author: MONTEMURO, Judge:

text:
    495 A.2d 584
    COMMONWEALTH of Pennsylvania v. Edward E. STEWART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1984.
    Filed June 28, 1985.

      Peter T. Campana, Williamsport, for appellant.
    Kevin H. Way, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before MONTEMURO, BECK and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Lycoming County. Appellant, Edward E. Stewart, presents the following issues for our review: whether the trial court erred (1) in granting the Commonwealth’s motion to extend the time for trial since he was not brought to trial timely pursuant to Pa.R.Crim.P. 1100; (2) in denying his motion to suppress physical evidence; (3) in not granting his motion for mistrial based on the introduction of prior unrelated criminal activity at trial; (4) in refusing appellant’s requested point for charge; and (5) in denying appellant’s motion in arrest of judgment alleging a conflict between 18 Pa.C.S. §§ 908, 6102, and 6106. We find these allegations to be without merit, and affirm the judgment of sentence.

On April 20, 1982, a criminal complaint was filed against appellant charging him with violating the prohibited offensive weapons statute, receiving stolen property, owning a firearm as a former convict, and altering or obliterating marks of identification. Following a trial by jury, appellant was found guilty of possessing a prohibited offensive weapon. Post-verdict motions were denied and on May 6, 1983, appellant was sentenced to a term of imprisonment for a period of not less than fifteen (15) months nor more than four (4) years, and to pay the costs of prosecution. This appeal followed.

Appellant first contends that he was not brought to trial timely pursuant to Pa.R.Crim.P. 1100. Specifically, he argues that the Commonwealth did not produce sufficient evidence at the extension hearing to show due diligence warranting an extension of time for the commencement of trial.

Appellant’s case was scheduled for trial the week of October 11, 1982, to October 15, 1982. Upon agreement of counsel and appellant, the deadline was extended to November 19, 1982. The prosecution then filed a motion for an extension of time for commencement of trial pursuant to rule 1100(c). In its motion, the Commonwealth stated that a key and essential Commonwealth witness was scheduled to undergo a kidney operation on November 16, 1982 at the Williamsport Hospital and, thus, he would not be available for trial in November of 1982. Following a rule 1100 hearing, the Commonwealth was granted an extension of time for trial until December 10, 1982. Appellant then requested a continuance and waived rule 1100 until January 14, 1983. Appellant’s trial was held January 11, 1983 through January 13, 1983.

The Commonwealth must exercise due diligence in attempting to bring a defendant to trial within the period prescribed by rule 1100. Commonwealth v. Bradford, 339 Pa.Super. 215, 488 A.2d 628 (1985). The burden is on the Commonwealth to prove by a preponderance of the evidence, that it has met the requirements of rule 1100(c). Commonwealth v. Bolden, 336 Pa.Super. 243, 485 A.2d 785 (1984). In reviewing the ruling of a hearing court that the Commonwealth has met this burden, we consider only the evidence presented by the Commonwealth and so much evidence as, fairly read in the context of the record, remains uncontradicted. Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983). This court has held that “[w]hen despite the exercise of due diligence, the Commonwealth cannot bring a defendant to trial within the prescribed period, a court may properly grant an extension.” Commonwealth v. Bradford, supra. The test applied in these cases to determine whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983).

After an independent review of the evidence presented at the extension hearing in the case sub judice, we find that the Commonwealth presented sufficient evidence at the hearing to support the trial court’s finding that the Commonwealth acted reasonably and with due diligence in attempting to bring appellant to trial. At the hearing, Dr. Paul Leber, the witness’ physician, testified that the witness was in the hospital and that a few days prior to the hearing surgery on the witness’ kidney was performed.

Regarding the unavailability of a witness, we have previously noted, “ ‘[w]hen witnesses become unavailable toward the end of the Rule 1100 time period — whether through vacation, illness, or other reasons not within the Commonwealth’s control — the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.’ ” Commonwealth v. Williams, supra, 317 Pa.Superior Ct. at 470, 464 A.2d at 418 (quoting Commonwealth v. Sinor, 264 Pa.Super. 178, 183 n. 5, 399 A.2d 724, 727-28 n. 5 (1979)) (emphasis added). In the instant case, the Commonwealth’s witness was scheduled to undergo a kidney operation during the week appellant’s case was scheduled for trial. The Commonwealth acted reasonably and with due diligence; however, the witness’ illness and hospitalization prevented him from testifying. Thus, the unavailability of the witness occurred despite the Commonwealth’s due diligence. An extension may be granted in circumstances where a witness has been hospitalized, since that situation is beyond the Commonwealth’s control. Commonwealth v. Reihart, 302 Pa.Super. 515, 449 A.2d 35 (1982).

Appellant also contends that the unavailable witness was not an essential witness because some of his testimony was cumulative to the evidence provided by two (2) other witnesses at trial. We find this argument without merit.

Once the Commonwealth produces testimony that the witness is unavailable it need only provide reasons why the witness is important to its case. Commonwealth v. Schuster, 288 Pa.Super. 310, 431 A.2d 1063 (1981). In Schuster, this court stated:

[U]nless the unavailable witness is one whose testimony is clearly unnecessary or patently cumulative the determination of whether the witness is important to the Commonwealth’s case should be left to the exercise of prose-cutorial discretion.
This standard provides due recognition to the prosecution’s responsibility in determining which witnesses are important to most effectively present the Commonwealth’s case while insuring that the defendant’s right to a speedy trial is not thwarted by claims of unavailability of unnecessary witnesses. Moreover, we do not believe that an extension or dismissal hearing should evolve into an evidentiary hearing on the admissibility of the evidence which the Commonwealth intends to introduce at trial.

Id., 288 Pa.Superior Ct. at 318, 431 A.2d at 1067.

In the instant case, at the rule 1100 hearing, the Commonwealth testified that the witness was essential because he could testify as to appellant’s possession of the sawed-off shotgun and the alteration of the identification marks on a revolver. The trial court in its findings of fact found,

1) That the Commonwealth has established by a preponderance of the evidence the following:

a) Mr. Walter Moorehouse is a key and essential witness in the Commonwealth’s case.
b) The testimony of Mr. Walter Moorehouse is crucial to the Commonwealth’s case.
c) Mr. Walter Moorehouse is not available for trial on November 18th or 19th because of a recent kidney operation.
d) The Commonwealth has used due diligence in the preparation of this case but is unable to proceed because of the absence of the key witness, Mr. Walter Moorehouse.
e) The testimony of Mr. Walter Moorehouse is not cumulative.

Trial Court Order, November 18, 1982, at 1-2. Thus, the Commonwealth provided sufficient reasons why the witness’ testimony was essential to its case.

We conclude that the Commonwealth acted with due diligence considering the factual situation presented and that appellant’s right to a speedy trial was not violated. Accordingly, we find that the court correctly granted the Commonwealth’s motion for extension of time.

Appellant next contends that the court erred in denying his motion to suppress. He argues that the search of his home was unlawful because the search warrant was improperly executed. Specifically, he alleges that the forceful entry into his home was a violation of the “knock and announce rule” (Pa.R.Crim.P. 2007). Appellant claims the knock and announce rule was violated since the officers, not knowing whether anyone was present, executed the search warrant by forceably entering the residence when no exigent circumstances existed.

