concurring:
I agree that appellant must be discharged, but as my reasons differ from the majority’s I submit this separate opinion.
Following appellant’s conviction in Municipal Court of misbehavior in office and his appeal to the lower court for a trial de novo, the Commonwealth filed an information consisting of two counts. The first count charged appellant with misbehavior in office in connection with the $4,000 payment he received from John Betts on June 29, 1971; the *428second count charged the same offense in connection with the $5,000 payment appellant received from Betts on July 27, 1972. The Commonwealth subsequently filed a bill of particulars informing appellant that he was charged with these offenses because he 1) breached the “[djuties imposed upon public officials under the Philadelphia Home Rule Charter, Title 351, Pennsylvania Code § 1.1-100 et seq.,” specifically those duties set forth in section 10.10-100; 2) “deliberately conveyed the impression to John Betts that he, the defendant, could influence the awarding of a contract regarding the International Terminal at the Philadelphia International Airport”; 3) “deliberately gave the impression to John Betts that he, John Betts, was making a political contribution on two occasions”; and 4) “gave John Betts reason to believe the Joseph Daly was acting as defendant’s agent at a meeting at the Locust Club where political contributions were discussed between Joseph Daly and John Betts.” 1
The majority outlines the salient points of the Commonwealth’s proof. Viewing that proof in the light most favorable to the Commonwealth, and giving the Commonwealth the benefit of all inferences reasonably arising therefrom, Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980); Commonwealth y. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979), I believe the jury was entitled to find that the Commonwealth had proved the allegations set forth in the bill of particulars. The question remains, however, whether that proof constituted proof of misbehavior in office.
*429In Commonwealth v. Steinberg, 240 Pa.Super. 139, 149-50, 362 A.2d 379, 385 (1976), this court discussed the nature and elements of the offense of misbehavior in office, as follows:
The offense of malfeasance, misfeasance or nonfeasance in office, more commonly called misbehavior in office, is a common law misdemeanor. Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959), aff’d mem., 399 Pa. 387, 160 A.2d 407, cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 193 (1960); Commonwealth v. Mecleary, 147 Pa.Super. 9, 23 A.2d 224 (1941). The offense has been carefully defined by the courts of this Commonwealth and by legal scholars. 1 N. Kessler, The Law of Criminal Procedure in Pennsylvania 177 (1961); 2 id. 504; R. Perkins, Criminal Law 482-90 (2d ed. 1969). It has been reiterated that “[t]he offense occurs when there is a breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive. Com. v. Peoples, 345 Pa. 576, 579, 28 A.2d 792 [(1942)]; McNair’s Petition, 324 Pa. 48, 55, 187 A. 498 [(1936)].” Commonwealth v. Evans, supra, 190 Pa.Super. at 225, 154 A.2d at 82. Where the performance of a discretionary duty with an improper or corrupt motive is the issue, the courts have clarified the concepts and defined the terms as follows: “A discretionary duty must be exercised with reason as opposed to caprice or arbitrary action; the term discretion ‘ “imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, heady violence, and rash injustice.” ’ Commonwealth v. Brownmiller, .... 141 Pa.Super. 107, 120, 14 A.2d 907, 913 [(1940)]. In its penal sense misbehavior in office does not encompass mere errors in judgment or departures from sound discretion, but an official must perform those official duties which require the exercise of a sound discretion to the interest of the Commonwealth and not capriciously, arbitrarily, and with a willful and corrupt design. Com. v. Brownmiller, supra .... The willful and corrupt motive need not arise from personal benefit.” Commonwealth v. Evans, supra, 190 Pa.Super, at 225-26, 154 A.2d at 82 (1959). Accord, Common*430wealth v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967), aff’d mem., 432 Pa. 522, 248 A.2d 506 (1968) (divided court), cert. denied, 398 U.S. 957, 90 S.Ct. 2161, 26 L.Ed.2d 541 (1970).
The Commonwealth argues that appellant performed a discretionary act with an improper or corrupt motive when he “used his position as a powerful City official” to cause Betts “to question whether or not [his contract with the city] might depend on payment of the sums [requested by appellant].” Commonwealth Brief at 11-12. This argument, however, overlooks the distinction set forth in Commonwealth v. Blatstein, 231 Pa.Super. 306, 317-319, 332 A.2d 510, 515 (1974), between “misconduct of one while in office” and misconduct “in the exercise of the duties of [] office.”
In Blatstein, the coordinator of a committee established by the City of Philadelphia to expedite the planning and construction of a new sports stadium was convicted of bribery and misbehavior in office. This court affirmed the bribery conviction, but reversed the conviction of misbehavior in office because the Commonwealth had failed to prove more than the defendant’s solicitation of a bribe:
In order to show misconduct in office, it is not sufficient to show that Blatstein solicited or even accepted a bribe. The Commonwealth must demonstrate that Blatstein followed the course of conduct which the bribe sought to secure. As Professor Perkins has said:
“The corrupt receipt of a bribe by an officer, for example, is criminal misconduct of one while in office, but such a recipient is clearly not acting in the exercise of the duties of his office, nor is this wrongful act under color of his office, and bribery has always been recognized as a separate offense. In fact, if an officer corruptly receives a bribe and then corruptly does what he has been bribed to do, he is guilty of both bribery and misconduct in office.” (Emphasis added.) R. Perkins, Criminal Law 482 (1969).
