-28, 96 A. at 125 (emphasis added). In Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86 (Pa.Cmwlth.1973), this Court conducted a hearing on the request of citizens of the City of Wilkes-Barre and students attending Wilkes College in Wilkes-Barre to enjoin the taking of one-half acre of a city park, known as River Common, for the purpose of widening of two city streets. This court held that “[t]he plaintiffs in this action have standing as part of the public and as owners of property fronting the Common to object to the appropriation of part of the Common for highway purposes.” Id. at 97 (emphasis added). It is notable that standing was not limited to taxpayers (as owners of property) but also included “members of the public.” Persons with standing to participate in a legal proceeding brought under a zoning ordinance were found to have standing to proceed in equity when that statute was bypassed. In City Council of the City of Pittsburgh v. City of Pittsburgh, 155 Pa.Cmwlth. 328, 625 A.2d 138 (Pa.Cmwlth.1993) this Court held that individual residents and members of City Council had standing to enjoin construction of fire stations by the City where the City had bypassed conditional use applications required under City Ordinance. It reasoned that since neighbors “who live in close proximity to a proposed use have standing as aggrieved persons to challenge zoning decisions,” they have standing to bring suit in equity where zoning processes were bypassed. Id. at 336, 625 A.2d 138. Residents cite three leading cases where citizens filed suits in equity to enforce the terms of a dedication, and their standing to do so was not challenged. They are Bernstein v. City of Pittsburgh, 366 Pa. 200, 77 A.2d 452 (1951) (where the construction of an open air auditorium in Schenley Park was challenged); Borough of Ridgway, (where the construction of a fire station in a park was challenged); and Appeal of the Borough of Bangor, 130 Pa.Cmwlth. 143, 567 A.2d (1989) (where construction of a school in a park was challenged). Crown dismisses the cases as having little weight because the issue of standing was not litigated. The likely explanation for this fact is that the defendants recognized the weight of authority in dedication cases (discussed above) where standing has been liberally conferred. Bernstein, Ridgway and Bangor support the conclusion that Residents have standing to pursue their claim that the use of .428 acres of Boyce Park as contemplated by the Lease is not consistent with the terms of dedication set forth in the deed. Residents also challenge the Trial Court’s reversal of its first decision on standing, asserting that relitigation of the standing issue violated the “law of the case” doctrine. Strictly speaking, that doctrine only applies to appellate courts. However, a similar doctrine applies to trial courts, and it provides that a trial judge may not overrule an interlocutory order of another judge of the same court on an issue previously litigated in the same case. Sanchez v. Philadelphia Housing Authority, 148 Pa.Cmwlth. 329, 611 A.2d 346, 348 (1992). Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995). It is not clear that this rule prevents a trial judge from reversing his own decision, but since we decide the standing issue in favor of Residents, we need not decide whether it was appropriate for the trial judge to reverse his own order in the absence of a motion for reconsideration. Finally, we address the Trial Court’s decision not to permit an amendment of Residents’ Complaint with averments that their real estate has been devalued by the presence of the Crown tower. It appears that with these averments, Residents seek to enforce the deed restrictions by asserting a private property right in the nature of an equitable easement. BogeRT, supra § 34, at 409-410; Appeal of Grille, 181 Pa.Super. 456, 124 A.2d 659 (1956). It may be that the proximity of their property to Boyce Park is such that Residents have an equitable easement that is enforceable in equity. However, we need not decide this issue since we find that Residents’ status as residents and taxpayers gives them the requisite standing to pursue their claims in Count I of the Complaint against the Township and Crown. We hold that Residents meet the test for standing set forth in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). Their interests as taxpayers and residents of the Township are substantial, direct and immediate thereby conferring on them standing to pursue their claim that the Township has failed to uphold the terms of the dedication of Boyce Park. In William Penn Parking, our Supreme Court held that an interest may confer standing even if it is not a pecuniary one. Id. at 193, 346 A.2d at 280. The interests sought to be protected here are the preservation of Boyce Park to its intended recreation, conservation and historical purposes; these additional interests of Residents are specifically protected by the Pennsylvania Constitution. Article I, Section 27 of the Pennsylvania Constitution provides as follows: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. Pa. Const. I, § 27 (emphasis added). Standing to enforce the particular terms of the dedication of Boyce Park must be considered in light of Article I, Section 27; accordingly, standing, as in Payne v. Kassab, can be found in persons that are “part of the public” that enjoy the conservation, recreation and historic uses of Boyce Park. DONATED OR DEDICATED PROPERTY ACT In its February 7, 1997 order, the Trial Court sustained the demurrer of the Township and Crown to Count II of the Complaint, by which Residents seek to have the Township held liable for its alleged violation of the Donated or Dedicated Property Act, 53 P.S. §§ 3381-3386. Residents appeal, contending that the Act imposes a duty on the Township to ensure that Boyce Park is used for the purposes set forth in the deed unless and until it obtains court approval of other uses. They assert that since the Township did not make this application, its statutory duty may be enforced by the Residents and, further, the Township can be ordered by writ of mandamus to make application to have the .428 acres in question approved for other use. Crown argues, in defense of the Trial Court’s decision, that Residents do not have a private right of action to enforce the Donated or Dedicated Property Act. We affirm in part and reverse in part the Trial Court’s dismissal of Count II. The Donated or Dedicated Property Act clarifies the legal status of certain lands, held by a political subdivision, that are dedicated to a public use. It states: All lands or buildings heretofore or hereafter donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use, where no formal record appears as to acceptance by the political division, as a public facility and situate within the bounds of a political subdivision, regardless of whether such dedication occurred before or after the creation or incorporation of the political subdivision, shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee. Section 2 of the Donated or Dedicated Property Act, 53 P.S. § 3382 (emphasis added). The statute creates a duty in the political division holding lands for use as public facility; it states All such lands and buildings held by a political subdivision, as trustee, shall be used for the purpose or purposes for which they were originally dedicated or donated, except insofar as modified by court order pursuant to this act. Section 3 of the Donated or Dedicated Property Act, 53 P.S. § 3383. It specifies the procedure for obtaining such a court order, giving the court the specific “power to remove a restrictive covenant ... where ... the use of the property ‘is no longer practicable or in the public interest.’ ” Petition of Borough of Westmont, 131 Pa.Cmwlth. 530, 570 A.2d 1382 (1990). The Trial Court was correct in holding that the Donated or Dedicated Property Act creates a mechanism by which political subdivisions may terminate a dedicated use of a public facility, but it does more. It also creates a duty in the political subdivision to maintain the public facility in accordance with the terms of the dedication. Section 3 of the Donated or Dedicated Property Act, 53 P.S. § 3383. The Act does not specify what persons may enforce the duty set forth in Section 3. This contrasts, for example, with the Project 70 Land Acquisition and Borrowing Act, Act of June 22, 1964, P.L. 131, as amended, 72 P.S. §§ 3946.1 and 3946.22. Section 20(e) of the Project 70 Land Acquisition and Borrowing Act provides that lands acquired under the act are to be used for recreation, conservation and historical purposes, and if the political subdivision fails in this duty, it may be required to reimburse the Commonwealth the funds used to acquire the land. It identifies the party that may enforce this duty as follows: (e) The Commonwealth of Pennsylvania may specifically enforce the provisions of this requirement by application to a court of equity or may invoke other remedies deeded appropriate under the circumstances. 72 P.S. § 3946.20(e). In Quirk v. Schuylkill County Municipal Authority, 54 Pa.Cmwlth. 619, 422 A.2d 904 (1980), this Court reviewed this language and concluded that only the Commonwealth of Pennsylvania, not private persons, could initiate proceedings to enforce the Project 70 Land Acquisition and Borrowing Act. In the Donated or Dedicated Property Act, the legislature did not specify the manner of enforcement of the Section 3 duty imposed on a political subdivision. If the Township had made application under Section 4 to obtain a court order allowing a use for Boyce Park other than the ones specified in the deed, the Residents would have been able to file a protest and seek to intervene in the orphans’ court proceeding conducted under Section 5 of the Donated or Dedicated Property Act. It is only logical that where, as here, the application procedure has been bypassed by the Township that the Residents should be able to proceed in equity to determine whether the Township has failed in its duty under Section 3. Quirk, upon which Crown relies for its contention that private persons may not enforce the Donated or Dedicated Property Act is inapposite. As noted, Quirk deals with a different statute that expressly reserved enforcement to the Commonwealth. By contrast, the Donated or Dedicated Property Act is silent on enforcement of the duty set forth in Section 3. The Trial Court believed that this Court’s holding in Petition of Borough of Westmont, supported its conclusion that a private right of action does not lie under the Dedicated or Donated Property Act, but Westmont is also inapposite. First, Westmont arose from two statutes: the Donated or Dedicated Property Act and the Pennsylvania Inalienable Property Act, and it was not clear which statute had been applied by the trial court. Second, the issue decided was whether the trial court had authority under the Donated or Dedicated Property Act to remove one deed restriction and impose a new use restriction. Standing to object to the removal of a deed restriction does not necessarily mean that the party will have standing to object to the new restriction. Third, while this Court stated in dictum that “the standing of the parties under the Donated or Dedicated Property Act is not clear,” it allowed neighbors, who intervened in the trial court proceeding, to appeal the trial court’s decision. This is not to say that private persons, or even the Commonwealth, can compel a political subdivision to make an application pursuant to Section 4 of the Donated or Dedicated Property Act by writ of mandamus. It is within the Township’s discretion to seek court approval or not. If it does not, it runs the risk of being the target of an equity action brought to enforce a dedication, such as has occurred here. Had the Township made application under the Act and obtained court approval for a use other than that specified in the deed, it would have been shielded from Counts I and II of the Complaint. In short, we hold that Residents have a private right of action to enforce the mandatory duty set forth in Section 3 of the Donated or Dedicated Property Act. To enforce this statutory duty, however, is to do no more than enforce the Township’s duty under the deed. The statutory duty is redundant of the common law duty, and its enforcement does not entitle Residents to relief beyond that which may be obtained under Count I. “SUBDIVISION” AND “DEVELOPMENT” . OF BOYCE PARK Residents contend in Count III of their Complaint that the Lease constitutes a “division” of the 200 acres that makes up Boyce Park and a “development” of the .428 acres on which the tower stands. In addition to the tower and equipment buildings, Crown has constructed a twenty-foot wide road, one-quarter mile long, to provide access to the leased parcel. Residents contend these changes in the use of the land required filings with and approval by the Township’s Planning Commission pursuant to the Township Subdivision and Land Development Ordinance (Ordinance). Initially, the Trial Court agreed and granted Residents’ motion for summary judgment and issued a writ of mandamus to the Township and to Crown to comply with the Ordinance. Subsequently, on December 16, 1998, the Trial Court dismissed Count III. We reverse the Trial Court’s dismissal of Count III. In Cassidy v. Ginter, Inc., 6 Pa.Cmwlth. 430, 296 A.2d 293 (1972), this Court held that mandamus was the appropriate remedy where it is alleged that a borough has improperly denied a building permit. In that case, the landowner was denied a permit to construct twenty-four apartment units on the stated ground that he had failed to comply with the borough’s subdivision ordinance. This Court reviewed the definitions in the ordinance and concluded that the development of the tract did not constitute a subdivision, stating “[i]n our opinion, the definitional sections control the intended scope of the ordinance.” Id. at 294. In Tu-Way Tower Co. v. Zoning Hearing Board of Township of Salisbury, 688 A.2d 744 (Pa.Cmwlth.1997), the Tu-Way Tower Company (Tu-Way) appealed the trial court’s affirmance of the Zoning Hearing Board’s denial of a variance needed to raise the height of an existing communications tower and to build two new towers and accessory buildings because they did not satisfy the requirements of certain pending amendments to the zoning ordinance. Under the “pending ordinance doctrine” a permit may be refused where it would be prohibited under a pending amendment to the zoning ordinance, but under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202, the doctrine may not be applied to an application for a “land development” or “subdivision.” At issue, then, was whether the applications submitted by Tu-Way could be- characterized as requests for permits to “develop” or “subdivide” land within the meaning of the MPC. This Court held they were not and upheld the Zoning Board’s decision. In doing so, this Court followed the approach developed in Cassidy v. Ginter, Inc.: it reviewed the definitions in the MPC to determine its intended scope. It held, first, that Tu-Way’s project was simply a reuse of its land, not a division or redivision, and, therefore, it did not constitute a subdivision within the meaning of the MPC. Next, it held that neither construction of accessory buildings nor the planned “lease” of space on Tu-Way’s tower constituted a “land development.” This Court found that Tu-Way’s conveyance of antenna space on its tower to be a license, not a lease within the meaning of the MPC. The definitional language in the MPC and in the Ordinance are almost identical. We are bound by the interpretation of the terms “subdivision” and “land development” set forth in Tu-Way. However, the facts to which these definitions apply are different. Tu-Way did not divide the twelve acres of land that it owned but only reused it. It did not “subdivide” a vertical tower by a series of “leases” but simply licensed antenna space. Here, Residents do not assert that Crown’s licenses to “tenants” are leases giving rise to subdivision. Rather, they contend that the Lease, which conveys the use of a discrete parcel of land from the Township to Crown for up to 100 years, creates a subdivision. They are correct. The Lease divides a 200-acre parcel, Boyce Park, “for the ... immediate ... purpose’ of lease” of .428 acres to Crown. Township of UppeR St. Clair, Code § 114.10.45. This action creates a subdivision within the meaning of the MPC and the Ordinance. Based on the facts in the Complaint, we hold that the Township has subdivided Boyce Park for the purpose of the Lease. Accordingly, Residents state a cause of action under Count III of their Complaint. We do not decide whether they are entitled to the relief requested under Count IV, which was also dismissed by the Trial Court. Both Counts III and IV advance the same legal theory, ie., violation of the Ordinance. In light of our holding that Residents state a cause of action for alleged violation of the Ordinance, the merits of both counts should be considered on remand. HOME RULE CHARTER In Count V, Residents charge that the Lease between the Township and Crown violated the competitive bidding procedures of its Home Rule Charter. Relying on this Court’s holding in Gaab v. Borough of Sewickley, 692 A.2d 643 (Pa.Cmwlth.1997), the Trial Court dismissed this final count. We reverse. Chapter 25 of the Township of Upper St. Clair Home Rule Charter provides that all contracts be competitively bid. It states as follows: Except as otherwise provided in this Charter, no contract for supplies, material, labor, franchise, or other valuable consideration, to be furnished to or by the township, shall be authorized on behalf of the township, except with the best responsible bidder after competitive bidding. 302 Pa.Code § 25.10-1002 (emphasis added). It also provides limited exceptions to the competitive bidding requirements. It states: Competitive bidding shall not be required under this charter for: (5) Contracts relating to the acquisition or use of real property. (6) Contracts for professional or unique services. 302 Pa.Code § 25.10-1004. Residents assert that when the Township decided that it needed new emergency communications service, it was the duty of the Township to seek the “best responsible bidder” for that job. Instead, it obtained the services from Crown without any competitive bids from other responsible providers of these services. The Trial Court relied upon this Court’s holding in Gaab v. Sewickley. This case involved a lease agreement remarkably similar to that at issue here. Under the lease with the Borough of Sewickley, Crown also provided the borough with police, fire, public works and 911 communications system; a microwave link from the tower to the borough building; maintenance and inspection; and electricity for the borough equipment and paid annual rent of $2,400 to be increased by 3% each year. Certain residents appealed from the trial court’s grant of summary judgment to the Borough of Sewickley and Crown. On appeal, Appellants asserted, inter alia, that the trial court should have required competitive bidding procedures to be followed. This Court affirmed the trial court, finding that there was “no expenditure of public funds for contracts or purposes.” Id. at 645. Despite the similarities in the respective lease agreements, Gaab v. Sewickley is not controlling of this case. The expenditure of public funds was essential in Gaab v. Sewickley where the Borough’s home rule charter required contracts to be awarded on the basis of price. By contrast, the Township’s Home Rule Charter requires that its contracts be awarded to the “best responsible” bidder. The different standard requires a different result. The Trial Court also found that the Lease was exempt from competitive bidding requirements because it was a “contract relating to the acquisition or use of real property.” “Use” refers to the Township’s use of real property, not a private party’s use of Township real estate pursuant to lease. In its answer, the Township characterizes the transaction as a commercial lease, not a purchase of services. However, there is no exemption from the Township Home Rule Charter for such leases. All contracts for “valuable consideration” “to or by the Township” must be awarded to the best responsible bidder. 302 Pa.Code § 25.10-1002. Finally, there is no exception for the Lease on the ground that it is a contract for unique services, as claimed by Crown. We reverse the Trial Court’s dismissal of Count V. Under the Township’s Home Rule Charter, the Township was required to find the best responsible bidder to provide emergency communications service. Price alone was not to determine the choice. Further, the lease of Township realty is to be competitively bid; only property leased by the Township is exempt from required competitive bidding procedures. CONCLUSION We hold that Residents have standing to pursue all counts of their Complaint. The Complaint states a cause of action under the common law relating to lands dedicated to a public purpose. It also states a cause of action under several statutes: under the Donated or Dedicated Property Act to the extent it seeks to enforce the Township’s duty set forth in Section 3; under the Township Subdivision and Land Development Ordinance; and under the Township’s Home Rule Charter. This matter is remanded to the Trial Court for consideration of defenses not yet decided by the Trial Court and, to the extent necessary to resolve facts in dispute, a hearing on the merits of each count. ORDER AND NOW, this 30th day of April, 2002, the orders of the February 7, 1997, June 28, 1998, December 16, 1998 and June 28, 2000 entered by the Court of Common Pleas of Allegheny County in the above-captioned matters are reversed in part and affirmed in part. The case is remanded for further proceedings in a manner consistent with the attached opinion. . This Court’s scope of review when considering a motion for summary judgment or a demurrer is limited to error of law or clear abuse of discretion. All well-pleaded material facts in the complaint and reasonable inferences that may be drawn from those facts must be accepted as true. O’Brien v. Township of Ralpho, 166 Pa.Cmwlth. 337, 646 A.2d 663 (1994). . This tower was removed as part of the construction of the 350 foot high tower at issue here; the validity of the 180-foot high tower is not the subject of this appeal. . The amendments, save for the last one exempting Crown from the Zoning Code, related to parking and redefining "sexually-oriented business” for purposes of the Zoning Code. (Reproduced Record 178a-181a) (hereinafter "R.R.”). . The fact that the Lease "obligated” Crown to construct the tower should not obscure Crown’s commercial purpose in entering into the Lease. By January of 1999, Crown’s list of tenants included: American Paging, Inc.; APT Pittsburgh Limited Partnership; Pittsburgh Cellular Telephone Co.; Bell Atlantic Mobile, Inc.; Mobile Comm of the Northeast, Inc.; Paging Network of Philadelphia, Inc.; Nextel Communications, Inc.; Sprint PCS; Township of Upper St. Clair; and USA Mobile, Inc. (R.R.435a). .Certain of these findings of fact and conclusions of law were vacated by the Court of Common Pleas of Allegheny County, which decisions have been appealed and are pending before the Pennsylvania Supreme Court. . One of the Trial Court's orders was appealed to this Court by Crown but withdrawn when the Trial Court reversed itself on whether the Township could be compelled by a writ of mandamus to comply with the Subdivision and Development Ordinance of the Township. . The deed provided that the conveyance to the Township was made "so long as the property described below is used for recreation, conservation and historical purposes as defined in the Project 70 Land Acquisition and Borrowing Act, approved June 22, 1964, Pa. Stat. Ann. Tit. 72, § 3946.1 et seq; and the Land and Water Conservation Act [sic], Pa. Stat. Ann. Tit. 32, § 5101 et seq (R.R.19a). The Project 70 Land Acquisition and Borrowing Act contains the following definitions: "Recreation and historical purposes” means any use of land for public park, fishing, hunting, boating, open space purposes or scenic sights or preservation of sites or historical purpose. "Conservation purposes” means any use of land for water supply, flood control, water quality control development, soil erosion control, reforestation, wild life reserves or any other uses that will maintain, improve or develop the natural environment of soil, water, air, minerals or wild life of this Commonwealth so as to assure their optimum use. Section 3(1) and (2) of the Project 70 Land Acquisition and Borrowing Act, Act of June 22, 1964, P.L. 131, 72 P.S. § 3946.3(1) and (2). Section 3 of the Land and Water Conservation and Reclamation Act contains identical definitions; however, the second definition defines a slightly different term, i.e., "conservation and reclamation purposes.” 32 P.S. § 5103(2). . The Residents characterize the tower as having the appearance of an industrial structure. In addition to its height, Residents object to its massive size. The triangular base at ground level measures 36 feet between each upright. . This is the third (and final) standing analysis set forth in its June 11, 2001 Statement in Lieu of Opinion. . Estate of Nevil, 414 Pa. 122, 129, 199 A.2d 419, 423 (1964). . See George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 34 Rev.2d Ed. (1984) and 12 P.L.E. Dedication §§ 1-34 (1985). . Crown directs our attention to Bogert's observation that cases are rare where persons other than the Attorney General have been able to challenge the operation of a charitable trust. Bogert, supra § 414, at 51. This section of Bogert is irrelevant because it addresses private charities, such as the Barnes Foundation at issue in Wiegand, not the use of land dedicated to public purposes. . Section 4 of the Donated or Dedicated Property Act states: When, in the opinion of the political subdivision which is the trustee, the continuation of the original use of the particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest, or where the political subdivision, as trustee for the benefit of the public, is in doubt as to the effectiveness or the validity of an apparent dedication because of the lack of a record of the acceptance of the dedicated land or buildings, the trustee may apply to the orphans’ court of the county in which it is located for appropriate relief. The court may permit the trustee to— (1) Substitute other lands or property of at least equal size and value held or to be acquired by the political subdivision in exchange for the trust property in order to carry out the trust purposes. (2) If other property is not available, sell the property and apply the proceeds to carry out the trust purposes. (3) In the event the original trust purpose is no longer practicable or possible or in the public interest, apply the property or -the proceeds therefrom in the case of a sale to a different public purpose. (4) Relinquish, waive or otherwise quitclaim all right and title of the public in and to such land and buildings as have been apparently dedicated but for which no formal acceptance appears of record: Provided, only, That the court is satisfied upon hear ing the evidence that there is no acceptance by implication arising out of public user or otherwise, the court shall also determine the consideration, if any, to be paid to the political subdivision. 53 P.S. § 3384 (emphasis added). . A lease consistent with a park’s use, such as a concession stand or open air auditorium, can be permissible. . It is clear that the Attorney General can enforce the terms of a dedication, but as has been pointed out by Bogert: And yet in the dedication cases it is rare that the Attorney General has appeared as a plaintiff or that the court has refused the private plaintiff relief on the ground that the Attorney General was the only party plaintiff. Bogert, supra § 34, at 410. We have been unable to find a Pennsylvania dedication case instituted by the Attorney General. . This Court found that the taking was .consistent with the public purposes recited in the statutes by which the property was dedicated. . Borough of Ridgway and Borough of Bangor also stand for the principle that even an important public purpose, such as building a school or a fire station, will not justify a municipality’s abandonment of the terms of a dedication. . In its February 7, 1997 order, the Trial Court held that the Residents had standing and affirmed that ruling in an order dated June 25, 1998. It later reversed itself in an October 6, 1999 order, in which it granted defendant’s motion for summary judgment on Count I. It then granted Residents reconsideration of that order, but in its June 28, 2000 order, it held, again, that Residents lack standing. . In Appeal of Grille, the Superior Court held that deed restrictions can be enforced by neighboring land owners if it can be found that they are beneficiaries of the restrictions. The Court reasoned that a "restriction imposed for the benefit of the other party creat[es] an equitable right in the nature of an easement in his behalf [and] may be enforced in equity without regard to whether it is inserted by way of condition, covenant, or otherwise.” Id. at 464, 124 A.2d at 664. .We recognize that because Residents have standing as taxpayers and residents, this analysis is not necessary to the holding. However, this analysis is appropriate wherever the terms of a public dedication are mirrored, almost word-for-word, in Article I, Section 27, as is the case here. . See Section 4 of the Donated or Dedicated Property Act, 53 P.S. § 3384, the language of which is set forth above at footnote 13. . A “public facility” is defined as "any park, theatre, open air theatre, square, museum, library, concert hall, recreation facility or other public use.” Section 1(5) of the Donated or Dedicated Property Act. 53 P.S. § 3381(5). . This procedure is set forth in Sections 4 and 5 of the Donated or Dedicated Property Act. The text of Section 4 is set forth in footnote 13. Section 5 provides as follows: In all proceedings under this act, the political subdivision shall give at least ten days’ notice of the filing of its petition to the Attorney General who may become a party thereto and shall give notice to the public of the proposed date of the hearing, by publication, once a week for three successive weeks in the official legal journal of the county and in a newspaper of general circulation in the municipality, if there be one, or, if not, in a newspaper of general circulation in the county. Any resident of the political subdivision or any group or organization of residents of the political subdivision or any group or organization of residents of the political subdivision shall have the right to file a protest and, in the discretion of the court, shall be entitled to be heard in person or by counsel or to intervene in such action and to be a party thereto. Section 5 of the Donated or Dedicated Property Act, 53 P.S. § 3385 (emphasis added). . Crown improperly conflates the Donated or Dedicated Property Act with the Project 70 Land Acquisition and Borrowing Act. There is no reason to believe that the Township’s acquisition of Boyce Park, for $1.00, involved funding under the Project 70 Land Acquisition and Borrowing Act. The deed incorporated two definitions from the Project 70 Land Acquisition and Borrowing Act to clarify what was meant by the dedication to "recreation, conservation and historic purposes.” Identical definitions also appear in the Land and Water Conservation and Reclamation Act, which were also incorporated into the deed. Incorporating statutory definitions into a deed does not make those statutes generally applicable. . This was the logic followed by this Court in City Council of the City of Pittsburgh v. City of Pittsburgh, supra. . 20 Pa.C.S. §§ 8301-8306. .The Court did not explain why standing was not clear, and it may be nothing more than an acknowledgement that the grant of intervention and party status to a particular individual is discretionary with the trial court. . The corollary should also hold true. If a Township and its lessee are required to obtain certain permits and do not, they can be compelled by mandamus to do so. . Section 107 of the MPC, 53 P.S. § 10107, defines “land development” as follows: (1)The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving: (i) a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or (ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features. (2) A subdivision of land. (3) Development in accordance with section 503(1.1). Section 107 of the MPC, 53 P.S. § 10107, defines “subdivision” as follows: [t]he division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees, transfer of ownership or building or lot development: Provided, however, That the subdivision by lease of land for agricultural purposes into parcels of more than ten acres, not involving any new street or easement of access or any residential dwelling, shall be exempted. . The Township Subdivision and Land Development Ordinance, defines “subdivision," as follows: The division or re-division of a lot, tract or parcel of land by any means into two (2) or more lots, tracts or parcels or other divisions of land, including changes in existing lot lines, for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees; transfer of ownership or building or lot development; provided, however, that the subdivision by lease of land for agricultural purposes into parcels of more than ten (10) acres, not involving any new street or easement of access or residential dwellings, shall be exempted. Township of Upper St. Clair, Code § 114.10.45 (emphasis added). The Township Subdivision and Land Development Ordinance defines "land development" as follows: The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving: 114.10.24.1.1. a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single non-residential building on a lot or lots regardless of the number of occupants or tenure; or 114.10.24.1.2. the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features. 114.10.24.2 a subdivision of land; Township of Upper St. Clair, Code, §§ 114.110.24.1 114.10.24.2 (emphasis added). . It appears that the subdivision is also a development under the definition at Township of Upper St. Clair, Code, § 114.10.24.2. . Count III requests a declaratory judgment and writ of mandamus; Count IV requests an injunction and writ of mandamus. . The record shows that another Crown lease agreement, that with the Township of Hampton, resulted in a notably higher rent. In an agreement entered just six months after the Lease, Crown agreed to pay $36,000 per year, in equal monthly installments for the first five years with a 20% increase every five years thereafter. In addition, the lessee also provided the Township with four antenna positions on the tower for enhanced 911 radio dispatch systems. R.R. 305(a). .The Lease between Crown and the Township does not provide for a 3% annual increase until expiration of twenty (20) years. The Lease provides the Township with six (6) antenna positions, but if they are not all used, Crown will pay $262.34 to the Township per month for each antenna position not used. These additional payments also do not begin until year 21 of the Lease. (R.R. 32a). These arrangements make it unclear that public funds are not being used here in the form of reduced rent. . This admission must be considered on remand when the Trial Court must consider whether the Lease advances a recreation, conservation or historic purpose. . Computer and telephone services have been held not to be "professional” or “unique” services. In Re: 1985 Washington County Annual Financial Report Surcharge, 529 Pa. 81, 601 A.2d 1223 (1992); American Totalisator Company, Inc. v. Seligman, 27 Pa.Cmwlth. 639, 367 A.2d 756 (Pa.Cmwlth.1976).