Rule 2007 provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

In the instant case, testimony at the hearing established that the officers knocked at the door, announced their identity and purpose, waited for a response, and forcibly entered when they received no response. Trial Court Opinion, November 24, 1982, at 15. Further, the evidence established that the police watched appellant’s home for approximately one week prior to the search. A pattern was revealed in which appellant and other people appeared at the home in the early afternoon and remained until the early morning hours. On the day of the search, the police arrived at appellant’s home at 11:00 a.m., and remained outside until 1:30 p.m. When no one appeared at the residence, the police commenced the search. The presence of exigent circumstances was unnecessary before the forceable entry into the residence since the police, complying with rule 2007(a), announced their identity, authority, and purpose and waited a reasonable period of time for a response before entering.

Appellant also contends that “forceful and violent entry ought not to be allowed if there is no response to a knock, unless the officer executing the search warrant is confronted by one of the exigent circumstances.” Appellant’s brief at 21. Section (c) of rule 2007, however, clearly states “[i]f the officer is not admitted after such reasonable period, he may forceably enter the premises.” Upon a review of the record, we find that the action of the police officers was reasonable under the circumstances and complied with Rule 2007.

Appellant also complains that the scope of the search was that of an exploratory search for evidence not specifically described in the warrant since the police seized not only items described in the warrant, but also items which were not described. He argues that all forty-one of the items seized in the search should have been suppressed. We disagree and find that the police were not conducting a random exploratory search. Thus, for the reasons which follow, we conclude that appellant’s argument lacks merit.

The Commonwealth contends that the seizure was justified by the “plain view” doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979), we explained this doctrine as follows:

Coolidge ‘emphasized that under the so-called “plain view” doctrine it would sometimes be permissible for police to seize items found while executing a search warrant naming other objects[.]’ W. LaFAVE, 2 Search and Seizure 165 (1978); see 403 U.S. at 465-68, 91 S.Ct. at 2037-39. The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of discovery, and it must be immediately apparent to them that the evidence is of incriminating character. See 403 U.S. at 465-69, 91 S.Ct. at 2037-40; Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).

Id., 273 Pa.Superior Ct. at 528, 417 A.2d at 1174. See also Commonwealth v. Terra, 292 Pa.Super. 250, 437 A.2d 29 (1981).

Upon examination of the record, we agree with the Honorable Thomas C. Raup’s analysis of the items seized from appellant’s residence which met the above plain view requirements. The police came upon those items inadvertently, in a place where they had a legal right to be at the time of discovery, and the incriminating character of the items was apparent to the officers. It was apparent to the officers that those items were incriminating since they possessed significant characteristics of being stolen items. Thus, these items were legally seized.

The suppression court then found that four of the items seized which were not described in the warrant “[did] not carry what in the court’s opinion would be any immediately apparent incriminating characteristics.” Suppression Court Opinion at 18. However, even if these items were illegally seized, this would only affect their admissibility and would not invalidate the entire search. The fact that items outside the warrant were taken does not necessitate suppressing those items which were legally seized. If a search is performed, “within permissible limits, the improper seizure of particular articles does not taint the search or the seizure of proper articles. ‘Only those items improperly seized, or their poisoned fruit, are suppressible, since they are the only items with respect to which the defendants’ Fourth Amendment rights were violated.’ ” Commonwealth v. Jones, 229 Pa. Super. 224, 235-36, 323 A.2d 879, 884 (1974) (footnote omitted). “[W]hile the police may not now make evidentiary use of the articles improperly seized, they may still introduce into evidence those things found on the premises which were legally seized.” Id. Even if the four items in the instant case which were not described in the warrant were not properly seized pursuant to the plain view doctrine, they were never introduced into evidence at trial by the Commonwealth. Thus, appellant suffered no prejudice and we find his arguments without merit.

Appellant’s third argument is that he is entitled to a new trial since evidence of unrelated criminal conduct by appellant was received on several occasions during trial and during the prosecution’s closing arguments.

The decision whether to grant a mistrial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984); Commonwealth v. Colon, 264 Pa.Super. 314, 399 A.2d 1068 (1979).

With respect to evidence of other criminal activities of a defendant which have no relation to his current charges, the general rule is that the Commonwealth may not introduce such evidence. Commonwealth v. Coburn, 336 Pa.Super. 203, 485 A.2d 502 (1984). The Pennsylvania Supreme Court, however, has stated, “ ‘[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial.’ ” Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981) (quoting Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977)). Thus, there is “no per se rule requiring a new trial for every reference of this type. The decision whether to declare a mistrial when faced with these situations is addressed to the sound discretion of the trial judge.” Commonwealth v. Colon, supra, 264 Pa.Super. at 321-22, 399 A.2d at 1071. “The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Coburn, supra, 336 Pa.Super. at 208, 485 A.2d at 505 (citing Commonwealth v. Richardson, supra) (emphasis in original). When the court “is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless.” Commonwealth v. Green, 315 Pa.Super. 564, 576-77, 462 A.2d 736, 742 (1983); Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979). Further, “[m]ere ‘passing references’ to prior criminal activity do not warrant reversal unless the record illustrates that prejudice resulted from the references.” Commonwealth v. Bowermaster, 297 Pa.Super. 444, 451, 444 A.2d 115, 118 (1982) (citing Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979).

Applying these criteria to all of the challenged testimony in the instant case, we conclude that the remarks objected to did not rise to the level of depriving appellant of a fair and impartial trial and, therefore, no grounds for a mistrial existed. Upon an independent review of the record, we find that the trial court in its opinion thoroughly examined and correctly disposed of appellant’s arguments relating to the challenged testimony given at trial. (See footnote seven for the context of these arguments.)

Further, we find appellant’s final argument in support of his contention that unrelated prior criminal activity by appellant was improperly introduced at trial to be without merit. He argues that the District Attorney during closing argument indicated that appellant had been involved in other crimes by stating that minnows must be used to catch a shark. Upon review of the record available to us, we find that the alleged comments did not constitute an improper reference to prior criminal activity, and, thus, the court did not abuse its discretion in denying appellant’s motion for a new trial.

In his remaining two arguments, appellant alleges that a conflict exists between 18 Pa.C.S. §§ 908, 6102 and 6106. He first argues that the court erred in refusing the following point for charge concerning the above statutes:

I hereby instruct you that the law of the Commonwealth of Pennsylvania allows someone to possess a firearm in their own home even though they do not have a license to do so. A firearm includes any shotgun with a barrel less than 24". If you find that Mr. Stewart was in possession of the sawed-off shotgun in this case, but that he was only in possession of said shotgun in his place of abode, then you must find him not guilty of the charge entitled ‘prohibitive offensive weapon.’

Appellant’s brief at 46. Second, appellant contends that the court erred in denying his motion in arrest of judgment which alleged a conflict between 18 Pa.C.S. §§ 908, 6102 and 6106.