Since proof of solicitation of a bribe does not necessarily entail proof of misconduct in office, the Commonwealth *431had to show that Blatstein acted upon his offer to Sherry in advising the committee. In failing to do so, which the Commonwealth virtually admitted at trial, it failed to prove that Blatstein was guilty of misconduct in office. The Commonwealth having failed in its proof of this necessary, additional element, the lower court erred when it dismissed appellant’s motion in arrest of judgment on the indictment charging malfeasance, misfeasance and nonfeasance in office.
231 Pa. Super, at 317-318, 332 A.2d at 515.
Blatstein controls the present case. While the Commonwealth’s evidence may have been sufficient to prove that appellant either extorted money from Betts or accepted a bribe,2 the Commonwealth presented no evidence that appellant committed any act in his position as councilman, or under color of office, in connection with the payments he received from Betts.3 Indeed, what evidence there was was to the contrary. Betts testified that he never asked appellant to intervene on his behalf with regard to his airport contract; that appellant never volunteered to intervene; that to his knowledge appellant did not intervene; and that he dealt exclusively with representatives of the Aviation Division of the City of Philadelphia’s Department of Com-*432mérce concerning his contract. William Burns, the Director of Aviation during 1970 and 1971, testified that Betts was hired by the city on the basis of his proven abilities and the recommendation of the airlines that would be leasing space at the terminal; that neither he nor his department was required to consult with city council, or any member thereof, with respect to Bett’s hiring; that he in fact did not consult with any councilman or any democratic politician regarding Bett’s hiring; that neither appellant nor any other politician ever spoke with him about the hiring; and that the Mayor of Philadelphia appointed the Director of Commerce, Burns’s superior. Austin Brough, the Director of Aviation at the time of appellant’s trial, testified that in 1971 he was Assistant Director of Aviation, and confirmed Burns’s account regarding Betts’s hiring. He also testified that while city council was ultimately responsible for the approval of funds for capital improvements at the airport, it was not otherwise involved directly in the expenditure of the funds allocated.
The Commonwealth’s proof, therefore, was sufficient to convict appellant of misbehavior in office only if it showed appellant’s breach of a positive statutory duty.4 The Commonwealth argues that the evidence satisfied this requirement by showing appellant’s breach of section 10-100 of the Philadelphia Home Rule Charter, which provides:
Councilman Not to Engage in Certain Activities; Penalties.
As provided by statute, no councilman shall solicit, benefit by or be interested directly or indirectly in any contract for the purchase of property of any kind to be paid for from the City Treasury, nor shall he be interested directly or indirectly in any contract for the erection of any structure, or for the supplying of any services to be paid for out of the City Treasury, nor shall he solicit or *433recommend the appointment of any person to any position in the civil service, nor shall be interfere with the performance of the duties of the members of the Philadelphia Police, or of any other employees in any department, board or commission of the City.
According to the Commonwealth, when appellant received a total of $9,000 from Betts, he acquired an interest in Betts’s contract with the City of Philadelphia in violation of this provision. This argument presents several nice statutory construction problems as to the scope of section 10-100’s prohibitions.5 However, even if we assume for present purposes appellant’s violation of this provision when he requested and accepted the payments from Betts, appellant’s conviction of misbehavior in office was still improper.
As the majority notes, 18 P.S. § 5104 (1963)6 provides: In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the directions of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.
It is settled that section 5104 prohibits the indictment of a person for a common law offense where the legislature has made the alleged misconduct a statutory criminal offense. Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979) (plurality opinion); Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942); Commonwealth v. Bruno, supra; Commonwealth v. Ackerman, 176 Pa.Super. 80, 106 A.2d 886 (1954), cert. denied, 348 U.S. 951, 75 S.Ct. 438, 99 L.Ed. 743 *434(1955). See also Commonwealth v. Bausewine, 354 Pa. 35, 46 A.2d 491 (1946); cf. Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793 (1943); Commonwealth v. Brown, 269 Pa.Super. 150, 409 A.2d 108 (1979); Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962); Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958) (policy of the law does not permit prosecutions under general provisions of a penal code when applicable special provisions are available). The Commonwealth does not contest the fact that section 10-100 is a penal provision having the dignity of a statute passed by the General Assembly.7 It therefore follows that if the Commonwealth wished to prosecute appellant for violating this provision, it was required to charge him with that violation, and not with the common law offense of misbehavior in office. Because it did not charge appellant with violating section 10-100, he may not be held for violating that provision, even though the proof at trial may have been sufficient for the jury to have convicted appellant of that offense had he been properly charged with it. Commonwealth v. Peoples, supra; Commonwealth v. Bruno, supra.