OPINION BY Senior Judge FLAHERTY. Paula Tindal (Claimant) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) which affirmed the decision of a Workers’ Compensation Judge (WCJ) denying Claimant’s Claim Petition. We affirm. On April 22, 1988, Claimant filed a Claim Petition alleging that, on January 15, 1988, she developed carpal tunnel syndrome while working as a laborer for the City of Philadelphia, Department of Licenses and Inspection (Employer). This ease was originally assigned to Referee Inez Lundy, who heard the testimony and accepted the evidence submitted by the parties. However, this case was transferred to Referee Irvin Stander, who issued a decision and order dated November 8, 1991 denying Claimant’s Claim Petition because “[biased on the testimony of Dr. Mandel claimant has not sustained her burden of proving a causal relationship between her injury and her employment with the City of Philadelphia.” (Finding of Fact No. 25). Claimant appealed to the Board, which vacated and remanded the decision of the Referee because he failed to make findings of fact with regard to the credibility of two witnesses, James Grundy and Russell Simmons. The Board directed that the Referee was to open the record and make necessary credibility determinations. On remand, the case was assigned to WCJ Lundy, who originally heard the testimony, rather than WCJ Stander, who issued the opinion. On July 28,1995, WCJ Lundy issued a decision finding Dr. Man-del not credible, granting Claimant’s Claim Petition and finding that Employer presented an unreasonable contest. Employer appealed to the Board, which affirmed the WCJ’s grant of the Claim Petition but reversed his award of unreasonable contest attorney’s fees. Employer appealed the Board’s decision to this Court, contending that the Board erred by remanding for additional evidence when WCJ Stander’s crucial findings were supported by the evidence. In an unreported decision filed on February 26, 1998, we vacated the decision of the Board because there was nothing in the record to indicate that Grundy or Simmons had testified. Therefore, we were unable to conduct an effective appellate review of the WCJ’s decision. Accordingly, we remanded this case to the Board, with instructions to remand this case to a WCJ if necessary, for a determination as to whether Grundy and Simmons actually testified and, if they did, whether their testimony was crucial to the determination of whether Claimant was entitled to benefits. If their testimony was found not to be crucial, we directed that WCJ Stander’s November 8, 1991 decision should to be reinstated. On August 8, 1998, the Board remanded this case in accordance with our opinion and the Bureau of Workers’ Compensation assigned this case to WCJ Patricia M. Bachman. The parties stipulated that Simmons did not testify and the WCJ found that Grundy did testify. With regard to Mr. Grundy’s testimony, the WCJ found that it “is not crucial, as fact or law ... [and] is irrelevant to what this WCJ deems is the crucial credibility determinations of Judge Stander of the expert medical testimony of Dr. Richard Mandel in this matter.” (Finding of Fact No. 5). The WCJ also concluded that “the testimony of James Grundy is not crucial to the credibility determination rendered by Referee Irvin Stander on November 8, 1991 that Claimant failed to establish by unequivocal medical testimony that there is any causal link between her disability and her employment ...” (Conclusion of Law No. 3). Accordingly, because the WCJ found that Grundy’s testimony was not crucial, she reinstated the November 8, 1991 decision of WCJ Stander denying Claimant’s Claim Petition. Claimant appealed to the Board, arguing that: 1) WCJ Bachman should have recused herself and, 2) the WCJ’s decision that Grundy’s testimony was not crucial is not supported by sub stantial evidence. The Board affirmed the decision of the WCJ, and this appeal followed. Claimant raises the same two issues for our review. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa.Cmwlth.1998). In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Id. Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party. Id. Furthermore, in a substantial evidence analysis where both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Id. It is solely for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the evidence. In addition, it is solely for the WCJ, as the fact-finder, to determine what weight to give to any evidence. Id. As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted. Id. It is with these principles in mind that we consider this challenge. Claimant argues that WCJ Bachman should have recused herself from this case because she is WCJ Stander’s former secretary and law clerk. Claimant contends that WCJ Bachman’s “long standing relationship with WCR Stander presented the WCJ with the choice of supporting or reversing the Decision of WCR Stander, her mentor. Their relationship presents, at a minimum, the appearance of a conflict which should have compelled recusal, pursuant to the Code of Judicial Conduct.” (Claimant’s brief, p. 14). Section 1404 of the Act, 77 P.S. § 2504, provides that workers’ compensation judges must adhere to a Code of Ethics. In particular, the Section 1404(a)(7) provides that a WCJ must “[disqualify himself from proceedings in which impartiality may be reasonably questioned.” In addition, Canon 8, Section C of the Code of Judicial Conduct (Code) provides that: (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. (b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it ... Initially, we note that with regard to enforcement of the provisions of the Code, our Supreme Court has held that: Canon 3 C, like the whole of the Code of Judicial Conduct, does not have the force of substantive law, but imposes standards of conduct upon the judiciary to be referred to by a judge in his self-assessment of whether he should volunteer to recuse from a matter pending before him. The rules do not give standing to others, including Superior Court, to seek compliance or enforcement of the Code because its provisions merely set a norm of conduct for all our judges and do not impose substantive legal duties on them. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct. The Constitution provides a mechanism for the enforcement of violations of the Code of Judicial Conduct and the Judicial Inquiry and Review Board is authorized, on its own volition, where necessary, to investigate violations of the Code of Judicial Conduct (see Rule 1 — Rules of Procedure Governing the Judicial Inquiry and Review Board). Upon the Board’s findings and determinations recommending disciplinary action for -violations of the Code, the matter is referred to this body. We then review the record and may wholly accept or reject the recommendation as we find just and proper (see Rule 18). This procedure, except for impeachment proceedings, is the exclusive mode established for the discipline of our judges for violations of the Code and we have not abdicated or delegated any of our supervisory authority in enforcing these standards of conduct to Superior Court. To presume that the Code or its alleged violations can be reviewed by any tribunal other than those we authorize is a misapprehension of the purpose of the Code, and is seen as an impermissible meddling into the administrative and supervisory functions of this Court over the entire judiciary. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 219, 489 A.2d 1291, 1298 (1985) (italics in original; bold added). Given the Supreme Court’s clear direction that this Court is not the proper forum in which to adjudicate violations of the Code, we will not address Claimant’s argument that, pursuant to the Code, WCJ Bachman should have recused herself. We may, however, address Claimant’s argument that WCJ Bachman was not capable of presiding over this matter impartially. “The standard for determining whether recusal is proper is whether there is substantial reasonable doubt as to the judge’s ability to preside impartially.” Steinhouse v. Workers’ Compensation Appeal Board (A.P. Green Services), 783 A.2d 352, 356 (Pa.Cmwlth.2001) (emphasis added). It is presumed that a workers’ compensation judge can make the decision of whether or not to recuse for himself/herself and that decision will not be overturned absent an abuse of discretion. To overcome this presumption, the party making the allegation that the workers’ compensation judge was not capable of being impartial must show actual bias on the record. Dow v. Workers’ Compensation Appeal Board (Household Finance Co.), 768 A.2d 1221, 1225 (Pa.Cmwlth.2001). Because recusal is a matter of individual discretion for a judge, a party must normally raise the issue of recusal before a decision has been rendered in a case or that issue will be deemed waived. See M & D Auto Body v. Workmen’s Compensation Appeal Board, 143 Pa.Cmwlth. 346, 599 A.2d 1016, 1019 (1992) and Thomas v. Workmen’s Compensation Appeal Board (Ida’s Frosted Products, Inc.), 680 A.2d 24, 26 (Pa.Cmwlth.1996). However, when there is no evidence in the record showing that a party knew of a potential conflict of interest before the close of the record, the party raising the recusal motion after the close of the record will not be deemed to have waived the issue. M & D Auto Body, 599 A.2d at 1019. In this case, the Board correctly points out that the parties were given an opportunity to object to the reassignment of this case to WCJ Bachman and that the WCJ received no objections. However, there is no evidence that Claimant was aware of WCJ Bachman’s potential conflict of interest before the decision was rendered. Therefore, we agree with the Board that, pursuant to M & D Auto Body, Claimant did not waive this issue. We will, accordingly, address the merits of Claimant’s argument. Our review of the record in this case does not reveal any abuse of discretion on the part of WCJ Bachman. It is presumed that WCJ Bachman was capable of rendering an impartial decision, and Claimant has failed to point to anything in the record that shows actual bias. Rather, Claimant has made the allegation that WCJ Bachman could not render an impartial decision because she was previously employed by WCJ Stander. However, there is nothing in the record showing that WCJ Bachman worked on this case or that she was even employed by WCJ Stander at the time his decision was rendered more than ten years ago, nor is there any evidence that she was ever employed by him. See note 4 infra. This mere allegation of bias, for which there is no support in the record, is insufficient to rebut the presumption that WCJ Bachman was capable of rendering an impartial decision. Dow. The showing of actual bias on the record is a condition precedent to proving that a WCJ was incapable of presiding impartially. Because Claimant has not cited to any part of the record which shows actual bias, we fail to see how the Board erred in this regard. Next, Claimant argues that the WCJ erred by finding that Grundy’s testimony was not crucial. In her petition for review, Claimant alleges that the testimony of Grundy “established that claimant’s injury affected her ability to work.” Claimant also argues that Grundy placed Claimant on “limited duty”, which is given to employees injured on the job, rather than “restricted duty”, which is given to employees with non work-related injuries. However, the basis for WCJ Bachman’s determination that Grundy’s testimony was not crucial is the fact that WCJ Stander accepted as credible the medical testimony of Dr. Mandel, who testified that there was no causal relationship between her injury and her employment. This is a credibility determination that we do not have the power to overturn. Therefore, because there was no causal relationship between the injury and the disability, whether the injury affected Claimant’s ability to work is irrelevant because only work-related injuries are compensable. Accordingly, WCJ Bachman’s finding that Grundy’s testimony was not crucial is supported by the evidence. Furthermore, it is not significant that Grundy placed Claimant on “limited duty” because Grundy is not a medical doctor. Therefore, he is not competent to make a determination as to whether an injury such as carpal tunnel syndrome is work-related for the purposes determining entitlement to workers’ compensation benefits. If Claimant’s injury was a broken arm, for example, and Grundy testified that he saw the injury occur, then his testimony would be significant and crucial. However, an injury such as carpal tunnel syndrome usually develops over an extended period of time and can be caused by many factors. Thus, it is not the type of injury that a co-worker or supervisor could testify as to having a causal relationship to employment because there is no obvious causal connection between the injury and employment. Rather, unequivocal medical testimony is required to prove the causal relationship. See Merchant v. Workers’ Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 769-770 (Pa.Cmwlth.2000) (,cWhere there is no obvious causal connection between the injury and the work-related cause, a claimant must present unequivocal medical testimony to establish that connection.”). As such, we can discern no error in WCJ Bachman’s conclusion that Grundy’s testimony was irrelevant and that WCJ Stander’s decision should be reinstated. Accordingly, the order of the Board is affirmed. ORDER AND NOW, May 24, 2002, the order of the Workers’ Compensation Appeal Board dated October 24, 2001 and docketed at A00-2340 is hereby AFFIRMED. . Prior to the 1993 amendments to the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2606, WCJs were called Referees. .This court's appellate review over an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Republic Steel Corp. v. Workmen’s Compensation Appeal Board (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994). . In her petition for review, Claimant also states that the WCJ did not render a reasoned decision. However, Claimant did not raise this issue before the Board. Therefore, it is waived. See Pa. R.A.P. 1551. Furthermore, Claimant provides no support for this statement in her brief. . We note that Claimant has submitted no evidence in support of this contention.

OPINION BY Senior Judge McCLOSKEY. . The Apollo-Ridge School District (District) appeals from an order of the Court of Common Pleas of Armstrong County (trial court), which affirmed an arbitration award granting back pay to teachers Terra Begolly and Dan Rzewnicki pursuant to a collective bargaining agreement (CBA) negotiated under the Public Employe Relations Act (PERA) between the District and the Apollo-Ridge Education Association (Association). The Association represents a bargaining unit comprised of teachers, school counselors, nurses and librarians. We now affirm in part and reverse and remand in part. The facts in this case are undisputed. Each year, the District’s Board of School Directors (Board) selects persons to lead various extracurricular programs offered to the District’s secondary students. The CBA refers to these positions as “extra-duty assignments.” (R.R. at 16a). Until the 1999-2000 school year, the Board always adopted the high school principal’s recommendations when making extra-duty assignments. The principal’s recommendations for the 1999-2000 school year included Begolly and Rzewnicki for “senior class sponsor” and “assistant seventh grade boys basketball coach,” respectively. Although Begolly and Rzewnicki had served in those particular capacities during prior school years, the Board did not select either Begolly or Rzewnicki for these extra-duty assignments for the 1999-2000 school year. Instead, the Board elected to fill the positions with two people who were not members of the bargaining unit. The Association filed grievances with the District on behalf of Begolly and Rzewn-icki, contending that the Board’s failure to re-appoint Begolly and Rzewnicki violated the CBA. The District denied that the assignment of extra-duty work was covered by the CBA and, therefore, contended that the grievances were not arbitrable. When the District and the Association were unable to resolve their differences, they submitted the grievances to arbitration. After a hearing, the arbitrator determined that the matter was arbitrable and sustained the Association’s grievances, awarding back pay to Begolly and Rzewn-icki. The arbitrator concluded that past practice had given rise to a local working condition protected by the CBA and, therefore, the Board was obligated to assign extra-duty work to those persons recommended by the high school principal. The District petitioned the trial court to vacate the arbitration award, arguing that: (1) the grievances were not arbitrable; (2) the Board’s actions did not violate the CBA; and (3) the arbitration award interfered with the Board’s statutory authority to hire and fire teachers. The trial court rejected each of the District’s arguments and denied the petition. The District now appeals to this' court, raising the same three arguments. Our Supreme Court has developed the following two-prong analysis, known as the “essence test,” which a court must follow when reviewing a labor arbitration award under PERA: First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be derived from the collective bargaining agreement. State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 150, 743 A.2d 405, 413 (1999). Under the first prong of the “essence test,” this court must determine whether the issue raised by the grievances is covered by the terms of the CBA. The District contends that this question should be answered in the negative because the CBA is silent as to how extra-duty assignments are to be made. However, the arbitrator concluded, and the trial court agreed, that the grievances were arbitra-ble because, even though the CBA does not describe precisely how extra-duty assignments are to be made, it does include an extensive list of extra-duty assignments and their salaries. We agree. Article VIII, Section C, of the CBA states that “[c]ompensation for extra-duty assignments to be provided under this agreement are reflected in Appendix C attached to and incorporated in this agreement.” (R.R. at 16a). Appendix C, entitled “Supplemental Pay Schedule,” lists all of the extra-duty assignments and their salaries. (R.R. at 47a-50a). We believe the words “to be provided under this agreement ” make it clear that the parties negotiating the CBA intended that bargaining unit members would hold the extra-duty assignments. Indeed, the very term “extra-duty assignment” evidences this intent when we consider the case of a non-bargaining unit member, not otherwise employed by the District, who is chosen for such an assignment. In such a case, it would hardly be appropriate to call the assignment “extra-duty” work; rather, it would be the only work that person performed for the District. Notwithstanding this language of the CBA, the District maintains that the grievances were not arbitrable, relying on Harbor Creek School District v. Harbor Greek Education Association, 536 Pa. 574, 640 A.2d 899 (1994), for the general proposition that the assignment of extracurricular work to teachers cannot be subject to arbitration. We disagree that Harbor Creek can be used for the blanket proposition that grievance procedures are never available for disputes over extracurricular work. In fact, in Cranberry Area School District v. Cranberry Education Association, 713 A.2d 726 (Pa.Cmwlth.1998), petition for allowance of appeal denied, 563 Pa. 621, 757 A.2d 935 (1999), this court specifically rejected the notion that Harbor Creek created a per se rule that disputes involving extracurricular duties are not ar-bitrable. In Harbor Creek, our Supreme Court addressed the arbitrability of a dispute over a school district’s transfer of duties from bargaining unit members to non-bargaining unit members. The court interpreted the wording of the collective bargaining agreement in that case to mean that the issue was not arbitrable. There, the collective bargaining agreement made grievance procedures available only to “professional employees,” and stated that “after-hour assignments performed by teachers, whether paid or unpaid, except for class-related activities, are voluntary ‘non-teaching duties.’ ” Harbor Creek, 536 Pa. at 578, 640 A.2d at 901-902. The court reasoned that because teachers are not functioning as “professional employees” when they perform the non-teaching duties of extracurricular work, they may not invoke the grievance procedures, including arbitration, set forth in the collective bargaining agreement for disputes over extracurricular work. The language of the CBA here is very different from the language of the collective bargaining agreement in Harbor Creek and requires a different result. The Harbor Creek agreement professed to provide grievance procedures only to “professional employees,” a term defined by Section 301(7) of PERA as: any employe whose work: (i) is predominantly intellectual and varied in character; (ii) requires consistent exercise of discretion and judgment; (iii) requires knowledge of an advanced nature in the field of science or learning customarily acquired by specialized study in an institution of higher learning or its equivalent; and (iv) is of such character that the output or result accomplished cannot be standardized in relation to a given period of time. 43 P.S. § 1101.301(7). Based on this definition, the court in Harbor Creek concluded that a teacher did not act as a “professional, employee” when leading extracurricular activities. The CBA here, by contrast, does not limit the availability of grievance procedures to “professional employees.” Indeed, Article XVII of the CBA, entitled “Grievance Procedure,” does not even use the term “professional employee.” Article XVII simply defines “grievance” as the “alleged violation, misinterpretation or inequitable application of any of the provisions of this agreement.” (R.R. at 32a) (Emphasis added). Given that Article VIII, Section C, of the CBA states that extra-duty assignments are “to be provided under this agreement,” we can only conclude that a dispute over extra-duty assignments is a dispute over the provisions of the CBA and, therefore, is subject to arbitration. In short, the first prong of the “essence test” has been met. We turn now to the second prong of the “essence test,” which requires us to determine whether the arbitrator’s award was rationally derived from the CBA and, therefore, drew its essence from the agreement. An arbitration award must be upheld if it can, in any rational way, be derived from the collective bargaining agreement in light of the language, context, and other indicia of the parties’ intentions. School District of the City of Erie v. Erie Education Association, 749 A.2d 545 (Pa.Cmwlth.2000), petition for allowance of appeal denied, — Pa. -, 795 A.2d 983 (Pa.2000). The District argues that the arbitrator’s award was not rationally derived from the CBA because the CBA contains no specific term or provision addressing whether extra-duty work may be turned over to non-bargaining unit personnel or spelling out how extra-duty assignments are to be madé. For the reasons that follow, we agree. Admittedly, past practice can give rise to an employment condition which is not contained in the specific written language of a collective bargaining agreement. See, e.g., Danville Area School District v. Danville Area Education Association, PSEA/NEA, 562 Pa. 238, 754 A.2d 1255 (2000); City of Erie v. International Association of Firefighters, Local 293, 104 Pa.Cmwlth. 394, 522 A.2d 132 (1987). The arbitrator made such a finding in the present case. Nevertheless, such a finding acts to effectively usurp the Board’s discretionary power in this case. The Board consists of elected officials with the sole power and discretion in selecting persons to fill the extra-duty assignment positions. Despite the fact that the Board had always previously adopted the high school principal’s recommendation in making these extra-duty assignments, the Board did so under its own discretion. The arbitrator’s finding here serves to transfer the Board’s discretionary power to the high school principal, a non-elected official. We cannot say that such a transfer of power was ever envisioned in, let alone rationally derived from, the CBA. Accordingly, the order of the trial court, insofar as it affirmed the arbitrator’s award concluding that the Association’s grievances relating to the issue of extra-duty assignments were arbitrable, is affirmed. However, the order of the trial court, insofar as it affirmed the arbitrator’s award concluding that the District’s past practice had given rise to a local working condition protected by the CBA and awarding back pay to Begolly and Rzewnicki, is reversed. The case is remanded to the trial court, with specific instructions to remand to the Board, to allow the Board to utilize its discretion in making extra-duty assignments from within the appropriate bargaining unit, i.e., the Association. ORDER AND NOW, this 29th day of May, 2002, the order of the Court of Common Pleas of Armstrong County (trial court), insofar as it affirmed the arbitrator’s award concluding that the grievances filed on behalf of the Apollo-Ridge Education Association were arbitrable, is affirmed. The order of the trial court, insofar as it affirmed the arbitrator’s award concluding that the pri- or conduct of the Apollo-Ridge School District (the District) had given rise to a local working condition protected by the parties’ collective bargaining agreement and awarding back pay to teachers Terra Be-golly and Dan Rzewnicki, is hereby reversed. The case is remanded to the trial court, with specific instructions to remand to the District’s Board of School Directors (Board), to -allow the Board to utilize its discretion in making extra-duty assignments from within the appropriate bargaining unit, i.e., the Association. . This case was reassigned to this author on February 12, 2002. . Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301. PERA is sometimes referred to as "Act 195.” .Begolly’s position was given to an assistant principal; Rzewnicki’s position was given to a person who was not otherwise employed by the District. . The Board’s exercise of this discretion can be subject to this Court’s review. See, e.g., Genco v. Bristol Borough School District, 55 Pa.Cmwlth. 78, 423 A.2d 36 (1980); Uniontown Area School District v. Allen, 4 Pa.Cmwlth. 183, 285 A.2d 543 (1971). . Moreover, Section 507 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-507, specifically authorizes and empowers the board of school directors of each school district to carry out "any or all provisions of this act.” Section 508 of the Code, 24 P.S. § 5-508, details certain subjects upon which a majority vote of the board “shall be required,” including "[ajppointing or dismissing ... teachers,” "[ajppomting tax collectors and other appointees” and “[fjixing salaries or compensation of ... teachers, or other appointees of the board....” Hence, even if the Board in this case had chosen to delegate its authority to the high school principal to appoint teachers or others to extra-duty assignments, such action would be violative and/or inconsistent with the Code and would not be upheld. See, e.g., City of Easton v. American Federation of State, County and Municipal Employees, 562 Pa. 438, 756 A.2d 1107 (2000); Mifflinburg Area Education Association v. Mifflinburg Area School District, 555 Pa. 326, 724 A.2d 339 (1999).