During a search of appellant’s residence, police seized, among other items, a 16 gauge sawed-off shotgun. Appellant was subsequently charged and convicted of possessing a prohibited offensive weapon under section 908 of the Crimes Code. 18 Pa.C.S. § 908. On appeal, in support of both contentions four (4) and five (5), he argues that since the shotgun seized from his residence had a barrel length of 8% inches, it should be classified as a “firearm” under section 6102 and not a “prohibited offensive weapon” within section 908. Accordingly, he claims, under issue four (4), that the trial court erred in not instructing the jury that an individual may possess a “firearm” in their place of abode without a license, and alternately, he argues under issue five (5) that he should have been discharged because he was never charged with carrying a “firearm” without a license under section 6106. Finding no conflict between sections 908, 6102 and 6106, we firmly reject appellant’s arguments.

In interpreting the statutes before us, our goal is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a) (1964-83 Supp.); Commonwealth v. Bigelow 484 Pa. 476, 399 A.2d 392 (1979). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provision.” 1 Pa.C.S. § 1921(a) (1964-83 Supp.). When interpreting a statute, “we are guided by the presumption that the legislature did not intend a result that is absured, unreasonable or impossible of execution.” Commonwealth v. Bigelow, supra, 484 Pa. at 482, 399 A.2d at 394.

To analyze these statutes, we begin by examining the language of each statute. Section 908, prohibiting offensive weapons, defines the offense as follows: “A person commits a misdemeanor of the first degree if, except as authorized by law, he makes [,] repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.” 18 Pa.C.S. § 908(a). The statute further provides:

As used in this section ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

18 Pa.C.S. § 908(c). Section 6106(a), on the other hand, provides, “[n]o person shall carry a firearm in a vehicle or concealed on or about his person, except in his place, abode or fixed place of business, without a license therefore provided in this subchapter.” Firearm is defined in section 6102 as “[a]ny pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.”

That the legislature intended sections 908 and 6106 to apply to different weapons is evidenced not only by the language used in each statute, but also by the purpose behind each of the statutes. See Commonwealth v. Ponds, 236 Pa.Super. 107, 345 A.2d 253 (1975). Section 6106 recognizes that certain weapons have peaceful, as well as lethal potentialities and, thus, this section acknowledges that such “firearms” can be carried with a license.

The purpose behind section 908, however, is much broader. This court has emphasized:

“[t]he class of weapons dealt with in Section 908 have no peaceful purpose, and their only conceivable use is for purposes which our society has found to be criminal. By enacting Section 908 the legislature has clearly stated that an ‘implement for the infliction of serious bodily injury which serves no common lawful purpose’ shall not be allowed to exist in our society.”

Commonwealth v. Adams, 245 Pa.Super. 431, 436, 369 A.2d 479, 482, (1976) (citation omitted). The broad purpose behind section 908 can be seen in the class of weapons which it prohibits, i.e., offensive weapons. This section reflects a strong public policy to prevent persons from carrying weapons or any “objects” which have the appearance or characteristics of an offensive weapon. Commonwealth v. Adams, supra. As this court stated in Adams, “ ‘[t]he strength of this legislative prohibition is demonstrated by the fact that one can be convicted of violation of Section 908 for mere possession of the prohibited items even if there is no intent to employ such items criminally.’ ” Id., 245 Pa.Superior Ct. at 435, 369 A.2d at 482 (citation omitted). This clearly indicates that the legislature intended to prohibit the items enumerated in section 908 from being in free circulation in society. Commonwealth v. Ponds, supra.

The extreme offensive character of a sawed-off shotgun is further evidenced by this court’s decision in Ponds, supra. In Ponds, the court held:

The legislature in Section 908 was not interested in the operability of a sawed-off shotgun but merely in its possession. The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature inténded to prevent. The mere possession of an item identifiable as a sawed-off shotgun ... has no place nor possible use in the community and should be prohibited.

Id., 236 Pa.Super. at 113, 345 A.2d at 256. See also Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979).

Further, the comment to Model Penal Code § 5.07, upon which section 908 was modeled, is illustrative of the type of weapons that the legislature intended to prohibit, as opposed to those excluded from prohibitive status. The comment states, “In the case of weapons, the legislature goes further, prohibiting absolutely, or with very narrow possibilities of justification, possession or dealing with certain kinds of weapons regarded as having substantially no lawful uses, e.g., bombs, machine guns, sawed-off shotguns, blackjacks.” Model Penal Code § 5.07, Comment, (Tent. Draft No. 13, 1961) (emphasis added). The comment continues as follows:

[Ojther weapons like sporting rifles, shotguns and revolvers, and dangerous implements which have peaceful as well as lethal potentialities, like knives and straight razors, cannot be dealt with by drastic prohibition. Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.

Id. See also Commonwealth v. Rose, supra.

Citing the Model Penal Code, this court has noted: [I]t is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature. The latter are dealt with under sections of the Crimes Code.

Commonwealth v. Adams, supra, 245 Pa.Super. at 436, 369 A.2d at 482 (emphasis in original). See also Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

It is clear that section 908 was “intended to establish a prohibition very nearly absolute aimed at the implements or weapons themselves, whether enumerated or falling within the general definition, which are offensive by nature.” Commonwealth v. Adams, supra, 245 Pa.Super. at 435, 369 A.2d at 481-82. (footnote omitted).

Appellant relies upon the district court case of Commonwealth v. Zuback, 14 Pa. D & C 3d 710 (1980), to support the argument that his weapon can be included in either sections 6106 or 908. In Zuback, defendant was charged with possession of a sawed-off shot gun in violation of section 908. Despite the clear prohibition of section 908 against carrying a sawed-off shot gun, the court held that a sawed-off shotgun with a barrel length of 18 inches was a “firearm” under section 6102 and, thus, may be carried by an individual who has a license to carry “firearms” under section 6109. The district court clearly reached an erroneous result by ignoring the different purposes and legislative intent behind sections 6106 and 908.

We conclude that due to the offensive character of a sawed-off shotgun, the legislature intended such weapons to be prohibited under section 908, regardless of the length of the sawed-off barrel. When the barrel of a shotgun is sawed-off, the shotgun has been reshaped and “specially adapted” or altered for criminal purposes. 18 Pa.C.S. § 908(c) (emphasis added). This is precisely the type of weapon explicitly prohibited by section 908.

Accordingly, we find no conflict between sections 6102, 6106 and 908. The trial court correctly denied appellant’s requested jury instruction and his motion in arrest of judgment.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 908.

      . Id. at § 3925.

      . Id. at § 6105.

      . Id. at § 6117.

      . The warrant in the instant case described the property to be seized with sufficient particularity and, on appeal, appellant does not challenge the descriptions in the warrant. Thus, in this appeal we are not presented with a question concerning the validity of the warrant itself, but only the execution of the search warrant.

      . The suppression court ordered that all items not contraband per se or derivative contraband be returned to appellant.

