dissenting:
The instant proceeding is a combination of four separate appeals. The defendants appeal at numbers 374 and 375 alleging errors in their convictions for various offenses, and the Commonwealth appeals at numbers 363 and 364 challenging the action of the court below for failing to include as part of the sentences a requirement that the defendants pay the costs of prosecution andmake restitution. For the reasons stated herein, we would reverse the judgment of the lower court as to all convictions under appeals numbered 374 and 375.
Defendant Clair Bollinger was convicted under The Penal Code1 of forgery2 and larceny by an employee;3 under the Crimes Code of theft by failure to make required disposition of funds;4 and of the common law offense of misbehavior in office. Donald Schlosser was convicted of larceny by an employee and misbehavior in office. The facts of their offenses involve a very complicated series of transactions in York. Although most of the evidence centered around the activities of Bollinger, Schlosser was convicted for aiding and abetting in the transactions as Bollinger’s supervisor.
The facts of these transactions are as follows. From 1970 to 1974, Schlosser served as the Director of Community Development for the City of York. In his role as Director, he hired Bollinger as the Supervisor of Memorial Stadium, a complex of approximately five or six softball and baseball fields owned by the City of York. Prior to 1970, the Supervisor of Memorial Stadium was little more than a groundskeeper. At some unspecified date, a professional baseball team in York cancelled its lease, thus resulting in little or no rental income accruing from the stadium. Upon assuming his office, Bollinger undertook to entice more *130organizations to utilize the complex. Additionally, Bollinger worked as a promoter for various softball associations, and was also paid $2,500 per year by a local corporation, York Barbell Company, to promote greater interest in the game of softball.
From 1971 to 1973 Bollinger bid for and received the right to host a national softball tournament in the City of York. This was done in his capacity as a private softball promoter, and not in his official role as the supervisor of Memorial Stadium. To host the tournament, it was necessary to prepare the softball fields according to specifications promulgated by the sponsoring Amateur Softball Association (ASA). Because the City of York was unwilling to underwrite the expense of a study to determine the cost of preparing the fields, Bollinger entered into an agreement with the manager of employee relations for American Machine and Foundary (AMF) to borrow $1,450 from a local-bank to pay for the study. AMF had its own softball team and was interested in serving as host team for the 1971 tournament. The survey was prepared by a local engineering firm and estimated that it would cost approximately $56,000 to prepare the fields to meet the ASA specifications. Bollinger allegedly stated that the AMF team would not be required to pay for the use of the fields as reimbursement for helping fund the engineering study.
On March 3, 1972, Bollinger opened a private bank account entitled “Memorial Stadium Fund.” He and Schlosser were the only parties authorized to withdraw funds, although evidence established that only Bollinger actually disbursed money from the account.
Funds flowed into the account from three major sources. Bollinger assessed a fee of $60 to each team that joined a softball league which made use of the field at Memorial Stadium. The breakdown of this fee was as follows: $25 for the use of the facilities, lights, and general maintenance; $8 for the ASA; $10 to the United States Slow Pitch Softball Association (testimony indicated that this fee was subsequently refunded to each team); and the remainder to *131Bollinger, which he allegedly used to buy trophies for the tournaments and to defray personal expenses associated with promoting softball. Schlosser sent a letter in his capacity as Director of Community Development to each of the teams instructing them to make the $60 payable to Bollinger, as Supervisor of Memorial Stadium. Fees were also charged to various organizations that wanted to use the facilities, but were not members of an established softball or baseball league. Finally, money was donated by local corporations interested in seeing the complex rebuilt. York Barbell Company, for example, donated $10,200 for construction of new restroom facilities.
