dissenting.
I join the Dissenting Opinion of Judge McEwen. I believe that the Majority and Concurring Opinions error by equating “legal duty” with a “duty imposed by law.” Resolution of the instant case is controlled by the definition of the phrase “a duty imposed by law.” I believe that this phrase, as it appears in 18 Pa.C.S.A. § 301(b)(2), encompasses only those duties which are imposed by statute or regulation and specifically does not include a contractual obligation.
A criminal action was brought against the Pestinikases charging that they failed to provide adequate life sustaining food, liquids, medicine, nourishment, clothing and care to Joseph J. Kly, who was entrusted to their care. As a result, Mr. Kly met his death at the age of 92. It was the Commonwealth’s position at trial that the Pestinikases breached a *407contractual duty by their failure to perform certain acts in caring for Mr. Kly, which formed the basis for their criminal liability. The trial court charged the jury that the law imposes criminal responsibility for the failure to perform an act if it is found that there exists a “legal duty to care” for another. N.T. 2/10/87 at 54. The jury was instructed to “first determine whether or not an oral contract to care for Joseph Kly was entered into between Joseph Kly and the defendant.” In judging the defendants’ guilt the jury was asked to determine whether the Pestinikases “owed Mr. Kly a legal duty of care by virtue of a contract,” whether the terms were clearly understood, whether the Pestinikases were able, but failed to perform the duties of care, and whether this omission was the direct cause of Mr. Kly’s death. Id. at 57.
Generally to be convicted of a crime the performance of a voluntary act is necessary, but an omission may be a basis for criminal liability in certain situations. Commonwealth v. Smith, 264 Pa.Super. 303, 399 A.2d 788 (1979). The general rule is set forth in 18 Pa.C.S.A. § 301 which provides:
§ 301. Requirement of voluntary act
(a) General rule.—A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
(b) Omission as basis of liability.—Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(1) the omission is expressly made sufficient by the law defining the offense; or
(2) a duty to perform the omitted act is otherwise imposed by law.
Since the crimes charged did not include in their definitions an omission as one of their basic elements, the trial court instructed the jury that guilt could be found based upon an omission as described in § 301(b)(2). The jury was charged that the duty to perform the omitted act may be imposed by law where it is based upon a contractual agreement. The court instructed the jury that “unless you find beyond a *408reasonable doubt that an oral contract imposed a duty to act upon Walter and Helen Pestinikas, you must acquit the defendants.” Id. at 55. I find that such an instruction was in error.
Duties which are “imposed by law” do not encompass those which arise out of a contract or agreement. A person who enters a contract does so freely. The duties contained in a contract are those which the person who is entering the contract agrees to undertake voluntarily in exchange for some other consideration. The duties themselves are not “imposed by law” they are assumed by the terms of the agreement. Although breach of the agreement may result in some legal recourse, the law will fashion a remedy only if the injured party seeks one. The Pestinikases’ omissions which resulted in a breach of their agreement to care for Mr. Kly do not constitute an omission which could be the basis of liability under § 301(b)(2).
The term “imposed by law” appears more that 50 times in the Pennsylvania statutes. I have found none which would suggest that a “duty imposed by law” is one which can arise out of a contract. Interestingly enough, the term even appears in the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164, § 205, as amended, 71 P.S. § 732-205(d), which provides:
(d) Powers when prosecuting. Whenever the Attorney General prosecutes a criminal action, or appeal, he may .employ such special deputies as are necessary for that purpose; such deputies shall take the oath of office and be clothed with all the powers, and subject to all the liabilities imposed by law upon district attorneys, including the power to sign informations or indictments. Whenever the Attorney General intervenes in a criminal action, the costs incurred as a result of the intervention shall be paid by the Commonwealth.
71 P.S. § 732-205(d) (emphasis added). Surely the Attorney General would concede that the legislature did not intend by this statute to impose the provisions of the common law upon special deputies of the Attorney General.
*409The legislature has employed the term “imposed by law” in the following provisions of the Crimes Code:
Section 102 of the Crimes Code, 18 Pa.C.S. § 102(a)(5) (“Territorial applicability—... a person may be convicted under the law of this Commonwealth ... if ... the offense consists of the omission to perform a legal duty imposed by the law of this Commonwealth with respect to domicile, residence or a relationship to a person, thing or transaction in this Commonwealth ...” (emphasis supplied));
Section 303 of the Crimes Code, 18 Pa.C.S. § 303(d) (“Absolute liability—When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established, unless the actual result is a probable consequence of the conduct of the actor.” (emphasis supplied));
Section 307(a) of the Crimes Code, 18 Pa.C.S. § 307(a)(2) (“A corporation may be convicted of the commission of an offense if ... the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law ...” (emphasis supplied)); and Section 307(c) of the Crimes Code, 18 Pa.C.S. § 307(c)(2) (“An unincorporated association may be convicted of the commission of an offense if ... the offense consists of an omission to discharge a specific duty of affirmative performance imposed on associations by law.” (emphasis supplied)). See also: 18 Pa.C.S. § 307(B)(2).