      . Appellant alleges that the following testimony from various witnesses created an inference in the minds of the jurors that appellant had engaged in prior criminal activity:
      (1) During direct examination of Commonwealth witness, Richard Dortman, the following exchange occurred:
      Q. Did Mr. Stewart make any comment to you about what to do with the guns if the police came?
      A. The arrangement — I had agreed with Mr. Stewart if the police had come into the house with a warrant, that I would carry all the guns on my body with the drugs and say I was a guest in the house. N.T., January 11, 12 and 13, at 57.
      Following this exchange the trial court gave a cautionary instruction to the jury.
      (2) Mr. Dortman continued to testify as follows:
      Q. Whose vehicle were you driving?
      A. I was driving Edward Stewart’s vehicle.
      Q. What gun was in that vehicle?
      A. 357 Magnum.
      Q. Who had provided that gun to you?
      MR. CAMPANA: I am going to object at this point. I don't think it is relevant to be brought out on direct and I object.
      ******
      BY MR. BROWN:
      Q. Who provided that to you?
      A. Ed Stewart.
      N.T., January 11, 12 and 13, at 59-60.
      (3) Appellant also complains of Mr. Dortman’s testimony during direct examination that appellant followed him as he left a tavern and then directed a group of other men to physically assault him.
      (4) Appellant argues that the following exchange which occurred during direct examination of Jack Chapman by the Commonwealth was improper:
      Q. Were you ever present when Eddy told someone else to take the gun out of the house to travel with it somewhere?
      A. I was there when other people travelled with the gun in the car—
      MR. CAMPANA: I am going to object to the question. The answer is not responsive to the question.
      THE COURT: The answer is not directly responsive to the question. I am not going to order it stricken. However, I do feel that the objection is sustained — that the objection is proper and it is sustained.
      MR. BROWN: To the question, Your Honor?
      THE COURT: The answer is not responsive to the question. I am going to direct the answer be stricken.
      Ladies and Gentlemen of the Jury, when I strike an answer or question from the record, then you are not permitted to consider that in your deliberations.
      BY MR. BROWN:

        ******
      Q. Who do you recall him — On the occasion you observed, who did he ask to take the shotgun out?
      A. Me and Rick Dortman, Jack Gardner and there is another fella there, I can't remember who it was. He had the shotgun in the car. We were going over to the YMCA.
      Q. Excuse me, I am going to ask you not to get into the reasons behind it—
      MR. CAMPANA: I am going to object. Can we come to Sidebar? N.T., January 11, 12 and 13, at 81-82.
      (5) Commonwealth witness, Walter Morehouse, testified concerning the ownership of exhibit # 6, a .357 magnum with an obliterated serial number. Appellant alleges this testimony was improper.
      (6) Appellant also alleges that the following exchange was improper between Mr. Morehouse and the Commonwealth:
      Q. Did anything happen when you were coming to the Courthouse?
      A. I was approached by—
      MR. CAMPANA: Objection.
      THE COURT: Overruled.
      The Witness: I was approached by Eddy.
      BY MR. BROWN:
      Q. Was he with anybody?
      A. Rick — I mean yes, he was with Kevin Hadders.
      Q. Where was this?
      A. On the Corner of Court and Willow.
      Q. Did he say anything to you?
      A. He asked me if I was going to testify.
      Q. If you would repeat that conversation. What happened?
      MR. CAMPANA: Objection, Your Honor.
      THE COURT: Overruled.
      BY MR. BROWN:
      Q. Repeat the conversation.
      A. He said to me if I testify it wouldn’t be good for me.
      Q. Did Mr. Stewart say that?
      A. Eddy said it and so did Kevin Hadders.
      Q. Yesterday morning, did you report that to me?
      A. Yes, I did.
      Q. Did that scare you what they told you?
      A. Yes, considering what they did to another person.
      MR. CAMPANA: Objection, Your Honor.
      THE COURT: Overruled.
      N.T., January 11, 12 and 13, 110-111.

      . The trial court found that this argument was abandoned since appellant did not address it in his brief.

      . The District Attorney’s closing argument was not recorded; only the discussion at sidebar concerning defense counsel’s objection was recorded.

      . Even appellant in his brief acknowledges that “this issue, by itself, does not warrant a new trial.” Appellant’s brief at 42, n. 1.

      . The barrel on the 16 gauge shotgun had been shortened to 8 ⅜ inches.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    495 A.2d 594
    In re ESTATE OF Ida Graham KETCHAM, Deceased. Appeal of Barbara Harrison JOHNSON. ESTATE OF Ida Graham KETCHAM, Deceased. Appeal of Eleanor Graham ROBB.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed June 28, 1985.

      A. Bruce Niccolo, Devon, for appellant (at 1637).

      William C. Bullitt, Philadelphia, for appellant (at 1620).
    Before TAMILIA, LIPEZ and SHIOMOS , JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   TAMILIA, Judge:

This is an appeal from the decree dismissing the exceptions of Barbara Harrison Johnson and sustaining those of Suzanne Ketcham Bornstein, adoptees of, respectively, a daughter and son of the testatrix, Ida Graham Ketcham. The issue before us is whether said adoptees are entitled to share in the distribution of income and principal from a testamentary trust. We affirm.

The facts as clearly delineated in the Opinion Sur Exceptions to Adjudication filed May 8, 1984 are as follows:

Testatrix, by will dated April 11, 1911, had left the residue of her estate in trust for the benefit of her three children, Walter Russell Ketcham, Eleanor H.G. Ketcham (now Harrison) and B. Graham Ketcham. One-third of the income was to be paid to each of them for life. Upon the death of a child, that share of income was to be paid to the issue, if any, of the deceased child until the trust terminated. If a child died without issue, then that share of income was to be divided among the surviving children or issue of deceased children until the trust terminated; The trust terminated upon the death of the last surviving child and at that time, principal shall be distributed “among my grandchildren by representation”, and upon failure of issue of the three children, then to the children of the brothers and sisters of testatrix. The trust has now terminated.
Walter Russell Ketcham died first without issue. B. Graham Ketcham died next survived by one natural child, Eleanor Graham Robb, and one adopted child, Suzanne Ketcham Bornstein, who is one of the exceptants. Suzanne was born on March 3, 1946 and was adopted by B. Graham Ketcham and his wife on January 23, 1948. Eleanor H.G. Harrison died last on April 30, 1979 without natural born issue. However, on November 6, 1978, when she was 85 years of age, Eleanor made application to adopt Barbara Harrison Johnson, the other exceptant herein, who was then married and 56 years of age. The adoption decree was signed by a Connecticut court on [December 21, 1978], and, subsequently, amended on June 11, 1980 after the death of Eleanor.

(Slip Op. at 1-2).

At the audit, the trustee contended that since Suzanne had been adopted while an infant by testatrix’s son, she was entitled to share in trust income and principal equally with her adoptive sister, Eleanor Robb. The trustee also maintained that Barbara Johnson, who had been adopted at age 56 by testatrix’s octogenarian daughter, was not entitled to share in the trust.

An evidentiary hearing was held before Judge Shoyer, the auditing judge, on November 21 and 26, 1980. Judge Shoyer ruled that only the natural child, Eleanor Graham Robb, was entitled to income or principal from the trust. The auditing judge concluded that it was the intent of testatrix, as found from her will and surrounding circumstances, to exclude adopted children.

Both adoptees filed timely exceptions to the auditing judge’s adjudications. By Decree dated May 8, 1984, the Orphans’ Court en banc sustained Suzanne’s exceptions and dismissed Barbara’s exceptions. The instant appeals followed.