Bollinger then set out to rebuild the facilities by installing new fences, new restroom facilities, a press box, and by general maintenance. This rebuilding was accomplished through various means. First, city maintenance employees were utilized during their working hours. Second, two city employees were also employed during their free time and were paid by check or in cash out of a fund maintained by the Clair L. Bollinger Agency, Incorporated. Third, a small private contractor was employed and was also paid by the Bollinger Agency. In the case of the moonlighting employees and the contractor, Bollinger submitted fictitious bills in their names to the city. Schlosser approved the bills, and a total of four checks were issued, with one of the employees to receive two checks and the other employee and contractor to receive one each. At Schlosser’s direction, however., the checks were not mailed to the payees, but instead were given directly to Bollinger. Bollinger forged the payees’ names on the checks, cashed them, and in three instances deposited the money in the Bollinger Agency account. In the other instance, the money was deposited in the Memorial Stadium Fund account. The employees and the contractor testified that they were actually paid less than the amount of the check, and that in certain situations they did not do all of the work listed on the fictitious bill, although they were paid in cash or from the Bollinger Agency account for work not listed on the bill. The contractor also testified *132that because his credit rating was poor, Bollinger bought and paid for the fence that the contractor erected, as well as paid the wages of some of his workers who aided in erecting the fence. Bollinger claimed that the excess he received from cashing the checks was reimbursement for the raw materials and additional wages.
Construction was also achieved in another way. Bollinger hired three individuals to perform work on the fields, and instructed the treasurer of York Barbell Company to issue checks to the three individuals for work they had allegedly performed. One of the individuals, Barry Altland, was called to testify. He stated that he was employed and paid by the City of York to help construct the press box at Memorial Stadium. In his off-hours, he was hired by Bollinger to erect a fence at one of the fields, and he worked in the concession stands during softball games. He subsequently received a check from York Barbell in the amount of $1,385, indicating payment for constructing the press box. He contacted Bollinger and was informed that it was a mistake, that the payment was for erecting the fence, but that the check included his labor plus the cost of the fence. Altland signed the check and gave it to Bollinger, who apparently deposited it in the Bollinger Agency account. Altland further testified that while working on the press box, Bollinger personally supplied some of the materials for its construction. The other two individuals who were paid by York Barbell at Bollinger’s direction did not testify.
In 1974 a new mayor assumed office for the City of York, and Schlosser was replaced as Director of Community Development. The new mayor met with Bollinger in March of 1974 and requested, first, that the name of the Memorial Stadium Fund be changed as it might be misleading and could be construed as an official account under the control of the city. He testified that the fund was not a city account and that the city was not entitled to all of the money in the account. He also requested payment to the city of the $25 fee that had been charged to each team in a softball league. Payment was requested pursuant to a York ordinance which stated,
*133“The mayor of the City of York is hereby authorized and empowered to negotiate leases of the Memorial Stadium in Spring Garden Memorial Park in the City of York, Pennsylvania, upon such terms as he may prescribe, for short terms. Said leases shall be signed by the Mayor and the City Controller. All fees received for such leases shall be turned over to the City Treasurer.” (N.T. 21) (emphasis added).
The mayor also instructed the softball teams to henceforth make the $25 payments directly to the city. The mayor testified that shortly thereafter, Bollinger transferred approximately $1,500 to $1,700 from the Memorial Stadium Fund to the city and changed the name of the fund to the York Barbell Softball Fund. In September 1974, Bollinger was replaced as supervisor of Memorial Stadium.
As stated, both Bollinger and Schlosser appeal their convictions. Their primary contention is that the convictions cannot stand absent proof that they profited from their activities. Essentially, their defense is that Bollinger achieved the rebuilding of the stadium more efficiently and for a much lower price than if the work had been performed through regular channels. He achieved this by cutting through the “red tape” and acting as a “contractor” to coordinate the activities of the workers. This was achieved at a substantial savings of the original estimate of $56,000, and without proof that either Bollinger or Schlosser profited from the undertaking or appropriated any funds to their own use. Absent such proof, they claim their convictions cannot be sustained. We will examine this contention in the context of each of the crimes charged.