TODD, J.: ¶ 1 This personal injury action arises out of an injury suffered in a fall by Appellant Boyd E. Ettinger (“Ettinger”) while he was working as an electrician at a manufacturing plant that was under reconstruction. Ettinger and his wife, Esther E. Ettinger, appeal the judgment in favor of Appellee Production Systems Incorporated (“PSI”) and present a question of first impression to this Court. We are asked to determine, inter alia, whether an item that is being assembled by its producer is a “product” and whether one of its assemblers is a “user” under Section 402A of the Restatement (Second) of Torts. Specifically, we are asked to determine whether the trial court properly granted partial summary judgment to PSI based on its holding that the partially-assembled commercial furniture finishing oven in which Ettinger was installing wiring did not constitute a product and that Ettinger as one of its assemblers was not a user under Section 402A. For the reasons that follow, we affirm on this and the other issues presented by Appellants. ¶ 2 Ettinger was injured during the rebuilding of a kitchen cabinet manufacturing plant owned by Triangle Pacific Corporation (“Triangle-Pacific”) in Thompsontown, Pennsylvania that had been destroyed in a fire. As part of the reconstruction, Triangle-Pacific contracted with PSI for the purchase of a furniture finishing system consisting of paint spraying equipment and a two-story enclosed oven with a conveyor system designed to dry wood cabinetry after it had been coated with finish. The system was to be manufactured by PSI and shipped to the Triangle-Pacific plant in sections where the steel structure would be assembled by PSI’s subcontractor, Reliable Welding. ¶3 The contract between Triangle-Pacific and PSI required PSI to provide a competent foreman or supervisor to oversee the assembly. Because of a prior working relationship, however, Triangle Pacific desired that Joe Green Associates oversee the installation of the system. Accordingly, Ken Pinkerton, an employee of Joe Green Associates, was assigned to be on the job site during the installation. PSI paid Joe Green Associates for Pinkerton’s time spent overseeing the installation of the system and provided Pinkerton with a full set of drawings of the system. On behalf of PSI, Joe Green Associates retained Daniel Mowery and his company, Mowery Electric, to perform electrical work for the installation. Mowery received a set of blueprints and schematics for the system. ¶ 4 At the time of his injury, Ettinger, an employee of Mowery Electric and an experienced electrician, was working to run conduits along the top and side of the oven and wire all of the motors on the oven. The oven was not fully assembled and the conveyer system had not yet been installed. After completing the assembly of the outer structure, Reliable Welding left the work site in order to permit -the electrical wiring to proceed. After the oven had been wired, Reliable Welding was to return to install the conveyor system. ¶ 5 On the day he was injured, Ettinger was searching for a particular motor that was to have been mounted on or inside the oven enclosure in order to attempt to wire that motor. In attempting to locate the motor, Ettinger climbed to the upper portion of the oven enclosure by ladder and entered the oven enclosure via an opening that was intended to accommodate the conveyor system. Ettinger carried a flashlight with him because he knew there was no lighting inside of the oven enclosure. Ettinger had never been inside of the oven enclosure, however, and had not examined the drawings of the system to determine its interior layout. In addition, Ettinger did not inform Mowery or Pinkerton of his intention to enter the oven enclosure, nor did he discuss the interior layout of the system with anyone. ¶ 6 Upon entering the upper level of the oven enclosure, Ettinger was able to stand on a horizontal partition between the upper and lower levels. The ambient light available within the enclosure at this point was dim, but Ettinger did not use his flashlight. In his continuing effort to locate the motor, Ettinger proceeded across the horizontal partition to an opening in a vertical partition in the oven enclosure that, again, was intended to accommodate the conveyor system. As Ettinger moved across the horizontal partition, the ambient light became very dim. Due to the lack of light, Ettinger was unable to see anything on the other side of the opening in the vertical partition. Nevertheless, Ettinger crouched down and stepped through the vertical partition on the assumption that the horizontal partition on which he had been standing continued on the other side. Unfortunately, this assumption was not correct and Ettinger fell approximately eight to ten feet to the bottom of the oven enclosure. Ettinger suffered serious injuries as a result of this fall. ¶7 Ettinger and his wife brought suit against Triangle-Pacific, PSI, Complete Finishing Systems, Joe Green Associates, Joe Green and Ken Pinkerton alleging strict products liability, premises liability and negligence. After discovery, Triangle-Pacific moved for summary judgment, arguing that there had been no evidence adduced during discovery of negligence on its part. The trial court held that Triangle-Pacific as premises owner had no duty to protect the employees of independent contractors working on its premises from risks arising from defects or hazards created by the job. The trial court further held that Appellants had failed to prove that the “peculiar risk” exception to the general rule of premise owner non-liability should be applied in this case. Accordingly, the trial court, by order of the Honorable Jeannine Turgeon, granted Triangle-Pacific’s motion for summary judgment. ¶ 8 PSI similarly moved for partial summary judgment, seeking to strike the strict products liability count. The trial court likewise granted summary judgment, holding that the unassembled oven did not constitute a “product” and that Ettinger was not a “user” under Section 402A of the Restatement (Second) of Torts. ¶ 9 The case thus proceeded to trial before a jury on the negligence count against PSI alone. The jury found that PSI had been negligent and that its negligence was a substantial factor in bringing about Ettinger’s harm. The jury further found, however, that Ettinger was contrib-utorily negligent and that his contributory negligence also was a substantial factor in bringing about the injury. The jury apportioned PSI’s negligence at 49% and Et-tinger’s at 51%. The trial court, by the Honorable John F. Cherry, denied Appellants’ motion for post-trial relief requesting a new trial. This timely appeal followed. ¶ 10 Appellants submit the following issues for our consideration: A. Did the trial court err in deciding that under Pennsylvania law an unassembled item cannot be a “product” and its assembler a “user” for strict product liability purposes? B. Did the trial court err in not charging the jury on Restatement (Second) of Torts § 323? C. Did the trial court err in failing to charge the jury on Plaintiffs’ Supplemental Points for Charge numbers 26 and 27? D. Did the trial court err in not charging the jury according to Plaintiffs’ Supplemental Points for Charge concerning the Borrowed Servant Doctrine? E. Did the trial court err in permitting Eugene Aufiero to testify that the section of OSHA relating to “confined spaces” applied to the facts of this case? (Appellants’ Brief, at 4.) ¶ 11 We will review initially the propriety of the trial court’s grant of PSI’s motion for partial summary judgment. Summary judgment properly is granted after the close of the relevant pleadings “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. Pa. R.C.P. 1035.2(1). Our scope of review of an order granting or denying a motion for summary judgment is well established: 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. Our scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001) (citations omitted). ¶ 12 Section 402A was adopted as the law of this Commonwealth by our Supreme Court more than three decades ago in Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966). This Section provides: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Restatement (Second) of Torts § 402A. This Court has stated that: When we distill § 402A into its constituent elements, we find that the following are necessary to an appropriate application of this section: (1) a product; (2) a sale of that product; (3) a user or consumer; (4) a defective condition, unreasonably dangerous; and (5) causation — that the product caused physical harm to the ultimate user or consumer, or to his property. If any of these requisite elements remains unsatisfied, § 402A has no applicability. Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 185, 501 A.2d 1128, 1132 (1985). ¶ 13 PSI argued successfully before the trial court on summary judgment that two requisite elements, a product and a user or consumer, had not been met in the present case. The trial court recognized, and the parties agree, that the questions of whether an item that is being assembled by its producer is a product and its assembler a user under Section 402A are questions of first impression in the appellate courts of this Commonwealth. ¶ 14 The parties recognize as well that the Restatement takes no direct position on this question. Indeed, this Section of the Restatement is followed by this caveat: The Institute expresses no opinion as to whether the rules stated in this Section may not apply (1) to harm- to persons other than users or consumers; (2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or (3) to the seller of a component part of a product to be assembled. Réstatement (Second) of Torts § 402A Caveat. Comment d to Section 402A, however, states that this section “extends to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer.” Restatement (Second) of Torts § 402A, Comment d. ¶ 15 Appellants argue that neither an item’s size, nor the fact that it is assembled in place, should be determinative of its status as a product for purposes of whether Section 402A applies. We agree. We agree as well that the fact that an item is assembled in place does not prevent it from being deemed to be a product when complete. See Abdul-War ith v. Arthur G. McKee and Co., 488 F.Supp. 306, 311-12 (E.D.Pa.1980) (“[I]f the point of assembly were the decisive consideration, all pieces of industrial equipment too large or too cumbersome to be delivered preassembled would be excluded from section 402A.”), aff'd 642 F.2d 440 (3d Cir.1981). ¶ 16 The fact that the component parts of a larger item are to be finally assembled onsite, however, does not mean that the item is complete and therefore a product for purposes of Section 402A when the component parts have left the site of their original fabrication. In the present case, it is undisputed that Triangle-Pacific contracted with PSI to provide a complete, installed system and that the system was not complete at the time of Ettinger’s injury. ¶ 17 In the absence of controlling precedent from the appellate courts of this Commonwealth, we may draw guidance from the analysis employed by other jurisdictions. The Court of Appeals of Indiana faced a similar factual situation in Lukowski v. Vecta Educational Corp., 401 N.E.2d 781 (Ind.Ct.App.1980). In that case, the appellee, Vecta Educational Corporation, had contracted to perform work in conjunction with the renovation of a high school. Included in Vecta’s obligations was the manufacture and installation of bleachers for a gymnasium. The school opted to use the bleachers to accommodate spectators at a basketball game before the bleachers had been completed. Among the tasks yet to be done was the installation of the back guardrails. One of the spectators died after falling backwards from the top of the bleachers and his widow brought suit, inter alia, against the manufacturer under Section 402A. The Court of Appeals affirmed the trial court’s ruling that Vecta was not hable because at the time of the injury, the bleachers had not been delivered in their completed form and were not yet intended to be utilized by the ultimate users or consumers. Id. at 787. ¶ 18 Appellate courts in other jurisdictions have reached the same conclusion. See also Bosse v. Litton Unit Handling Sys., 646 F.2d 689, 694 (1st Cir.1981) (Worker injured during assembly of catwalk in bottling plant could not recover under Section 402A; “plaintiff was injured in the course of putting the catwalk into final shape. In these circumstances, he is limited to his action for negligence.”); Woods v. Luertzing Corp., 167 N.J.Super. 156, 400 A.2d 562 (App.Div.1979) (person injured during experiments involving patented machine still in development could not recover under Section 402A); Scott v. Thunderbird Indus., Inc., 651 P.2d 1346, 1348 (Okla.Ct.App.1982) (“An injured employee participating in the fabrication of a product is not within that class of persons who are under the umbrella of protection afforded by [402A].”). ¶ 19 The Appellate Court of Illinois addressed this issue in Maddan v. R.A. Cullman & Son, Inc., 88 Ill.App.3d 1029, 44 Ill.Dec. 233, 411 N.E.2d 139 (1980). The court in Maddan ultimately concluded that a guardrail, whether finished or unfinished, was not a product under Section 402A, because it was not in the stream of commerce. In reaching this conclusion, however, the court analyzed whether a partially constructed guardrail could be deemed to be a product under Section 402A. The Illinois court reasoned that: Assuming arguendo that the guardrail was a product which was unreasonably dangerous, it had not left the manufacturer’s control. The guardrail was only partially constructed; it had not been accepted or approved of by the State. In short, it had not been placed in the stream of commerce. The plaintiff is asking that this court extend the doctrine of products liability to unfinished or partially constructed structures. To agree with the plaintiff would require that a manufacturer or builder would from the onset of his efforts have to at all times have “absolute end product” safety features in the product being manufactured or the structure being built. Id. at 140. ¶ 20 In contrast, Appellants direct our attention to a number of cases where courts in other jurisdictions permitted recovery to individuals injured during the on-site assembly of an item because it was deemed to be a product and the injured parties were deemed to be users under Section 402A. See Lantis v. Astec Indus., Inc., 648 F.2d 1118 (7th Cir.1981) (prefabricated asphalt mixing plant was a product under Section 402A); Kaneko v. Hilo Coast Processing, 65 Haw. 447, 654 P.2d 843 (1982) (prefabricated building was a product under Section 402A); Varilek v. Mitchell Engineering Co., 200 Ill.App.3d 649, 146 Ill.Dec. 402, 558 N.E.2d 365 (1990) (same). ¶ 21 In each of these cases, however, the item in question in its completed form was in the nature of a kit, at all times intended to be assembled by the purchaser or those acting on the purchaser’s behalf. Moreover, the key to the determination that the item in question was a finished product was the intent of the parties that the product was complete when delivered in its unassembled form. Indeed, as the United States Court of Appeals stated in Lantis, regarding Lukowski, supra, “it is plain that the key factor [in Lukowski ] was not that the bleachers were unassembled at the time plaintiff’s spouse was injured but that the sales contract did not contemplate the sale of unassembled bleachers.” Lantis, 648 F.2d at 1121. The circuit court concluded in Lantis that the asphalt plant was a product when delivered to the purchaser in its component form because the purchaser was responsible for the assembly of the asphalt plant, despite the fact that the manufacturer was to provide a supervisor for the process. ¶ 22 In the present case, however, the record is clear that PSI, the manufacturer, not Triangle Pacific, the purchaser, was responsible for the assembly and installation of the oven. Appellants argue that the fact that the oven was not completely assembled is not the determinative factor because: Under principles of strict liability, a product must be judged defective at the time it left the seller’s possession. It is [Appellants’] theory that the actionable defect was the failure of the unassem-bled product, once delivered to its final destination, to include adequate instructions and warnings about assembly, including the dangers posed to the different contractors necessarily involved in its final installation. (Appellants’ Brief, at 17.) We disagree. Although the component parts of the oven had left PSI’s manufacturing plant and were being assembled on Triangle Pacific’s property, they had not left the seller’s possession, as PSI indisputably retained the obligation to assemble the component parts and deliver a fully-assembled oven. Moreover, the alleged defect, the lack of adequate warnings and instructions regarding assembly of the oven, by its very nature would not be present in a fully-assembled oven. ¶ 23 While as in the present case, the injuries in Lantis, Kaneko, and Varilek, did occur during the assembly of the products, the injured parties in those cases all were acting on behalf of the purchaser of the prefabricated unit when they were injured. In contrast, in the present case, the record is clear that Ettinger, as the employee of one of PSI’s subcontractors, was acting on behalf of the manufacturer, PSI, and not on behalf of the purchaser, Triangle-Pacific. Thus, the facts of this case are distinguishable from those of the cases relied upon by Appellants. ¶ 24 In sum, we agree with the conclusion reached by those jurisdictions that have held that Section 402A does not apply to an incomplete product that has not left the control of its manufacturer and thus entered the stream of commerce. Such result is consistent with prior precedent applying Section 402A and the public policies underlying the adoption of this section, as articulated by the appellate courts of this Commonwealth. See Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189-90 (1997) (“Section 402A reflects the social policy that a seller or manufacturer is best able to shoulder the costs and to administer the risks involved when a product is released into the stream of commerce.”); Azzarello v. Black Bros. Co., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978) (“Under [402A] ... the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use -”); Schriner, 348 Pa.Super. at 189, 501 A.2d at 1134 (“electricity only becomes a product, for purposes of strict liability, once it passes through the customer’s meter and into the stream of commerce”); Hoffman v. Loos & Dilworth, Inc., 307 Pa.Super. 131, 142, 452 A.2d 1349, 1355 (“What is crucial to the rule of strict liability is not the means of marketing, but rather the fact of marketing, whether by sale, lease or bailment, for use and consumption by the public.”). ¶ 25 We hold, therefore, that the trial court correctly determined that the oven in the present case was not a product under Section 402A. Having reached this result, we need not address Appellants’ argument that Ettinger was a user or consumer for purposes of application of that section, as failure to satisfy any of the elements set forth in Schriner, supra, precludes application of Section 402A. Accordingly, we affirm the trial court’s grant of summary judgment in favor of PSI on Appellants’ strict liability claim. ¶ 26 We now turn to the propriety of the trial court’s denial of Appellants’ post-trial motions seeking a new trial. In Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), the Supreme Court of Pennsylvania reexamined the appropriate review of a motion for a new trial at both the trial court and appellate levels. The Court cautioned in Harman that “[although all new trial orders are subject to appellate review, it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court’s authority to grant or deny a new trial.” Id. at 466, 756 A.2d at 1121-22. ¶ 27 In Harman, the Court noted that the trial court must follow a two-step process in responding to a request for a new trial. The trial court must determine whether a factual, legal or discretionary mistake was made at trial. Id. at 467, 756 A.2d at 1122. If the trial court determines that one or more mistakes were made, it must then evaluate whether the mistake provided a sufficient basis for granting a new trial. Id. Moreover, the Court noted that “[a] new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.” Id. (citations omitted). ¶ 28 The Court then set forth an additional two-step analysis for appellate review of a trial court’s determination to grant or deny a new trial. First, the appellate court must examine the decision of the trial court to determine whether it agrees that a mistake was, or was not, made. Id. In so doing, the Court noted that the appellate court must apply the appropriate standard of review. If the alleged mistake involved an error of law, the appellate court must scrutinize for legal error. Id. at 468, 756 A.2d at 1123. If the alleged mistake at trial involved a discretionary act, the appellate court must review for an abuse of discretion. Id. The Court reiterated that a trial court abuses its discretion by rendering a judgment that is manifestly unreasonable, arbitrary or capricious, or has failed to apply the law, or was motivated by partiality, prejudice, bias or ill will. Id. at 469, 756 A.2d at 1123 (citations omitted). ¶ 29 If the appellate court agrees with the trial court’s determination that there were no prejudicial mistakes at trial, then a decision by the trial court to deny a new trial must stand and we need not reach the second prong of the analysis. If the appellate court discerns that a mistake was made at trial, however, it must analyze whether the trial court abused its discretion in ruling on the motion for a new trial. Id. at 468, 756 A.2d at 1123. ¶ 30 In the present case, the trial court reviewed Appellants’ allegations of error and determined that no error had occurred. On appeal, therefore, this Court must examine the specific allegations of error by the trial court to determine whether indeed the trial court made any mistakes. If we determine that it erred, we must then determine whether the trial Court abused its discretion in denying the motion for a new trial. ¶ 31 Three of the issues raised by Appellants in their post-trial motion for a new trial, and on appeal before this Court, question the propriety of the trial court’s instructions to the jury. We review challenges to the jury instructions “to determine if the trial court abused its discretion or committed an error of law. We will not grant a new trial because of an erroneous jury instruction unless the jury charge in its entirety was unclear, inadequate, or tended to mislead or confuse the jury.” Fragale v. Brigham, 741 A.2d 788, 790 (Pa.Super.1999), appeal denied, 563 Pa. 629, 758 A.2d 662 (2000). ¶ 32 In reviewing a trial court’s charge to the jury, an appellate court must not take the challenged words or passage out of context of the whole charge, but must look at the charge in its entirety. Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 635 (Pa.Super.1998). We have said that a “trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law.” Wagner v. Anzon, 458 Pa.Super. 619, 634, 684 A.2d 570, 577 (1996). ¶ 33 Appellants argue that the trial court erred in failing to charge the jury on Section 323 of the Restatement (Second) of Torts — Negligent Performance of an Undertaking to Render Services. This Section provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Restatement (Second) of Torts, § 323. In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), our Supreme Court noted that: Section 323(a) recognizes that a particular class of tort actions ... differs from those cases normally sounding in tort. Whereas typically a plaintiff alleges that a defendant’s act or omission set in motion a force which resulted in harm, the theory of [a case under Section 323] is that the defendant’s act or omission failed in a duty to protect against harm from another source. Id. at 269, 392 A.2d at 1286. ¶ 34 Appellants acknowledge that “PSI did not directly create the hazard which ultimately hurt Mr. Ettinger.” (Appellants’ Brief, at 22.) They argue, however, that “because PSI assumed an obligation for the safety of subsequent contractors, the Court should have instructed that ... PSI could be found causally responsible if its failure to protect Mr. Ettinger increased the risk of his harm.” (Id.) Appellants set forth in their brief a list of actions that they aver “PSI could and should have” taken to prevent Ettinger’s injury. (Appellants’ Brief, at 21-22.) In nearly every tort case that comes before this Court, it is possible with the clarity of retrospection to articulate any number of actions that might have prevented an unfortunate result. Absent a duty, however, the ability to identify such possible preventative measures in hindsight is not sufficient to recover in tort if they were not done. ¶ 35 In Pennsylvania, it is “established law that a contractor is not liable for injuries resulting from work entrusted to a subcontractor.” Leonard v. Pennsylvania Dept. of Transp., 565 Pa. 101, 105, 771 A.2d 1238, 1240 (2001), reargument denied July 17, 2001. Although Appellants state in their brief that “PSI assumed an obligation for the safety of subsequent contractors” (Appellants’ Brief at 22), they do not draw our attention to any portion of the record that supports this assertion and our careful review of the record reveals no such assumption of this obligation. Indeed, the record reveals only that PSI hired Mowery Electric, an independent contractor, to perform electrical work necessary for the installation of the oven at the Triangle-Pacific site. The trial court held that: The doctrine of increased risk of harm is inapplicable absent the undertaking of a service either gratuitously or for consideration. [Appellants’] allegations of negligence did not assert that PSI undertook to “render services” to Mr. Et-tinger, therefore a charge on increased risk of harm was not appropriate. Addi- tionaHy, the doctrine presupposes an outside injury or source of negligence not concurrent with any alleged negligence by a defendant. The present case involves only one injury resulting from the combination of several parties’ negligence and an instruction on an increased risk of harm theory therefore was inappropriate. (Trial Court Opinion, 10/28/00, at 11.) We discern no abuse of discretion in the trial court’s ruling. Indeed, the present case is the “typical” negligence case described by our Supreme Court in Kamil, supra. Accordingly, we hold the trial court did not err in failing to charge the jury on Section 323 of. the Restatement (Second) of Torts — Negligent Performance of an Undertaking to Render Services, or in denying Appellants’ request for a new trial on that basis. ¶ 36 Appellants also argue that the trial court erred in refusing their request to include two specific points for charge relating to agency doctrine that were derived from the Restatement (Second) of Agency, Sections 214 and 251. By these instructions, Appellants sought to impute any negligence of Ken Pinkerton, the employee of Joe Green Associates who was assigned to oversee the installation of the oven, to PSI. ¶ 37 We first must note that Appellants do not cite to any appellate case in this Commonwealth that adopted Section 214 of the Restatement (Second) of Agency and our research revealed none. We further note that while our Supreme Court did cite to Section 251 of the Restatement (Second) of Agency in Tonsic v. Wagner, 458 Pa. 246, 253, 329 A.2d 497, 501 (1974), neither the Supreme Court nor this Court explicitly has adopted that section as the law in this Commonwealth. Thus, it is not clear that instructions pursuant to these sections are appropriate. Indeed, in Leonard, supra, our Supreme Court recently reaffirmed that a contractor may delegate responsibility for safety at a work site to a subcontractor. In that case, the Court noted that “a subcontractor who undertakes a task is in the best position to provide for the safe accomplishment thereof, and delegation of safety responsibility to that subcontractor does not deviate from the contractor’s duty.” Leonard, 565 Pa. at 109, 771 A.2d at 1242. We assume for the sake of argument, without so holding, that such instructions would be appropriate in a proper case. ¶ 38 We hold, however, that the trial court correctly concluded that such instructions were inappropriate under the facts of this case because “the complaint did not sufficiently allege that Mr. Pinkerton was an agent of PSI and that [Appellants] discontinued all claims against Mr. Pinkerton without suggesting that he was an agent of PSI. Therefore, ... charging the jury on an agency theory ... would be prejudicial to [PSI].” (Trial Court Opinion, 10/23/00, at 13-14.) ¶ 39 It is well-settled that “[a] complaint must not only give notice to the defendant of the claim being asserted but it must summarize the facts essential to support the claim.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 277, 505 A.2d 973, 980 (1985). Moreover, “[a]t trial, the plaintiff is not entitled to insist on a jury instruction on any claim which has not been properly pleaded.” Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 509, 531 A.2d 789, 792 (1987). As to the facts necessary to plead sufficiently an agency relationship, this Court has stated that While it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal. Alumni Assoc. v. Sullivan, 369 Pa.Super. 596, 605 n. 2, 535 A.2d 1095, 1100 n. 2 (1987), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990). ¶ 40 On appeal, Appellants argue that the trial court erred in refusing these instructions because the complaint does include sufficient allegations of an agency relationship between Pinkerton and PSI. (See Appellants’ Brief, at 24.) As Appellants note in their brief, Pinkerton is identified in the complaint as “an individual and/or corporation or other entity who conducted business in Thompsontown, Pennsylvania ... by providing goods and services at the Thompsontown plaint [plant] of Triangle-Pacific.” (Complaint, at 2.) Appellants then argue that: In paragraph 20 of the Complaint, [Appellants] alleged that the negligence of Triangle-Pacific, PSI, and Joe Green Associates included their failure to warn, make the premises safe, and to properly supervise for the benefit of the subcontractors. Mr. Pinkerton is not specifically named as a defendant in this paragraph, implying that he must be under the control of one of the named entities. The clear import of these allegations, considered together, is that the negligence causing [Ettinger’s] harm resulted from a breach of duty owed by Triangle-Pacific, PSI, and Joe Green, but that the negligent acts, or failures to act, were committed by employees. Indeed it is axiomatic that corporations, like PSI only act through officers, agents, and employees. Accordingly, PSI was fully apprised of the nature of the claim [Appellants] would make, that PSI agents or employees caused harm to them. (Appellants Brief, at 24 (emphasis original).) We disagree that these vague allegations are sufficient, even by implication, to “set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal” as required, by Alumni Assoc., supra. ¶ 41 Moreover, it is clear in the present case, that the trial court’s determination that the requested instructions were not supported by the averments of the complaint was not a hyper-technical application of pleading requirements that precluded Appellants’ recovery despite facts developed during the litigation. To the contrary, Appellants did not seek to amend their complaint to include the requisite specific allegations regarding the alleged agency relationship, nor did they include such averments in their pretrial statement. Indeed, as the trial court notes in its opinion, on the eve of trial and just two days before filing the supplemental points for charge asking for the above instruction, Appellants successfully moved to discontinue this action as to Pinkerton, Joe Green and Joe Green Associates. ¶ 42 Under these facts, we agree with the trial court that the requested instructions were not appropriate. Accordingly, we find no abuse of discretion in the trial court’s refusal to instruct the jury under Sections 214 and 251 of the Restatement (Second) of Agency. ¶ 43 Appellants’ third argument regarding jury instructions also deals with Pinkerton’s role in Ettinger’s injury and questions the trial court’s refusal to give five requested points for charge relating to the borrowed servant doctrine. The trial court considered these instructions in tandem with those based on the Restatement (Second) of Agency and disallowed them for the same reason, i.e. Appellants’ failure to plead an agency relationship between Pinkerton and PSI. On appeal, Appellants rely on the same reasons set forth in support of their argument regarding the instructions based on the Restatement (Second) of Agency. Again, we agree with the trial court that the requested instructions under the borrowed servant doctrine were not appropriate under the facts of the present case. ¶ 44 Appellant’s final argument questions the propriety of the trial court “permitting Eugene Aufiero to testify that the section of OSHA relating to ‘confined spaces’ applied to the facts of this case”. (Appellants’ Brief at 4.) PSI called Aufiero as an expert witness “to aid in the [jury’s] determination of whether the oven ... qualified as a confined space under 29 C.F.R. § 1926.21(b)(6)(ii).” (Appellee’s Brief, at 28.) ¶ 45 It is well established in this Commonwealth that the decision to admit' or to exclude evidence, including expert testimony, lies within the sound discretion of the trial court. Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa.Super.1999). Moreover, “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 harmful or prejudicial to the complaining party.” Id. (citation omitted.) ¶ 46 Title 29 of the OSHA regulations provides general requirements and employer responsibilities for safety training and education. In addition to the general requirements, however, this title specifically provides that “[a]ll employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required.” 29 C.F.R. § 1926.21(b)(6)(f). The regulation defines a confined space as: any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels. 29 C.F.R. § 1926.21(b)(6)(h). ¶ 47 After hearing oral argument at sidebar, the trial court permitted Aufie- ro to testify as described below over Appellants’ objections. We note, however, that Appellants did not object to Aufiero’s qualifications as an expert. The trial court summarized Aufiero’s testimony as follows: Mr. [Aufiero] concluded that in his opinion the oven was a confined and enclosed space. He testified that all of the regulations which govern confined or enclosed spaces take precedent when the structure is a piece of mechanical equipment such as the oven and flash assembly. Additionally, Mr. [Aufiero] testified that in light of his opinion that the oven was a confined and enclosed space, the OSHA regulations about the guarding of wall and floor openings were inapplicable because those regulations are for walls, floors and stairways which are for parts of a building, not for a processing vessel like the oven. This opinion conflicted with the opinion offered by [Appellants’] expert witness, Richard Hughes, who testified that the sections of the OSHA Code relating to the guarding of floor and wall openings were applicable to this work site. (Trial Court Opinion, 11/23/00, at 18-19 (citations omitted).) The trial- court concluded that: whether or not the oven qualified as a confined or enclosed space was. a factual issue for determination of the jury. Additionally, ... Mr. [Aufiero] was properly qualified as an expert witness in engineering. In accordance with the Pennsylvania Rules of Evidence, it was proper to submit Mr. [Aufiero’s] testimony to the jury and it was their responsibility to weigh that evidence against the opinion of Mr. Hughes and the other evidence presented in the case. (Id., at 19-20.) We agree. ¶ 48 Accordingly, we hold that the trial court did not abuse its discretion in admitting Aufiero’s testimony. As we have determined that the trial court did not err in refusing the disputed jury instructions or in admitting Aufiero’s testimony, the trial court’s decision to deny a new trial must stand. See Harman, supra. ¶ 49 Having found no error in the grant of partial summary judgment to PSI or in the denial of Appellants’ post-trial motions, we affirm the entry of judgment in favor of PSI. ¶ 50 Judgment affirmed. ¶ 51 McEWEN, P.J.E., files a Concurring Statement. . Appellants purport to appeal from the May 13, 1999 Order granting summary judgment to Triangle Pacific Corporation and partial summary judgment to Production Systems Incorporated, the June 16, 1999 Order amending the summary judgment order, and the October 23, 2000 Order denying their post-trial motions. Appeal properly lies, however, from the November 14, 2000 entry of final judgment in favor of PSI and Triangle Pacific. See Johnston the Florist, Inc. v. TEDCO Constr. Corp., 441 Pa.Super. 281, 287, 657 A.2d 511, 514 (1995). . As explained fully below, PSI is the only original defendant in this action that remains a party on appeal. . On Appellant's motion, the trial court certified its order granting Triangle-Pacific’s motion for summary judgment and PSI's motion for partial summary judgment for interlocutory appeal. This Court subsequently denied Appellants' petition for permission to bring an interlocutory appeal. . One week before trial, Appellants voluntarily discontinued the action as to Joe Green Associates, Joe Green, and Ken Pinkerton. The remaining named Defendant, Complete Finishing Systems, had not been an active participant in this litigation and did not take part in the trial. Appellants voluntarily discontinued this action as to Complete Finishing Systems during the pendency of the present appeal. . Appellants voluntarily discontinued their appeal as to Triangle-Pacific. . In Ellis v. Chicago Bridge & Iron, Co., 376 Pa.Super. 220, 545 A.2d 906 (1988), this Court determined that steel plates packed for shipment to their ultimate destination in bundles with a total weight in excess of 7,000 pounds were not defective due to lack of warnings, instructions or markings as to how they were to be handled. In so holding, the majority of the panel specifically declined to address whether the decedent, a dock worker who was killed when one of the bundles fell while being loaded onto a ship, was a user or consumer under Section 402A. Id. at 235 n. 16, 545 A.2d at 914-15 n. 16. . We note that this Court held in Cox v. Shaffer, 223 Pa.Super. 429, 302 A.2d 456 (1973), that “[a] silo constructed in place ... is not a sale of a 'product' " under Section 402A. Id. at 431, 302 A.2d at 457. The opinion in Cox, however, provided no explanation as to the reasoning underlying this holding, stating simply "[w]e find the section inapplicable by virtue of its very clear language and find no need to resort to any extended reasoning to support our determination that a building so constructed on the site is not a product within the intent and meaning of section 402A.” Id. A subsequent decision of this Court cited Cox in a footnote as support for the statement that "there exists case law in Pennsylvania which suggests that a building is not a 'product' for § 402A purposes.” Lupinski v. Heritage Homes, Ltd., 369 Pa.Super. 488, 493 n. 3, 535 A.2d 656, 658 n. 3 (1988). Thus, despite its language regarding assembly in place, given the lack of analysis in the opinion itself and its subsequent characterization as applying to buildings, Cox provides no guidance for the case at hand. Accordingly, we regard the instant case as presenting a question of first impression. . Thus, the present case is distinguishable from cases in which an allegedly defective component, such as a holt, valve or switch, later installed in a larger product, causes injury. Similarly, this is not a situation in which an incomplete product is put into the stream of commerce as though complete. . The Court specifically held that a review of a denial of a new trial requires the same analysis as a review of a grant of a new trial. Id. at 467, 756 A.2d at 1122. . The requested instructions were: 26. Liability for Physical Harm Caused by a Servant or a Non-Servant Agent. A principal is subject to liability for physical harm to the person or the tangible things of another caused by the negligence of a servant or a non-servant agent: (a) in the performance of an act which the principal is under a duty to have performed with care. Thus, if you find that Production Systems, Inc. was under a duty to exercise care for the safety of subcontractors and their employees, such as Mr. Ettinger, Production Systems is liable for an agent's failure to exercise due care in discharging its duty. 27. Failure of Principal to Perform Non-delegable Duty. A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure to such agent to perform the duty. (Appellants’ Brief, at 23.) . We note that the court reporter at trial recorded Aufiero's name as spelled "Alfiero”. This was an error as this witness’ name is correctly spelled Auñero. . Appellants argue that "interpreting the [OSHA] regulation is ultimately a judicial function not to be overridden by 'expert’ opinion, and that the regulation’s plain language controls judicial analysis.” (Appellants’ Brief, at 29 citing Ed Taylor Const. Co. v. Occupational Safety and Health Review Com’n, 938 F.2d 1265, 1272 (11th Cir.1991).) We note that decisions of the lower federal courts do not bind the Pennsylvania courts, even when a federal question is involved. See Davis v. Resources for Human Development, Inc., 770 A.2d 353, 357-58 (Pa.Super.2001), and citations therein. Moreover, we do not read this case as supporting the proposition that interpretation of OSHA regulations is a matter of law.

PELLEGRINI, Judge. The Department of Labor and Industry, Bureau of Workers’ Compensation (Department) appeals an order of the Workmen’s Compensation Appeal Board (Board) affirming a Workers’ Compensation Judge’s (WCJ) decision granting Old Republic Insurance Company’s (Insurer) request for reimbursement from the Supersedeas Fund (Fund). On June 19, 1990,. Richard Zolner (Claimant), while employed with Wyoming Valley West School District (Employer), sustained a work-related injury and received workers’ compensation benefits. On January 24,1992, Employer filed a petition for suspension of compensation benefits, asserting that Claimant could return to employment as of January 13, 1992. Employer also requested a supersedeas but the request was not acted upon by the WCJ and, as a matter of law, was deemed denied. While the petition for suspension was pending, Claimant and Employer entered into a supplemental agreement in which they agreed that as of March 30, 1993, Claimant was capable of returning to gainful employment making $254.21 per week, leaving Claimant with a partial disability compensable at a rate of $90 per week as of March 30, 1993. Claimant filed a petition for a commutation of his partial disability benefits which the WCJ approved and dismissed the Employer’s petition for suspension as moot. Insurer then filed an application for super-sedeas fund reimbursement, for an overpayment of $15,901, based on the difference be tween the partial disability amount, $90 per week, and the full disability compensation rate from January 24, 1992, to March 30, 1993. The Department, as conservator of the Fund, appealed, arguing that because the parties terminated the litigation by agreement rather than by a final determination by a WCJ, Insurer is not entitled to reimbursement from the Fund. After considering the deposition testimony of Employer’s medical witness, Dr. Peter A. Feinstein, who opined that Claimant was capable of returning to work as of June 20,1991, the WCJ concluded that reimbursement from the Fund was justified and granted the reimbursement back to January 24, 1992. On appeal, the Board affirmed. This appeal followed. For Insurer to be reimbursed from the Fund, the Department contends that there must be a fully litigated determination by the WCJ that compensation previously paid was not proper. Because the petition for suspension here was dismissed as moot and the parties terminated the underlying litigation by settling the claim by entering into a supplemental agreement and commutation agreement, there was no such adversarial determination. In Commonwealth, Bureau of Worker’s Compensation v. Workmen’s Compensation Appeal Board (Insurance Company of North America), 101 Pa.Cmwlth. 552, 516 A.2d 1318, 1322 (1986), regarding what is a “determination” for purposes of reimbursement from the Fund, we stated: We conclude that the very least the Department, as conservator of the Fund is entitled as the basis for reimbursement to have an arms length or adversary type determination, rather than agreement with or without a referee’s approval, on which the Insurer bases its claim, that the ‘compensation was not, in fact payable.’ (Emphasis deleted). Here, we only have a consensual supplemental agreement stating that as of March 30, 1993, “Claimant’s injury resolved itself into a permanent partial disability,” not the “arms length or adversarial type determination” required. Because there was not a determination that compensation paid to Claimant was not, in fact, payable, Insurer has not satisfied the requirements of the Act to gain reimbursement from the Fund. Accordingly, we reverse the order of the Board affirming the WCJ’s decision to grant Insurer reimbursement from the Fund. ORDER AND NOW, this 30th day of September, 1996, the order of the Workmen’s Compensa tion Appeal Board at No. A95-1643 bearing a mailing date of September 20, 1995, is reversed. . 34 Pa.Code § 131.43 provides for disposition of a supersedeas request as follows: The referee hearing the request for supersede-as shall, within 14 days of the hearing, issue a written decision on the request for supersede-as, if granted. Unless a supersedeas is granted by a written order, it will be deemed denied from the date of filing of the request. . Section 443 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 999, established the Supersedeas Fund and provides for reimbursement when an insurer overpays, as it provides in relevant part: If, in any case in which a supersedeas has been requested and denied under the provisions of section 413 or section 430, payments of compensation are made as a result thereof and upon the final outcome of the proceedings, it is determined that such compensation was not, in fact, payable, the insurer who has made such payments shall be reimbursed therefor ... . Section 443 of the Act, 77 P.S. § 999, charges the Department with conserving and maintaining the Fund. . Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether the findings of fact are supported by substantial evidence. Wausau Insurance Company v. Workmen’s Compensation Appeal Board (Fulton), 138 Pa.Cmwlth. 491, 588 A.2d 592 (1991). . The prerequisites that Insurer must satisfy to obtain reimbursement of the Fund are as follows: • A supersedeas must have been requested; • The request for supersedeas must have been denied; • The request must have been made in a proceeding under Section 413 of the Act; • Payments were continued because of the order denying the supersedeas; and • In the final outcome of the proceedings 'it is determined that such compensation was not, in fact, payable.’ Commonwealth, Bureau of Workers' Compensation v. Workmen’s Compensation Appeal Board (Liberty Mutual Insurance Company), 113 Pa.Cmwlth. 607, 538 A.2d 587, 589 (1988). . Even if we were to consider the supplemental agreement as constituting an adversarial determination sufficient to support reimbursement from the Fund, it still would not support the award of reimbursement in this case. The supplemental agreement states that Claimant's injury resolved itself into permanent partial disability as of March 30, 1993. However, the reimbursement from the Fund was for the period of January 24, 1992, through March 30, 1993. Nowhere is there any agreement or determination that Claimant’s injury resolved itself to partial disability as of January 24, 1992. . Because we hold that there was not a determination that compensation was not payable that is necessary to support reimbursement from the Fund, we need not address the Department’s contention that the WCJ’s consideration of Dr. Feinstein’s deposition in the Fund reimbursement case was an impermissible relitigation of the suspension petition.

HESTER, Judge: Edward and Janet Barrett appeal the October 31, 1995 order wherein the trial court granted summary judgment to appellees, Fredavid Braiders, Ine. (“Fredavid”) and Safeguard Roofing Systems, Inc. (“Safeguard”). The trial court granted summary judgment based upon its conclusion that Mr. Barrett voluntarily assumed the risk of his injuries. We reverse. Appellants instituted this action to recover for injuries which they sustained as a result of a fall which Mr. Barrett suffered on October 25, 1990. Mr. Barrett fell while working as an insulator for Premier Insulation Company at a construction site for single family dwellings located at Bentley and Philmont Avenues in Philadelphia. Fredavid was the general contractor in charge of the site, and Safeguard was the subcontractor which installed siding on the housing units. Only one subcontractor was permitted to work on the site at any time. Prior to Mr. Barrett’s fall, Safeguard employees had been installing siding and had stacked the siding in the garage of lot number sixteen, where Mr. Barrett was scheduled to work. Safeguard failed to remove the materials, and Fredavid had failed to inspect the garage before Mr. Barrett arrived. On the day of the incident, Mr. Barrett proceeded to lot number sixteen to install insulation. When he went into the garage, he observed the vinyl siding, exterior foam board insulation, sheet rock, and plywood. Mr. Barrett cleared a path around the perimeter of the garage so that he could install the insulating materials. He put on his stilts, which are two feet high, and when he almost had completed insulating the garage, he slipped and fell on a small piece of exterior foam board insulation and vinyl siding. Based on Mr. Barrett’s deposition, the trial court granted summary judgment to appel-lees. That deposition indicates the following. When Mr. Barrett arrived at the job site, he saw debris covering most of the garage floor. The debris consisted of boxes of vinyl siding and pieces left over from cutting the siding. In addition, there was exterior insulation, which is a foam substance. Finally, sheet rock and plywood were in the garage. Mr. Barrett was asked the following questions: Q. When you saw all these items in there and things laying around, what were you thinking? A. At the time, I took the time to clean it up. Q. How did you do that? Did you take the stilts off? A. Yes, I did. I took most of the stuff, stood it up against the wall, gave myself a walking path almost like a horseshoe walking path around where I had room. Then I got back on the stilts to do my job. Q. How much of a walking path did you leave yourself in this horseshoe; how wide was it? A. Wide enough for me to get through. Q. What do you mean by that? Do you mean three feet? A. I’d say at least three feet, yes. (Indicates width with hands.) Q. You said to clean up you had taken your stilts off? A. Yes. Edward Barrett deposition, 10/26/93, at 39-40. Mr. Barrett was asked why he did not inform a supervisor of the situation, and he responded that there was no supervisor present at the job site eighty to ninety percent of the time and that he did not want to take the time to locate the supervisor since he was working piecemeal rather than being paid hourly. It took Mr. Barrett fifteen to twenty minutes to clean up, which he did to “prevent an accident.” Id. at 41. When Mr. Barrett fell he was looking up at his insulation work arid was not looking down at the floor. After he fell, he lay on the ground approximately ten minutes and then looked around for what had caused him to fall. He discovered that pieces of exterior vinyl siding insulation had caused the stilts to slip. Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known and obvious risk and therefore is considered to have assumed liability for his own injuries. Our Supreme Court on occasion has affirmed a trial court’s decision that as a matter of law, a plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from responsibility for the injuries sustained. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (four justices concurring in this portion of holding); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). However, the determination that the plaintiff has assumed the risk of his injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 665 A.2d 4 (1995); Long v. Norriton Hydraulics Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995). In Carrender v. Fitterer, supra, an invitee parked on the landowner’s parking lot on a sheet of ice even though the rest of the parking lot had been cleared of snow and ice. The invitee wore a prosthesis, became aware of the ice before exiting her car, and also was aware that maneuvering on ice was especially difficult for her. She slipped and fell on the ice when re-entering her car and instituted the action against the landowner. The Court indicated that a landowner owes no duty to an invitee who proceeds to face an obvious and avoidable dangerous condition of the land since, by his conduct, the invitee has agreed to accept the risk and to undertake to look out for himself. See Restatement (Second) of Torts § 343 A. In Howell v. Clyde, supra, a licensee of the landowner was socializing with the landowner and asked to ignite a homemade fireworks cannon. He injured himself in the process. Thus, there are two components to the doctrine. The risk must be perceived, and the risk must be faced voluntarily. In both Supreme Court cases, the risks at issue were dangerous, known, and obvious. Ice always is slippery, and a person walking on ice always runs the risk of slipping and falling. The plaintiff in Carrender admittedly saw the ice prior to stepping on it. Similarly, fireworks always explode, and a person always encounters a risk of injury from that explosion when he uses fireworks. Thus, the plaintiff in Howell knew the risk. Furthermore, the plaintiffs in those cases proceeded to face the risks voluntarily. The plaintiff in Carrender could have parked in a non-icy area since the rest of the parking lot was free of ice. The plaintiff in Howell did not have to engage in the recreational activity of firing the cannon. See also Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978) (patron of baseball game voluntarily assumes risk of being hit by ball since such a risk is inherent in attending baseball game, a recreational activity); Kotovsky v. Ski Liberty Operating Corp., 412 Pa.Super. 442, 603 A.2d 663 (1992) (when one voluntarily engages in the recreational sport of skiing, which always carries an extremely high risk of falling, one voluntarily assumes the risk of injuries from a fall). Thus, as Justices Flaherty and Cappy noted in Howell, the problem in resolving the assumption-of-the-risk issue as a matter of law is in determining whether the plaintiff actually knew of the risk and whether his actions were voluntarily and deliberately taken. There was no question in either Howell and Carrender that actual knowledge was present. However, the deposition herein did not establish that Mr. Barrett perceived the specific risk involved and proceeded voluntarily to face that risk. Mr. Barrett did not see the piece of vinyl siding insulation which caused him to fall. He stated that he was looking up at his insulation work when the accident occurred. Furthermore, Mr. Barrett took the time to clear a path for himself prior to starting his job. In fact, his actions in cleaning up a path for himself establish that he did not proceed in the face of a known risk. From his deposition, it is clear that Mr. Barrett thought that he was preventing an accident by clearing a path. Before the doctrine of assumption of the risk will be applied to prevent recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of the risk. Mr. Barrett did not have subjective knowledge that he was going to slip on a piece of insulation because he subjectively thought that by clearing a path, he had eliminated that risk. Whether his actions and thoughts were reasonable involve negligence principles for the jury to resolve. Unless the evidence establishes that the plaintiff knew he was going to encounter the risk, which is not evidenced herein, assumption of the risk does not apply. Struble v. Valley Forge Military Academy, supra (plaintiff could recover when evidence established that he did not have actual knowledge of the risk involved in firing a ceremonial cannon); Long v. Norriton Hydraulics Inc., supra (no assumption of the risk where plaintiff did not know that risk would occur and where risk was faced as part of job duties). Order reversed. Case remanded. Jurisdiction relinquished. CAVANAUGH, J., files a dissenting opinion.