For these reasons I concur in the result reached by the majority.8
. The Commonwealth was restricted at trial to proving that appellant was guilty of misbehavior in office because of the acts thus set forth in the bill of particulars, and not because of other acts. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Russell, 261 Pa.Super. 151, 395 A.2d 1365 (1978); Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976).
It may be noted that although the bill of particulars also alleged that appellant was guilty of misbehavior in office because he breached the duties set forth “in the Pennsylvania Crimes Code of 1939, specifically that portion dealing with Extortion, 18 P.S. § 4318,” and set forth in section 10.10-107(3) of the Philadelphia Home Rule Charter, the Commonwealth abandoned these claims at trial.
. It is, of course, unnecessary to decide whether the evidence was sufficient to establish these crimes since appellant was acquitted in Municipal Court of extortion and was not charged with bribery.
. An act under color of office is defined as
“a pretense of official right to do an act, made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office.” Commonwealth v. Bruno, 203 Pa.Super. 541, 560, 201 A.2d 434, allocatur refused, 203 Pa. Super, xxxiii (1964), cert. denied, 379 U.S. 965, 85 S.Ct. 656, 13 L.Ed.2d 558 (1965), quoting Commonwealth v. Channing, 55 Pa.Super. 510, 516 (1914).
Although the Commonwealth correctly asserts that its proof was sufficient to show that appellant used his office in acquiring payments from Betts in the sense that Betts would not have paid appellant had appellant not been a councilman, there was no proof that appellant pretended to an official right to the payments, or used his official authority as a pretext or cover to secure the payments, or otherwise acted under pretended authority of his office.
. Many of our cases assume, without explicitly stating, that in order for an official to be convicted of misbehavior in office because of a breach of a positive statutory duty, the breach must be wilful. It is' clear, however, that proof of a negligent breach is insufficient. See Commonwealth v. Hubbs (No. 2), 137 Pa.Super. 244, 8 A.2d 618 (1939); Commonwealth v. Brown, 116 Pa.Super. 1, 175 A. 748 (1934); R. Perkins, Criminal Law, Ch. 5, § 3(D)-Misconduct in Office (1957).
. The Commonwealth cites no authority for its assertion that a councilman becomes “interested” in a contract within the meaning of section 10-100 when he illegally extorts or bribes a person who contracts with the city. But see generally Commonwealth v. Bruno, supra. Nor has the Commonwealth explained the significance, if any, of the introductory phrase “[a]s provided by statute ....,” nor the provision’s inconsistent use of the terms “solicit,” “benefit by,” and “interested in.”
. Repealed by the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5.
. Under section 10-109 of the Philadelphia Home Rule Charter a person who violates section 10-100 may be fined $300, imprisoned 90 days, and removed from office. Thus, section 10-100 is a penal provision, see generally Lower Merion Tp. v. Schenk, 247 Pa.Super. 494, 372 A.2d 934 (1977), and because its enactment was authorized under the Act of April 21, 1949, P.L. 665, § 17, 53 P.S. § 13131 (1957), and article IX, section 2 of the Pennsylvania Constitution, it has the force of criminal legislation passed by the General Assembly. Commonwealth v. Cabell, 199 Pa.Super. 513, 185 A.2d 611 (1962).
. It should be emphasized that my conclusion that appellant cannot be convicted of misbehavior in office on the basis of his violation of a statutory offense proceeds from a different rationale than the one found in the majority opinion. The majority cites the plurality opinion in Commonwealth v. Bellis, supra, for the proposition that because appellant could have been convicted of a statutory offense, he could not be convicted of a common law offense. Majority op. at 426-427. Thus, the majority seems to hold that in a case where the Commonwealth’s proof establishes both a statutory and a common law offense, a jury may not convict on the common law offense. I do *435not believe this to be the holding of Bellis. I read Bellis to hold no more than what is set forth in this concurring opinion, i. e., when the Commonwealth’s proof establishes nothing more than the breach of a penal statute, the accused may not be convicted of a common law offense that proscribes the same conduct. Where, however, the common law offense proscribes conduct different from the conduct proscribed in the penal statute, the accused may, upon sufficient evidence, be convicted of either or both offenses. See Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975).
In the present case, the common law offense of misbehavior in office based upon appellant’s violation of section 10-100 of the Philadelphia Home Rule Charter proscribed the same conduct that was proscribed by section 10-100. A difference in the conduct proscribed by statute and common law would have occurred only if section 10-100 was violated by a negligent, non-wilful act. See generally Commonwealth v. Fahey, 156 Pa.Super. 254, 40 A.2d 167 (1944). Although section 10-100 does not explicitly require the element of scienter for there to be a violation, I believe the provision should be construed as implicitly requiring this element. See generally Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980) (SPAETH, J., concurring).