Our appellate scope of review is summarized in Estate of Dembiec, 321 Pa.Super. 515, 468 A.2d 1107 (1983):

On appeal, the findings of an Orphans’ Court judge who hears testimony without a jury are entitled to the weight of a jury verdict. In re: Masciantonio’s Estate, 396 Pa. 16, 151 A.2d 99 (1959). This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).

Id., 321 Pa.Superior Ct. at 519-20, 468 A.2d at 1110. We turn now to consider the arguments presented by each appellant.

Regarding the claim of Suzanne Ketcham Born-stein, the lower court’s finding that she is entitled to share equally in the distribution of income and principal of the testamentary trust is in compliance with the rule of construction adopted in Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972). Simply stated, the Tafel Court held that in the absence of a clear expression in the instrument to the contrary, adoptees are embraced within general designations such as “children” or “issue”. Moreover, in Estate of Riley, 498 Pa. 395, 446 A.2d 903 (1982), our Supreme Court affirmed a decree allowing two adopted children of one of the testator’s grandchildren to share in the trust principal. The Riley Court held that:

Where, as here, a testator has expressed no clear intent with regard to adopted children and directs only that a distribution be made to “issue,” it is a settled canon of construction that the testator intended to include adopted children within his bounty. Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978) (bequest to “issue” presumed to include adopted children); Estate of Sewell, 487 Pa. 379, 409 A.2d 401 (1979) (same). See Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972) (adopted children permitted to take under bequest to testator’s “children”); Estate of Flinn, 479 Pa. 312, 388 A.2d 672 (1978) (bequest to “children” of testator’s children presumed to include adoptees); Estate of DeRoy, 481 Pa. 403, 392 A.2d 1355 (1978) (adopted child permitted to take under bequest to “children” of testator’s children); Estate of Biddle, 487 Pa. 616, 410 A.2d 782 (1980) (adopted child permitted to take under bequest to “children and issue” of testator’s grandchildren). See also Farmers Trust Co. v. Bashore, [498 Pa. 146, 445 A.2d 492] supra (conveyance to “children” of settlor’s children in inter vivos trust presumed to include adoptee).

Id., 498 Pa. at 397-98, 446 A.2d at 904-05. Here, since the testatrix’s will expressed no clear intent with regard to adopted children, the canon of construction adopted in Tafel applies, irrespective of any prior presumptions in the law regarding adoption. Thus, we agree with the court en banc that the auditing judge erred in concluding that the testatrix intended to exclude adopted children and hold that Suzanne Ketcham Bornstein is entitled to her share.

With regard to Barbara Harrison Johnson’s claim that she is entitled to share in the distribution of the principal of the testamentary trust because she lived with Eleanor H.G. Ketchum (now Harrison) since she was eighteen years old, we emphatically disagree. The sole purpose for her adoption was to secure an inheritance. This is reflected by the fact that in 1948, Eleanor declined to adopt Barbara upon learning that the existing law precluded any inheritance by adoptees. However, in 1978, once Eleanor learned that Suzanne (the other adoptee) would share in the trust distribution due to changes in the law, she proceeded to adopt Barbara, who was then 56 years old and married. Such a blatant attempt to rewrite the testatrix’s will by an adoption “undertaken by a person other than the testator to prevent a gift over in default of a natural ‘child’ or ‘children’ ” is proscribed. Tafel, supra, 449 Pa. at 454, 296 A.2d at 803.

For the foregoing reasons, we conclude that the court en banc correctly dismissed Barbara Harrison Johnson’s exceptions.

Accordingly, the decree dismissing the exceptions of Barbara Harrison Johnson and sustaining those of Suzanne Ketcham Bornstein is affirmed.

Decree affirmed.

      . We note that the decision of the lower court en banc represents a reversal of the auditing judge's conclusion in this case, a view capsulized in his dissent.

      . We note that at the time of execution of testatrix’s will, the law was clear that in the absence of any testamentary language demonstrating the intent of testator, it was presumed that the testator intended to exclude adopted children. However, in response to changing social attitudes and policies, our modern adoption statutes equate the rights of adopted children with natural children. For an excellent review of the law in this Commonwealth regarding adoption, see the Opinion of former Chief Justice Jones in Tafel.

        . In support of its conclusion, the lower court stated:
      The fact that testatrix had great pride in her family and her ancestry and the fact that she bequeathed the principal of the trust to the children of her brothers and sisters upon the failure of issue of her children are not sufficient facts to support the conclusion that there was an implied intent on the part of testatrix to exclude adoptees. A gift to "the children of my brothers and sisters” is no more a "call of the blood” than a gift to "my issue” or "my children”. A consideration of all the extrinsic evidence and all of the language of the will does not give a clear indication of the intent of testatrix in regard to adoptees one way or the other, i.e. whether they should be included or excluded.
      (Slip Op. at 5-6).

      . Several other jurisdictions have refused to permit an adult adoptee to inherit through his or her adopted parent where to do so would frustrate the probable intent and natural expectations of the testator/testatrix. See, e.g., Williams v. Ward, 15 Cal.App.3d 381, 93 Cal.Rptr. 107 (1971); First National Bank of Dubuque v. Mackey, Iowa, 338 N.W.2d 361 (1983); In Re Nowels Estate, 128 Mich.App. 174, 339 N.W.2d 861 (1983); In Re Adoption of P., 193 N.J.Super. 33, 471 A.2d 1220 (1983) (adoption of adult denied because the principal purpose was to permit adoptee to obtain a tuition-free education).

      . Since we unequivocably find that Barbara Harrison Johnson's adoption was carried out solely to secure an inheritance, we find no merit in Barbara's claim that she is entitled to her share because of the familial type relationship which developed between her and Eleanor H.G. Ketcham.


text:
    495 A.2d 598
    Edith SYMBULA, Administratrix of the Estate of Joseph J. Symbula, Deceased and Edith Symbula In Her Own Right, Appellants, v. JOHNS-MANVILLE CORPORATION and Johns-Manville Sales Corp., Raybestos-Manhattan, Inc., Owens-Corning Fiberglas Corp., Forty-Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corp., GAF Corp., Celotex Corp., Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Amatex Corp., Delaware Asbestos and Rubber Company, Pacor, Inc., Fibreboard Corp., Keene Corp., Gar-lock, Inc., J.P. Stevens, Inc., Turner-Newall, Ltd.
    Superior Court of Pennsylvania.
    Submitted March 27, 1985.
    Filed June 28, 1985.

      Martin Greitzer, Philadelphia, for appellants.
    Daniel J. Ryan, Jr., Philadelphia, for appellees.
    Before TAMILIA, LIPEZ and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   TAMILIA, Judge:

This is an appeal from the entry of an Order of summary judgment in the Court of Common Pleas of Philadelphia County. We affirm the Order of summary judgment in favor of appellees regarding the wrongful death action. Because we conclude that the lower court erred in dismissing appellants’ survival action as time-barred, we vacate the Order of summary judgment regarding the survivial action and remand with instructions to reinstate the complaint.

Summary judgment should be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In deciding whether this is so, a court must view the evidence in the light most favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt.

Berardi v. Johns-Manville, Corp., 334 Pa.Super. 36, 38-39, 482 A.2d 1067, 1068-69 (1984), quoting Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978).