OPINION BY Judge SIMPSON. In this appeal from the Court of Common Pleas of Philadelphia’s (trial court) denial of judgment on the pleadings, we are asked to decide whether exhaustion of administrative remedies is required before a party can bring a suit under the Philadelphia Fair Practices Ordinance, Phila. Code §§ 9-1100 — 9-1110 (Philadelphia Ordinance). We hold that exhaustion of administrative remedies is a condition precedent to court involvement. Accordingly, we reverse and remand. The facts are not in dispute. Dea Alexander (Employee) was employed by Marriott Corporation (Employer) as a front desk clerk. Employee alleges that her supervisor sexually harassed and discriminated against her on the basis of her gender. Employee complained about the supervisor’s conduct to Employer; the supervisor, however, continued to sexually harass Employee. Employer sent Employee home and advised her that it would investigate her complaints. Employee was subsequently informed that her employment had been terminated. Without submitting her complaint to the Commission on Human Relations (Philadelphia Commission), Employee brought a civil suit, alleging in count I of her complaint that her supervisor sexually harassed her, and that Employer engaged in unlawful retaliation, sexual harassment, and sex discrimination in violation of the Philadelphia Ordinance. In count II of her complaint, Employee alleged that Employer violated the Pennsylvania Wage Payment and Collection Law. Employer filed a motion for judgment on the pleadings seeking dismissal of count I based on Employee’s failure to exhaust administrative remedies. The trial court denied Employer’s motion. The trial court amended the interlocutory order and certified it for permissive interlocutory appeal. We granted that permission. On appeal, Employer argues that the trial court erred in denying its .motion for judgment on the pleadings as to count I based on Employee’s failure to exhaust administrative remedies. We agree. Employee concedes that she did not pursue administrative remedies with the Philadelphia Commission, the Pennsylvania Human Relations Commission (Pennsylvania Commission), or the Equal Employment Opportunity Commission. She contends, however, that the Philadelphia Ordinance, unlike the Pennsylvania Human Relations Act , (Pennsylvania Act) expressly provides for election of remedies. Employee also maintains that the Philadelphia Ordinance does not expressly require exhaustion of administrative remedies; therefore, a distinction should be drawn between the Philadelphia Ordinance and the Pennsylvania Act. We do not find Employee’s arguments persuasive. The Pennsylvania Legislature, recognizing the “invidiousness and pervasiveness of the practice of discrimination,” enacted the Pennsylvania Act. Fye v. Central Transp., Inc., 487 Pa. 137, 140-41, 409 A.2d 2, 4 (1979). The Pennsylvania Act created “a procedure and an agency specially designed and equipped to attack [the] persisting problem [of discrimination] and to provide relief to citizens who have been unjustly injured thereby.” Id. To fulfill those objectives, the Legislature established the Pennsylvania Commission and invested it with the authority to administer and enforce the Pennsylvania Act, including handling and investigating complaints that charged unlawful employment discrimination. 43 P.S. §§ 956, 957. Exhaustion of administrative remedies is required before a suit can be brought under the Pennsylvania Act. “The Legislature has chosen, in the [Pennsylvania Act], to charge an administrative agency with the jurisdiction initially to receive, investigate, conciliate, hear, and decide complaints alleging unlawful discrimination.” Pennsylvania Human Relations Commission v. Feeser, 469 Pa. 173, 178, 364 A.2d 1324, 1326 (1976); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 91, 559 A.2d 917, 919 (1989). To bring a suit under the Pennsylvania Act, a plaintiff must first file an administrative complaint with the Pennsylvania Commission within 180 days of the alleged act of discrimination. 43 P.S. §§ 959(a), 962. If the complainant invokes the procedures set forth in the Pennsylvania Act, that individual’s right of action in the courts shall not be foreclosed. 43 P.S. § 962(c)(1). In Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 133-34, 306 A.2d 881, 887 (1973), the Supreme Court described the legislative intent regarding the Pennsylvania Commission as follows: [T]he Legislature recognized that only an administrative agency with broad remedial powers, exercising particular expertise, could cope effectively with the pervasive problem of unlawful discrimination. Accordingly, the Legislature vested in the Commission, quite properly, maximum flexibility to remedy and hopefully eradicate the ‘evils’ of discrimination .... The Court further opined, “[a]llowing a discharged employee to commence an action in the courts without first exhausting administrative remedies would be logically inconsistent with the legislature’s having created the [Pennsylvania Commission] to function as an efficient mechanism for handling such disputes.” Clay, 522 Pa. at 90, 559 A.2d at 919. The Court noted the “inadvisability of having courts of common pleas decide discrimination cases” in large part because it would allow courts having no experience handling Pennsylvania Act complaints to resolve the dispute, “while the Pennsylvania Commission, the agency created for this purpose by the Legislature, would be denied an opportunity to hear and decide the case.” Id. The Court also noted, “[t]he statutory scheme [of the Pennsylvania Act] would be frustrated if aggrieved employees were permitted to circumvent the [Pennsylvania Commission] by simply filing claims in court,” resulting in the very sort of burdensome, inefficient, time consuming, and expensive litigation that the Pennsylvania Commission was designed to avert. Clay, 522 Pa. at 91, 559 A.2d at 920. Requiring a complainant to first resort to the Pennsylvania Commission minimizes the inefficient use of judicial resources and its attendant expense and embarrassment of the parties. Lukus v. Westinghouse Electric Corporation, 276 Pa.Super. 232, 419 A.2d 431 (1980). The Pennsylvania Act provides enabling legislation for the establishment of local human relations commissions. Specifically, the Pennsylvania Act states that local governments “shall have the authority to grant to local commissions powers and duties similar to those now exercised by the [Pennsylvania Commission] under the provisions of [the Pennsylvania Act].” 43 P.S. § R62.1. Pursuant to the. authority granted by Section 962.1, Philadelphia established the Philadelphia Commission to administer and enforce statutes and ordinances prohibiting unlawful practices of discrimination, including the Philadelphia Ordinance, which prohibits employment discrimination based on race, color, sex, religion, ancestry, age and handicap. Phi-la. Code. § 9-1103. Recognizing the expertise that local agencies such as the Philadelphia Commission possess to investigate and decide employment discrimination complaints, the Pennsylvania Legislature amended the Pennsylvania Act in 1991 to allow the Pennsylvania Commission to enter into work sharing agreements with local agencies such as the Philadelphia Commission. As a result, filing a complaint with the Philadelphia Commission satisfies the Pennsylvania Act’s requirement that a plaintiff exhaust administrative remedies. Kedra v. Nazareth Hospital, 857 F.Supp. 430 (E.D.Pa.1994). Our review reveals no binding precedent on the precise issue of administrative exhaustion under the Philadelphia Ordinance. The United States District Court for the Eastern District of Pennsylvania, however, held that an employee is required to exhaust administrative remedies before seeking judicial relief under the Philadelphia Ordinance. Richards v. Foulke Associates, Inc., 151 F.Supp.2d 610 (E.D.Pa.2001) (O’Neill, J.). Although decisions of the federal courts are not binding on this Court, state courts may look to federal court decisions for guidance in interpreting state law. Heicklen v. Pennsylvania Board of Elections, 751 A.2d 260 (Pa.Cmwlth.2000); Martin v. Hale Products, Inc., 699 A.2d 1283 (Pa.Super.1997). We are persuaded by the merit of Judge O’Neill’s reasoning in Richards, and we adopt it. We conclude, therefore, that Employee is required to exhaust administrative remedies available through the Philadelphia or Pennsylvania Commission before filing a civil action under the Philadelphia Ordinance. In doing so, we seek uniformity in the procedures for resolving human relations complaints in Pennsylvania. We cannot condone a resort to court for human relation complainants in Philadelphia which is different from that afforded complainants elsewhere. Such a disparate treatment of complainants is an absurd result, which in the absence of specific direction, we presume was not intended by the Legislature. See 1 Pa.C.S. § 1922; Mann v. Lower Makefield Township, 160 Pa.Cmwlth. 208, 634 A.2d 768 (1993) (rules of statutory construction are applicable to ordinances). Since Employee failed to exhaust administrative remedies, the trial court erred in denying Employer’s motion for judgment on the pleadings as to count I of the complaint. Accordingly, we reverse the trial court, enter judgment on the plead ings in favor of Employer, and remand for a farther proceeding under count II of the complaint. ORDER AND NOW, this 14th day of May, 2002, the order of the trial court denying Marriott Corporation’s motion for judgment on the pleadings is reversed, judgment on the pleadings as to count I of the complaint is entered in favor of Marriott Corporation, and the matter is remanded for a further proceeding under count II of the complaint. Jurisdiction relinquished. . In conducting our review, this Court accepts as true all well-pleaded statements of fact made by the non-moving party and considers the pleadings themselves and any documents properly attached thereto. Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032 (1999). . Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§ 260.1-260.45. . In a subsequently filed opinion, the trial court requested that we remand the case for further consideration in light of Richards v. Foulke Associates, Inc., 151 F.Supp.2d 610 (E.D.Pa.2001), which held that a plaintiff must exhaust administrative remedies before seeking judicial relief under the Philadelphia Ordinance. We denied Employer’s application for remand. . Our review of a trial court’s denial of judgment on the pleadings is limited to a determination of whether the trial court committed an error of law or abused its discretion. Commonwealth of Pennsylvania v. Lubrizol Corp. Employee Benefits Plan, 737 A.2d 862 (Pa.Cmwlth.1999). The motion may be granted' only where no material facts are at issue and it is clear that trial would be a fruitless exercise. Ithier v. Philadelphia, 137 Pa.Cmwlth. 103, 585 A.2d 564 (1991). . Employer argues in the álternative that count I of Employee’s complaint was not filed within the applicable time period. We need not address this argument as we conclude the trial court erred in denying judgment on the pleadings as to count I of the complaint due to Employee’s failure to exhaust administrative remedies. . Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.

JOHNSON, Judge: In this appeal, we are asked to determine the propriety of the final decree that dismissed the complaint brought by Dorothy Southall and her daughter Marliess Antolik, which averred that William and Carol Hum-bert did not have an easement for a water line across their property. The Order in question found that the Humberts have a water line easement appurtenant to the Sout-hall-Antolik property. We affirm. The facts are not disputed. Southall and Antolik own a parcel of real estate designated as lot number 51 on the Ligonier Township tax map #51-15-00. The Humberts own a parcel of real estate that adjoins the Southall-Antolik property and is designated as lot number 106 on the Ligonier Township tax map #51-15-00. Both the Southall-Antolik property and the Humbert property were once part of an eighty acre tract owned by Franklin P. Smith. The deeds from Smith to the parties’ predecessors in title reserve to Smith, his heirs, and assigns the right to lay and maintain water lines across the properties conveyed. In 1976, the Humberts laid a water line across lot number 51, the Southall-Antolik property. This property was conveyed to Southall and her husband, and their daughter, Antolik, in 1981. In 1989, the property was again conveyed to Southall and Antolik. At no time prior to 1995 were Southall and Antolik aware of the Humberts’ water line. In May, 1995, after learning of the buried water line, Southall and Antolik demanded that the Humberts disconnect the water line and repair any damage caused to the Sout-hall-Antolik property as a result of its installation and removal. The Humberts refused and, instead, entered into an easement agreement with James S. and Shirley Smith for a water line across lot number 51. James S. Smith is Franklin P. Smith’s sole heir. Thereafter, Southall and Antolik filed suit seeking a permanent injunction against the Humberts and the Smiths to stop them from trespassing on the Southall-Antolik property and seeking that the court order the Hum-berts to remove their water line from the Southall-Antolik property. Following a bench trial, the court entered a decree nisi that dismissed Southall and Antolik’s complaint because it found that the Humberts had a water line easement across the Southall-Antolik property. Thereafter, Southall and Antolik filed a motion for post-trial relief. On February 8, 1996, the court denied their motion and entered a final decree that dismissed their complaint. This appeal followed. Southall and Antolik contend that: 1) Smith’s reservation created a personal right that could not be conveyed; 2) the reservation clause in the prior deeds in their chain of title did not give them notice that their property was burdened with a water line easement; 3) the Humberts are not assigns of Smith, their original grantor, and therefore do not have an easement based on their chain of title; 4) Smith abandoned any right he had in the Southall-Antolik property by conveying all of the property that adjoins the Sout-hall-Antolik property; and 5) Smith’s release and quitclaim of his interest and title in the Southall-Antolik chain of title extinguished the reservation clause that created an easement. Because Southall and Antolik filed an action in equity, our standard of review is as follows: [Ajppellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsup ported by the evidence or demonstrably capricious. Hostetter v. Hoover, 878 Pa.Super. 1, 6, 547 A.2d 1247, 1250 (1988) (citations omitted), quoting Rosen v. Rittenhouse Towers, 384 Pa.Super. 124, 129, 482 A.2d 1113, 1116 (1984). With this standard in mind, we proceed to consider Southall and Antolik’s contentions. First, the record reveals that Southall and Antolik’s chain of title is as follows: Franklin P. Smith to Harold P. and Patricia M. Emy, deed dated November 5, 1971. Harold P. and Patricia M. Emy to Fred Southall and Dorothy Southall, his wife, and Marliess Antolik, daughter, deed dated January 10,1981. Franklin P. Smith joined the above transaction to release and quitclaim his rights, title, and interests to the Grantees, deed dated January 10,1981. Fred Southall and Dorothy Southall, his wife, and Marliess Antolik, their daughter, to Dorothy Southall and Marliess Antolik, her daughter, deed dated November 2, 1989. Plaintiffs Exhibits 2, 3, and 11. The record also reveals that the Humberts’ chain of title is as follows: Franklin P. Smith to Harry F. Kriner, deed dated October 4,1971. Harry F. Kriner to Clinton and Dorothy J. Baker, deed dated June 4,1974. Clinton and Dorothy J. Baker and Franklin P. Smith to William and Carol Jean Humbert, deed dated August 20,1974, and corrective deed dated November 8, 1976. Plaintiffs Exhibits 7, 8, 9, and 10. Every deed in the parties’ chains of title either contains or references the following reservation: The Grantor reserved to himself, his heirs and assigns the right to go over, in[,] on, and across the premises described herein for the purpose of connecting with any water lines or other utility right of ways [sic] and in connection therewith, said grantor reserves the right to lay, operate, maintain, and repair any such water lines or utility conduit erected thereon or laid across such land. Plaintiffs Exhibits 2, 3, 7, 8, 9, 10, and 11. Southall and Antolik contend that, by this clause, Franklin P. Smith reserved a personal right that could not be conveyed. In essence, Southall and Antolik argue that Smith’s reservation created an easement in gross, not an easement appurtenant. As discussed above, Southall, Antolik, and the Humberts are ultimate purchasers from Franklin P. Smith, the common grantor. Both parties took title subject to the above-stated reservation. Southall and Antolik urge this Court to read the reservation by itself to reach the conclusion that Smith’s reservation created an easement in gross. “[T]he same rules of construction apply to deeds granting easements as to contracts generally.” Bito Blocks in Potter, Inc. v. Nat. Fuel Gas Supply Corp., 303 Pa.Super. 208, 212, 449 A.2d 652, 653 (1982). Our supreme court stated that: In construing a deed or a contract, certain general principles must be kept in mind. First, it is the intention of the parties at the time of entering in thereto that governs, and such intention is to be gathered from a reading of the entire contract. In addition, “ ‘Contracts must receive a reasonable interpretation, according to the intention of the parties at the time of executing them, if that intention can be ascertained from their language-’ ” Wilkes-Barre Twp. Sch. Dist. v. Cargan, 403 Pa. 383, 386, 170 A.2d 97, 98 (1961) (citations omitted). With these principles in mind, we consider this contention. Our supreme court has defined a reservation as the “ ‘creation of a right or interest which had no prior existence as such in a thing or part of a thing granted.’ ” Lauder-bach-Zerby Co. v. Lewis, 283 Pa. 250, 254, 129 A. 83, 84 (1925), quoting Kister v. Reeser, 98 Pa. 1, 5 (1881). It is settled law in Pennsylvania that an owner of land may arrange it as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous or apparent. The easements thus created, being for the specific use of the lands for which they were provided, become appurtenances of those dominant estates, and require no deed or writing to support them; they pass by a conveyance of the estates to which they are appurtenant. Lewis, supra, at 254-55, 129 A. at 84, quoting Held v. McBride, 3 Pa.Super. 155,158 (1896). More recently, our supreme court recognized the grantor’s right to reserve for his or her use an easement over land conveyed, and noted that the grantor must disclose his or her intent to do so by the words he or she uses. Piper v. Mouris, 466 Pa. 89, 95, 351 A.2d 635, 638 (1976). After reviewing the deeds in question, we conclude that the language in the original deed between Franklin P. Smith and Harold P. and Patricia P. Erny created an easement by reservation. In Brady v. Yo-danza, our supreme court stated that: Creation of an easement appurtenant is accomplished by reserving unto the grant- or an easement or right of way over the land conveyed,.... This reservation is conceptually fused with the land it benefits and passes with the land if there is a subsequent conveyance. An expressly created easement appurtenant can conceivably last forever. Brady, 493 Pa. 186, 189, 425 A.2d 726, 727 (1981) (footnote omitted). An easement is appurtenant when a servient estate exists for the beneficial use of a dominant estate. Id. In the instant case, although the reservation clause in the deeds does not name the dominant and servient estates, Smith’s intention can be gleaned from a review of the deeds in Southall and Antolik’s, and the Humberts’, chains of title. As discussed above, both the Southall-Antolik property and the Humbert property are derived from a tract of land formerly owed by Smith, their common grantor. We conclude that by virtue of the reservation provision Smith created reciprocal appurtenant easements: each parcel conveyed from the original tract serves as a servient estate for the beneficial use of the remaining property of that common tract formerly owned by Smith, their common grantor. See Hassler v. Mummert, 242 Pa.Super. 536, 539, 364 A.2d 402, 404 (1976) (“The choice of identical terms to describe both easements indicates a purpose to establish identical and reciprocal rights.”). Here, the Southall-Antolik property is ser-vient to the Humbert property, the dominant estate. Next, Southall and Antolik argue that the reservation clause in the deeds in their chain of title did not give them notice that their property was burdened with a water line easement. In Owens v. Holzheid, 335 Pa.Super. 231, 484 A.2d 107 (1984), the deed to the grantee and to the grantee’s immediate predecessors in title did not reference the easement in question, although an earlier deed in the grantee’s chain of title did recognize a prior grant of an easement. Owens, supra, at 235, 484 A.2d at 109. There we held that the grantee had constructive notice of the easement because in Pennsylvania a grantee of a deed has a duty to search the chain of title. Id. at 239, 484 A.2d at 111. This duty arises because the grantee takes subject to any “restriction or servitude which appears in the line of title,” although he or she may not have any actual knowledge of its existence. Id. Moreover, our supreme court has stated that: The weight of authority is to the effect that if a deed or a contract for the conveyance of one parcel of land, with a covenant or easement affecting another parcel of land owned by the same grantor, is duly recorded, the record is constructive notice to a subsequent purchaser of the later parcel. The rule is based generally upon the principal that a grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the records of the deeds or other muniments of title of his grantor. Piper, supra, at 97, 351 A.2d at 639, quoting Finley v. Glenn, 303 Pa. 131, 136, 154 A. 299, 301 (1931). The principles announced by our supreme court in Piper, supra, and by this Court in Owens, supra, are clearly applicable here. Southall and Antolik’s deed specifically refers to the reservation clause contained in their original grantor’s deed. The reservation was referenced in every recorded deed within their chain of title. Thus, contrary to Southall and Antolik’s assertions, the Hum-berts were under no duty to inform them of the water line buried under the Southall-Antolik property. Therefore, we conclude that Southall and Antolik’s contention is mer-itless because they had constructive notice of the water line easement. Piper, supra. Southall and Antolik also contend that the Humberts are not assigns of Franklin P. Smith and that they are therefore not entitled to the easement across the Southall-Antolik property. An assignor is defined as “[a] person who assigns or transfers property to another.” Black’s Law Dictionary 109 (5th ed.1979). The term “assigns” is defined as follows: [TJhose to whom property is, will, or may be assigned. Used e.g. in the phrase, in deeds, “heirs, administrators, and assigns to denote the assignable nature of the interest or right created.” It generally comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent, or act of law. Id. We have stated that “[a]n assignment extinguishes the assignor’s right to performance by the obligor and transfers that right to the assignee.... ‘[T]he assignee stands in the same shoes as the assignor.’ ” Etter v. Industrial Valley Bank & Trust Co., 356 Pa.Super. 502, 509, 515 A.2d 6, 9 (1986) (citations omitted), quoting U.S. Steel Homes Credit Corp. v. South Shore Dev. Corp., 277 Pa.Super. 308, 314, 419 A.2d 785, 789 (1980). There is no doubt that the Hum-berts are Smith’s assigns because, as discussed above, Smith is the original grantor in their chain of title and the Humberts took title to their property by conveyance. Thus, we conclude that this claim is wholly without merit because the reservation in the Sout-hall-Antolik deed created an easement appurtenant which gave Smith’s assigns, the Humberts, rights that they cannot be divested of involuntarily. Piper, supra. We note that Smith’s heirs do not have any interest in the easements created by reservation because the property formerly owned by Franklin P. Smith did not pass via the laws of inheritance. Use of the phrase “heirs” merely provided for the possibility that Smith may have died without transferring the property or without designating a successor to his property either by will or by law. See Black’s Law Dictionary 651 (5th ed.1979). We also note that our finding that Smith created an easement appurtenant negates Southall and Antolik’s contention that Smith abandoned any rights that he, his heirs, and assigns had in- the Southall-Antolik property when he conveyed the property adjoining the Southall-Antolik property. Smith could not abandon the easement appurtenant because he did not have title to the easement; title to the easement rests with Smith’s assigns, the Humberts, who received title to the easement by conveyance. Brady, supra, at 190-91, 425 A2d at 728. Finally, Southall and Antolik contend that the release and quitclaim provision in their chain of title extinguished the reservation that created the easement in the Southall-Antolik property. In the deed from Harold P. and Patricia M. Erny and Franklin P. Smith to Southall and Antolik dated January 10, 1981, the quitclaim provision reads as follows: The said Franklin P. Smith, single, has joined in this transaction to release and quit claim [sic] unto Grantees all rights, title and interest in said premises, specifically but not limited to, right to consent to or purchase the subject premises. Plaintiffs Exhibit 3, ¶ 7. That deed’s fourth paragraph reads as follows: EXCEPTING AND RESERVING a right to go over, in[,] on and across the above described premises for the installation of water lines and other utility right of ways [sic] as more fully defined in Deed Book Volume 2092, page 461. Id., ¶ 4. As discussed above, in construing the meaning of deeds, we must try to ascertain the parties’ intent. Our supreme court has stated that: Where the language of a contract is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. Wilkes-Barre Twp. Sch. Dist., supra, at 386-87, 170 A.2d at 98-99 (footnote omitted). Here, the seventh and fourth paragraphs of the deed in question appear to be contradictory. However, as discussed above, the reservation clause created an easement appurtenant. Unlike an easement in gross, the right created by that easement was not personal to Smith. The quitclaim provision is ineffective against the water line easement because a quitclaim deed only conveys the grantor’s interest in or title to the property described. Greek Catholic Congregation of Borough of Olyphant v. Plummer, 347 Pa. 351, 352-353, 32 A.2d 299, 300 (1943). “One who receives a quit-claim [sic] deed to a property must proceed with caution if he seeks to possess himself of that property.” Id. at 353, 32 A.2d at 300. Here, Smith did not have an interest in or title to the water line easement because he transferred such interest or title to subsequent owners of the servient and dominant estates. After review of this deed and the deeds of Southall and Antolik’s predecessors in title, we conclude that the quitclaim provision does not extinguish the easement reserved by Smith. In addition, a review of Southall and Antolik’s chain of title reveals that Smith reserved a personal right in the original transfer to the Emys, Southall and Antolik’s predecessor in title. In the deed from Franklin P. Smith to Harold P. and Patricia M. Erny, dated November 5, 1971, the following language appears: IT IS SPECIFICALLY COVENANTED AND AGREED that as part of the consideration hereof the grantor herein during his lifetime or for 20 years hereafter, whichever is shorter, shall have the right to approve and consent to any parties who may contemplate purchasing from the grantees herein, their heirs or assigns, or in lieu thereof, to purchase the same at the price at which the sale is to be consummated. Plaintiffs Exhibit 2. Smith, in effect, held a personal right of first refusal. Our supreme court cited Professor Corbin’s analysis of a right of first refusal with approval: If [a third party] should make an offer [,] the owner of the land was privileged not to accept it, and also not to make any offer to the promisee. But the owner was bound by duty not to accept the offer of the [third party] without first giving an option to the promisee. Gateway Trading Co. v. Children’s Hosp. of Pittsburgh, 438 Pa. 329, 335, 265 A.2d 115, 119 (1970), quoting A. Corbin, Corbin on Contracts p. 363 (One Vol. Ed.1952). A grant of the right of first refusal is an agreement that contemplates the eventual or potential sale of property. See Colarossi v. Faber, 359 Pa.Super. 259, 266, 518 A.2d 1224, 1228 (1986). The right of first refusal differs from an option to purchase in that there are no certain terms as to price or to the option period. Id. at 267, 518 A.2d at 1228. This Court has stated that: The right of first refusal is a valuable property right. The importance of the right to its holder is that the holder may assert ownership of the property provided that the owner meets the conditions of the right. Boyd & Mahoney v. Chevron, U.S.A., 419 Pa.Super. 24, 30, 614 A.2d 1191, 1194 (1992). Here, the above-stated provision, in the deed dated November 5, 1971, gave Smith a personal right to consent to any future sale of the property conveyed or to purchase the property at the price that a third party purchaser may have offered. By the above stated clause, the Ernys, their heirs, or assigns would have been duty bound to first inform Smith of an offer and give Smith the opportunity to purchase the property for the same price. In addition, the clause specifically states that the agreement contemplates the potential sale of the property. Moreover, Smith reserved to himself the right of first refusal because the clause explicitly states that the “grantor ... shall have the right.” Plaintiffs Exhibit 2. Therefore, we find that the quitclaim provision in the deed dated January 10, 1981, and quoted above ended Smith’s personal right of first refusal, along with any other personal rights that Smith may have had. Plummer, supra, at 353, 32 A.2d at 300; cf. Hershey v. Poorbaugh, 145 Pa.Super. 482, 485-87, 21 A.2d 434, 435-36 (1941) (a grantor can only convey that which he owns). Based on the foregoing, we find no error in the trial court’s determination that the Hum-berts have a water line easement appurtenant to the Southall-Antolik property and that the Humberts’ rights arose via the conveyance to them and their predecessors in title. Accordingly, the order is affirmed. Order of February 8, 1996, Court of Common Pleas, Westmoreland County, Civil Division at No. 4533 of 1995 is AFFIRMED.