Similarly, the use by the legislature of the phrase “imposed by law” in other Pennsylvania statutes suggests that the legislature intended the word “law” to refer only to duly enacted statutes, ordinances or administrative regulations. See, e.g.:
The Act of April 9, 1929, P.L. 177, art. VII, § 706, as amended, 71 P.S. § 246(b) (“In addition to any other duties imposed by law, the Auditor General shall, on a quadrennial basis, conduct a financial audit and a compliance audit of the affairs and activities of the Pennsylvania Turnpike Commission.” (emphasis supplied));
*410The Act of April 9, 1929, P.L. 177, art. VIII, § 803, 71 P.S. § 273 (“The Department of State shall have the power, and its duty shall be, to care for, compile, publish, and certify, returns of elections, in all cases in which such duties shall heretofore have been imposed by law upon the Department of the Secretary of the Commonwealth, the Department of State and Finance, or the Department of State.” (emphasis added));
The Act of April 9, 1929, P.L. 177, art. VII, § 710, as amended, 71 P.S. § 250 (“The Pennsylvania State Police shall have the power and its duty shall be ... to collect information relating to crimes and incidents related to the race, color, religion or national origin of individuals ... information ... collected in accordance with this subsection shall be available for use by any agency required to furnish information, to the extent that such information is reasonably necessary or useful to such agency in carrying out the duties imposed on it by law...” (emphasis supplied)); The Act of July 15, 1957, P.L. 901, § 303, as amended, 53 P.S. § 41303(2) (“Each city governed by an optional form of government pursuant to this act shall, subject to the provisions of and limitations prescribed by this act, have full power to ... construct, acquire, operate or maintain any and all public improvements, projects or enterprises for any public purpose, subject to referendum requirements otherwise imposed by law, and to exercise all powers of local government in such manner as its governing body may determine.” (emphasis supplied));
The Act of June 23, 1931, P.L. 932, Art. XVII, § 1708, as amended, 53 P.S. § 36707 (“The city controller may appoint a deputy controller, who in case of the sickness, absence, or inability of such controller to act, shall have the same powers and shall perform the same duties as are imposed by law upon the city controller.” (emphasis added));
The Act of June 13, 1967, P.L.-, No. 21, art. 3, § 321, 62 P.S. § 323 (“The State general hospitals are declared to be hospitals for the care and treatment of the ill, without any restrictions other than those now or hereafter imposed by *411law upon all general hospitals, and except as each individual institution is restricted by the limitations of its facilities and equipment.” (emphasis added)); and
The Act of June 3, 1937, P.L. 1333, art. II, § 201, 25 P.S. § 2621(f) (“To receive from county boards of elections the returns of primaries and elections, to canvass and compute the votes cast for candidates and upon questions as required by the provisions of this act; to proclaim the results of such primaries and elections, and to issue certificates of election to the successful candidates at such elections, except in cases where that duty is imposed by law on another officer or board.” (emphasis added)).
Examination of this language indicates that obligations which arise from a contract are distinct from those which are imposed by law. In contrast to the wording found in § 301(b)(2) is the broader language used in 18 Pa.C.S.A. § 3927. Instead of referring to “duties imposed by law,” this provision, which concerns theft by failure to make required disposition of funds, contains the term “any legal obligation”. The decision of the General Assembly to utilize the more narrow term “duties imposed by law” in § 301(b)(2) must be considered intentional and in construing this provision this court must assume that the legislature intended every word of this statute to have effect. Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978).
I am concerned that the position argued by the Commonwealth in this case would subject those parties who breach a contract to criminal responsibility even though no specific crime involving their actions has been defined by the legislature. These concerns require us to remain mindful that a penal statute such as that found in the instant case should be strictly construed in favor of the defendant. Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978). The strict construction rule regarding penal statutes is based on the rationale that it would be unjust to convict a person without clear notice that the contemplated conduct is unlawful, as well as providing that individual with notice of the potential penalties. Commonwealth v. Broughton, 257 Pa.Super. 369, *412390 A.2d 1282 (1978). This rationale provides sound reasoning for the conclusion that the term “duties imposed by law” does not encompass those duties contained in a contract. This term does not imply that an individual who fails to perform a contract may, as a result of that failure to perform, be subject to criminal liability. However, the duty to perform the omitted act must be contained in a statute or regulation. Such duties which are pronounced in statutes and regulations are those “imposed by law.”