Appellant’s husband died on September 27, 1976. Appellant commenced a wrongful death and survival action on January 24, 1979, alleging decedent’s death from injuries caused by exposure to asbestos and asbestos products manufactured, sold, and supplied by appellees during the course of his employment at the Philadelphia Naval Shipyard and elsewhere. The lower court held that the wrongful death action was time-barred under 12 P.S. § 1603, the one year statute of limitations applicable to wrongful death actions, and that the survival action was time-barred under 12 P.S. § 34, the two year statute of limitations. The court further held that the “discovery rule” was not applicable to toll the limitations periods, citing Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428 (1980), reversed 496 Pa. 119, 436 A.2d 181 (1981), and thus, appellant could not seek to toll the statutes of limitations based on her inability to discover the cause of decedent’s death.

Recently in Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 331-332, 491 A.2d 841, 842 (1985), we stated:

Our Supreme Court has recognized the equitable application of the discovery rule to toll the running of the statute of limitations in cases in which the plaintiff is unable, despite the exercise of due diligence, to know of an injury or its cause. See Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983). In “creeping disease” cases, involving diseases contracted from exposure to hazardous substances, the statute of limitations begins to run when the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135, 471 A.2d 493, 500 (1984) (en banc).
The equitable foundation of the discovery rule generally is no less sound in the context of wrongful death and survival actions. See Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428 (1980), reversed 496 Pa. 119, 436 A.2d 181 (1981) (prior statute of limitations). It seems clear that to permit the discovery rule if the allegedly tortious conduct results in personal injury, but to deny its application if the allegedly tortious conduct causes death, would be unjust, (footnotes omitted)

In Pastierik, the decedent died on April 4, 1978, two months before the effective date of the Judicial Code statute of limitations (June 27, 1978, 42 Pa.C.S.A. § 5524(2)), and a wrongful death and survival action was commenced on August 11, 1981, alleging decedent’s death from carcinoma caused by exposure to asbestos and asbestos products manufactured, sold and supplied by asbestos manufacturers during his course of employment. The lower court dismissed the action as time-barred, as the applicable statutes of limitations began to run from the date of decedent’s death and rejected the application of the “discovery rule” to toll the statutes of limitations. We vacated the judgments entered on the pleadings, and remanded the case so that the personal representative could assert the “discovery rule” under 42 Pa.C.S.A. § 5524(2) since the actions were not fully barred under the prior statutes of limitations within the meaning of § 25(b) of the Judiciary Act of 1976. We recognized the critical difference that the current statute of limitations measures the limitations period from the “accrual” of the “cause of action” when the repealed version controlling in Anthony v. Koppers, supra, used the dates of “death” and “injury”. See Powell v. Johns-Manville Corp., 342 Pa.Super. 544, 493 A.2d 724 (1985); McGowan v. University of Scranton, 759 F.2d 287 (3rd. Cir.1985).

Hence, the rule that emerges from Pastierik is that the “discovery rule” is applicable where the action is commenced after the effective date of the Judicial Code statute of limitations, and the decedent’s date of death was on or after June 26, 1977, with regard to wrongful death actions, and on or after June 26, 1976, with regard to survival actions, as both actions would be governed by the Judicial Code statute of limitations, 42 Pa.C.S.A. § 5524(2), since the actions would not be fully barred before the effective date of the Judicial Code.

Applying this rule to the instant case, the “discovery rule” is not properly applicable to the wrongful death action since the decedent died on September 27, 1976, and the action was fully barred under the prior statute of limitations. Anthony v. Koppers, supra. Hence, the lower court did not err in entering summary judgment in favor of appellees on appellant’s wrongful death action.

However, the “discovery rule” is properly applicable in the survival action since this action was not fully barred prior to the effective date of the Judicial Code as the decedent died on September 27, 1976. So far as appears in the record, the decedent, despite due diligence, did not know the cause of his injury before his death. It follows that his personal representative may sue for his injuries until the expiration of a period of two years from “the time the cause of action accrued.” 42 Pa.C.S.A. § 5524(2).

Thus, it is apparent that the lower court erred in granting summary judgment in favor of appellees in the survival action. Because the discovery rule is applicable to the survival action, the question of the timeliness of the action must be resolved by determining when appellant knew or reasonably should have known that the decedent was injured and that his injury had been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135, 471 A.2d 493, 500 (1984) (en banc).

[2] Accordingly, we affirm the order of summary judgment in favor of appellees regarding the wrongful death action. We vacate the order of summary judgment in favor of appellees regarding the survival action, and remand with instructions to reinstate the complaint.

Jurisdiction relinquished.

      . 42 Pa.C.S.A. § 8301.

      . 42 Pa.C.S.A. § 8302.

      . See Act of April 26, 1855, § 2, P.L. 309, 12 P.S. § 1603, (an "action for wrongful death shall be brought within one year after the death, and not thereafter”), repealed by Judiciary Act Repealer Act of April 28, 1978, § 2(a)[310], P.L. 202, effective June 27, 1978.
      The limitation period for a wrongful death action is now two years, and is codified at 42 Pa.C.S.A. § 5524(2). See 42 Pa.C.S.A. § 5502 for the method of computing periods of limitation under Chapter 55.

      . See Act of June 24, 1895, § 2, P.L. 236, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, § 2(a)[807],
      Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.
      The limitation period for this cause of action is two years, codified at 42 Pa.C.S.A. § 5524(2).

      . The Judiciary Act of 1976 provides in pertinent part that "[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act.” Act of 1976, of July 9, P.L. 586, § 25(b) (reprinted at 42 Pa.C.S.A. § 5524 (Purdon 1981)). 42 Pa.C.S.A. § 5524(2) provides that suit must be commenced within two years “from the time the cause of action accrued.”

      . Appellant also contends that: (1) admiralty law and the doctrine of laches apply in this case: (2) the application of the statutes of limitations without a "discovery rule” renders the statutes unconstitutional on equal protection and due process grounds; and (3) appellees’ failure to warn the users of asbestos products of their inherent hazards should estop them from asserting a statute of limitations defense. The first two issues have been decided adversely to appellant’s position. See Gravinese v. Johns-Manville, Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984); Volpe v. Johns-Manville, Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983). The third issue is meritless since neither the pleadings nor the record discloses any evidence that would create an issue of fraud or concealment to estop appellees from asserting a statute of limitations defense. See Gravinese v. Johns-Manville, Corp., supra.


author: CERCONE, Judge: WIEAND, Judge,

text:
    495 A.2d 601
    Nathaniel G. WOOD, Executor of the Estate of Reverend George H. Wood, deceased, Appellant, v. Mark E. SMITH and Robert Whittaker, Ind., and t/a Smith and Whittaker, a Partnership.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1984.
    Filed June 28, 1985.

      Richard A. Weisbord, Philadelphia, for appellant.
    Michael S. Valimont, Doylestown, for appellees.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This appeal arises from an Order of the Court of Common Pleas of Bucks County, sitting en banc, denying appellant’s (plaintiff below) motion for a new trial. The case arose from an unfortunate mishap wherein the plaintiff’s decedent fell off a scaffolding which had been erected outside of his house by the defendants with whom he had contracted to do masonry work on his home. The executor of the deceased’s estate (“appellant”) commenced actions in trespass for wrongful death and survival against the defendants. The case was tried before a jury. The jury found the decedent to be comparatively negligent and assessed that negligence at fifty percent (50%). The jury awarded damages in the amount of $10,000 in the wrongful death action and found no damages in the survival action. The court molded the verdict into an award in favor of the plaintiff in the amount of $5,000.00.

