concurring:
I agree that we should remand for a new trial and I write separately only to respond to the question, raised but not answered by the majority, whether the claim that counsel was ineffective in failing to object when the trial court did not define the term “material” in its charge has been waived.
The majority states, see its at p. 600 that it need not decide whether appellant has waived the right (1) to challenge trial counsel’s effectiveness in failing to object that the charge to the jury did not include a definition of the term “material” as contained in the Pennsylvania Securities Act of 1972, 70 P.S. § l-401(b), and (2) to challenge appellate counsel’s failure to raise this issue on direct appeal. I find no waiver. Appellant’s petition for relief under the Post-Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., alleges that trial and appellate counsel were ineffective in failing to object to the trial court’s failure “to instruct the jury on the essential elements of the Securities Act violations, including but not limited to the requirement that the Defendant must have had a specific intent to defraud the shareholders, in order to convict.” PCHA Petition at ¶ 8(i). See id. at íííí's 8(o) & (r). Section 401(b) of the Securities Act provides:
It is unlawful for any person, in connection with the offer, sale or purchase of any security in this State, directly or indirectly:
*277(b) To make any untrue statement of a material fact or to omit to state a material fact necessary to make the statements made, in the light of the circumstances under which they are made, not misleading.
70 P.S. § l-401(b).
Section 511 of the Act makes a willful violation of any material provision of the Act subject to criminal penalties.1 Thus, an essential element of the offense appellant was charged with committing is the “making [of] an[] untrue statement of a material fact or [the] omi[ssion of] a material fact.” 70 P.S. § l-401(b). The trial court should therefore have instructed the jury that without proof beyond a reasonable doubt that appellant had misstated or omitted to state a “material fact,” he could not be convicted of violating the Act. By alleging in his petition for post-conviction relief that trial and appellate counsel were ineffective in failing to object to the trial court’s failure “to instruct the jury on the essential elements of the Securities Act violations,” appellant preserved the argument he now makes. Since I can imagine no reasonable basis for counsels’ failure to object, I should hold counsel ineffective, and remand for a new trial on that basis alone, i.e., even if there were no other basis.
The Pennsylvania Securities Act does not define “material fact,” and case law under the Act to date has not developed a definition, but it is clear that in the context of a transaction in securities, “material fact” has a specialized *278meaning. The Second Circuit has defined “material fact” as follows:
As we said in List v. Fashion Park, Inc., 340 F.2d 457, 462 (2nd Cir.1965), “The basic test of materiality ... is whether a reasonable man would attach importance ... in determining his choice of action in the transaction in question. Restatement, Torts § 538(2)(a); accord Prosser, Torts 554-55; I Harper & James, Torts, 565-66.” (Emphasis supplied.) This, of course, encompasses any fact “... which in reasonable and objective contemplation might affect the value of the corporation’s stock or securities____” List v. Fashion Park, Inc., supra at 462, quoting from Kohler v. Kohler Co., 319 F.2d 634, 642, 7 A.L.R.3d 486 (7 Cir.1963). (Emphasis supplied.) Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968), cert, denied sub. nom. Coates v. Securities and Exchange Commission, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969).
See also Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972) (“All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision.”) I should therefore hold that at appellant’s new trial the trial court should instruct the jury that “the Commonwealth must prove beyond a reasonable doubt that appellant failed to disclose a fact to which a reasonable man would attach importance in determining his choice of action in the transaction in question, and this includes any fact that in reasonable and objective contemplation might affect the value of the corporation’s stock.” See Securities and Exchange Commission v. Texas Gulf Sulphur Co., supra.
. Section 511 provides:
Any person who wilfully violates any material provision of this act, except section 407(a)1 for any rule under this act, or any order of which he has notice, or who violates section 407(a) knowing that the statement made was false or misleading in any material respect, may be fined not more than five thousand dollars ($5,000) or imprisoned not more than five years, or both. Each of the acts specified shall constitute a separate offense and a prosecution or conviction for any one of such offenses shall not bar prosecution or conviction for any other offense. No indictment or information may be returned under this act more than five years after the alleged violation.
70 P.S. § 1-511.