First, both Bollinger and Schlosser were convicted of larceny by an employee. This crime was a special form of embezzlement under The Penal Code and prior law, and was committed when a third party gave property to an employee with instructions to transfer the property to the employer, and the employee utilized the property for his own benefit. See Commonwealth v. Diamond, 79 Pa.Super. 54 (1922); 18 P.S. § 4815, Historical Note. In instructing the jury, the *134court below stated that any one of three sets of activities may have established this offense: (1) the co-mingling of the $25 rental fees charged to each baseball team with Bollinger’s personal funds in the Memorial Stadium Fund account; (2) the “fictitious bill” transactions whereby Bollinger hired and paid two moonlighting employees and one contractor and then submitted four fictitious bills to the city for their work and forged their signatures to the checks; and (3) the money paid directly to the three individual workers by York Barbell at Bollinger’s direction.
With respect to the first transaction, we must conclude that the mere co-mingling of “city” money with private funds in the Memorial Stadium Fund is insufficient to sustain a conviction under this offense, especially since this co-mingling was known and acquiesced to by the York officials. See Young, Smyth, Field & Co. v. Glendinning, 194 Pa. 550, 45 A. 364 (1900). Although the indictments charged the defendants with obtaining $23,112 in the name of the account, the evidence at trial failed to establish how much of this fund was expended for improvements at Memorial Stadium, and how much was expended for the personal benefit of Bollinger and Schlosser. Evidence established that Bollinger used money from the fund to pay for certain improvements at his home, paid a $200 debt owed by Schlosser, and funded various trips to softball conventions and tournaments. However, the mayor of York testified that the fund was not a city account and that he could not demand that it be turned over to the City of York in that it contained private funds of Mr. Bollinger. The accountant who testified for the prosecution either failed to, or was unable to state what portion of the fund belonged to the city, dr what amounts were spent for improvements at Memorial Stadium or the private expenses of the defendants. Moreover, approximately $1,500 to $1,700 was remitted to the city in 1974 as reimbursement of the $25 fee charged to each softball team. Whether this represented all or only some of the fees actually collected was never established. Accordingly, the mere co-mingling of funds when *135such activity was authorized and absent proof that the defendants wrongfully appropriated the money to their own use, was insufficient to establish this offense.
The Commonwealth contends, however, that the city ordinance requiring payment of such fees to the city imposed an obligation of immediate transfer. In light of the evidence, we must disagree.
The record establishes that strict adherence to the ordinance was not followed either by Bollinger or the city. Contrary to the ordinance, leases of the stadium were neither in writing nor approved by the mayor or city controller. Thus, while the ordinance may establish the ultimate standard by which Bollinger must account to the city, urgency of payment was not a top priority, and payment was made upon first demand in or around March of 1974.5 Accordingly, Bollinger’s dilatory approach to transferring the funds to the city does not establish this offense absent proof of an actual larceny.
The second set of activities cited by the court below was the “fictitious bill” transactions. Again, we conclude that these activities do not establish the crime of larceny by an employee.
When Bollinger, with Schlosser’s assistance, submitted the four fictitious bills to the city and obtained the checks that were intended for the employees and the contractor, he was not receiving this property in his role as a city employee *136with a concomitant duty to transfer the property to his employer, the City of York. Bollinger’s only role as an employee was that it put him in an advantageous position to accomplish the act, but did not impose a duty as an employee to transfer the property to the employer. Accordingly, the defendants’ convictions of larceny by an employee cannot be supported under this series of transactions.
For the same reasons, we conclude that this offense was not supported by the transactions whereby Bollinger instructed York Barbell to pay various sums to three workers for their work at Memorial Stadium. Although only one worker testified and indicated that by means of a misrepresentation he transferred the check to Bollinger, the crime of larceny by an employee was not established. When Bollinger obtained the check from Altland, he was under no duty to transfer that fund to either of his employers, the City of York or YorkBarbell Company. Accordingly, there being no evidence to establish the elements of this offense, we would reverse the convictions as to both defendants.