Unfortunately at the time of Mr. Ely’s death there were no statutes or regulations governing the Pestinikases’ conduct. Some measure of protection for the elderly in this Commonwealth is now offered in the Older Adults Protective Services Act, 35 P.S. § 10211 et. seq., which became effective July 1, 1988. This Commonwealth has through statutory provisions also sought to protect minors who are under the care of another. See: Child Protection Services Law, 11 P.S. § 2201 et. seq.; Adoption Act, 23 Pa.C.S.A. § 2102 et. seq.; Juvenile Act, 42 PA.C.S.A. § 6301. In fact the relationship of parent' and child has been found to be one which requires affirmative performance, and based upon this relationship a parent may be held liable for omitted acts under § 301(b)(2). Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979). However this concept has not been expanded to the spousal relationship. In Commonwealth v. Konz, 498 Pa. 639, 450 A.2d 638 (1982) the court ruled that an individual does not have an unrestricted duty to summon medical aid whenever their spouse is in serious or immediate need of medical attention.
Although the question presented in this case has not been presented before in this Commonwealth, other jurisdictions have considered and ruled on cases involving analogous fact situations. People v. Montecino, 66 Cal.App.2d 85, 152 P.2d 5 (1944) (where defendant’s failure to care for an elderly woman as agreed caused her death, the defendants conviction of involuntary manslaughter was upheld); State v. Brown, 129 Ariz. 347, 631 P.2d 129 (1981) (where it was held that the evidence was sufficient to sustain the defendant’s conviction *413for manslaughter in the starvation death of his boarder); and Davis v. Commonwealth, 230 Va. 201, 335 S.E.2d 375 (1985) (where court affirmed a daughter’s conviction for involuntary manslaughter in the death of her mother by failing to provide her with heat, food, liquids and other necessities.)
The case of People v. Montecino, supra, is cited in the Model Penal Code, Article 2, Section 2.01 at Comment 3, n. 30, in reference to an occasion where a “duty imposed by law” was said to arise from a “contractual duty.” In Montecino the court found that the defendant was “under a legal duty imposed by contract to care for [the deceased].” 152 P.2d at 13. In the case before us I too agree that the jury was free to find that the Pestinikases were “under a legal duty imposed by contract” to care for Mr. Kly. However as I have stated, a “legal duty” which is “imposed by contract” is not a “duty imposed by law” because the contractual duty is voluntarily undertaken and its breach is not, in itself, criminal. This distinction between the terms “legal duty” and “duty imposed by law” is evident in a reading of Montecino. Therein the court, citing to 29 C.J. 1159, notes that one may be chargeable for the care of another where the defendant was “under a legal duty imposed either by law or contract to care.” Id. (emphasis added.)
In Davis v. Commonwealth, supra, the court was seeking to determine whether the daughter “was under a legal duty to care for her mother.” 335 S.E.2d at 378. The court remarked that “when a death results from an omission to perform a legal duty, the person obligated to perform the duty may be guilty of culpable homicide.” Id. (emphasis added.) It also noted that “a legal duty is one either ‘imposed by law, or by contract’.” Id. citing Pierce v. Commonwealth, 135 Va. 635, 651, 115 S.E. 686, 691 (1923). Thus, a “duty imposed by law” is not synonymous with a “contractual duty.” Although both a “duty imposed by law” and a “contractual duty” are “legal duties” the two are not equivalent. The statute we are asked to interpret speaks only to “duties imposed by law”, the broader term “legal duty” is not present.
*414In State v. Brown, supra, the court was considering a statute similar to that found in this Commonwealth. The statute involved provided: “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing.” 631 P.2d at 131, citing A.R.S. Sec. 13-201. Referring to this statute the court noted that the failure to perform a duty imposed by law may create criminal liability. It stated: “In the case of negligent homicide or manslaughter, the duty must be found outside the definition of the crime itself, perhaps in another statute, or in common law or in a contract.” Id. First, I note that in this Commonwealth, common law crimes have been abolished. 18 Pa.C.S.A. § 107 states: “No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth.” Secondly, while I agree that the duty may arise from a statute other than the criminal statute involved, I cannot agree with the Brown court’s reasoning that this duty can arise from a contract.
With regard to contracts being a basis for criminal liability note that the Brown court referred to People v. Beardsley, 150 Mich. 206, 113 N.W. 1128 (1907). The following passage was quoted:
“The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter---- This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death.” (citations omitted) 113 N.W. at 1129.
State v. Brown, 631 P.2d at 131. (emphasis added.) The Beardsley court, as the courts in Montecino and Davis, was not concerned with a statutory interpretation of the phrase “duty imposed by law.” Instead the court was defining legal *415duty, and included as a part of that definition those duties “imposed by law” and other duties which are “imposed by contract.”
Because the statute we are asked to examine, which must be strictly construed, refers solely to “duties imposed by law,” and because a contractual duty alone is not one “imposed by law,” I join the dissent of Judge McEwen.
McEWEN, J., joins.