¶1Dissenting Opinion by
¶2Whether great pains were taken to divest John K. Oswald of his property with the intent to defraud his creditors is not for us to decide but for a jury. In my opinion, the jury in the instant case was not properly instructed concerning the elements of a fraudulent transfer of property.
¶3The majority correctly points out that a jury might conclude that the transaction was not fraudulent if the purchasers acted without knowledge of the seller’s at*59tempt to defraud his creditors. While the intent of the seller is important, Sheffit v. Koff, 175 Pa. Superior Ct. 37, 100 A. 2d 393 (1953), “the fraudulent intent which will avoid a conveyance for value must be that of the purchaser.” United States of America ex rel. Marcus v. Morris, 360 Pa. 298, 303, 62 A. 2d 43, 45 (1948). See also Jarvis v. Bell, 296 Pa. 568, 577, 146 A. 153, 156 (1929); Queen-Favorite Building & Loan Assn. v. Burstein, 310 Pa. 219, 233, 165 A. 13, 15 (1933).
¶4The trial court, in my opinion, failed to set out these principles clearly and lucidly for the jury’s consideration. In its charge, the court concentrated exclusively on the intent of the seller and studiously omitted any reference to the intent, frame of mind or purpose of the purchasers in this transaction.
¶5At the most crucial portion of the charge, when explaining to the jury how to determine whether the transaction was consummated with fraudulent intent, the court stated: “The issue before you is to determine what the actual intent of John K. Oswald was at the time he transferred his interest in this partnership, in Oswald’s Market, to his two brothers.” [The court, at this point, distinguished actual intent from an intent presumed in law.] It then continued: “You are to find out as best you can, from the evidence which the parties are able to produce and have produced to you and under the rules of law as the Court has given them to you, what was the intent of John K. Oswald when he transferred his interest in this partnership over to his brothers. Did he intend to remove his property from the reach of his present or future creditors? Was that his actual intent, or was his intent to simply divest himself of his interest in this partnership for whatever purposes or reasons he may have had of his own? When you have made that determination, you will then he prepared to render your verdict.” (Emphasis added.).
¶6*60The majority opinion attempts to demonstrate that the requisite fraudulent intent of the purchasers was explained to the jury. It points to the trial judge’s various oblique references to a “bona fide”, “fair”, or “open and above board” transaction. It also explains that, “The jury might well infer from this record that the seller intended to put his assets in the meat market beyond the reach of this creditor and that his brothers conspired and cooperated with him to accomplish this.”
¶7It is interesting to note that the opinion of the court en banc on the motions for judgment n.o.v. and new trial was prepared by the trial judge. Significantly, this opinion makes no attempt to prove that the charge contained any of the implications which the majority finds in it. In fact, when explaining the relevance of §7 of the Uniform Fraudulent Conveyance Act in the instant case, the court en banc states: “Under these circumstances, the statute makes the actual intent of the party making the conveyance the principal issue to be resolved by the jury.” Again, at the end of its opinion, the court en banc declares: “. . . [Tjhe intent of the debtor is of prime importance in deciding whether or not a conveyance is fraudulent under Section 7 of the statute.”
¶8Appellants’ counsel objected to the court’s charge and requested an additional charge which would take cognizance of the intent of the purchasers. While I *61may agree with the majority opinion that this requested charge might have been more artfully prepared, it clearly drew the court’s attention to this most important element.
¶9 The court en banc also falls back on the record by declaring that “. . . the record shows that Prosper Oswald was cognizant of the fatal accident and pending litigation and could not, in any sense of the term, be considered a ‘good faith’ purchaser.”
¶10 In this regard, I agree with the majority that: “The niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure.”