Defendant Bollinger was also charged with violating 18 Pa.C.S. § 3927, theft by failure to make required disposition of funds. This provision is the analogous Crimes Code offense to larceny by an employee and was to encompass events occurring on or after June 6, 1973. The activities covered by this crime were the $10,200 donated by York Barbell Company, three checks from York Catholic Athletic Association in March 1974 for rental of one of the fields, and two checks in 1973 from York College for rental of the stadium. All checks appear to have been deposited in the Memorial Stadium Fund account, except one check from York College which was deposited in the Bollinger Agency account.
Evidence presented failed to establish whether Bollinger paid the funds as designated. The $10,200 from York Barbell was donated directly to the Memorial Stadium Fund for use in constructing restroom facilities and was not intended as a gift to the City of York to help defray general revenue expenses. The restroom facilities were built to the satisfac*137tion of the company, and no evidence was presented to indicate whether the actual cost was more or less than $10,200. In the same light, testimony failed to establish whether the rental payments made by the York Catholic Association and York College were included in the $1,500 to $1,700 payment to the city in or around March of 1974. In Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976), we determined that the mere co-mingling of funds was insufficient to establish an offense under 18 Pa.C.S. § 3927. “It is only when the required payments are not made that criminal liability attaches.” Id. at 18, 367 A.2d at 1095-96. Absent proof that Bollinger failed to properly dispose of the funds, the conviction for theft by failure to make required disposition of funds cannot be sustained.
Bollinger also challenges his conviction on four counts of forgery. The essential elements of this Penal Code offense are: “(1) the false making of some instrument in writing, (2) the instrument must be apparently capable of effecting a fraud and working an injury to another, and (3) there must be a fraudulent intent.” Commonwealth v. DiPiero, 205 Pa.Super. 312, 317, 208 A.2d 912, 914 (1965), allocatur refused, 205 Pa.Super. xxxvii, cert. denied, 382 U.S. 992, 86 S.Ct. 574, 15 L.Ed.2d 479 (1966), quoting Commonwealth v. Powers, 110 Pa.Super. 319, 323, 168 A. 328, 330 (1933). Bollinger admits falsely affixing the signatures of the employees and the contractor on the four checks issued to them, but claims a lack of evidence establishing a fraudulent intent. Contrary to the majority, we would agree that the evidence is insufficient to establish a fraudulent intent.
In Commonwealth v. DiPiero, supra, we held that “[o]ne may indeed sign another’s name to a check and falsely make the instrument without any criminality. However, when he does so with the intent to defraud, and another is prejudiced, a forgery has been committed.” Id. 205 Pa.Super. at 316, 208 A.2d at 914. In Franklin Fire Ins. Co. v. Bradford, 201 Pa. 32, 50 A. 286 (1901), the supreme court determined that a forgery had not occurred when a sub-agent falsely affixed the signature of his employer, an authorized insurance agent, to a policy application. Although the signature was *138unauthorized, forgery was not established when the sub-agent received the commission and deposited it in his employer’s account, and did not appropriate any portion to his own use. The court held that under the above set of facts, “Evidence of the fraudulent intent is here almost wholly lacking. . . . [The sub-agent] appropriated not one cent to his own use; nor does the evidence show that he benefited in the remotest degree by the act. There is no evidence indicating a fraudulent intent.” Id., 201 Pa. at 35, 50 A. at 287.
In light of the above principles, we would conclude that the Commonwealth failed to establish that Bollinger perpetrated the scheme with an intent to defraud. The testimony only establishes that he paid the employees and the contractor an amount less than that obtained by the city for their services, but they made no claim that they were defrauded of any funds. Moreover, their testimony and the testimony of others supported Bollinger’s claim that they were paid for additional work for which Bollinger was not reimbursed by the city, and that he paid for part of the materials used in maintaining the stadium complex. Thus, while an immediate “profit” appears to have been made as to the employees and the contractor, they made no claim of loss, nor do we feel that prejudice on the part of the city could be established absent testimony regarding the bottom line of Bollinger’s activities. No evidence was presented to support a finding that he obtained an ultimate profit nor that the operation was conducted with an intent to defraud either the city or the workers. While intent may be proven circumstantially, see e. g., Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976), the unauthorized endorsing of the signatures on the checks was, by itself, insufficient to establish the offense of forgery.