The appellant raises several issues in this appeal. They are (1) the jury’s award of $10,000 in wrongful death damages was inadequate; (2) the trial court erroneously charged on wrongful death damages; (3) the trial court erred in refusing plaintiff’s request to offer rebuttal evidence on the issue of the decedent’s contributing negligence; (4) the trial court erred by refusing to explain decedent’s right and duty as a landowner to inspect the work of his independent contractors; and (5) the lower court erred in refusing to adequately define the concept of negligence.

In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970). We will look to the charge in its entirety, against the background of evidence in the case, in order to determine whether an error was committed and whether any prejudice resulted. Jacob Kline Cooperage, Inc. v. Kistler, Inc., 286 Pa.Super.Ct. 84, 89, 428 A.2d 583, 586 (1981).

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide. The instructions must give the jury a reasonable guide for the determination of the question of the defendant’s or plaintiff’s alleged negligence and on the degree of care or duty to inspect required by any person. The jury cannot determine whether a party is guilty of negligence or contributory negligence without knowing the degree of care required of that party. See, generally, Crotty v. Reading Industries, 237 Pa.Super.Ct. 1, 345 A.2d 259 (1975).

The appellant argues that the trial court erred in its instructions to the jury on the concept of negligence generally. Specifically, appellant argues that the trial court erred by refusing to explain the decedent’s right and duty as a landowner to inspect the work of his independent contractors and by refusing to explain the legal significance of government and industry standards which had been testified to during the trial.

We look first to instructions on government and industry standards. The defendants submitted evidence that the scaffolding had been constructed by such methods as are generally used in the trade. The plaintiff submitted evidence that the scaffold did not comport with Occupational Health and Safety Act (“OSHA”) and American National Standards Institute (“ANSI”) standards pertaining to scaffolding. All of this evidence was properly admitted. In Brogley v. Chambersburg Engineering Co., 306 Pa.Super.Ct. 316, 452 A.2d 743 (1982), we held that evidence of OSHA regulations is admissible as a standard of care, the violation of which is evidence of negligence. See, also, Restatement (Second) of Torts § 286; and, 27 P.L.E. § 175, Violation of Statute or Ordinance: “Proof of the violation of a statute or ordinance is permissible, not as conclusive proof of negligence, but as evidence to be considered with all other evidence in the case.” Accord: Riegert v. Thackery, 212 Pa. 86, 61 A. 614 (1905) (The Supreme Court recognized that the jury could be instructed on the weight to be given municipal ordinances in a negligence case.)

The specific question to be discussed here is whether, or to what extent, the trial court was required to instruct the jury on the relevance of such standards to the issue of negligence. The trial court’s instructions which most directly related to this issue were as follows:

Therefore, in determining whether the defendants were negligent, the test would be whether they exercised such care in the erection and maintenance of the scaffold as an ordinary prudent and careful person would have exercised in the same situation and under the same circumstances.

We find that in the context of the entire charge and in view of the fact that the jurors were presented with two standards of conduct, the above quoted charge is an insufficient explanation of the degree of care required by the defendants. Without further explanation, the jury may very reasonably have assumed that since the defendants were not required by law to adhere to the OSHA or ANSI standard, their failure to do so was irrelevant. As it reads, the charge seems to indicate that the defendants’ conduct need only be measured against that generally used in the trade and not against the more stringent OSHA and ANSI standards. The customary method of performing work could be a negligent method despite the fact that it was in general use in the trade and could, if the evidence warranted it, be found so by the jury. See DeMarco v. Frommyer Brick Co., 203 Pa.Super.Ct. 486, 492, 201 A.2d 234 (1964).

Where a charge is generally accurate, but misleads the jurors on a critical issue, a new trial should be granted. Hamil v. Bashline, 481 Pa. 256, 275, 392 A.2d 1280, 1289 (1978). See also, Leopold v. Davies, 246 Pa.Super.Ct. 176, 369 A.2d 868 (1977). The charge as previously quoted was not inaccurate. It was, however, incomplete and misleading when reviewed in the totality of the circumstances. The issue of the defendants’ negligent construction of the scaffolding is central to this case. Because of the trial court’s error in charging on this issue, and on other issues to be discussed, we must remand for a new trial.

The appellants’ next charge of error is that the trial court refused to instruct the jury on the decedent’s duty, as a landowner, to inspect the work of contractors on his land. Such a duty may have made the decedent’s presence on the scaffolding either lawful or, at the least, foreseeable to the defendants and thus increased their duty of care to protect him from their own acts of negligence. The trial court’s instructions to the jury on the issue of the defendant’s duty of care to the decedent provided, inter alia:

What is reasonable care depends on and must be in keeping with the use that the defendant expected to be made of that property by the plaintiff-decedent. You will recall that I said that they may be liable for resulting damage if he was lawfully on the scaffold. In that regard, then I will ask you to examine this evidence to determine for yourself whether or not:
Firstly, the plaintiff-decedent was invited onto the scaffold. Clearly, if you are persuaded by the weight of the evidence that he was invited onto the scaffold, then you will need to get into the question of whether or not the men who maintain that scaffold, owed a duty of care to the plaintiff-decedent, and whether they violated that duty of care by erecting a defective or dangerously unstable or otherwise defective set of scaffolding. You have the evidence on that and I am not going to get into that again with you.
If you find that the plaintiff-decedent was invited up to the scaffolding, and that there was a duty to make the place safe for him, and that they failed in a certain respect to do so; and if that failure to make that scaffolding safe, if you find it was unsafe, was the proximate cause of the plaintiff-decedent’s injuries and death, then he may recover ... Did the Reverend come upon this scaffold because he had a privilege to do so whether or not he was asked up?
I will ask you to examine the contract, the construction contract and the evidence on the question of whether or not the parties either by their contract or by their words, or by their conduct, vis-a-vis one another, reached a general understanding of the Reverend, as owner of the premises, had a duty or obligation and a correlative right to go and inspect the work which could not be done effectively without going on the scaffold; in which case he would have the right to be there; in which case, they owed him a duty to give him a safe scaffold.
But that is the investigation you will have to make. If you decide the question of whether he was invited, then I don’t think you would have to get to the second question, if you find in the first instance, that he was invited. I think you would only get to the second proposition if you determine from this evidence, that he wasn’t invited. And so, you will have to look into the question of whether uninvited or invited, whether he had a right to be on the scaffold by reason of his relationship to these parties, by reason of the contract, by reason of something they said or did that would give rise to a conclusion on your part that they understood that he had the duty, obligation and right to inspect the property and couldn’t do it effectively any other way except by being on it.
If you find that he did have a right to be on the scaffold in order to effectively carry out his right and duty to inspect the property, then you must pass to whether or not they violated their duty of care to him since they could reasonably have foreseen under that circumstance that he would one day be upon the scaffold doing the inspecting.
If you find however, that there was no contractual basis or anything in the conduct or words of'the parties which gave rise to such a privilege on his part to be on the scaffold, then pass to the third proposition which is: If he had no invitation to be there, and if he had no privilege to be there, then he was like anybody else, a trespasser.