McGINLEY, Judge. The Lackawanna County Commissioners (Commissioners) and the Lackawanna County Board of Elections (Board of Elections) seek review of the appointment of Andrew J. Jarbola, Esquire (Jarbola) as district attorney by the Court of Common Pleas of Lackawanna County (common pleas court) for the remainder of the term of the former district attorney, Michael J. Barrasse, Esquire (Barrasse), which expires on December 31, 2001. On November 2, 1999, Barrasse, Lacka-wanna County’s district attorney, was elected to the common pleas court. On January 3, 2000, Barrasse resigned as district attorney and assumed the office of Judge. In accordance with Section 206(b) of the Lackawanna County Home Rule Charter (Lackawanna Charter), the Lacka-wanna County Republican Party (Republican Party) submitted a list of three individuals to the common pleas court to fill the vacancy in the office of district attorney. 335 Pa.Code § 1.2-206(b). On January 11, 2000, the Commissioners scheduled a special election for April 4, 2000 to fill the vacancy. On January 18, 2000, the common pleas court appointed Jarbola as district attorney for the remainder of Barrasse’s term, which expires on December 31, 2001. On January 18, 2000, the Republican Party requested an injunction and declaratory relief against the Commissioners and the Board of Elections. In particular, the Republican Party requested the common pleas court to enjoin the Board of Elections from holding a special election on April 4, 2000, and thereby avoid any violation of the Pennsylvania County Code and the Pennsylvania Election Code. On January 25, 2000, the Commissioners and the Board of Elections appealed to the Commonwealth Court the January 18, 2000, appointment and challenged Jarbo-la’s appointed term. The Commissioners and the Board of Elections received an expedited argument before the Comb en banc. On February 14, 2000, the Commissioners and the Board of Elections rescheduled the special election for November 2, 2000, during the general election. On appeal, the Commissioners and the Board of Elections contend that the common pleas court lacked the authority to appoint Jarbola for the remainder of Barrasse’s term, pursuant to Section 1404 of the County Code (Section 1404), 16 P.S. § 1404. Our analysis begins with the statutory framework set forth at Section 1404: If any vacancy shall occur in the office of district attorney, either by death, resignation, removal from office or from the county, or otherwise, the judges of the court of common fleas shall supply such vacancy by the appointment of a competent person to fill the office during the balance of the unexpired term, (emphasis added). 16 P.S. § 1404. In addition, Section 602 of the Election Code mandates that county officers be elected at municipal elections held in odd-numbered years. 25 P.S. § 2752. These statutory provisions directly conflict with Sections 206(b) and (c) of the Lackawanna Charter which provide: (b) If a vacancy occurs, the executive committee of the political party of the person elected to the office in question shall submit a list of three persons to the judges of the court and bank [sic] within five (5) days of the vacancy. The court shall appoint one of the three (3) persons recommended to temporarily fill the vacancy. (c) A special election according to the Laws of the Commonwealth of Pennsylvania shall be held at the next primary municipal or general election to permanently fill the vacancy. 335 Pa.Code § 1.2-206(b) and (c). The Commissioners and the Board of Elections contend that, despite the conflict, the Lackawanna Charter supersedes state law. The Commissioners and the Board of Elections assert that the General Assembly has not precluded a county from enacting a home rule charter at variance with state law. However, the Pennsylvania Constitution is of paramount importance and must control. Pursuant to Article IX, Section 1 of the Pennsylvania Constitution, the general law pertaining to local government “shall be uniform as to all classes of local government regarding procedural matters.” Article IX, Section 2 of the Pennsylvania Constitution provides that “[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.” The Home Rule Charter and Optional Plans Law, (HRC & OPL), 53 Pa.C.S. §§ 2901-3171, authorized counties to utilize home rule charters to establish a local government framework. Section 2962 of the HRC & OPL pertains to limitation of municipal powers. Specifically, a municipality is prohibited from exercising “powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.” - 53 Pa.C.S. § 2962(c)(2). Additionally, uniform statutes “applicable in every part of this Commonwealth shall remain in effect and shall not be changed.... Statutes shall supersede any municipal ordinance ... on the same subject.” 53 Pa.C.S. § 2962(e). Our Pennsylvania Supreme Court has treated the removal of a city employee as a municipal matter controlled by the charter. In re Addison, 385 Pa. 48, 122 A.2d 272 (1956). The Court reasoned that the administration of Philadelphia’s civil service had no bearing upon Pennsylvania residents outside of the Philadelphia area. In re Addison, 385 Pa. at 56, 122 A.2d at 275. On the other hand, a statute may negate a home rule charter when the conflict involves a matter of statewide magnitude, such as the regulation of firearms. Ortiz v. Commonwealth of Pennsylvania, 545 Pa. 279, 681 A.2d 152 (1996). In the present controversy, the Republican Party argues that the district attorney represents the Commonwealth’s interests in criminal cases, and there must be uniformity throughout Pennsylvania regarding guidelines on how vacancies are filled for this elected position. Our Pennsylvania Supreme Court addressed a similar issue in Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). Therein, Richardson Dilworth (Dilworth) was elected mayor of Philadelphia in November 1959. Dilworth’s four-year term began on the first Monday of January 1960, and was scheduled to end on the first Monday of January 1964. Dilworth resigned on February 12, 1962. Pursuant to the Philadelphia Home Rule Charter (PHRC) a vacancy in a mayor’s unexpired term was to be filled during the next municipal or general election. As a result, the city solicitor suggested that a primary election be held in 1962 to nominate a candidate for the vacancy. Anita Cali and James Burns sought to enjoin the City of Philadelphia from conducting the primary and the Court of Common Pleas of Philadelphia County agreed. The question for the Pennsylvania Supreme Court was whether the PHRC or the Election Code controlled. Our Supreme Court reasoned that the home rule charter must not violate “the Constitution of the United States, or the Constitution of Pennsylvania, or the Enabling Act of 1949, or the Election Code....” Cal% 406 Pa. at 306, 177 A.2d at 832. Additionally, our Supreme Court stated: It is unnecessary to decide whether the election of a Mayor of Philadelphia is of State-wide [sic] concern or purely a local matter which is of no concern to citizens of Pennsylvania at large. It will suffice to say that the Charter is subordinate to the Enabling Act, and if they conflict the Enabling Act takes precedence and prevails. Id. at 312,177 A.2d at 835. Like in Cali, the County Code and the Election Code are of statewide importance. It is of no concern that the district attorney is a local county office which may or may not have powers of statewide impact. The County Code and the Election Code take precedence over the Lackawanna Charter. We must conclude that the common pleas court had the authority to appoint Jarbola as district attorney for Barrasse’s unexpired term. Accordingly, we affirm. ORDER AND NOW, this 17th day of July, 2000, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is affirmed. . The date of the special election coincided with the date of the primary election already scheduled for April 4, 2000. . Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§ 101 to 2902. . Act of June 3, 1937, P.L. 1333, as atnended, 25 P.S. §§ 2600 to 3591. ' . The Commissioners and the Board of Elections delayed the special election because the April 4, 2000 date was less than a month from the March 8, 2000 en banc argument before the Commonwealth Court. . Lastly, the Commonwealth Court granted the Lackawanna County Democratic Party’s application for leave to intervene. We note that the intervenor filed a brief in support of the appeal by the Board of Elections and argued that the home rule charter supersedes the Pennsylvania County Code, that a special election will not violate the Pennsylvania Constitution, and that the special election provisions are not prohibited by the Pennsylvania Election Code. . This Court's review is limited to a determination of whether the trial court committed legal error and whether the findings were supported by the evidence. In re McElhatton, 729 A.2d 163 (Pa.Cmwlth.1999). . This appeal challenges only the term for which Jarbola was appointed. . Article IX, Section 4 of the Pennsylvania Constitution lists a district attorney as a county officer. . Although the Lackawanna Charter states that a vacancy is filled by the submission of three names, neither the County Code nor the Election Code promulgates any such procedure. Because this issue is not before us, we need not address it. . The Election Code provided that city officers must be elected at the municipal election in odd-numbered years. . We note that district attorneys are limited to geographical areas despite their performance of sovereign duties for state government. Pennsylvania Gamefowl Breeders Association v. Commonwealth of Pennsylvania, 122 Pa.Cmwlth. 52, 551 A.2d 361, 363 (1988). It is well-established that district attorneys are considered county officers for jurisdictional purposes and not Commonwealth officers. Id. (citing Schroeck v. Pennsylvania State Police, 26 Pa.Cmwlth. 41, 362 A.2d 486, 490 (1976)). Thus, this Court does not have original jurisdiction with respect to civil actions against district attorneys. . The dissent raises the following issues: (1) Whether the prohibitions in Section 2962 of the HRC & OPL, limiting the power of the home rule community, are inapplicable. (2) Whether the type of home rule charter adopted was unspecified by the parties or the common pleas court. As to the first issue, because the County Code does not apply to counties of the first class or second class under Section 102 of the County Code, 16 P.S. § 102, the dissent asserts that Section 1404 is inapplicable throughout the Commonwealth. However, with respect to Pennsylvania's first class county, all Philadelphia county officers were abolished by Article IX, Section 13(a) of the Pennsylvania Constitution. Moreover, the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4404, reflects identical language to that of Section 1404. The dissent argues a distinction without a difference. We must reiterate and emphasize that the County Code, although not applicable in every part of the Commonwealth, applies specifically to Lackawanna County, a fourth class county. See 114 The Pennsylvania Manual § 6-12 (1999) and Section 210(4) of the County Code. When a vacancy occurs there must be uniformity throughout the Commonwealth in filling the vacancy. Section 1404 provides that uniformity and mandates that a vacancy in the district attorney's office is to be filled for the unexpired term by the judges of the court of common pleas. With respect to the dissent's generalization that the majority jeopardizes other home rule charters, this decision simply recognizes that statutes of statewide concern prevail if there is a conflict, and at the same time, recognizes a municipality’s authority to conduct local affairs. This Court's decision in no way prevents a local government from adopting and implementing a home rule charter, but where a conflict exists between powers granted, a local government, under an adopted form of home rule, is restrained from violating the Constitution, the Enabling Act or the Election Code. As to the second issue, the dissent recognizes two types of home rule charters, i.e. one suggested by the government study commission or an optional prepackaged form of home rule charter. If Lackawanna County adopted the latter plan, then the dissent agrees that the common pleas court was authorized to fill the vacancy in the district attorney’s office, but for different reasons than the majority. It is noteworthy that this issue was not raised previously. Issues not preserved below "are waived and cannot be raised for the first time on appeal.” Pa. R.A.P. No. 302(a). Assuming arguendo, that this issue regarding the type of charter was properly raised, the argument is meritless because, whether the charter is "hand-crafted” or an optional plan, its provisions may not supersede constitutional provisions or statutes of statewide magnitude.

RODGERS, Senior Judge. Keystone Coal Mining Corporation (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) that reversed the decision by a workers’ compensation judge (WCJ) that dismissed William Wasnak’s (Claimant) claim petition for work-related hearing loss benefits for failing to file his petition within three years of exposure to hazardous occupational noise. We reverse and reinstate the WCJ’s decision and order. On July 22, 1996, Claimant filed a claim petition alleging that he sustained a bilateral hearing loss caused by exposure to noise during the course of his thirty-two years of employment with Employer. Employer filed an answer denying the allegations. At a hearing before the WCJ, Claimant testified about his exposure to loud noise during the years he worked underground as a coal miner. He also testified that beginning on September 8, 1987, he began working as a lamp man until his retirement on September 27, 1994. Claimant explained that his job as a lamp man was performed at the mine site, but was not underground and that the noise exposure at that position was not as loud as he had experienced when he worked below ground. Claimant submitted the deposition testimony of David R. Rogerson, M.D., a board-certified otolaryngologist, who examined Claimant on July 8, 1996. Dr. Rogerson testified that Claimant’s exposure to noise while working as a coal miner was the predominate cause of Claimant’s hearing loss, which measured 40% under the American Medical Association’s (AMA) guidelines. He also acknowledged that age was a factor. Employer presented the testimony of Richard L. Radakovich, Employer’s manager of safety, who testified about noise studies performed at Employer’s facility. Employer also entered into evidence the records of the noise studies, which revealed that the highest noise level to which a lamp man is exposed is 75 decibels. Employer also presented the deposition testimony of Sidney N. Busis, M.D., a board-certified otolaryngologist, who examined Claimant on October 28,1996. Dr. Busis testified that some of Claimant’s hearing impairment of 31.9% was caused by Claimant’s early exposure in the mines, his military experience and hunting as a young man. However, Dr. Busis testified that in his opinion age and heredity were also factors that caused some of Claimant’s hearing loss, although he had no information about Claimant’s family history. In his decision, the WCJ indicated that Employer asserted that Claimant was not exposed to hazardous occupational noise while working as a lamp man. As a result, Employer contended that Claimant’s petition was not timely filed pursuant to Section 306(c)(8)(viii) of the Act, 77 P.S. § 513(8)(viii), i.e., Claimant began work as a lamp man on September 8, 1987 and did not file his claim petition until July 22, 1996. The WCJ found as fact that: 10. The testimony of Dr. Rogerson as to the cause of the employee’s hearing loss is credible and persuasive. I accept and adopt this opinion in that I find as fact that the employee’s exposure to noise while in the confined areas of coal mines is the predominate cause of his hearing loss... .Age is a minor factor in the employee’s hearing loss. (WCJ’s decision, p. 4). Despite this finding as to cause, the WCJ accepted as credible Dr. Busis’ evaluation of 31.9% as representative of the extent of Claimant’s hearing loss. The WCJ further found that: 12. The employee was not exposed to hazardous noise during his work as a lamp man. This finding is based upon several factors. All of this work was outside the mine. The employee did not operate machinery. Although he described noise from mining activities[,] these activities would not have been in process in the areas where he worked as they were described by him and, more completely, by Mr. Radakovich. He worked in wash houses, offices, and in areas where out-of-use miner’s lamps were kept. The noise level studies to which Mr. Radakovich testified, although they were performed during very limited time periods, show within a reasonable degree of statistical certainty the noise levels to which a lamp man is exposed. The test results for different surface level jobs show a variance in noise levels which ranges into hazardous exposure for some positions other than that of a lamp man. Finally, but equally important, the employee used his hearing aids rather than available hearing protection while he was working as a lamp man (hearing 9/13/96, tr. p. 18). Hearing aids would be contraindicated where there is hazardous noise. 13. The employee’s last exposure to hazardous noise while he was employed by the employer occurred before September 8,1987. (WCJ’s decision, p. 5). Accordingly, the WCJ concluded that although Claimant met his burden of proving that his hearing loss was caused by his exposure to noise at work, Claimant failed to file his claim petition within three years of his last exposure to hazardous occupational noise. Thus, the WCJ dismissed Claimant’s petition. On appeal to the Board, Claimant argued that the WCJ’s findings with respect to Dr. Rogerson’s testimony were inconsistent and contradicted the doctor’s testimony. While recognizing that the WCJ is the determiner of credibility, the Board stated that its review encompasses the questions of competency and sufficiency of the evidence. The Board stated that although the WCJ accepted Dr. Rogerson’s testimony as credible, the WCJ found Claimant’s exposure to hazardous occupational noise ended when he became a lamp man in 1987. The Board determined that this finding contradicted the doctor’s testimony, wherein he stated that Claimant’s work as a lamp man contributed to the hearing loss. Therefore, the Board reversed the WCJ’s denial of benefits and ordered benefits to be paid according to Dr. Busis’ evaluation of a 31.9% impairment. Employer now appeals to this Court, and argues that the WCJ’s findings were not contradictory. In particular, Employer notes that in Finding of Fact No. 10 the WCJ accepted the testimony of Dr. Roger-son regarding the cause of Claimant’s hearing loss and specifically found that “the employee’s exposure to noise while in the confined areas of coal mines is the predominate cause of his hearing loss.” (Finding of Fact No. 10). Employer also contends that the WCJ made a distinction between Claimant’s noise exposure in the mines and his noise exposure while working as a lamp man, but that the Board disregarded the WCJ’s findings based on the testimony of Claimant and Mr. Rada-kovich in this regard. We agree with Employer and “repeat a firmly established and fundamental principle of workers’ compensation law: the WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may reject the testimony of any witness in whole or in part....” Dana Corp. v. Workers’ Compensation Appeal Board (Hollywood), 706 A.2d 396, 400 (Pa.Cmwlth.1998), petition for allowance of appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998). The WCJ here clearly stated that he accepted Dr. Rogerson’s testimony as to the cause of Claimant’s hearing loss, attributing that loss to Claimant’s work underground in the mines. Although the WCJ did not state with specificity that he rejected Dr. Rogerson’s testimony concerning Claimant’s work as a lamp man, a perusal of the WCJ’s decision based in part on Claimant’s and Mr. Radakovich’s testimony reveals that he found the noise exposure in conjunction with the lamp man position not to be hazardous. Furthermore, after reviewing Dr. Rogerson’s testimony, we conclude that the Board misconstrued the doctor’s testimony and the WCJ’s findings based on that testimony. Thus, we conclude that the WCJ’s findings of fact are supported by substantial evidence and are not contradictory. The Board erred in so ruling. Consequently, we hold that the WCJ correctly found that Claimant’s exposure to hazardous occupational noise ended on September 8,1987, and his petition filed in July of 1996 was time barred pursuant to the statute of limitations provision set out in Section 306(c)(8)(viii) of the Act. Accordingly, we reverse the Board’s order and reinstate the WCJ’s decision. ORDER NOW, August 1, 2000, the order of the of the Workers’ Compensation Appeal Board, at No. A98-2913, dated January 18, 2000, is reversed. . Claimant filed his petition after the enactment of the hearing loss amendments to the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626. The hearing loss amend-merits are contained in Section 306(c)(8) of the Act, 77 P.S. § 513(8), and were added to the Act by the Act of February 23, 1995, P.L. 1 (Act 1). . The Act defines hazardous occupational noise as "noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Exposure Standards, 29 CFR 1910.95...." Section 105.4 of the Act, 77 P.S. § 25.4 (added by Act 1). We further recognize that Section 306(c)(8)(x) of the Act, 77 P.S. § 513(8)(x), imposes on an employer the burden to prove as an affirmative defense whether a claimant has been exposed to hazardous occupational noise. . Section 306(c)(8)(viii) states: (viii) Whenever an occupational hearing loss caused by long-term exposure to hazardous occupational noise is the basis for compensation or additional compensation, the claim shall be barred unless a petition is filed within three years after the date of last exposure to hazardous occupation noise in the employ of the employer against whom benefits are sought. . Our scope of review in a workers’ compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. General Electric Co. v. Workers' Compensation Appeal Board (Rizzo), 737 A.2d 852 (Pa.Cmwlth.1999). . In fact Dr. Rogerson testified that he was unfamiliar with the lamp man job and formulated his opinion on the basis of his knowledge of noise levels in mines. In response to questions about the noise level studies introduced by Employer, the doctor further stated that any noise level readings below 80 decibels for eight hours should not be significant. . Having ordered the reinstatement of the WCJ’s decision, we need not address Employer’s argument concerning the Board’s reli-anee on Dr. Busis’ testimony to support an award of benefits.

JIULIANTE, Senior Judge. Stephen Griffin (Griffin) petitions for review from the July 6, 1999 order of the Commonwealth of Pennsylvania, Board of Probation and Parole (Board) that adopted the proposed findings of fact and conclusions of law of the hearing examiner recommending that Griffin be found ineligible for benefits under what is commonly referred to as the Heart and Lung Act (Act). In this case, we consider the issue of whether the General Assembly’s use of the phrase “in the performance of his duties” in the Act was intended to preclude an individual from receiving benefits where there is a possibility that he suffered a recurrence or aggravation of a prior work-related injury in a non-work related incident. For the reasons that follow, we vacate the Board’s order and remand for further proceedings. By order dated July 19, 1996, Nicholas Muller, Chairman of the Board, appointed a hearing examiner to conduct a hearing on Griffin’s claim for heart and lung benefits. The hearing took place on July 22, 1996, at which time both parties agreed to utilize Griffin’s testimony before the workers’ compensation judge in lieu of live testimony before the hearing examiner. Thereafter, the parties subsequently presented to the hearing examiner the deposition testimony of their expert medical witnesses. Upon considering the evidence presented by the parties, the hearing examiner made the following findings of fact: 1. Claimant was employed by the Pennsylvania Board of Probation and Parole for approximately twenty-six years, most recently as a[P]arole Agent II. 2. Claimant’s duties included supervising released prisoners, preparing pre-paróle investigations, referring released prisoners to health and substance abuse facilities, attending parole hearings, returning parolees to prison when necessary, etc. 3. Claimant’s fixed place of employment was in the State Office Building at the intersection of Broad and Spring Garden Streets in Philadelphia, where he had his own desk, separate office, and dedicated telephone line. 4. Claimant, as were other parole agents, was required to be in the office for at least one full day per week; at other times, he was in the field or in the office based on discussions with his supervisor. 5. It was Claimant’s personal practice to work in the office each morning, go into the field to conduct the required work and then “end at home by writing up ... interviews and finishing off what they call a daily activity sheet.” 6. Parole agents are rarely allowed to work at home, i.e. in only unique circumstances, and then only with the pre-approval of their supervisors. 7. Claimant did not have general or specific approval from his supervisor to work at home. 8. Claimant asserted that he had the right to work at home on the basis of what he was allegedly told by parole agents from other parts of the state whom he met at periodic Employer-wide training seminars. 9. On August 24, 1995, Claimant was scheduled to work until 5:00 p.m. but, without permission, drove home, arriving at 4:00 p.m., at which time he injured his back. 10. Claimant did not report this injury to his supervisor until the next morning, Friday, August 25,1995. 11. Claimant did not contact Dr. De-Carlo, from whom he had received significant medical treatment over the years, until the same date, but did not see the doctor until August 29, 1995. 12. Claimant was injured while parking a State owned vehicle, which was, at that time, assigned to him for official business and for driving to and from work. 13. Personal use of the State vehicles was not permitted while used for commuting. 14. There is no evidence of record indicating Claimant had a contractual right to use a State vehicle, and Claimant admitted that, periodically, he did not have the use of a State vehicle. 15. The parole officers worked what are “controlled hours” from 8:30 a.m. to 5:00 p.m., and required specific permission from their supervisor or manager to deviate therefrom. Claimant sought or received no such permission. 16. Dr. DeCarlo first treated Claimant on April 22, 1993, for injuries sustained in a fall on April 27,1993, at Greaterford [sic] Prison, when he slipped and hit his lower back.[ ] 17. Dr. DeCarlo treated Claimant for this injury until October of 1994 when Claimant returned to work. The diagnosis was a disc protrusion at L3-L4, a bulging disc at L4-L5, sclerosis and calcification of the coccyx. 18. In August of 1995, Dr. DeCarlo’s diagnosis of Claimant following the incident at issue herein was “acute lumbo-sacral sprain and aggravation of the previous injury and the possibility of herniation or a ruptured disc.” 19. The doctor’s treatment for Claimant included regular therapy, ultrasound, hot/moist packs, deep muscle massage, electric stimulation and exercise. 20. By July of 1996, Dr. DeCarlo diagnosed Claimant’s injuries as continuing, but retained hope that Claimant could return to work. 21. Dr. DeCarlo’s bills for treating Claimant exceeded $15,000. 22. Claimant was examined by Dr. Leatherwood on behalf of the Employer on May 21, 1996. He found that Claimant had no problems with straight leg testing and deep tendon reflexes in knee or ankle, normal motor strength testing, full lumbosacral extension, and subjective tenderness of the lumbosacral spine with no spasm. 23. Dr. Leatherwood’s diagnosis was “sprain/strain of the lumbosacral spine,” and “degenerative changes in the lumbo-sacral spine which are consistent with his age.” To rule out more serious conditions, the doctor ordered an MRI which confirmed his conclusion that Claimant had sustained a work-related sprain/strain with no permanent injuries. 24. Dr. Leatherwood credibly concluded that Claimant’s injury in August of 1995 was a sprain/strain type of injury which did not change, in any way, the underlying degenerative disease of Claimant’s spine and that Claimant was fully and completely recovered from that injury so that he could return to full employment without restrictions as of May 21,1996. 25. Although Dr. Leatherwood credibly testified that injuries such as Claimant’s should have healed within six weeks to three months, he could not tell when Claimant had actually recovered before May 21,1996. (Findings of Fact Nos. 1-25). Emphasizing the fact that Griffin was injured while he was returning to his home before 5:00 p.m., the end of his workday, and that he did not have permission to work at home, the hearing examiner concluded that Griffin did not sustain an injury on August 24, 1995 that arose “in the performance of his duties.” Accordingly, the hearing examiner recommended that Griffin be found ineligible for benefits under the Act. By order dated July 6, 1999, the Board adopted the hearing examiner’s recommendation in its entirety and found Griffin ineligible for benefits under the Act for periods of incapacitation due to, and following, his August 24, 1995 injury. This petition for review followed. Section 1(a) of the Act, 53 P.S. § 637(a), provides that: [a]ny member of the State Police Force, ... and the parole agents, enforcement officers and investigators of the Pennsylvania Board of Probation and Parole, ... who is injured in the performance of his duties ... and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the Commonwealth of Pennsylvania ... his full rate of salary, as fixed by ordinance or resolution, until the disability arising therefrom has ceased.... The hearing examiner concluded that Griffin did not injure himself during the performance of his duties and that therefore, he was ineligible for benefits. The hearing examiner’s findings of fact and conclusions of law do not, however, address Griffin’s contention that he suffered a recurrence of his 1993 work-related injury on August 24,1995. In Adams v. Lawrence Township Bd. of Supervisors, 153 Pa.Cmwlth. 418, 621 A.2d 1119 (1993), Wilmont Adams was injured in an automobile accident in the course of his employment as a police officer with the Lawrence Township Police Department and, thereafter, began receiving benefits under the Act. The Township then unilaterally discontinued payments and Adams filed an equity action and a motion for a preliminary injunction with the court of common pleas seeking to require the township to resume payment of benefits. The township and Adams subsequently entered into a stipulation that provided for the payment of benefits for a period of nearly seven months. Upon the expiration of the benefit period, the agreement provided that benefits would be terminated. The court of common pleas approved the stipulation. Adams returned to full-time work, but shortly thereafter his condition allegedly recurred and he was unable to work. Consequently, Adams filed a petition to compel payment of benefits, seeking past due and future benefits. The court of common pleas denied the petition and concluded that Adams had voluntarily agreed to terminate his benefits and that, consequently, he was not entitled to receive benefits. On appeal to this Court, Adams maintained that his benefits were terminated without a due process hearing. In Adams, we agreed with the court of common pleas that Adams’s benefits were not improperly terminated because he voluntarily agreed to the stipulation terminating his benefits. We went on to conclude, however, that Adams was entitled to a hearing on the issue of whether his benefits should have been reinstated due to an alleged recurrence of his disability. We stated that “[t]he burden of proof, in this instance, is on Adams as the party seeking to alter the status quo to demonstrate that his disability has in fact recurred and that his disability is temporary.” Id. at 1121. Our research has failed to find any case law holding that an individual seeking benefits under the Act for a recurrence of a prior work-related injury must establish that the recurrence was the result of a second work-related incident. In fact, this Court in Adams referenced workers’ compensation law in determining the proper burden of proof necessary to establish a recurrence under the Act. Id. (citing York City Sch. Dist. v. Workmen’s Compensation Appeal Board (Peyser), 136 Pa.Cmwlth. 110, 582 A.2d 423 (1990)). Indeed, under the Workers’ Compensation Act, a claimant may be entitled to a reinstatement of benefits where he suffered a non-worked related recurrence of a prior work-related injury. In Cam- brio, County Comm’rs v. Workmen’s Compensation Appeal Board, 57 Pa.Cmwlth. 409, 426 A.2d 249 (1981), the claimant suffered a herniated disc while in the course of his employment and thereafter received workers’ compensation benefits. After surgery, the claimant returned to work. Subsequently, the claimant stumbled while walking, which did not occur during the course of his employment. The claimant filed a petition to reinstate benefits. On appeal, we affirmed the referee’s award reinstating the claimant’s benefits on the basis that there was substantial evidence to support a finding that the claimant suffered a recurrence of his work-related injury. “The purpose of the Act is to provide important public safety personnel with full compensation while disabled from an injury which occurs in the performance of duty.” Feineigle v. Pennsylvania State Police, 680 A.2d 1220, 1222 (Pa.Cmwlth.1996) (quoting Colyer v. Pennsylvania State Police, 165 Pa.Cmwlth. 41, 644 A.2d 230, 233 (1994)). Similarly, the Workers’ Compensation Act was intended to provide benefits to employees that suffer work-related injuries resulting in a loss of earnings. U.S. Steel Corp. v. Workmen’s Compensation Appeal Board, 62 Pa.Cmwlth. 502, 437 A.2d 92 (1981). The statutes differ in that the Act is to compensate an injured employee only for temporary disability, whereas the Workers’ Compensation Act is to compensate an injured employee for wage-loss as long as he suffers a loss of earning power, whether it is temporary or permanent. In other words, the Act provides compensation only where the disability is temporary and does not apply where the disability is permanent. Colyer. Although we recognize that the Act is-to be strictly construed, which is contrary to the liberal construction afforded the Workers’ Compensation Act, we cannot conclude that the General Assembly’s use of the phrase “in the performance of his duties” was intended to preclude an individual from receiving benefits where he suffers a recurrence or aggravation of a prior work-related injury in a non-work related incident. To hold otherwise would shield the employer from liability where it is established through competent medical testimony that a subsequent injury is the direct result of a prior work-related injury, and would, in effect, be contrary to the purposes of the Act. Thus, we conclude that the hearing examiner erred in determining that Griffin was not entitled to benefits based solely on the hearing examiner’s finding that Griffin was not in furtherance of his duties as a parole agent at the time of his injury. This conclusion, however, is not disposi-tive of the present matter. In Finding of Fact No. 9, the hearing examiner found that “[o]n August 24, 1995, [Griffin] was scheduled to work until 5:00 p.m. but, without permission, drove home, arriving at 4:00 p.m., at which time he injured his back.” (F.F. No. 9) The hearing examiner further noted in Findings of Fact Nos. 18 and 23 that Dr. DeCarlo diagnosed Griffin as. suffering from an “acute lumbosacral sprain and aggravation of the previous injury and the possibility of herniation or a ruptured disc” and that Dr. Leatherwood diagnosed Griffin as suffering from a “sprain/strain of the lumbosacral spine and degenerative disc disease.” (F.F. Nos. 18 and 23) In addition, the hearing examiner acknowledged that Dr. Leatherwood ordered a MRI, which confirmed Dr. Leath-erwood’s conclusion that Griffin had sustained a work-related sprain or strain with no permanent injuries. (F.F. No. 23) Dr. Leatherwood was not asked whether Grif fin’s August 24, 1995 injury was a new injury or a recurrence or aggravation of the prior 1993 work-related injury. A reading of the hearing examiner’s discussion establishes that he recommended denying benefits solely on the basis that Griffin was not performing his duties as a parole officer at the time that he was injured. The hearing examiner failed to make a finding as to whether Griffin suffered a new injury on August 24, 1995, an aggravation or recurrence of his 1993 injury, or no injury. Since the status of Griffin’s injury has not been determined, i.e. whether it is a new injury or a recurrence or aggravation of a prior work-related injury, a remand is necessary in order to allow the Board to consider evidence relevant to this issue and to determine the appropriate remedy, if any. Accordingly, in view of the foregoing, the Board’s order is vacated and this case is remanded for additional evidence on the limited issue of whether Griffin sustained a new injury, a recurrence or an aggravation of his 1993 work-related injury. ORDER AND NOW, this 3rd day of August, 2000, it is hereby ordered that the July 6, 1999 order of the Pennsylvania Board of Probation and Parole is vacated. This case is remanded for additional evidence on the limited issue of whether Griffin sustained a new injury, recurrence or aggravation of his 1993 work-related injury under what is commonly referred to as the Heart and Lung Act, Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638. Jurisdiction relinquished. . Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638. . Mr. Muller appointed Clifford Blaze as the hearing examiner. Mr. Blaze is employed as Chief Counsel to the Unemployment Compensation Board of Review. . The record before us does not indicate the outcome of the workers’ compensation proceedings. . In addition to its expert medical testimony, the Board presented the deposition testimony of Ronald Zappan. Mr. Zappan was, at one time, the supervisor to Griffin’s immediate supervisor. . In Finding of Fact No. 16, the WCJ inadvertently transposed the date of Griffin’s first injury with the date that he first presented himself to Dr. DeCarlo. In his testimony, Dr. DeCarlo testified that he first examined Griffin on April 27, 1993 for injuries sustained on April 22, 1993. (Reproduced Record "R.R.” 54a). . On review, we are limited to determining whether constitutional rights were violated, an error of law has been committed, or whether the necessary findings of fact are supported by substantial evidence. Duffy v. Pennsylvania State Police, 701 A.2d 304 (Pa.Cmwlth.1997). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. City of Philadelphia v. Workers’ Compensation Appeal Board (Cronin), 706 A.2d 377 (Pa.Cmwlth.), appeal denied, 555 Pa. 734, 725 A.2d 183 (1998). . The Court’s opinion does not indicate whether Adams’s alleged recurrence of his injury occurred while he was at work. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4. . See generally, Kohut v. Workmen’s Compensation Appeal Board (Township of Forward), 153 Pa.Cmwlth. 382, 621 A.2d 1101 (1993); 3 D. Torrey and A. Greenburg, Pennsylvania Workers’ Compensation: Law and Practice, § 17:12 (1999). . See Allen v. Pennsylvania State Police, 678 A.2d 436 (Pa.Cmwlth.1996). . We would note that the record would not support a finding that Griffin did not sustain an injury on August 24, 1995. Dr. Leather-wood, the Board's expert medical witness, acknowledged that Griffin had sustained an injury but believed that Griffin had completely recovered from the injury prior to his examination of Griffin. Dr. DeCarlo, Griffin’s expert witness, testified that Griffin sustained a recurrence of the 1993 work-injury on August 24, 1995.

ORDER PER CURIAM: AND NOW, this 11th dáy of August, 2000, the Petition for Allowance of Appeal is GRANTED, limited to the following issue: Was Petitioner rendered ineffective assistance of appellate counsel by virtue of counsel’s failure to brief and argue Petitioner’s subsequent acquittal of a prior crime used against him as evidence of motive and intent in the present case?