The defendants’ final transgressions for which they were convicted were the offenses of misbehavior in office. “The common law crime of misconduct in office, variously called misbehavior, misfeasance or misdemeanor in office, means either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an *139improper or corrupt motive.” Commonwealth v. Green, 205 Pa.Super. 539, 546, 211 A.2d 5, 9 (1965). The court below instructed that this crime may have been perpetrated when Bollinger established the private account with a misleading name, co-mingled public and private funds, co-mingled his tasks as an employee of the city and as softball promoter, established his “contracting” operation, and offered to permit the AMF softball team to play free of charge if it would held defray the $1,450 expense for the survey of the park. Schlosser could be convicted of this offense, the court instructed, by accepting money, drawn from the Memorial Stadium Fund account, from Bollinger and instructing his secretary not to mail the checks to the two workers and the contractor, but instead to give their checks directly to Bollinger. Again, we must conclude that the evidence presented is fatally deficient to establish that these activities were performed with an improper or corrupt motive.
Bollinger’s activities in establishing the account and co-mingling funds and functions were well known and, at least until 1974, tacitly approved by the York officials. His “contracting” operation was readily acknowledged as an efficient method for rebuilding and maintaining the Memorial Stadium complex and resulted in considerable savings of the original $56,000 estimate to rehabilitate the facilities. Evidence failed to establish whether Bollinger profited from this operation, and the only evidence was that he once received one-fourth of $398.97 as his profit from one of the softball tournaments; this profit was proper, in that Bollinger “owned” the rights to the tournament, having been awarded the rights by the Amateur Softball Association. No evidence was presented as to whether the AMF team was assessed a fee for its use of the fields or whether its use was reflected in the $1,500 to $1,700 paid to the city in 1974. Moreover, the mere withdrawal of funds from the Memorial Stadium Fund account by Bollinger and Schlosser would not establish misbehavior in office since it was not established whether the money withdrawn for private use was “city” money, or the private funds of the defendants. Finally, the use of their public offices to obtain the checks earmarked for *140the two employees and the contractor was not established to be motivated by improper or corrupt purposes. Their claimed, defense of wishing to re-coup their expenses and prevent double payment to the workers was supported by the testimony of the workers and was not refuted by the Commonwealth’s evidence.
Although jurors are entrusted with the task of resolving factual disputes and questions of credibility, see, e. g., Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977), their decisions may not be based upon surmise or conjecture. See e. g., Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978). Given the paucity of evidence regarding the financial dealings of the defendants and the flow of funds in the Memorial Stadium Fund, we would conclude that the evidence was insufficient to permit a jury to conclude that the defendants conducted their operation with the type of criminal intent required for all of the offenses charged.
Accordingly, we would reverse the convictions on all counts and order the defendants discharged.
VAN der VOORT, J., joins in this opinion.. Act of June 24, 1939, P.L. 872, §§ 101 et seq., 18 P.S. §§ 4101 et seq., repealed, Act of Dec. 6, 1972, P.L. 1482, § 5.
. Id. at § 1014, 18 P.S. § 5014.
. Id. at § 815, 18 P.S. § 4815.
. 18 Pa.C.S. § 3927.
. The court below also concluded that Bollinger’s payment upon first demand would not exculpate his activity since he had initially acquired the funds through a misrepresentation that the Memorial Stadium Fund was an official city account. See Commonwealth v. Spiegel, 169 Pa.Super. 252, 82 A.2d 692 (1951). Again, che record fails to support this conclusion.
None of the witnesses testified that they were misled into assuming that the fund was an official city account. The money was paid to Bollinger under the assumption that it would be used to defray expenses at the park and, in certain cases, to pay membership dues to the various softball associations. Only the mayor of York testified contrary to this, and he stated only that the name of the fund could be misleading. Absent proof of an actual misrepresentation, Bollinger’s acceptance and co-mingling of funds with the tacit consent of city officials does not, under the facts stated, establish this offense.