It is clear from the foregoing exerpts of the trial court’s charge that the jurors were precluded from considering the decedent’s duty, imposed by law, to inspect his property for possible defects. Any contract or agreement between the parties could not have negated this duty which is imposed on every landowner in the interests of public safety. This charge by the court erroneously limited the jury’s consideration of decedent’s duty and, following from that duty, what the defendants should reasonably have foreseen. The questions of whether the decedent was required to ascend the scaffolding in the performance of this duty or whether he did so in a reckless manner are still questions for the jury to decide.

The trial court instructed the jury that if the decedent had no right or duty to be on the scaffold and the defendants had no previous knowledge of his use of the scaffold, then they (the defendants) owed him no more than the duty to refrain from injuring him as a consequence of wilful or reckless conduct. The issue of the decedent’s right to be on the scaffolding and the foreseeability of his actions are central both to the plaintiff’s claim that the defendants’ actions were negligent as well as to the defendants’ contributory negligence claim. The trial court’s erroneous instruction on these issues by its failure to instruct on plaintiff’s requested point for charge is reversible error.

Because we reverse and remand for a new trial, we do not reach the other issues raised by the appellant in this case.

Reversed and remanded for a new trial.

Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion in which MON-TEMURO, J., joins.

WIEAND, Judge,

concurring:

I concur in the decision to reverse and remand for a new trial. However, I would rest the granting of a new trial solely on the refusal of the trial court, upon request, to instruct the jury on the significance of the OSHA regulations which had been introduced into evidence. I find no other error.

As a general rule, “[a]n independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises.” Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 151, 189 A.2d 271, 277 (1963). See also: Bitting v. Wolfe, 368 Pa. 167, 82 A.2d 21 (1951); Engle v. Reider, 366 Pa. 411, 77 A.2d 621 (1951), overruled on other grounds, Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A.2d 482 (1964). It is only upon completion of the work that the owner is expected to make such inspection as a reasonably prudent lay person would be capable of performing. Doerr v. Rand’s, 340 Pa. 183, 186, 16 A.2d 377, 378 (1940); Martin v. Wentz, 145 Pa.Super. 424, 429, 21 A.2d 444, 446 (1941); 21 P.L.E. Labor § 203 (1959).

In the instant case, the Reverend George H. Wood had contracted with Smith and Whittaker to do some masonry-work at his home. A dispute arose concerning the placement of the final courses of brick. The masons requested Wood to come outside and advise them how he wanted the work completed. Wood ascended the scaffolding, but fell upon reaching the top and sustained injuries which caused his death. In a trial to recover survival and wrongful death damages, his executor contended that he had been “invited” to go upon the scaffolding to inspect the work. The contractor’s evidence, however, was to the effect that Wood had been told not to climb upon the scaffold, that he could see the work from the ground.

This issue was properly left to the jury upon adequate instructions. It was not error, as Judge Cercone would hold, to allow a jury to find that the owner was a trespasser if he ignored the contractor’s warning and climbed upon scaffolding which was in the possession and control of the masonry contractor. He was not privileged to enter upoh the scaffolding, which was under the control of the contractor, without the contractor’s consent. Therefore, I find no error in this aspect of the case.

In Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980), the Supreme Court held that the trial court had properly refused a point for charge that an award would not be subject to federal income tax. During the course of discussing this issue, the Supreme Court said: “[ijncome tax as it relates to damages should be mentioned neither in argument nor in jury instructions.” Id., 491 Pa. at 547, 421 A.2d at 680. A panel of this Court, in Logan v. Stelmach, 352 Pa.Super. 181, 472 A.2d 708 (1984) interpreted Gradel v. Inouye, supra, as mandating a new trial whenever the subject of income tax has been mentioned in jury instructions, even though the applicable law has been correctly stated. I disagree with this interpretation. The holding of Gradel was that it was proper to refuse a point for charge regarding the non-taxability of a verdict. The suggestion that income tax should not be mentioned in any way during argument or in jury instructions was dictum. That dictum does not require a new trial where, as here, the jury has been correctly instructed that it should neither “add anything or subtract anything to this award by reason of income taxes, for the simple reason that an award of this nature is not taxable.”

The trial court erred, however, when it refused a requested jury instruction that a failure to construct and maintain scaffolding in accordance with requirements of OSHA was evidence of negligence. Appellant had produced evidence that the masonry contractor’s scaffolding did not comply with OSHA or industry standards. An expert witness explained those deviations to the jury. Therefore, the jury should have been instructed regarding the significance of the deviations.

A failure to comply with OSHA regulations is not negligence per se, but it is some evidence of negligence. Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 452 A.2d 743 (1982). Appellant’s requested instruction was in accord with this rule of law. The trial court refused the request, and gave no other instruction regarding the significance of the expert’s testimony or the OSHA regulations.

Appellee argues that the omission was harmless. Although it must be conceded that OSHA regulations are intended to require minimum safety standards for employees, the decedent, if he had been invited to come upon the scaffolding, would have been included within the protection of the OSHA regulations. It must also be conceded that the jury did, in fact, find appellee and appellant’s decedent equally negligent in causing the fatal fall. It is possible, however, that the court’s inadequate instruction regarding negligence had a misleading effect on the jury’s determination. Therefore, I am unable to accept appellee’s argument that the trial court’s omission was harmless.

I find no merit in appellant’s arguments (1) that the trial court erroneously disallowed rebuttal evidence and (2) erroneously instructed the jury concerning recoverable damages. With respect to the alleged inadequacy of the ver-diet, I find it unnecessary to express an opinion. It may be observed, however, that the trial judge, who heard the evidence and saw the witnesses, believed it to be a “compassionate verdict, rendered by a jury which was struck by the patent evidence of the decedent’s overwhelming contributory negligence but reluctant nevertheless to turn the widow away totally empty-handed.” The record does not belie this assessment.

I concur in the result.

MONTEMURO, J., joins in this Opinion.

      . In appellee's brief on appeal, they note that the expert who testified as to the OSHA and ANSI standards stated that the primary function of the standards is for the protection of employees working on the scaffolding as opposed to non-employees. In response to this argument seeking to limit the standards from applying in this case, we note and adopt the Restatement (Second) of Torts § 286 which provides:
      The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
      (a) to protect a class of persons which includes the one whose interest is invaded, and
      (b) to protect the particular interest which is invaded, and
      (c) to protect that interest against the kind of harm which has resulted, and
      (d) to protect that interest against the particular hazard from which the harm results.
      ' We find that, as a matter of law, the OSHA and ANSI regulations were developed to protect any person rightfully on the scaffolding, not employees only.

      . We note that plaintiff did not ask for this specific charge, however, since we are remanding for a new trial, we suggest that this point should be made to the new jury.

      . It would be inequitable for the state, on one hand, to impose a duty on a landowner to inspect his property and, on the other hand, allow him to be found contributorily negligent for reasonably doing that which the state has said he must do.