RODGERS, Senior Judge. Dameon Brome petitions, pro se, for review of an order of the Secretary of the Pennsylvania Department of Corrections (Department) assessing his prison account in the amount of $19,544 as reimbursement to the Commonwealth for injuries sustained by Corrections Officer Campbell during Brome’s assault, with other inmates, a violation of established prison rules occurring during a prison riot at the State Correctional Institution (SCI) at Camp Hill. We affirm. Brome is currently a prisoner at SCI-Greene. A hearing was initially held in this matter on February 27, 1997, but for reasons unknown to the Department, the reporter hired to transcribe that hearing did not prepare a transcript or forward one to the Department. Efforts to obtain a transcript from the February 1997 hearing were unsuccessful. Consequently, on March 5, 1999, this Court ordered the Commonwealth to conduct another hearing in this matter. That second Holloway hearing was held on March 18, 1999, after which the hearing examiner’s proposed report was prepared and forwarded to the parties on April 1, 1999. Brome filed exceptions in which he challenged the sufficiency of the evidence. The Department responded with the observation that, though the evidence presented could have been more detailed, there was sufficient credible evidence to support the total amount of expenses incurred because of Brome’s misconduct. The Department also observed that the determination of the assessment against Brome was the only issue and Brome’s attempt to challenge the facts of the underlying misconduct was not at issue. The Department found Brome’s exceptions without merit and ordered he reimburse the Commonwealth the amount of $19,544. Brome petitions for review to this Court. Brome raises seven issues for our review. Those are: 1) the Department lacked the authority to require him to pay medical costs in treating Officer Campbell, 2) the two-year statute of limitations prohibited the Department from holding his second Holloway hearing; 3) the Department did not suffer any loss; 4) the Department can not be considered a victim so it is not entitled to restitution or money damages; 5) an administrative policy does not govern this matter; 6) Brome was prejudiced at the administrative hearing since he was not provided the rules governing that action; and 7) the hearing examiner’s findings of fact lack legal authority. Each of Brome’s arguments is addressed below. First, this Court recently held that the Department has both the statutory and regulatory authority to assess an inmate’s account as a result of certain inmate misconduct. Anderson v. Horn, et al. 723 A.2d 254 (Pa.Cmwlth.1998), petition for allowance of appeal denied, 559 Pa. 669, 739 A.2d 167 (1999). By regulation, the De partment can assess inmates found guilty of a Class II misconduct (a class that includes body punching), payment for the value of the destroyed or lost property or for expenses incurred as a result of the misconduct. 37 Pa.Code § 93.10(a)(2)(iii). In addition, any sanctions permitted for Class II misconducts are also permitted for Class I misconducts, a class that includes assault and aggravated assault. 37 Pa.Code § 93.10(a)(l)(ii). The Department had the authority to assess Brome’s account to pay the medical costs of treating Officer Campbell. This authority also refutes Brome’s fifth claim that this matter is not governed by an administrative policy. Next, no statute of limitation applies to the assessment, as that assessment was a statutorily authorized consequence of Brome’s being found guilty of institution misconduct. Greene v. Department of Corrections, 729 A.2d 652 (Pa.Cmwlth.1999). Inmate misconducts are considered a matter of internal prison management and are, thus, not adjudications. Ricketts v. Department of Corrections, 125 Pa. Cmwlth. 670, 557 A.2d 1180, petition for allowance of appeal denied, 524 Pa. 636, 574 A.2d 75 (1989). The Department did not bring an action for civil penalties or forfeitures against Brome; it assessed his prison account without any action at law. Third, Brome’s assertion that the Department did not suffer a loss because it is covered by insurance lacks merit. The Department is a self-insured agency that is required to reimburse the Worker’s Compensation Board and is not precluded from seeking reimbursement for medical expenses paid pursuant to Section 1 of the Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. § 951. Fourth, Brome relies on Commonwealth v. Runion, 541 Pa. 202, 662 A.2d 617 (1995), for support for his claim that the Department is not entitled to restitution of money damages. Runion held that a government agency cannot be considered a victim for purposes of restitution under Section 1106 of the Crimes Code, 18 Pa. C.S. § 1106, a section pertaining to court-ordered restitution following the conviction of a crime. However, the Department is an administrative agency, not a government agency, and also is not a criminal trial court with sentencing powers under the Crimes Code, which can order payment of restitution. Anderson. Following our decision in Anderson, the Runion decision does not apply to Brome’s situation because Runion deals with restitution for a crime and not for payment under 37 Pa. Code § 93.10. Sixth, Brome claims he was prejudiced at his administrative hearing because he was not provided the rules regarding administrative hearing procedures. Brome’s administrative hearing was conducted pursuant to The Administrative Agency Law, 2 Pa.C.S. §§ 504-507, Practice and Procedure of Commonwealth Agencies, a statute Brome had access to in the law library of SCI-Greene. The record shows Brome received this Court’s order requiring that the hearing be scheduled followed by the notice of the hearing. There is nothing in the record showing that, at that time, he requested information about the hearing procedures. Finally, Brome asserts that the Department’s findings of fact lack any legal justification, despite the hearing examiner’s written proposed report wherein he outlined his findings of fact and the reasons for his decision. In Holloway, this Court established the minimum due process requirements owed to one who has lost property as a result of a state agency action. The Department is required to provide the inmate with reasonable notice that a hearing must be conducted, record all testimony and keep a complete record of the proceedings. In addition, the inmate must be given an opportunity to be heard, allowed reasonable examination and cross-examination and, as noted above, the adjudication must be in writing and contain findings of facts and reasons for the decision. Holloway, 671 A.2d at 1182, citing 2 Pa. C.S §§,504-507. On March 11,1999, the Department provided Brome with notice of the date, time and place of the proposed Holloway hearing, which was conducted on March 18, 1999. At the hearing, the hearing examiner entered a copy of the notice as exhibit E and copies of Brome’s Departmental misconducts for riot, assault, aggravated assault, unlawful restraint, kidnapping, possession of contraband and Brome’s presence in an unauthorized area as exhibits R1 through R4. In addition, the budget analyst at SCI-Greene was sworn and testified regarding Brome’s sanction assessment of $19,544 at SCI-Camp Hill dated December 4, 1990, and submitted a copy of Department records delineating the costs for the treatment of Officer Campbell totaling $38,-764.84. Brome then had the opportunity to, and did, cross-examine the budget analyst with respect to any of the proffered documents or testimony. Brome then testified and entered exhibits into the record. As the above discussion demonstrates, Brome’s appeal of the Department’s decision assessing his inmate account lacks merit. Accordingly, we affirm the Department’s decision and order. ORDER NOW, May 2, 2000, the order of the Department of Corrections, at No. H-ll, dated May 11,1999, is affirmed. .In Holloway v. Lehman, 671 A.2d 1179 (Pa.Cmwlth.1996), incarcerated individuals, who had been determined to be guilty of destroying prison property, sought a declaration that the subsequent administrative assessment of damages against them and the deduction of such from their prison accounts constituted a deprivation of property without due process of law since they were not first afforded an opportunity to challenge the assessment of damages. This Court agreed with that contention and held that, before any assessment of damages against an inmate could occur, the inmate must be provided with a hearing that comports with the administrative agency law. Id. at 1182. . This Court’s scope of review of an administrative agency’s determination is limited to determining whether any constitutional rights were violated, an error of law was committed, or whether necessary findings of facts are supported by substantial evidence. Duffy v. Pennsylvania State Police, 701 A.2d 304 (Pa.Cmwlth.1997). . The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by Section 11 of the Act of November 26, 1997, P.L. 530, 71 P.S. § 310-4, gives the Department the authority to require an inmate to pay for financial loss or costs due to misconduct. . This Act is titled: An Act providing for the payment of the salary, medical and hospital expenses of employes of State penal and correctional institutions, State mental hospitals, Youth Development Centers, County Boards of Assistance, and under certain conditions other employes of the Department of Public Welfare, who are injured in the performance of their duties; and providing benefit to their widows and dependents in certain cases. Id.

OPINION NEWMAN, Justice. Appellants, Children’s Hospital of Philadelphia (CHOP), Jeanne Park, M.D., and Judy Bernbaum, M.D., claim that the Superior Court committed an error of law by vacating, in part, the Judgment of the Court of Common Pleas of Philadelphia County (trial court) and remanding the matter for a new trial. The sole issue presented for our review is whether the Superior Court erred by creating a per se rule that a trial court commits reversible error, and has no discretion to deny a motion for a mistrial, whenever the judge engages in an off-the-record discussion with a witness in the presence of the jury. FACTS AND PROCEDURAL HISTORY On January 10, 1986, Appellee Dorothy Harman took her eighteen-month-old son Christopher to Dr. Bishnu Borah for a measles, mumps, and rubella (MMR) vaccination. About a week later, Christopher developed a fever, and Mrs. Harman took Christopher back to Dr. Borah’s office. Dr. Borah diagnosed Christopher with left otitis media (inflammation of the middle ear) and prescribed an antibiotic. Two days later, Mrs. Harman and her husband, Appellee Robert Harman, rushed Christopher to the Lower Bucks County Hospital Emergency Room, where he was admitted and diagnosed with left otitis media and encephalitis (inflammation of the brain). Mr. and Mrs. Harman transferred Christopher to CHOP, where he received treatment for encephalitis from Dr. Park and Dr. Bernbaum. As a result of the encephalitis, Christopher Harman suffered permanent neurological damage, which caused him cognitive and physical impairment. On January 11, 1988, the Harmans commenced a civil action against the manufacturer of the MMR vaccine and various employees of the manufacturer, related entities, and Dr. Borah, alleging breach of warranty, strict liability, failure to warn, lack of informed consent, misrepresentation, negligence, recklessness, and fraud. On October 14, 1988, the Harmans filed an amended complaint that named CHOP, Dr. Park, and Dr. Bernbaum as additional defendants. After that, the Harmans petitioned the trial court to dismiss the action without prejudice, which the trial court granted. On May 10, 1994, the Harmans praeciped to have their complaint reinstated, and the matter proceeded against Dr. Borah, CHOP, Dr. Park, and Dr. Bern-baum. Prior to trial, Dr. Borah made a motion for summary judgment to dismiss him from the case, which the trial court granted. A jury trial commenced on April 10, 1996. The jury returned a verdict finding CHOP, Dr. Park, and Dr. Bernbaum not liable. The Harmans filed a timely appeal to the Superior Court, raising four issues. The Superior Court reviewed two of the four issues. First, the Superior Court found that the trial court committed no error in granting summary judgment in favor of Dr. Borah. Harman v. Borah, 720 A.2d 1058, 1064 (Pa.Super.1998). Second, the Superior Court determined that the trial court should have granted the Harmans’ motion for a mistrial after the trial court engaged in an off-the-record discussion with an expert defense witness in front of the jury. Id. Consequently, the Superior Court affirmed the Order of the trial court as to the summary judgment but vacated its judgment in favor of CHOP, Dr. Park, and Dr. Bernbaum and remanded for a new trial on the basis that the trial court erred by not declaring a mistrial. DISCUSSION On April 18, 1996, CHOP and Dr. Park called Dr. Roy Douglas Strand to testify as an expert witness. Dr. Strand took the stand and provided his opinion as an expert in the field of pediatric neurora-diology. Immediately after Dr. Strand completed his testimony concerning information from various CAT scans and related reports, the trial court judge announced, in open court, that he wished to speak with Dr. Strand. The full text of the recorded conversation follows: THE COURT: Doctor, may I see you a minute? It has nothing to do with this case. N.T., 04/18/00, at 70 (R.R. 2450). The discussion between the judge and the witness continued off-the-record and out of the range of hearing of the jury. It is the effect on the jury of that private conversation that is at issue. After reconvening after the lunch break recess, counsel for the Harmans approached the trial court, objected to the judge’s discussion with the witness, and moved for a mistrial. N.T., 04/18/00, at 107-109 (R.R. 2487-89). The Harmans argued that the judge’s consultation with an expert for the defense on a personal matter gave the prejudicial appearance that the trial court found Dr. Strand more credible than it found any of their witnesses. The trial court overruled the objection and denied the Harmans’ motion for a mistrial. The following morning, the trial court asked counsel for the Harmans whether he desired a curative instruction to address the contested conversation. N.T., 04/19/00, at 5-6 (R.R. 1528-29). Despite the requests by the Harmans’ counsel not to issue an instruction, the trial court started the day’s proceeding with the following curative instruction: One thing I wanted to mention to you is this: During the course of this trial, I am not concerned or favor either the plaintiff or the defendant. That’s not my job nor am I intending to leave that impression to you. Now, if I at any time talk to either the lawyer for the plaintiff or the lawyer for the defendant, if I talk to a witness for the plaintiff or a witness for the defendant, other than when they’re sitting here in the witness stand, if I talk either to the defendant or to the plaintiff, that does not mean that I am favoring one side or the other, that you say the Judge is talking to one side or not the other side. So don’t interpret that I’m favoring one side or the other. If I just so happen to talk to one or the other, that’s fine. In fact, I think one of the jurors was walking down the hall the other day and said “good morning” and I said “good morning” and said “nice weather.” I’m glad she did not talk to me rather than counsel, but all we said was “good morning” and, you know, “nice weather,” that’s it. But I am not favoring one side or the other. I am not against one side or the other. So I just wanted to let you know so you at least get the correct impression what my job is. My job is to give you the law. You’re the ones who have to make the decisions on the facts. N.T., 04/19/00, at 14-15 (R.R. 1537-38). Appellants claim that the Superior Court erred on several grounds. Among their chief assertions of error, they contend that the Superior Court failed to apply the abuse of discretion standard of review and the associative harmless error doctrine. In a brief analysis, the Superior Court first reasoned that any time a jury observes a conversation between the judge and the witness, the jury may perceive that discussion as a judicial endorsement of that witness’ credibility. Borah, 720 A.2d at 1064. Relying exclusively on another Superior Court case, the court stated that judges should refrain from speaking to witnesses, except in “rare situations where such intervention is demanded in the interests of justice.” Id. (quoting Fudala v. Leedom, 270 Pa.Super. 322, 411 A.2d 548, 550 (1979)). Next, citing McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965), the Superior Court found, that we have “held that a curative instruction is insufficient to rectify the appearance of impartiality in this instance.” Id. The Superior Court ruled that the conduct of the trial court judge compelled it to grant a new trial. We agree that the Superior Court conducted an improper review of the decision of the trial court and misinterpreted our holding in McKown, and we reverse the Superior Court’s decision to remand for a new trial. Trial courts have broad discretion to grant or deny a new trial. Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998); Morrison v. Commonwealth, Dept. of Public Welfare, 538 Pa. 122, 646 A.2d 565, 570 (1994); Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181, 1184 (1993). “The grant of a new trial is an effective instrumentality for seeking and achieving justice in those instances where the original trial, because of taint, unfairness or error, produces something other than a just and fair result, which, after all, is the primary goal of all legal proceedings.” Dornon v. McCarthy, 412 Pa. 595, 195 A.2d 520, 522 (1963). Although all new trial orders are subject to appellate review, it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court’s authority to grant or deny a new trial. Morrison, 646 A.2d at 570; Coker, 625 A.2d at 1187; Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861, 865 (1988); Atene v. Lawrence, 456 Pa. 541, 318 A.2d 695, 697 (1974); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654, 656 (1969). In Coker, we provided a comprehensive discussion of the standard that appellate courts must use when reviewing new trial orders. Coker, 625 A.2d at 1185-88. We recognized the historical existence of what appeared to be two standards: (1) abuse of discretion and (2) inquiry into the legal merits of the reasons of the trial court. Id. at 1184-86. However, we acknowledged that those two inquiries are, for all intents and purposes, identical, and have abandoned, for sake of clarity, the use of the term “legal merits.” Morrison, 646 A.2d at 570-71 & n. 6. It is only the scope of review that varies. Id. at 570; Coker, 625 A.2d at 1186. Thus, when analyzing a decision by a trial court to grant or deny a new trial, the proper standard of review, ultimately, is whether the trial court abused its discretion. Morrison, 646 A.2d at 570; Coker, 625 A.2d at 1187. Each review of a challenge to a new trial order must begin with an analysis of the underlying conduct or omission by the trial court that formed the basis for the motion. There is a two-step process that a trial court must follow when responding to a request for new trial. Morrison, 646 A.2d at 571; see Riccio v. American Republic Insur. Co., 550 Pa. 254, 705 A.2d 422, 426 (1997). First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. See Spang, 545 A.2d at 868. The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake. See Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540 (1995); Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 39 (1991), cert. denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); Commonwealth v. Ryder, 467 Pa. 484, 359 A.2d 379, 382 (1976); Dornon, 195 A.2d at 522. To review the two-step process of the trial court for granting or denying a new trial, the appellate court must also undertake a dual-pronged analysis. Morrison, 646 A.2d at 571. A review of a denial of a new trial requires the same analysis as a review of a grant. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669, 673 (1985). First, the appellate court must examine the decision of the trial court that a mistake occurred. At this first stage, the appellate court must apply the correct scope of review, based on the rationale given by the trial court. There are two possible scopes of review to apply when appellate courts are determining the propriety of an order granting or denying a new trial. Morrison, 646 A.2d at 570, Coker, 625 A.2d at 1186. There is a narrow scope of review: “[w]here the trial court articulates a single mistake (or a finite set of mistakes), the appellate court’s review is limited in scope to the stated reason, and the appellate court must review that reason under the appropriate standard.” Morrison, 646 A.2d at 571. [Conversely,] [i]f the trial court leaves open the possibility that reasons additional to those specifically mentioned might warrant a new trial, or orders a new trial ‘in the interests of justice,’ the appellate court applies a broad scope of review, examining the entire record for any reason sufficient to justify a new trial. Id at 570. Even under a narrow scope of review, the appellate court might still need to examine the entire record to determine if there is support for any of the reasons provided by the trial court. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 750 (2000); Thompson, 493 A.2d at 673. The appropriate standard of review also controls this initial layer of analysis. If the mistake involved a discretionary act, the appellate court will review for an abuse of discretion. See Widmer, 744 A.2d at 753 (decision whether verdict is against weight of evidence is discretionary). If the mistake concerned an error of law, the court will scrutinize for legal error. See Momson, 646 A.2d at 571 n. 8 (propriety of jury instructions entails question of law). If there were no mistakes at trial, the appellate court must reverse a decision by the trial court to grant a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred. See Von der Heide v. Commonwealth, Dept. of Transp., 553 Pa. 120, 718 A.2d 286, 290 (1998); Atene, 318 A.2d at 697; Kralik, 258 A.2d at 656; see also Riccio, 705 A.2d at 427 (holding that because judge, who was substituted for post-trial motions, erred in finding that trial court judge made mistake of law, grant of new trial was error). If the appellate court agrees with the determination of the trial court that a mistake occurred, it proceeds to the second level of analysis. The appellate court must then determine whether the trial court abused its discretion in ruling on the request for a new trial. Morrison, 646 A.2d at 571. “Discretion must be exercised on the foundation of reason.” Coker, 625 A.2d at 1184 (quoting P.L.E. New Trial § 2). An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. Id. at 1184-85. A finding by an appellate court that it would have reached a different result than the trial court does not constitute a finding of an abuse of discretion. Morrison, 646 A.2d at 571. “Where the record adequately supports the trial court’s reasons and factual basis, the court did not abuse its discretion.” Id. (quoting Coker, 625 A.2d at 1187). When determining whether the trial court abused its discretion, the appellate court must confine itself to the scope of review, as set forth in our preceding discussion. If the trial court has provided specific reasons for its ruling on a request for a new trial, and it is clear that the decision of the trial court is based exclusively on those reasons, applying a narrow scope of review, the appellate court may reverse the trial court’s decision only if it finds no basis on the record to support any of those reasons. Coker, 625 A.2d at 1188. “As a practical matter, a trial court’s reference to a finite set of reasons is generally treated as conclusive proof that it would not have ordered a new trial on any other basis.” Id. at 1184; see Widmer, 744 A.2d at 750-51. Alternatively, where the trial court leaves open the possibility that there were reasons to grant or deny a new trial other than those it expressly offered, or the trial court justi fies its decision on the “interests of justice,” an appellate court must apply a broad scope of review and affirm if it can glean any valid reason from the record. Morrison, 646 A.2d at 570; Coker, 625 A.2d at 1185. In the present matter, there is no disagreement that the trial court made a mistake. Because the topic of the conversation had no relevance to the trial, the trial court should have waited until the jury had left the courtroom before approaching the witness. This, however, should have marked merely the beginning of the Superior Court’s appellate review. Instead, the Superior Court viewed the conduct of the trial court as an automatic error of law, held that instructions could not cure the error, and concluded its review. However, no legal foundation exists for such a conclusion. Certainly, judges should avoid any conduct that gives the appearance of favoritism, prejudice, or bias for or against one party. See Hileman v. Pittsburgh & Lake Erie R.R. Co., 546 Pa. 433, 685 A.2d 994, 998 (1996); Downey v. Weston, 451 Pa. 259, 301 A.2d 635, 642 (1973); Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344, 349 (1955); see also Code of Judicial Conduct, Canon 2(A) (directing judges to conduct themselves in manner that promotes public confidence in the integrity and impartiality of the judiciary). Actual and perceived impartiality of the trial court is fundamental to our judicial system. Judicial Inquiry and Review Board of the Supreme Court of Pennsylvania v. Fink, 516 Pa. 208, 532 A.2d 358, 367 (1987). Yet, there is no per se rule that mandates a new trial whenever a trial court judge converses with a witness about a private matter. Conversing with witnesses is a discretionary power of trial courts, and appellate courts should review challenges to judicial dialogue for an abuse of discretion. The Superior Court erred at two levels. First, it reviewed the conversation as a legal mistake, rather than an abuse of discretion. Second, it failed to evaluate whether the reasons supplied by the trial court for denying a new trial had support in the record. In sum, the Superi- or Court did not apply the proper standard of review. The remaining question is whether it was an abuse of discretion for the trial court to deny the motion for a new trial. Did the trial court judge create an appearance of partiality when he conferred with Dr. Strand off the record in the presence of the jury? If there were an appearance of partiality that could have had a prejudicial effect- on the jury's deliberations, did the trial court take satisfactory action to render the error harmless? Because the trial court offered three specific reasons in support of its denial of a new trial, and did not suggest the existence of other reasons, we must examine the record to determine whether those stated reasons and factual bases find support in the record. Morrison, 646 A.2d at 571; Coker, 625 A.2d at 1187. To evaluate whether the denial of the Harmans’ request for a mistrial was manifestly unreasonable, we reviewed the entire record to appreciate fully the nature of the conduct, the context in which it occurred, and any subsequent remedial actions designed to remove any prejudicial effects. See Woods v. Pleasant Hills Motor Co., 454 Pa. 224, 309 A.2d 698, 704 (1973); Downey, 301 A.2d at 643. The trial court found that the Harmans failed to raise an immediate objection to the conversation. It is axiomatic that, in order to preserve an issue for review, litigants must make timely and specific objections during trial and raise the issue in post-trial motions. Takes v. Metropolitan Edison Co., 548 Pa. 92, 695 A.2d 397, 400 (1997); McMillen v. 84 Lumber, Inc., 538 Pa. 567, 649 A.2d 932, 934 (1994); Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291, 1296 (1985). Granting or denying an untimely objection lies in the discretion of the trial court. Requiring a litigant to make a timely, specific objection during trial ensures that the trial court has a chance to correct alleged trial errors. Dil- liplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116 (1974). We have stressed that “[w]aiver is indispensable to the orderly functioning of our judicial process and developed out of a sense of fairness to an opposing party and as a means of promoting jurisprudential efficiency by avoiding appellate court determinations of issues which the appealing party has failed to preserve.” Reilly, 489 A.2d at 1300. There exists, however, an exception to the waiver doctrine. We first announced this exception in Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985). According to our decision in Hammer, in limited circumstances, a party may raise allegations of judicial misconduct for the first time in post-trial motions. While trial counsel has an obligation to object to improper language and/or behavior in the courtroom to effectively represent his or her client, there may be circumstances in which objections have a deleterious effect on the jury or even on the judge whose behavior is extremely unprofessional. In Hammer, the trial court acted in a manner assured to cast a shadow of bias in the courtroom. Among other prejudicial conduct, the trial court repeatedly interrupted defense counsel during his direct examination of the defendant and defense witnesses to ask prosecutorial-style questions, failed to rule on defense objections, and bolstered the Commonwealth’s case with his comments and questions. Hammer, 494 A.2d at 1061-64. Trial counsel failed to object to these actions and omissions. Id. at 1058 n. 2. Consequently, when trial counsel presented allegations of misconduct for the first time in post-trial motions, the trial court ruled that the defendant had waived those issues. Id. On appeal to this Court, we declined to apply the waiver doctrine. Our rationale was that in certain circumstances, where a timely objection would be a futile, and possibly detrimental, exercise in legal procedure, a strict enforcement of the waiver doctrine would not be constructive. Id. at 1059 & n. 4. We explained that: [A] judge who poses a question or makes a comment during trial is predisposed to believe that the question or comment is proper, lest it not be spoken. Given that predisposition, the likelihood that the judge will be well-cautioned by counsel’s objection is negligible. In that context, the rationale underlying the waiver doctrine, that timely objection gives the court the opportunity to cure the error, becomes a relatively empty one. Indeed, the possibility exists that counsel’s objection will be viewed as a source of annoyance and may well aggravate the situation. Id. at 1059. We acknowledged that repeated denials of objections might have also a negative effect on juries. Id. at 1059 n. 4 (citing Collins v. Sparks, 310 S.W.2d 45, 48-49 (Ky.1958)). In addressing the allegations of judicial misconduct in Hammer, we held that: On this record, whereas it appears that objection would be meaningless to satisfy the reasons for raising objection and, as further reflected by this record, indeed intensified judicial animosity, justice is not served by the strict application of the waiver doctrine. Accordingly, we hold that the failure of trial counsel to object to questioning by the judge, who is charged with a function of self-regulation, will not under all circumstances render the allegation of judicial impropriety unavailable for appellate review. Id. at 1060 (emphasis added). We emphasized that it was clear from the record that a timely objection might not only not cause the trial court to cease his prejudicial behavior, it might further irritate the judge. Id. at 1059 n. 3 (citing parts of notes of transcript where trial court brusquely dismissed objections by defense counsel). In Hammer it was apparent that a timely objection could have annoyed the trial court and worsened the situation. The defendant provided numerous exam- pies in the record of behavior that demonstrated a possible bias against him. Furthermore, the defendant offered specific instances in the record when the trial court judge faded or refused to respond to defense counsel’s objections or overruled them in a cavalier manner. Hammer did not mark the end of the waiver doctrine in cases of judicial impropriety. To the contrary, the general rule remains that a party waives an issue concerning perceived trial court error, if the party fails both to preserve the issue with a timely and specific objection at trial and present it in post-trial motions. Thus, Hammer provides a limited exception to the waiver doctrine. Where it appears from all the circumstances that a timely objection to perceived judicial misconduct would be meaningless, a party may choose to raise the issue for the first time at post-trial motions to preserve it for appellate review. This involves some risk, which a trial counsel should not assume lightly. The burden is on the party asserting the Hammer exception to the waiver doctrine to demonstrate that lodging a timely objection would have been meaningless. An objection would not be meaningless merely because the judge is likely to overrule it. Although Hammer was a criminal case and involved mostly on-the-record comments, those facts are not imperative to the application of this waiver exception. A strict application of the waiver doctrine that does not advance its purpose serves no greater function in a civil context than in a criminal arena. We hold that the Hammer exception, which we found in a criminal case, is also applicable to civil cases and all claims of judicial impropriety that fall within the ambit of the exception. Counsel for the Harmans raised an objection to the conversation and moved for a mistrial one hour after the event transpired. When asked by the trial court why counsel did not take prompt action, counsel explained that he did not want to draw further attention to the conversation. N.T., 04/18/00, at 108-109 (R.R. 2488-89). While we can accept counsel’s concern about further alerting the jury, we find no justification for counsel’s inertia. The Harmans disclose no facts on the record to suggest that a timely objection would have been meaningless or caused greater harm to their case. There is simply no evidence that the trial court expressed any bias against the Harmans or their counsel during the trial. On the contrary, the record shows that the trial court heard the late motion for a mistrial, allowed counsel an opportunity to support his claim, but ultimately denied the request and issued a curative instruction. The preferred course of action would have been for counsel to move for a prompt sidebar discussion with the judge to alert the trial court to what he perceived as ongoing prejudicial behavior. In fact, counsel conceded to the trial court that he should have done that. N.T., 04/18/00, at 108-109 (R.R. 2488-89). Furthermore, after the jury had left the courtroom, the court entertained motions by the parties on other issues. These motions may have lasted for one-half hour. At no time dur ing those arguments did counsel for the Harmans broach the subject of the private conversation with the trial court. Failure to raise a prompt objection is a valid reason for the trial court to deny a motion for a new trial. Additionally, the trial court gave an instruction intended to cure any prejudice stemming from the conversation. A trial court has wide discretion in phrasing jury instructions, and absent an abuse of discretion or an inaccurate statement of law, there is no reversible error. Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390, 397 (1999). A careful review of the record reveals nothing improper about the instruction. The trial court phrased it with general language. It did not mention the specific dialogue. The trial court emphasized to the jury that he did not favor either party and clarified that the jury should not place any importance on whether the judge conversed with a particular witness or attorney. Ironically, the Harmans also complain that the instruction was untimely. Certainly, a prompt instruction has a greater likelihood of curing a trial error. However, under the circumstances in this case, the instruction was appropriate, clear, and effective. Had the instruction addressed the conversation at issue, it could have caused more mischief by highlighting the conduct for the jury. See McKown, 214 A.2d at 629. In McKown, a trial court judge gave a hearty greeting to the defendant when he took the witness stand. 214 A.2d at 629. The judge then told the jury that he and the defendant were old friends who had worked together as football referees. Id. In an attempt to neutralize his remarks, the judge issued an instruction to the jury, which again referred to the defendant as an old Mend. Id. Fearing that the instruction compounded the appearance of bias, the trial court ordered a new trial. Id. We affirmed the decision of the trial court. The Superior Court relied on McKown to opine that an instruction can never remedy the prejudice caused when a judge speaks to a witness about a personal matter in open view of the jury. That interpretation of McKown is erroneous. We have consistently held that clear instructions, which accurately inform, rather than mislead, the jury about the issues or law may cure prejudice resulting from the appearance of judicial bias. Von der Heide, 718 A.2d at 288; Stewart, 654 A.2d at 540; Woods, 309 A.2d at 704; Glider v. Commonwealth, Dept. of Highways, 435 Pa. 140, 255 A.2d 542, 547 (1969). Faced with the task of removing any possible taint from his conversation with Dr. Strand, the trial court judge crafted an instruction that spoke generally about the semblance of partiality and bias without drawing unnecessary attention to the challenged conduct. Thus, even if the conversation had some prejudicial effect on the Harmans’ case, the curative instruction rendered it harmless. This meritorious reason, alone, justifies the decision of the trial court. For its final reason, the trial court stated that, on several occasions, it advised the members of the jury that they are the sole fact finders and determiners of witness credibility. Our review of the record indicates that the trial court provided standard instructions throughout the trial that imparted to the jury its function in the case. CONCLUSION Having found that the record supports the reasons given by the trial court for denying the Harmans’ motion for a mistrial, we conclude that the trial court did not abuse its discretion. Thus, we reverse the Superior Court for awarding a new trial in error. However, the Superior Court did not address two claims of the Harmans that were before it, concerning alleged trial court errors. In addition to the two issues addressed by the Superior Court, the Harmans challenged the decisions of the trial court in (1) denying the Harmans’ motions to disqualify defense expert, Dr. Grover, and in (2) permitting Dr. Berman to offer his expert opinion. Accordingly, we reverse the part of the Order of the Superior Court that granted a new trial and remand this matter to the Superior Court to render decisions on these two outstanding issues. Justice NIGRO files a concurring opinion. Justices ZAPPALA and SAYLOR concur in the result. . Although the caption spells Dr. Park’s name with an "s”, and the parties have made no attempt to correct the caption throughout the appeal, in the opinion, we address Dr. Park by her proper name, omitting the superfluous letter. . In response to a motion by the Harmans, the trial court removed the manufacturer, its employees, and related entities from the action. . The four issues raised by the Harmans for the review of .the Superior Court are as follows: (1) whether the trial court erred in granting Dr. Borah’s motion for summary judgment; (2) whether the trial court abused its discretion in refusing to grant a new trial when the court requested to speak off the record with a defense expert; (3) whether the trial court erred in denying Appellant’s motion to disqualify a defense expert, Dr. Warren Grover; and (4) whether the trial court erred in permitting Dr. Peter Berman to offer opinion testimony. Harman v. Borah, 720 A.2d 1058, 1061 (Pa.Super.1998). . It is evident from the record that the Har-mans' counsel expressed to the trial court his concern that an instruction would compound the prejudice by drawing the attention of the jurors to the personal dialogue between the judge and witness. N.T., 04/19/00, at 5-6 (R.R. 1528-29). . This difference between scope of review and standard of review is the following: “Scope of review” and "standard of review” are often-'-albeit erroneously — used interchangeably. The two terms carry distinct meanings and should not be substituted for one another. "Scope of review” refers to "the confines within which an appellate court must conduct its examination.” In other words, it refers to the matters (or "what") the appellate court is permitted to examine. In contrast, "standard of review” refers to the manner in which (or “how”) that examination is conducted. In Coker [,] we also referred to the standard of review as the "degree of scrutiny” that is to be applied. Morrison, 646 A.2d at 570 (citations omitted). . Compare DiMonte v. Neumann Medical Center, 751 A.2d 205 (Pa.Super.2000) (holding that, despite untimely objections, the plaintiff was entitled to an evidentiary hearing to present record evidence that during proceedings the trial court judge allegedly talked on a telephone on numerous occasions, stood on a table to adjust the air conditioning, left the courtroom during video testimony by. the plaintiffs expert and the plaintiff’s closing argument, and acted in other ways that demonstrated to the jury that the judge was indifferent to the plaintiff's case) with Commonwealth v. DeBooth, 379 Pa.Super. 522, 550 A.2d 570 (1988), alloc. denied, 522 Pa. 588, 561 A.2d 740 (1989) (finding that, by making untimely objections, the defendant waived his claim of misconduct by the trial court for requesting that he stand in the presence of the jury for a witness to make a general, physical comparison). . As we stated in Hammer, requests for judicial recusal always require a timely, specific objection. Hammer, 494 A.2d at 1061-64; see Reilly, 489 A.2d at 1300. . Nothing in this Opinion shall affect the affir-mance of the Superior Court concerning the grant of summary judgment by the trial court in favor of Dr. Borah.

HESTER, J.: ¶ 1 Matthew McMullen appeals from the September 9, 1999 judgment of sentence of forty-eight hours to twenty-three months incarceration and associated mandatory fines following his conviction of driving under the influence as a minor. For the following reasons, we affirm. ¶ 2 On July 13, 1998, Appellant was involved in a one-car accident. Appellant lost control of his vehicle, left the roadway, struck a vehicle, and drove into a residence. The Muhlenberg township police department responded to the accident. Officer Michael Travis interviewed Appellant and noticed he had glassy eyes and an odor of alcohol on his breath. Appellant admitted he had ingested some alcoholic beverages that evening. Appellant consented to a blood alcohol test. The test indicated Appellant’s blood alcohol content (“BAC”) was .105. ¶ 3 On July 16, 1999, Appellant was charged with driving under the influence of alcohol and driving under the influence of alcohol as a minor. A jury trial commenced on September 1, 1999, and concluded on September 3, 1999. The jury acquitted Appellant of driving under the influence of alcohol but convicted him of driving under the influence of alcohol as a minor. On September 9, 1999, Appellant was sentenced to a term of incarceration of forty-eight hours to twenty-three months and ordered to pay the costs of prosecution and supervision, a fíne, participate in forty-eight hours of community service and pay restitution. ¶ 4 Appellant filed a notice of appeal to this Court on September 27, 1999. Pursuant to an order of the trial court, Appellant filed a concise statement of matters complained of upon appeal on October 6, 1999. The trial court filed its opinion on December 1, 1999. In his appeal, Appellant raises four issues, challenging the constitutionality of 75 Pa.C.S. § 3731(a)(4)(h). These sections provide: § 3731. Driving under influence of alcohol or controlled substance (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. (2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving. (3) While under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving. (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater; or (ii) a minor is 0.02% or greater. ¶ 5 Initially, Appellant asserts that 75 Pa.C.S. § 3731(a)(4)(ii) is unconstitutional on its face in violation of the Fourth and Fourteenth amendments to the United States Constitution. Our Supreme Court recently enunciated our standard of review for claims questioning the constitutionality of a statute: The standard of review we apply to the court’s conclusion is exacting. A statute will be found unconstitutional only if it clearly, palpably and plainly violates constitutional rights. Under well-settled principles of law, there is a strong presumption that legislative enactments do not violate the constitution. Further, there is a heavy burden of pei’suasion upon one who questions the constitutionality of an Act. Commonwealth v. MacPherson, 561 Pa. 571, 580, 752 A.2d 384, 388 (2000) (citations omitted). Our Supreme Court also has outlined the requirements for a due process challenge where a statute is alleged to be void for vagueness. As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The principle [sic] aspect of the doctrine is the requirement that legislation establish minimal guidelines to govern law enforcement for, without such minimal guidelines, a criminal statute might permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilic-tions (sic). Commonwealth v. Mikulan, 504 Pa. 244, 251, 470 A.2d 1339, 1342-43 (1983) (citations omitted). ¶ 6 Appellant alleges that § 3731(a)(4)(ii) does not clearly identify what conduct is prohibited. Additionally, Appellant states the statute allows an impermissible amount of police discretion, which could potentially lead to arbitrary enforcement. We disagree. 75 Pa.C.S. § 3731(a)(4)(ii) is a zero-tolerance statute. It is intended to prohibit, deter, and punish minors who consume alcohol and then operate a motor vehicle. The minor confronted with this statute is put on notice that operating a motor vehicle after consuming even a small amount of alcohol can lead to criminal liability. ¶ 7 We also fail to see how this statute could be applied arbitrarily. Minors convicted under this statute must have a BAC of .02 or greater. The Commonwealth has an affirmative duty to prove this fact using scientific methods. The only discretionary aspect involved is whether the arresting officer has probable cause to request the individual to submit to a breathalyzer or a blood test. Objective criteria such as glassy eyes, slurred speech, or alcoholic odors serve as the basis for requesting a field sobriety test. The field sobriety test is then employed to determine whether or not to request a BAC test. The statute is sufficiently definite with no danger of arbitrary or discriminatory enforcement. ¶ 8 Secondly, Appellant asserts that 75 Pa.C.S. § 3731(a)(4)(ii) does not “bear a reasonable and substantial relationship to accomplishing the allowable purpose for which it was enacted in violation of article I, section II of the Pennsylvania Constitution.” Appellant’s brief at 11. We disagree with the premise of Appellant’s argument as well as his conclusion. ¶ 9 Initially, we note the proper standard to be applied to this constitutional claim. Where a statute affects a fundamental right or includes a suspect class, a heightened level of scrutiny must be ap plied. Smith v. Coyne, 555 Pa. 21, 27, 722 A.2d 1022, 1025 (1999). Intermediate scrutiny is applied to important rights and sensitive classifications. Id. Where neither of the aforementioned conditions are present, a ‘rational basis’ test determines the constitutionality of the statute. Id. It is settled law in Pennsylvania that the privilege to operate a motor vehicle is not a fundamental right and age is not a suspect class. Kimel v. Florida Board of Regents, 528 U.S. 62,-, 120 S.Ct. 631, 645, 145 L.Ed.2d 522 (2000) (age classifications do not trigger strict scrutiny analysis); Norris v. Wood, 336 Pa.Super. 305, 485 A.2d 817, 820-21 (1984). Further, the Commonwealth’s police powers in matters pertaining to the regulations of alcoholic beverages is particularly broad. Mikulan, 504 Pa. at 246, 470 A.2d at 1340. ¶ 10 Accordingly, we consider Appellant’s claims under the ‘rational basis’ standard of review. Appellant concedes the fact that the Commonwealth has a valid interest in reducing the risk related to excessive drinking and driving. However, Appellant questions whether § 3731(a)(4)(h), which prohibits driving with a BAC of .02, has a rational relation to achieving that goal. Specifically, Appellant argues that § 3731(a)(4)(h) denies individuals due process because it can lead to the criminal convictions of persons who did not meet the legislative standard for intoxication of .10 as set forth in § 3731(a)(4)(i). ¶ 11 We must apply the two-step rational relationship test to this Constitutional question. Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990); citing Meier v. Anderson, 692 F.Supp. 546, 552 (E.D.Pa.1988) aff'd, 869 F.2d 590 (3rd Cir.1989). The first question is “whether the challenged statute seeks to promote any legitimate state interest or public value.” Id. at 1328. The second prong of the analysis evaluates whether the statute is reasonably related to accomplishing that articulated state interest or interests. Id. ¶ 12 It is clear to this Court, as it was to the trial court, that there are legitimate state interests promoted by § 3731(a)(4)(h). The legislature intended to deter and discourage underage drinking. Underage drinking and driving result in a high number of fatalities every year, not only throughout Pennsylvania, but throughout the United States. Nearly one-third of all deaths of fifteen to twenty-year-old persons result from motor vehicle crashes and approximately thirty-five percent of these fatalities are related to alcohol. By setting a low BAC threshold, the legislature sought to reduce teenage traffic injuries and also exercise its police powers in order to “attempt, halt, or at least retard the senseless slaughter of and injury to innocent people upon our roadways caused by drunk drivers.” Mikulan, 504 Pa. at 248, 470 A.2d at 1341. These interests are promoted by the zero-tolerance statute. ¶ 13 We next consider whether this legislative enactment is reasonably related to the goal of deterring underage drinking and driving. Initially, we note that the constitutionality of § 3731(a)(4)(i) has been tested numerous times on the basis that the .10 figure is arbitrary and irrational. In Mikulan, supra, our Supreme Court resolved this issue and determined that the .10 figure was rational and constitutional. We must determine whether the .02 figure associated with § 3731(a)(4)(h) is arbitrary or irrational. In reaching our conclusion, we need not compare (a)(4)(i) to (a)(4)(h), as Appellant suggests, but instead we evaluate (a)(4)(h) independently. ¶ 14 Appellant presented expert testimony at trial regarding the medical effect of alcohol on individuals. Appellant’s expert witness testified that available scientific and medical evidence does not support a finding of intoxication when an individual’s BAC is .02%. Further, the expert opined that at a BAC of .02%, the effects of alcohol are minimal and would not significantly impair a minor or an adult’s ability to drive. While we agree with Appellant’s position that the record contains no evidence that this minimal amount of alcohol has an effect on an individual, we cannot agree that this statute is irrational or arbitrary. ¶ 15 The trial court exhaustively discussed the rationale behind (a)(4)(ii), and we adopt it: Minors, unlike adults, are not allowed to consume alcoholic beverages. The legislature had the power, if it so desired, to set a .00 level, for zero tolerance. However, by setting a .02 level, Pennsylvania is virtually enacting a zero tolerance law, due to variances in the alcohol testing instruments. Therefore, the .02 figure is not arbitrary. Further, pursuant to the National Highway Systems Designation Act of 1995, starting in 1999, Federal Highway funds will be withheld from states that do not apply zero tolerance laws to persons under age 21, set a BAC of .02 or less, and establish .02 as a per se offense without having to prove intoxication. See 2S U.S.C.A. § 410. The legislature’s interest in reducing teenage traffic fatalities is also rationally related to the zero tolerance law. It has been proven that states with some type of zero tolerance laws have experienced a drop in the number of nighttime fatal crashes involving young drivers. In comparison states without zero tolerance laws experienced an increase. One study showed that states with zero tolerance laws reduced the number of nighttime fatal crashes involving young drivers by 16 percent, while states without zero tolerance experienced a 1 percent increase. Since is (sic) has been established that Section 3731(a)(4)(ii) is rationally related to a legitimate state interest, it therefore does not violate the Defendant’s due process rights under the Pennsylvania Constitution or the Constitution of the United States. Trial Court Opinion, 12/1/99, at 8-9 (citations omitted) (emphasis added). ¶ 16 In his third allegation of error, Appellant argues that § 3731(a)(4)(ii) creates an unconstitutional mandatory and permissive presumption in violation of the Fifth Amendment to the United States Constitution and the Due Process Clause of the Pennsylvania Constitution. Appellant’s brief at 13. Appellant argues that § 3731(a)(4)(ii) employs a presumption of intoxication once the Commonwealth offers proof that an individual’s BAC was .02 or higher. Appellant asserts that the prosecution need not prove that there was intoxication and driving at the same time, only that the per se intoxication of .02 or higher occurred. Appellant further argues that the Due Process Clause requires the state to persuade the finder of fact beyond a reasonable doubt that the BAC at the time of driving relates to some scientific standard. Appellant concludes that § 3731(a)(4)(h) relieves the Commonwealth from proving an element of the crime beyond a reasonable doubt. ¶ 17 We disagree. 75 Pa.C.S. § 3731(a)(4)(h) created a separate and distinct offense from 75 Pa.C.S. § 3731(a)(1). Conviction under § 3731(a)(4)(h) requires proof beyond a reasonable doubt that the actor drove, operated, or was in actual physical control of a motor vehicle while his BAC was .02 or greater. The Commonwealth is not required to produce evidence of intoxication as part of a § 3731(a)(4)(h) prosecution. There is no language in the statute whereby a BAC of .02 is deemed to be per se intoxication. ¶ 18 Appellant contends that because the heading of the statute implies an allegation of driving whhe intoxicated, a conviction based on a BAC of .02 creates an unconstitutional presumption of intoxication. The plain language of § 3731 criminalizes driving while under the influence of alcohol or controlled substances. An individual can be convicted under this stature if intoxicated, if a controlled substance was taken that substantially impairs the ability to drive, if the BAC is .10 or greater, or if the BAC is .02 or greater and the actor is under the age of twenty-one. While some individuals may have a false, preconceived idea of the conduct prohibited by § 3731, this fact does not render the statute unconstitutional. ¶ 19 Lastly, Appellant argues his conviction under § 3731(a)(4)(h) must be reversed because “the statutory presumptive inference set forth in subsection (A.1) on which the convictions was [sic] based is constitutionally invalid.” Appellant’s brief at 15. We are not able to address the merits of this claim due to the fact it is not properly before us. In his brief in support of motion to dismiss count II, Appellant failed to raise this claim. Further, Appellant did not argue this point at the September 1-2, 1999 oral argument on the motion to dismiss. ¶ 20 This issue was presented to the trial court after sentencing on September 13, 1999, in the form of a motion to amend Appellant’s motion to dismiss. The trial court denied the motion on the same day without hearing argument on the merits of the issue. It is well established that issues not raised during trial may not be raised on appeal. Commonwealth v. Edmondson, 553 Pa. 160, 718 A.2d 751 (1998). Accordingly, we may not consider this issue on appeal. ¶ 21 Judgment of sentence affirmed. . 75 Pa.C.S. § 3731(a)(1). . 75 Pa.C.S. § 3731(a)(4)(ii). . National Highway Traffic Safety Administration, U.S. Department of Transportation. "The Facts: Zero Tolerance." (May 1998).

OPINION OF THE COURT CASTILLE, Justice. The issue before the Court in this case is whether the Commonwealth Court erred in dismissing appellant’s appeal for failure to preserve any issues for appeal. The record reveals that appellant erroneously filed a notice of appeal with the Board of Claims which was transferred to the Commonwealth Court pursuant to 42 Pa.C.S. § 5103. The en banc Commonwealth Court treated the transferred notice of appeal as a timely petition for review pursuant to Pa.R.A.P. 1503, but determined that no issues had been preserved because there was no statement of objections as required in a petition for review under Pa.R.A.P. 1513(a). For the reasons that follow, we now reverse. Appellant, Shovel Transfer and Storage, filed a complaint with the Board of Claims in June of 1987 alleging that appellee, the Pennsylvania Liquor Control Board (PLCB), breached its contract for the distribution of alcoholic beverages to specified Pennsylvania state liquor stores. Appellant simultaneously filed a petition for review with the Commonwealth Court against the PLCB comptroller and the budget secretary for the Commonwealth, seeking either a declaration that the distribution contract did not require the signatures of the comptroller and the budget secretary or an injunction in the nature of a mandamus requiring those individuals to sign the contract. The PLCB was permitted to intervene as a nominal respondent. Appellees filed preliminary objections, alleging that the Commonwealth Court lacked jurisdiction over a claim arising from a contract with the Commonwealth. The Commonwealth Court overruled the preliminary objections and this Court reversed and remanded the case to the Board of Claims, holding that the Board of Claims had jurisdiction to determine whether the parties had entered into the contract. Shovel Transfer & Storage, Inc. v. Simpson, 523 Pa. 235, 565 A.2d 1153 (1989). On November 4, 1994, the Board of Claims determined that a valid contract did not exist and, therefore, dismissed appellant’s claim for breach of contract. Appellant filed a notice of appeal with the Board of Claims on November 28, 1994. Because the proper avenue for seeking review of the determination by the Board of Claims was to file a petition for review with the Commonwealth Court, the proper procedure would have been for the Board of Claims, upon receipt of the notice of appeal, to transfer the matter to the Commonwealth Court pursuant to 42 Pa.C.S. § 5103(a). Instead, the Board of Claims returned the notice of appeal to appellant on December 14, 1994, and informed appellant that the appeal should have been filed as a petition for review with the Commonwealth Court. The next day, appellant sent the notice of appeal to the Commonwealth Court requesting that it be treated as a properly filed petition for review pursuant to Pa.R.AP. 1503. Appellee filed a motion to quash the appeal. Appellant filed an answer to the motion to quash and, in the alternative, a motion to file a petition for review nunc pro tunc. The Commonwealth Court denied the motion to quash because that court, pursuant to 42 Pa.C.S. § 5103(a), considered the appeal to have been timely filed. The order further directed appellant to file an amended petition for review on or before January 17, 1995. Finally, the motion for leave to file a petition for review nunc pro tunc was denied as moot. Appellant’s petition for review was filed with the Commonwealth Court on January 11, 1995. Appellee then filed a motion for reconsideration en banc, which was granted. The en banc Commonwealth Court held that, although the petition would be deemed timely pursuant to 42 Pa.C.S. § 5103(a), no issues had been preserved because no statement of objections to the order or determination sought to be reviewed was filed until January 11, 1995, when the amended petition for review was filed. Although the Commonwealth Court acknowledged that Pa.R.A.P. 1503 provides for the clarification of filings which are transferred pursuant to that rule, the court held that adding the statement of objections to the order after the last date for filing was not a clarification of the notice of appeal, but an addition thereto. The Commonwealth Court, therefore, dismissed the appeal. The Rules of Appellate Procedure are to be “liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable.” Pa. R.A.P. 105(a). The Commonwealth Court’s rationale ignores the fact that any time an appellant erroneously files a notice of appeal which is transferred to the Commonwealth Court pursuant to 42 Pa.C.S. § 5103(a) or Pa.R.A.P. 1503, it will be in the form of a notice of appeal rather than a petition for review, and will therefore rarely, if ever, include a statement of objections. Under this reading, whenever an appellant files a timely, albeit erroneous, notice of appeal with a tribunal or governmental unit but that tribunal or governmental unit does not transfer that appeal to the Commonwealth Court until after the thirty day appeal period has expired, there would be no means for the appellant to preserve his appellate rights. Such a narrow reading of the rules negates the provision of Pa.R.A.P. 1503 allowing for clarification of papers transferred under that rule and does nothing to secure a just determination of this matter. For the foregoing reasons, the order of the Commonwealth Court is reversed and the case is remanded for a determination on the merits of the issues presented in the petition for review filed January 11,1995. NEWMAN, J., did not participate in the consideration or decision of this case. . Judge Friedman dissented and filed an opinion. . RULE 1503. IMPROVIDENT APPEALS OR PLENARY ACTIONS If an appeal is taken from an order of a government unit, or if a complaint in the nature of equity, replevin, mandamus or quo warranto, or a petition for a declaratory judgment or for a writ in the nature of certiorari or prohibition is filed against a government unit or one or more of the persons for the time being conducting its affairs, as such, objecting to a determination by any one or more of them, this alone shall not be a ground for dismissal, but the papers whereon the improvident matter was commenced shall be treated as if filed at the time the improvident matter was commenced. The court may require that the papers be clarified by amendment. . The Commonwealth Court acknowledged that it was the responsibility of the Board of Claims to transfer to matter itself rather than return the notice of appeal to appellant. Therefore, the Commonwealth Court deemed the petition for review filed on the date that the notice of appeal was filed with the Board of Claims rather than when it was refiled with the Commonwealth Court. . A statement of objections to the order or other determination sought to be reviewed is a required element of a petition for review. Pa.R.A.P. 1513(a). There is no similar requirement for a notice of appeal. Pa.R.A.P. 904(a). A petition for review must be filed within thirty days of the order or determination from which review is sought review. Pa.R.A.P. 1512(a). . Appellant also argues that the Commonwealth Court erred in failing to grant appellant’s motion for leave to file a petition for review nunc pro tunc. However, our reversal of the Commonwealth Court’s en banc ruling renders this issue moot.

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

ORDER PER CURIAM: AND NOW, this 1st day of April, 1997, on certification by the Disciplinary Board that the respondent, JEFFREY W. BURNS, who was suspended by Order of this Court dated July 18, 1996, for a period of six months, has filed a verified statement showing compliance with all the terms and conditions of the Order of Suspension and Rule 217, Pa.R.D.E., and there being no other outstanding order of suspension or disbarment, JEFFREY W. BURNS is hereby reinstated to active status, effective immediately.

ORDER PER CURIAM: AND NOW, this 27th day of January, 1997, the Petition for Allowance of Appeal is hereby GRANTED but LIMITED to: Whether medical literature supporting the view presented by a defendant must be presented to justify a “two schools of thought” instruction?

OPINION ZAPPALA, Justice. This is an appeal from the order of the Commonwealth Court reversing the order of the Montgomery County Court of Common Pleas, which sustained the suspension of Appellee Richard J. Boucher’s operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing pursuant to 75 Pa.C.S. § 1547(b)(1). We reverse and reinstate DOT’s suspension of Boucher’s operating privileges. On June 14, 1991, Boucher was arrested and charged with driving under the influence by the Haverford Township Police. Upon his arrest Boucher was advised of his Miranda rights and transported to the Haverford Township police station. At the station, Officer Carroll requested that Boucher perform a breathalyzer test. Officer Carroll informed Boucher that in accordance with the Implied Consent Law, if Boucher refused to submit to the test, his operating privileges would be suspended for one year. Officer Carroll did not inform Boucher that his Miranda rights were not applicable to the request to perform the breathalyzer test. Boucher initially assented to the test. The first test result indicated the presence of mouth alcohol and was rejected. On two subsequent test attempts, Boucher failed to produce sufficient breath samples for analysis. Officer Carroll then gave Boucher the opportunity to take a blood test instead, but Boucher refused. Subsequently, Officer Carroll recorded the failed attempts as a refusal to submit to chemical testing. As a refusal was recorded, DOT notified Boucher that his operating privileges would be suspended. Boucher appealed from the notice of suspension to the common pleas court for a de novo hearing. He challenged the suspension asserting that he had not refused to submit to a chemical test, and that he was not advised by the police officer that his Miranda rights did not apply when asked to submit to testing. At the hearing Boucher testified that he believed that he did not have to take the test because he was already arrested and was afraid of the reading that the test might produce. He indicated that the police officer’s recitation of his Miranda rights had led him to believe that he did not have to give a breath sample. He also testified that he thought he was giving a sufficient sample during the three attempts but was hesitant about giving the samples to the officer. Officer Alan Ross, a certified intoximeter operator with the Haverford Township Police Department, testified that Boucher was informed of the various provisions of the implied consent law, including specific instructions that Boucher’s license would be suspended for a year if he failed to cooperate or submit to the test. Officer Ross then proceeded to perform the breathalyzer test. Officer Ross explained that the first test result indicated the presence of mouth alcohol, a residual amount of alcohol detected in the mouth. A slope detector device on the machine used during the test shut down the system when any mouth alcohol was detected. A second test was then administered, but Boucher did not cooperate during that test. Boucher provided an insufficient breath sample despite being shown how to provide a sample several times. Boucher was given the third test after a brief interval but failed again to give an adequate breath sample. Officer Carroll’s request that Boucher submit to a blood test was refused. At the hearing, the trial judge made the following findings of fact. Boucher was advised of his Miranda rights at the time of his arrest. Boucher was informed that pursuant to the Implied Consent Law a refusal to submit to chemical testing would result in the suspension of his operating privileges for one year. By deliberately failing to supply sufficient breath samples, Boucher had refused to submit to chemical testing. The trial judge determined that Boucher understood from the explanation of his Miranda rights that he had the right to remain silent. He concluded, however, that Boucher’s testimony did not establish that he felt he was entitled to a lawyer before he submitted to chemical testing. Nor did Boucher’s testimony indicate that he felt he needed or wanted a lawyer. Boucher did not testify that he told the police officer that he was confused and that his confusion caused him to give insufficient breath samples. The trial judge found that since Boucher had failed to express his state of confusion regarding his Miranda rights to the police officers, no additional instructions were required under Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), discussed infra. Based on Boucher’s testimony, the trial judge concluded that the police officer’s reading of Miranda rights was not the reason why Boucher failed to provide adequate breath samples. Accordingly, the trial judge denied his appeal and reinstated the suspension of operating privileges. Boucher then appealed to the Commonwealth Court, asserting that the trial judge erred in affirming the license suspension because he had been read his Miranda rights prior to the request for a chemical test when there was no evidence that he had been advised that his Miranda rights were inapplicable to the chemical test procedure. The Commonwealth Court reversed the trial court’s order because there was no indication in the record that any of the police officers had told Boucher that his Miranda rights did not apply to the chemical test. The Commonwealth Court reasoned that in this case DOT had the burden of proving that Boucher had been provided with that information, commonly referred to as the “O’Connell warning.” Since DOT did not provide such evidence, the license suspension was found to be improper. The phrase, “O’Connell warning”, is a shorthand expression for the duty imposed upon a police officer to inform a motorist, who has been asked to submit to chemical testing, that the Miranda rights are inapplicable to a request for chemical testing under the Implied Consent Law. Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). The O’Connell warning must specifically inform a motorist (1) that his driving privileges will be suspended for one year if he refuses chemical testing; and (2) that his Miranda rights do not apply to chemical testing. Commonwealth, Department of Transportation v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). In this case, the Commonwealth Court concluded that the failure of the police officer to give the O’Connell warning to Boucher required reversal of his license suspension. We granted allocatur to address the issue of whether a police officer’s failure to explain the inapplicability of Miranda rights to chemical testing precludes suspension of the motorist’s license under 75 Pa.C.S. § 1547(b) when the motorist intentionally fails to supply an adequate breath sample for chemical testing. For the following reasons, we find that failure of the police to give an O’Connell warning does not excuse a motorist’s deliberate failure to provide an adequate breath sample after assenting to perform the breathalyzer test. In reviewing a decision of the trial court in a license suspension case, the standard of review of an appellate court is to determine if the factual findings of the trial court are supported by competent evidence, and whether the trial court committed an error of law or an abuse of discretion. O’Connell, 521 Pa. at 242, 555 A.2d at 875. Questions of credibility are for the trial court. Id. To sustain a license suspension under 75 Pa.C.S. § 1547(b), DOT must establish that the motorist (1) was arrested for driving under the influence of alcohol, (2) was asked to submit to a breathalyzer test, (3) refused to do so, and (4) was specifically warned that refusal would result in the revocation of his driver’s license. When that burden has been met, the motorist must prove that his refusal was not knowing or conscious or that he was physically unable to take the test. Id., at 248, 555 A.2d at 876. According to the factual findings of the trial court, DOT met its burden of proof. At issue in this case is whether or not Boucher met his burden of proof by showing that he was incapable of making a knowing and conscious refusal. Boucher asserts that his deemed refusal based on his deliberate failure to provide a sufficient breath sample for the breathalyzer was not knowing and conscious because the police officers did not advise him that the Miranda rights did not apply to the test. He claims that he was confused by the recitation of his Miranda rights and that this confusion led directly to his failure to give a sufficient breath sample. DOT counters that a police officer is not required to provide an O’Connell warning to a motorist who affirmatively assents to the requested chemical test despite being read the Miranda warnings. DOT further asserts that the fact that no O’Connell warning was given does not render the motorist’s deemed refusal of that test, occasioned by the motorist’s failure to provide sufficient breath samples for a complete and valid test, unknowing and unconscious for purposes of O’Connell The O’Connell decision has engendered much confusion over its application under varying factual circumstances. We recently undertook an effort to eliminate the confusion through extensive examination of the O’Connell decision and its progeny in Commonwealth, Department of Transportation v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). In summary, we stated that the lineage of decisions beginning with O’Connell have established the following principles: (1) the provisions of the Implied Consent Law which require a motorist to submit to chemical sobriety testing or face the temporary loss of driving privileges have the potential to create confusion for the motorist; (2) in order to guarantee that a motorist makes a knowing and conscious decision on whether to submit to testing or refuse and accept the consequence of losing his driving privileges, the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges; (3) the duty of the officer to provide the O’Connell warnings as described herein is triggered by the officer’s request that the motorist submit to chemical sobriety testing, whether or not the motorist has first been advised of his Miranda rights. Scott, 546 Pa. at 253, 684 A.2d at 545. We held in Scott that whenever a motorist is requested to submit to chemical sobriety testing, the motorist must be provided with O’Connell warnings regardless of whether Mi randa rights have been given and regardless of whether the motorist exhibits confusion concerning his rights when asked to submit to testing. Id., at 252, 684 A.2d at 545-546. Once a motorist has been properly advised of the O’Connell warnings, a refusal to submit to chemical testing under the terms of the Implied Consent Law will not be excused as unknowing based upon the motorist’s subjective beliefs regarding the interplay between the Implied Consent Law and the rights under Miranda. Id., at 255, 684 A.2d at 546. The Scott decision did not address the issue presented in this case, however, because the motorist in Scott did not assent to the request for testing. The motorist in Scott flatly refused to submit to a blood test without consultation with his attorney even after the O’Connell warnings were given. The O’Connell warnings were repeated twice by different police officers, but the motorist continued to refuse to submit to the blood test and to demand that he see his attorney. In this case, Boucher did not refuse to submit to the breathalyzer test. Instead, Boucher deliberately failed to provide sufficient breath samples for the test. Although Boucher tried to give the appearance of cooperation with the police officer, he gave inadequate breath samples during multiple attempts to administer the test. His failure to supply a sufficient breath sample for any of the tests was a deemed refusal to submit to testing. See Pappas v. Commonwealth, Department of Transportation, 669 A.2d 504 (Pa.Cmwlth.1996); Department of Transportation v. Gross, 146 Pa. Cmwlth. 1, 605 A.2d 433 (1991). Although the police officer did not inform Boucher that his Miranda rights did not apply to chemical testing, Boucher did not refuse to submit to testing. He assented to testing, but sought to skew the test results. The deemed refusal was based on his own surreptitious conduct, rather than conduct of the police that rendered him incapable of making a knowing and conscious refusal. Accordingly, Boucher failed to meet his burden of proving that he had refused to submit to testing and that he was incapable of making a knowing and conscious refusal. In Scott, we recognized that in the absence of O’Connell warnings a motorist may not make a knowing and conscious decision to refuse to submit to chemical testing. Where, as here, the motorist has not refused to submit to testing, the policy concerns and rationale underlying Scott would not be served by treating assent of a motorist as the equivalent of a refusal. We specifically decline to extend the Scott analysis to situations in which a motorist agrees to submit to chemical testing upon request, but intentionally sabotages the test. Based upon the foregoing, we reverse the order of the Commonwealth Court and reinstate the license suspension. NIX, former C.J., did not participate in the decision of this case. CAPPY, J., files a dissenting opinion. . The sections of the Implied Consent Law at issue are 75 Pa.C.S. § 1547(a) and (b), which provide as follows: § 1547. Chemical testing to determine amount of alcohol or controlled substance. (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. § 3731. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Similarly, in each of the cases discussed in Scott the motorist had refused to submit to testing for the purposes of determining blood alcohol content. See, Commonwealth v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994), Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992), Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989), and Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). . Boucher claims that he was exercising his constitutional right against self-incrimination by pretending to submit to breathalyzer tests. This argument is mere obfuscation. Simply stated, Boucher attempted to "beat” the test in hopes that the reading of the breathalyzer would fall below the range required to establish that he was driving under the influence of alcohol. The testing mechanism was simply too sophisticated. To elevate Boucher’s conduct from pretense to an exercise of his right to remain silent would be unreasonable.

OPINION NEWMAN, Justice. I. INTRODUCTION The Roman Catholic Diocese of Allentown (Diocese) appeals from the Superior Court Order affirming the Order of the Court of Common Pleas of Columbia County (trial court), requiring the Diocese to produce documents to the trial court for an in camera review. This case raises an unusual question concerning the application of a testimonial privilege in a homicide trial. It presents our first opportunity to consider the scope of the privilege accorded confidential communications to members of the clergy. For the reasons discussed below, we affirm. II. BACKGROUND David G. Stewart, was charged with the murder of a Roman Catholic priest, Reverend Leo Heineman. In September of 1990, Stewart allegedly shot the priest to death at the Stewart home. In preparing his defense, Stewart subpoenaed documents from the Chancellor of the Diocese to support his position that he shot Reverend Heineman in self-defense. Specifically, Stewart requested Reverend Heinenman’s personal records and the Diocese’s records concerning the priest’s alleged alcohol and/or drug abuse and sexual misconduct. Stewart argued that the church documents could help prove that he acted in self-defense because of Reverend Heineman’s purported past violent conduct. The Diocese produced certain documents but refused to produce those kept in its secret archives. According to the Diocese, its archives contain copies of all written communications between the bishop and his priests and notes of any oral communications between the bishop and priests, deemed confidential. Thus, the Diocese filed a motion to quash the subpoena with respect to the following categories of documents: 1. All reports, letters and other documents pertaining to any allegations of misconduct or other disciplinary action regarding Reverend Heineman. 2. Copies of any reports pertaining to any sexual misconduct by Reverend Heineman. 3. Copies of all personal records, correspondence, diaries or similar documents maintained by Reverend Heine-man, whether such documents were maintained at Saint Mauritius Church or other locations. 4. Copies of any reports pertaining to any alcohol or other substance abuse or treatment by Reverend Heineman from 1986 to 1989. The Diocese claimed that the clergy-communicant privilege, 42 Pa.C.S. § 5943, which precludes disclosure of confidential information provided to members of the clergy in the course of their duties, protects the requested documents from discovery. It also claimed that the compelled disclosure of documents kept in its archives pursuant to canon law would violate its right of free exercise of religion. The trial court denied the Diocese’s motion to quash the subpoena. Because the record failed to indicate whether the Diocese’s representatives obtained the requested information in confidence while acting as counselors or confessors, the court ordered the Diocese to produce the documents for an in camera review to determine whether the clergy-communicant privilege applies. The trial court also rejected the Diocese’s free exercise argument finding, that canon law does not bind the court and that Stewart’s compelling interest in a fair trial outweighed the Diocese’s religious claims. The Superior Court affirmed the trial court. Commonwealth v. Stewart, 436 Pa.Super. 262, 647 A.2d 597 (1994). III. SCOPE OF CLERGY-COMMUNICANT PRIVILEGE The Pennsylvania statute protecting confidential information acquired by members of the clergy provides: No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit. 42 Pa.C.S. § 5943 (emphasis added). In analyzing the scope of the clergy-communicant privilege, we must be mindful that evidentiary privileges are not favored. “[Ejxceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Hutchison v. Luddy, 414 Pa.Super. 138, 146, 606 A.2d 905, 908 (1992)(quoting Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979)). Thus, courts should accept testimonial privileges “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir.1990)(quoting Trammel v. United States, 445 U.S. 40, 46, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980)). Considering these principles, Pennsylvania courts have interpreted our clergy-communicant privilege as applying only to confidential communications between a communicant and a member of the clergy in his or her role as confessor or spiritual counselor. See, e.g., Hutchison v. Luddy, 414 Pa.Super. 138, 146, 606 A.2d 905, 908 (1992); Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990); Fahlfeder v. Commonwealth, Pennsylvania Board of Probation and Parole, 80 Pa.Cmwlth. 86, 470 A.2d 1130 (1984). In Hutchison, the plaintiff filed a civil action against a priest for alleged pedophilic acts and against the priest’s diocese (collectively, the diocese) for the alleged negligent hiring and retention of the priest. During pre-trial discovery, the plaintiff sought, inter alia, the production of church documents concerning alleged sexual misconduct with minor male children by priests assigned to the diocese; the complete personnel files of specified priests; and documents kept by the diocese in its secret archives. The diocese refused to produce any documents contained in its secret archives. The trial court ordered discovery of documents relating to incidents of actual or alleged sexual misconduct by priests with minor, male children and information concerning the assignment and transfer of priests. The court’s Order, however, granted the church leave to present the documents for an in camera review before disclosure to the adverse party. After examining the relationship between canon and civil law, the statutory clergy-communicant privilege, and the constitutional right to freedom of religion, the Superior Court affirmed. In reaching its decision, the Superior Court explained that the clergy-communicant privilege is limited to statements made in confidence to a member of the clergy for spiritual considerations or penitential purposes. The court stated that the mere fact that a communication is made to a member of the clergy, or that documentation is transmitted to a member of the clergy, is not sufficient alone to invoke the privilege. The court concluded that the diocese had failed to show that the communicant had disclosed the requested information in confidence to a member of the clergy in the context of a confession or spiritual matter. The Hutchison court relied on the Patterson and Fahlfeder cases that examined whether the privilege protects inculpatory statements to members of the clergy acting in secular roles. In Patterson, a murder prosecution, a court assigned a priest to the defendant as a court-appointed counselor following the defendant’s unrelated arrests for indecent exposure. At trial, the priest testified concerning the defendant’s desire to confess to the murder. The Superior Court found no evidence in the record indicating that the defendant had communicated with the priest in his capacity as a minister rather than as a court-appointed counselor. The court, therefore, held that because the defendant’s statements to the priest were not motivated by religious considerations, the trial court properly admitted the priest’s testimony. Fahlfeder involved communications to a clergyman who was the director of a residence to which the petitioner had been assigned as a condition of his parole for morals crimes involving young boys. At the petitioner’s parole violation hearing, the director testified that the petitioner had admitted to associating with young boys while on parole. On appeal, the petitioner alleged error in the admission of the director’s testimony. The Commonwealth Court held that the statutory clergy-communicant privilege does not prohibit all testimony by members of the clergy. Instead, the court stated that it is limited to information told in confidence to the clergy in their roles as confessors or counselors. The court concluded that the record did not establish a confessor/penitent relationship between the petitioner and the director or that the petitioner offered his admissions in confidence. The court determined that the director’s role toward the petitioner was that of volunteer or auxiliary supervisor to help in his rehabilitation on parole. Without a showing that the director’s role was one of confessor or confidant, the court held that the challenged admissions did not fall within the protection of the clergy-communicant privilege. Nearly every jurisdiction in the United States has recognized a clergy-communicant privilege and, like Pennsylvania, requires the communication to have been motivated by penitential or spiritual considerations. Although the statutes establishing the privilege vary in language from state to state, the most prevalent feature prescribed by the typical statute is that the communication be made to a member of the clergy in the course of “discipline enjoined” by his or her denomination. Annotation, Matters to Which the Privilege Covering Communications to Clergyman or Spiritual Adviser Extends, 71 A.L.R.3d 794 (1995). Judicial interpretation of the meaning of “discipline enjoined” by the denomination has ranged from a narrow construction limiting the privilege to doctrinally required confessions, see, e.g., Sherman v. State, 170 Ark. 148, 279 S.W. 353 (1926), to a broader application to the practice of providing religious guidance, admonishment or advice, see, e.g., Scott v. Hammock, 870 P.2d 947 (Utah 1994). In either case, the privilege applies only to confidential communications to a member of the clergy acting in a spiritual capacity. Likewise, in federal proceedings, it is stated: [t]hat such a privilege exists ... in at least some form has long been generally recognized,____ [Wjhether a particular communication lies within the protection of the privilege, the courts have recognized and applied certain criteria to determine whether the communication was intended by the parties to be truly “confidential” — that is, to be kept secret from the world at large ... and whether, granted that the communication was to a clergy person within the scope of the privilege, it was made in that person’s spiritual capacity, since otherwise, they would not be deemed to be confidential. Russell Donaldson, J.D., Annotation, Communications to Clergyman as Privileged in Federal Proceedings, 118 A.L.R. Fed. 449, 457 (1996). Thus, as demonstrated in In re Grand Jury Investigation, 918 F.2d 374 (3d Cir.1990), federal courts have held that the federal clergy-communicant privilege protects (1) communications to a member of the clergy, (2) in his or her spiritual or professional capacity, (3) by persons who seek spiritual counseling, and (4) who reasonably expect confidentiality. Id. at 377. The Third Circuit has recognized that the clergy’s “professional capacity” comprises a broad range of pastoral counseling practices, including family counseling and the handling of personality problems. Nonetheless, the inquiry in federal proceedings remains whether the communications at issue are confidential and spiritual in nature. Id. Our review of the relevant case law reveals no jurisdiction extending the privilege to communications that are not penitential or spiritual in nature. Pursuant to Pennsylvania law embodied in Hutchison, Patterson and Fahlfeder, application of the clergy-communicant privilege is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired “in the course of [a clergyman’s] duties” as to effectively extend the privilege to communications involving entirely secular concerns. Contrary to the Diocese’s contention, limiting the privilege to communications penitential or spiritual in nature does not “insert” non-existent language into the statute. Instead, this requirement provides a rational and well-established interpretation of confidential information acquired “in the course of [a clergyman’s] duties.” We, therefore, hold that application of the privilege distills to a single inquiry: whether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor. Accordingly, confidential communications to a member of the clergy, even for counselling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations. Likewise, the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes. IV. APPLICATION OF THE CLERGY-COMMUNICANT PRIVILEGE IN THIS CASE In support of its Motion to Quash the subpoena, the Diocese alleged that the subject documents would have been obtained in confidence by the Bishop or other clergy in the course of their duties as clergy and would be maintained in the confidential diocesan archives. Specifically, the Diocese filed an affidavit of its Chancellor in support of its Motion that provides in part: A diocesan bishop possesses all the ordinary, proper and immediate power which is required for the exercise of his pastoral office. (C. 381). In the exercise of his pastoral office, the diocesan bishop is to extend his apostolic spirit to all of the Christian faithful committed to his care to provide for their spiritual needs. (C. 383). ****** The bishop fulfills these duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful. R.R. at 14a-15a. The Chancellor’s affidavit refers only to the hierarchical structure of the Roman Catholic Church and in general terms to the Bishop’s duties. The affidavit fails to indicate whether the precise information subject to the discovery request was, in fact, acquired by the Bishop or Diocesan representatives secretly and in confidence while acting in their capacity as confessors or spiritual advisors. We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes. The affidavit fails to explain why Reverend Heineman’s personal records, correspondence, diaries and other similar documents are protected by the clergy-communicant privilege. Additionally, the Diocese has not demonstrated how any letters, reports or records relating to allegations of misconduct or substance abuse of Reverend Heineman, particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege. Because the Diocese failed to adequately establish that the requested information is protected by the clergy-communicant privilege, the trial court and the Superior Court properly directed the Diocese to produce the documents to the trial court for an in camera review. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (in camera review of child protective service records serves defendant’s interest in fair trial without eviscerating confidentiality of child abuse investigations); Hutchison; Commonwealth v. Cody, 401 Pa.Super. 85, 584 A.2d 992, allocatur denied, 527 Pa. 622, 592 A.2d 42 (1991)(in camera inspection of sexual assault counselor’s records proper although testimonial privi lege of counselor is absolute); see also In re Grand Jury Investigation (in camera proceeding appropriate to determine applicability of federal clergy-communicant privilege). We hold that to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment and/or non-confessional admissions of misconduct by Reverend Heineman, they are discoverable. Y. FIRST AMENDMENT We disagree with the Diocese’s position that the compelled production of its archival documents violates its right to the free exercise of religion as protected by the federal and state constitutions and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 (RFRA). The government may only substantially burden the exercise of religion if it furthers a compelling governmental interest and the burden is the least restrictive means of advancing that interest. 42 U.S.C. § 2000bb-l(b). The plaintiff has the initial burden of establishing that a rule of general applicability constitutes a substantial burden on his or her free exercise of religion. Muslim v. Frame, 891 F.Supp. 226, 229 (E.D.Pa.1995). Once the plaintiff has satisfied his or her burden, the government must establish that the burden advances a compelling interest and is the least restrictive means of doing so. Id. In this case, the Diocese argues that the release of archival documents, which are deemed confidential pursuant to canon law, violates its right to religious freedom. Specifically, the Diocese avers that Canon 489 of the Code of Canon Law requires the maintenance of a separate archive for the safeguarding of confidential information and prohibits anyone, including the bishop, from removing documents from that archive and disclosing their contents. We do not doubt that the Diocese’s refusal to produce documents in violation of canon law is rooted in a sincerely held religious belief. We find, however, that the burden on the Diocese’s religious freedom furthers a compelling governmental interest by the least restrictive means available. A defendant in a criminal case has a right to discover material evidence, Ritchie, and the state has a compelling interest in pursuing the truth in a criminal matter, see Port v. Heard, 764 F.2d 423 (5th Cir.1985). Although an in camera proceeding may cause a limited exposure of privileged information to the trial court, a court order limiting discovery to relevant, non-privileged documents advances this compelling governmental interest in the least restrictive way. See Scott v. Rosenberg, 702 F.2d 1263 (9th Cir.1983)(demand of church documents relating to specific individual’s pledges necessary to further compelling governmental interest in preventing fraud). Thus, consistent with the trial court and Superior Court, we hold that the compelled production of documents for an in camera review and the discovery of documents deemed relevant and non-privileged does not impermissibly intrude upon the Diocese’s exercise of its religious beliefs and practices. Accordingly, we affirm the Order of the Superior Court and remand this case for proceedings consistent with this Opinion. NIX, Former C.J., did not participate in the decision of this case. NIGRO, J., files a dissenting opinion in which CAPPY, J., joins. . Pennsylvania courts have commonly referred to the privilege as the "priest-penitent” privilege. This term is used in a representative rather than a limiting manner. The statute itself identifies several classes of clergy to whom the privilege applies and broadly defines the communicant as “any person,” thus including other members of the clergy. We adopt the term “clergy-communicant” privilege for purposes of this Opinion. . The federal rules of evidence provide that principles of common law, as interpreted by the courts “in the light of reason and experience,” govern the clergy-communicant privilege Fed.R.Evid. 501. See, e.g., In re Grand Jury Investigation, 918 F.2d 374 (3d Cir.1990). In interpreting the federal privilege, courts have referred to the following definitions contained in proposed (but not adopted) Federal Rule of Evidence 506: (a) Definitions. As used in this rule: (1) A “clergyman” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him. (2) A communication is "confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. (b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser. (c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary. See, e.g., In re Grand Jury Investigation. . With respect to what effect, if any, the presence of a third party has on the confidential status of a communication under the federal rules, the commentator Donaldson writes: It has been held under particular circumstances that such third-party presence vitiated the requisite confidentiality, and with it the privilege for the communication, but one court has held that where the presence of the third party is necessary to the furtherance of the purpose of the communication, the requisite confidentiality is not necessarily destroyed. 118 A.L.R. Fed. 449, 458. Donaldson also writes: On the question who may invoke the privilege, the courts have generally agreed that both the communicant himself and the clergy person who receives the communication ... may do so, and have held that a “clergyman” within the meaning of the privilege may be not only a priest to whom direct confession of sin is an obligation of the believer as in the Roman Catholic Church, but also a minister, priest, rabbi, or other similar functionary of a religious organization, including a Christian Science practitioner, or an individual reasonably believed so to be by the person consulting him or her ..., and a nun filling the office of “spiritual director” to a postulant to her order. One court has held that the right to waive the federal privilege for clergy-communicant confidences lies not with the communicant, but rather with the clergy person as the "custodian” of the confidence in question ... although it would appear that since there is considerable authority to the effect that the privilege is asserted "on behalf of” the communicant, ... a reasonable inference would be that the privilege should be waivable by the communicant as well. Id. at 457-58. . As noted by the Superior Court, the Diocese did not object to the production of documents on relevancy grounds. The trial court indicated in its Opinion, however, its intention to inspect the documents for relevancy as well as privilege. . Congress enacted the RFRA to restore application of the ‘‘compelling interest” test established in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) to free exercise claims. 42 U.S.C. § 2000bb(b). The RFRA, thus, statutorily overruled Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the United States Supreme Court eliminated the “compelling interest” test for laws of general applicability, neutral toward religion. 42 U.S.C. § 2000bb(a). The Commonwealth questions the constitutionality of the RFRA. We do not, however, decide this issue because we conclude that, under the more stringent "compelling interest” standard, the Diocese’s free exercise rights are not unconstitutionally burdened. . The Diocese did not develop any separate or additional arguments under the Pennsylvania Constitution.

ORDER PER CURIAM. AND NOW, this 10th day of April, 1997, the Petition for Allowance of Appeal is granted and limited to the following issue: Did the trial court err in granting a nonsuit on Petitioners’ claim under 75 Pa. Cons.Stat. § 1574?

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

ORDER PER CURIAM: AND NOW, this 6th day of February, 1997, a Rule having been entered by this Court on December 30,1996, pursuant to Rule 214(d)(1), Pa.R.D.E., directing Lyndon Jay Parker to show cause why he should not be placed on temporary suspension and no response thereto having been filed, it is hereby ORDERED that the Rule is made absolute; Lyndon Jay Parker is placed on temporary suspension and he 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.

OPINION OF THE COURT NEWMAN, Justice. This appeal concerns a personal injury action filed by appellants Ernest Cleveland, Jr., and Winifred Cleveland, husband and wife, based on Mr. Cleveland’s exposure to asbestos products manufactured by several companies, including appellee Celotex Corporation (Celotex). We must decide the following three issues: (1) can a spouse recover damages for loss of consortium where the other spouse’s injury occurred prior to marriage; (2) can a spouse recover delay damages on an award for loss of consortium where the other spouse’s injury occurred prior to marriage; and (3) should this Court retroactively apply case law precluding claims for damages based on increased risk and fear of developing asbestos-related cancer? We answer each of these questions in the negative. FACTS AND PROCEDURAL HISTORY In 1969, Mr. Cleveland began working as a painter’s apprentice at the Philadelphia Naval Shipyard. From 1969 until 1976, Mr. Cleveland’s duties included preparing and painting the interiors of ships. Because other shipyard employees inside the ships were constantly removing and installing insulating materials containing asbestos, Mr. Cleveland worked in an environment thick with asbestos dust. Following a series of chest x-rays during an annual physical examination in 1980, a doctor informed Mr. Cleveland that he had asbestosis. Although Mr. Cleveland was diagnosed with asbestosis, he was not diagnosed with cancer. He does, however, have an increased likelihood of contracting cancer in the future because of his exposure to asbestos. Notes of Testimony, April 26, 1989 at 6.77-6.88; Epstein Videotaped Deposition, April 24, 1989 at 87. On July 19, 1982, Mr. and Mrs. Cleveland filed a complaint against various manufacturers of insulating materials containing asbestos. Mr. Cleveland sought damages for his injuries, including, inter alia, increased risk and fear of developing cancer. In addition, Mrs. Cleveland sought damages for the loss of Mr. Cleveland’s consortium. Mr. and Mrs. Cleveland, however, were not married when they filed the complaint. Mr. Cleveland first met the future Mrs. Cleveland in 1968, when she was married to Timothy A. Smith and was known as Winifred Smith. Mrs. Smith began living with Mr. Cleveland in 1971 or 1972 and assumed the name Winifred Cleveland, even though she was still married to Mr. Smith. She divorced Mr. Smith in April 1983, and married Mr. Cleveland in September 1983. Thus, the Clevelands were not married until more than one year after they filed their complaint purporting to be husband and wife. All defendants, except Celotex, settled with the Clevelands before trial. Celotex stipulated to liability and agreed to pay 15 percent of any verdict upheld on appeal. The parties proceeded to trial on the issue of damages only. Following a trial in the Court of Common Pleas of Philadelphia County (trial court) during April and May of 1989, a jury returned a verdict in favor of Mr. Cleveland for $1,500,000.00 and a verdict in favor of Mrs. Cleveland for $140,000.00. In an Order dated January 8, 1990, the trial court denied Celotex’s post-trial motions. In a second Order dated January 8, 1990, the trial court granted the Clevelands’ motion for delay damages and entered judgments against Celotex and in favor of the Clevelands. Mr. Cleveland received a judgment for $396,067.40 and Mrs. Cleveland received a judgment for $36,966.40. Celotex separately appealed each of the trial court’s Orders to the Superior Court on April 12, 1990. The Superior Court consolidated the appeals pursuant to Pa.R.A.P. 513. On October 26,1990, the Superior Court dismissed the appeals without prejudice because Celotex had instituted bankruptcy proceedings in federal court. Following the resolution of Celotex’s bankruptcy proceedings, the Superior Court granted Celotex’s petition for reinstatement of the appeals on December 1,1993. The Superior Court reversed Mrs. Cleveland’s award of damages for loss of consortium and her award for delay damages on the verdict for loss of consortium. The Superior Court also granted Celotex’s request for a new trial limited to damages by retroactively applying case law abolishing a cause of action for risk and fear of cancer. The Clevelands filed a timely Petition for Allowance of Appeal, which we granted on March 12,1996. DISCUSSION I. Loss of Consortium Mrs. Cleveland claims she is entitled to compensation for loss of consortium because of Mr. Cleveland’s asbestosis. Consortium is defined as the “[c]onjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation.” Black’s Law Dictionary 309 (6th ed. 1990). A claim for loss of consortium arises from the marital relationship and is based on the loss of a spouse’s services resulting from an injury. Sprague v. Kaplan, 392 Pa.Super. 257, 572 A.2d 789 (1990). Because it arises from the marital relationship, a claim for loss of consortium does not exist if the complaining parties are not married when the injury occurs. Vazquez v. Friedberg, 431 Pa.Super. 523, 637 A.2d 300 (1994); Sprague; see also 21 Standard Pennsylvania Practice 2d § 116:39 (1995); 18 Pennsylvania Law Encyclopedia § 83 (1988). When the injury involves a hidden or latent disease, such as asbestosis, the injury occurs when the plaintiff discovers, or reasonably should have discovered, the injury. Vazquez. Mr. Cleveland’s injury occurred in 1980, when he discovered that he had asbestosis. Id. The Clevelands readily admit, however, that they did not marry until 1983. Accordingly, Mrs. Cleveland cannot maintain a cause of action for loss of consortium because she was not married to Mr. Cleveland when his injury occurred. Vazquez; Sprague. II. Delay Damages It is self-evident that without a valid award of compensatory damages, a litigant has no basis to seek delay damages pursuant to Pa.R.C.P. 238. Because we hold that Mrs. Cleveland cannot recover damages for loss of consortium, the issue of delay damages on her award for loss of consortium is moot. III. Retroactivity On appeal to the Superior Court, Celotex, then the appellant, claimed that the trial court erred in charging the jury that Mr. Cleveland could recover for increased risk and fear of developing cancer in the future because of his exposure to asbestos. At the time of trial in 1989, increased risk and fear of cancer was compensable pursuant to Pennsylvania law, even where cancer had not yet developed. Higginbotham v. Fibreboard Corp., 428 Pa.Super. 26, 28 n. 4, 630 A.2d 14, 15 n. 4 (1993); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 437-38, 539 A.2d 871, 874 (1988); see also Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). However, while the Clevelands were awaiting the reinstatement of their appeal to the Superior Court, that court decided Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), aff'd sub nom. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), which held that plaintiffs could no longer pursue claims for increased risk and fear of cancer in asbestos actions where cancer is not present. Celotex argued that the Superior Court should give Giffear retroactive effect to invalidate the trial court’s charge allowing Mr. Cleveland to recover for increased risk of cancer and fear of cancer. The Superior Court agreed and granted a new trial on damages. While the Clevelands’ appeal to this Court was pending, we affirmed Giffear in a consolidated case named Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). Simmons originated in the Court of Common Pleas of Philadelphia County. James Simmons and Theodore Murray and their wives sued various manufacturers of asbestos products. The Superior Court consolidated the appeals from the Court of Common Pleas and entered a judgment under the name Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 640 A.2d 446 (1994). We consolidated the appeal from the Superior Court’s judgment in Murray with the appeal from the judgment in Giffear and issued an Opinion under the name Simmons. In Simmons, a case of first impression for our Court, we addressed the issue of whether increased risk of cancer and fear of cancer were compensable in an asbestos action where cancer has not yet developed. We held that a plaintiff asserting a non-cancer, asbestos-related claim could not recover for any part of the damages relating to cancer. Simmons, 543 Pa. at 678, 674 A.2d at 239. This holding abolishes claims for increased risk and fear of cancer where cancer is not present, thus eliminating the recovery of damages based on a speculative future event, the possible occurrence of cancer. Id. at 676-77, 674 A.2d at 238. Although we applied our holding to the parties before us in Simmons, we did not address whether our holding should be given retroactive effect. Celotex argues for a retroactive application of Simmons here to invalidate the trial court’s charge on increased risk and fear of cancer. The Clevelands contend that Celotex waived its challenge to the trial court’s charge because it failed to object to the charge at trial. We disagree. In most circumstances, the failure to raise a claim before the trial court results in the waiver of that claim, and issues presented for the first time on appeal will not be considered. Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995). The waiver rule promotes the orderly administration of justice by requiring the parties to give the trial court an opportunity to correct the alleged error, reducing the need for appellate review. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981). However, where a fundamental change in the law occurs after the lower court enters its order, but before the appellate court rules, the failure to raise the issue in the lower court will not preclude appellate review of that issue. Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). The rationale for this exception to the waiver rule was explained in Kuchinic as follows: The effective administration of justice ordinarily requires that a litigant who fails to raise at trial an available objection waives it on appeal. This Court is reluctant to permit a party to allege error in the jury charge for the first time on appeal, because it would be manifestly unfair to permit a party to take his chances on a verdict, and then complain if he loses, when an earlier objection would have afforded the trial court an opportunity to correct the error---- The present case, of course, is one where an earlier objection would have been to no avail, because the charge correctly stated prevailing law. Furthermore, the rule espoused by appellee would compel counsel to urge upon the trial court every conceivable theory, on the mere chance that, before his case is finally concluded, one such theory might become the law____ Indeed this requirement would tend to delay justice, for the court below would still have to consider and rule on each theory. Id. at 626-27, 222 A.2d at 901 (citations omitted). Additionally, we have stated that “[i]t would be manifestly unfair to hold [a defendant] to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing there existed a right to be waived.” Commonwealth v. Cheeks, 429 Pa. 89, 95, 239 A.2d 793, 796 (1968); see also Geonnotti v. Commonwealth, Dept. of Transp., 138 Pa.Cmwlth. 652, 588 A.2d 1343 (1991); Tice v. Nationwide Life Ins. Co., 284 Pa.Super. 220, 425 A.2d 782 (1981). In this case, Celotex did not object to the trial court’s charge on recovery for increased risk and fear of cancer because, as discussed in Higginbotham and Giovanetti, the charge was proper under the prevailing law. Had Celotex objected, the trial court would have been required to overrule the objection and Celotex’s only redress would have been to raise the issue on appeal, as it now seeks to do. Thus, neither the parties nor the courts would have been better able to address the issue if Celotex had objected to the jury charge at trial. We hold that, under these circumstances, a finding that Celotex waived its challenge for failing to make a fruitless objection would not further the orderly administration of justice. Kuchinic. We decline to hold, however, that Simmons should apply retroactively. The United States Constitution and the Pennsylvania Constitution neither mandate nor preclude a retroactive application of a new decision. Blackwell v. Com monwealth, State Ethics Comm’n, 527 Pa. 172, 589 A.2d 1094 (1991). Normally, we apply a new decision to cases pending on appeal at the time of the decision. Id. at 182, 589 A.2d at 1099 (“The general rule followed in Pennsylvania is that we apply the law in effect at the time of the appellate decision.”); McHugh v. Litvin, Blumberg, Matusow & Young, 525 Pa. 1, 8, 574 A.2d 1040, 1043 (1990) (“[A]t common law an overruling decision was normally held to be retroactive.”); Commonwealth v. Gray, 509 Pa. 476, 486, 503 A.2d 921, 926 (1985) (“[T]he general rule is that all decisions are to be applied retroactively to cases on direct appeal.”); August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981) (“At common law, an overruling decision is normally retroactive.”). However, a sweeping rule of retroactive application is not justified. Blackwell; August. Retroactive application is a matter of judicial discretion and must be- exercised on a case by case basis. August (citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). When faced with the issue of retroactivity, the threshold question is whether the decision announces a new principle of law. Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)); see also Blackwell. If it does, then we can choose to give the new rule prospective effect only. Id. Our decision in Simmons represents a major landmark in asbestos litigation because this Court announced a new rule of law that definitively eliminated claims for increased risk and fear of cancer where cancer is not present. Although the Superior Court dealt with various aspects of this issue in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991), Marinari v. Asbestos Corporation, Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), and Giffear, it was not until our decision in Simmons that this matter was finally put to rest in Pennsylvania. Thus, Simmons meets the threshold requirement for prospective only application. Once the threshold is met, we then consider the following three factors to decide if the new rule should be applied retroactively or prospectively: (1) the purpose to be served by the new rule; (2) the extent of the reliance on the old rule; and (3) the effect on the administration of justice by the retroactive application of the new rule. Blackwell; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). The purpose of the rule announced in Simmons was to promote fairness in the adjudicative process by eliminating inequitable awards for speculative future damages. This is a significant purpose, and therefore, the first factor supports a retroactive application. The second and third factors, however, strongly favor a prospective only application of Simmons. There has been considerable reliance on the old rule. Countless trial courts charged juries in accordance with the law as it existed before Simmons. Additionally, our courts have labored under a backlog of asbestos cases for many years. Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995). Requiring new trials in each of the cases on appeal handled pursuant to the pre-Simmons rule would only exacerbate this congestion. See DiDio v. Philadelphia Asbestos Corp., 434 Pa.Super. 191, 642 A.2d 1088 (1994) (Johnson, J., dissenting). Furthermore, we are unwilling to force sick and aging plaintiffs, who waited many years for their awards, back into court to re-litigate their claims. Memories have faded and documents have undoubtedly been lost during the intervening years. We are cognizant of the burden on asbestos manufacturers who were required to pay judgments based on increased risk and fear of cancer. We believe, however, that renewed litigation would impose additional costs on these manufacturers and further impair the efficient administration of justice. Accordingly, we hold that Simmons is to be given only prospective effect. To the extent that the Superior Court has applied our decision in Simmons or its own decisions in Murray and Giffear retroactively in other cases, those cases are overruled. That part of the Superior Court’s Order reversing Mrs. Clevelands’ judgments for loss of consortium and delay damages is affirmed. That part of the Superior Court’s Order requiring a new trial limited to damages based on a retroactive application of Giffear is reversed. . Asbestosis is a pneumoconiosis caused by the inhalation of asbestos fiber dust. Asten Hill Mfg. Co. v. Bambrick, 5 Pa.Cmwlth. 664, 291 A.2d 354 (1972). "Pneumoconiosis is 'a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs.’ ” Potts v. Celotex, Corp., 796 S.W.2d 678, 679 n. 2 (Tenn.1990) (quoting Dorland’s Illustrated Medical Dictionary 1037 (26th Ed.1985)). Celotex’s medical expert, Dr. Paul E. Epstein, M.D., described asbestosis as follows: Asbestosis is scar tissue formation in the air sac walls____ And it is scar tissue that forms as a result of exposure to asbestos. And in this circumstance, when that scar tissue is laid down in the air sac, the space that’s available for air is decreased. So now we have a thicker air sac wall and less space for air. Epstein Videotaped Deposition, November 17, 1988 at 43-44. . The Clevelands have provided no explanation for misrepresenting their marital status in the complaint. . In a third Order dated January 8, 1990, the trial court imposed sanctions against Celotex pursuant to former Philadelphia Rule 170 (now rule 212.2) for Celotex's failure to settle the case. The imposition of sanctions is not at issue in this appeal. . Fifteen percent of $1,500,000.00 ($225,000.00) plus $171,067.40 in delay damages calculated on the $225,000.00. . Fifteen percent of $140,000.00 ($21,000.00) plus $15,966.40 in delay damages calculated on the $21,000.00. . The trial court ordered Celotex to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Although Celotex filed the required statement, the trial court never prepared an Opinion in support of its Orders. . The Honorable John P. Hester wrote a dissenting statement, indicating that he would affirm the trial court. . This Court has recognized four approaches to applying a decision announcing a new rule of law. Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 589 A.2d 1094 (1991). Mr. Justice Zappala cogently explained these four approaches in his Concurring Opinion in Blackwell as follows: The first approach, in which a new rule is not even applied to the parties to the case in which the rule is announced, may be described as giving the new rule "purely prospective effect”. The second approach, in which the new rule is applied to the parties to the case in which the rule is announced and litigation commenced thereafter, is best described, I believe, as giving the new rule "prospective effect”.... The third approach, in which the new rule is applied to the case in which it is announced and all other cases then pending on direct review where the issue is raised, may be said to give the new rule "retroactive effect”---- The fourth approach, in which the new rule is applied even where the issue has been finally decided at the time of the decision announcing the new rule but later is asserted in collateral proceedings, may be described as giving the new rule "fully retroactive effect”. Id. at 190-91, 589 A.2d at 1103. . We also held that asymptomatic pleural thickening caused by occupational exposure to asbestos does not support a cause of action for compensatory damages, with the exception that the cost of medical surveillance of the condition is recoverable. Simmons, 543 Pa. at 678-79, 674 A.2d at 239. . Simmons eliminated all claims for increased risk of cancer. Id. at 678, 674 A.2d at 239. It did not, however, eliminate all claims for fear of cancer. If cancer later develops, a plaintiff can bring a second action to recover for the cancer and all of the past, present and future emotional distress or mental anguish associated with the cancer, including fear of contracting cancer. Id. at 678 n. 10, 674 A.2d at 239 n. 10.