author: TAMILIA, Judge:

text:
    548 A.2d 628
    Daniel K. WOLFE v. Michael STOVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Oct. 7, 1988.

      Lisle A. Zehner, III, Pittsburgh, for appellant.
    J. Bradley Kearns, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal by defendant Michael Stover from a December 21, 1987 Order awarding delay damages, pursuant to Pa.R.C.P. 238, to appellee Daniel K. Wolfe in a personal injury action.

On June 7, 1985, appellee commenced this action for injuries he received in a one car accident on November 10, 1984 while a passenger in a vehicle driven by appellant. A two day non-jury trial was held on October 13, 1987. By Order dated October 27, 1987, the trial judge found for the plaintiff in the amount of $3,600. The trial court’s decision was filed in the prothonotary’s office on October 28, 1987 and entered on the prothonotary’s docket on Thursday, October 29, 1987. However, the docket does not indicate that notice of the Order was given to appellee as required by Pa.R.C.P. 236. On November 4, 1987, appellee presented a petition for award of delay damages to the trial court. Appellant filed an answer to the petition and a motion to quash on November 12, 1987. Subsequently, appellee presented a supplemental petition for delay damages which appellant answered. On December 21, 1987, the trial court denied appellant’s motion to quash and awarded delay damages in the amount of $420, resulting in a total judgment of $4,020, plus court costs. This timely appeal followed.

Appellant’s sole claim on appeal is that appellee’s petition for delay damages under Pa.R.C.P. 238 was untimely because it was presented more than five (5) days after the trial court’s judgment in favor of appellee.

Rule 238 allows for the calculation of delay damages in any action seeking relief for bodily injury, death, or property damage. An award of delay damages acts to compensate the plaintiff for the time elapsed from the filing of the case until the verdict if the defendant fails to offer an adequate settlement. The purpose of the rule is to provide a sanction against a defendant who delays the commencement of trial. Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147 (1981). However, in 1986, the Supreme Court suspended certain provisions of Rule 238 because it found that the award of delay damages to a winning plaintiff without a finding of fault denied due process to the losing defendant. Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 65, 515 A.2d 1350, 1355 (1986). In Craig, the Court established a new procedure for assessing delay damages as follows:

[C]laims for delay damages are to be presented by petition within five days of a jury verdict or arbitration award. Within five days thereafter the respondent’s answer shall be due. If the plaintiff’s recovery resulted from a jury verdict, the judge who presided over the trial is to consider the petition and answer. Prior to reaching a decision, the judge may hold a hearing to resolve any factual disputes. If the plaintiff’s recovery resulted from an arbitration proceeding, the parties’ petition and answer shall be submitted to the next available arbitration panel, and a hearing shall be conducted to resolve any factual disputes. Thereafter a decision shall be rendered, awarding or denying delay damages consistent with Pa.R.Civ.P. 238(a)(1).
In making a decision on a plaintiff’s entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Id., 512 Pa. at 65, 515 A.2d at 1353 (emphasis added; footnote omitted). The Court specified this new procedure would be given prospective application from the date of its opinion in Craig, until such time that a new rule on delay damages can be promulgated by the Civil Procedural Rules Committee.

We are presented with the problem of applying the mechanical aspect, i.e. the five-day period, of the procedure set forth in Craig to a non-jury trial decision. The Supreme Court’s language in Craig discusses application of the new procedure for delay damages in terms of a jury case or an arbitration proceeding without addressing a non-jury trial situation. Craig itself was a jury trial case. However, in suspending provisions of Rule 238 the Craig Court stated the suspension was effective “for all cases now pending in the courts of this Commonwealth, and for any cases instituted hereafter,” Id., 512 Pa. at 65, 515 A.2d at 1353 (emphasis added), indicating the new procedure promulgated in Craig applies to all types of cases, including non-jury.

Craig requires a Rule 238 petition for delay damages be presented within five days of a jury verdict or arbitration award. Such decisions are invariably rendered on the last day of the proceedings before the jury or the board of arbitration, making the date of the decision readily known to the parties. With this in mind, calculation of the five-day period for presenting a petition for delay damages is relatively routine. As provided in 1 Pa.C.S. § 1910 and Pa.R. C.P. 106, any period of time shall be computed to exclude the first and include the last day of the period, and when the last day of any period falls on Saturday, Sunday, or a legal holiday such day shall be omitted from the computation.

In a non-jury trial, a trial judge may render his decision in open court at the end of trial or within seven days after the conclusion of trial, unless the case was protracted or of extraordinary complexity, under which circumstances a longer period may be allowable. Pennsylvania Rule of Civil Procedure 1038(c) provides as follows:

(c) the decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing. The trial judge shall render his decision within seven (7) days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity.

As stated in Rule 1038(c), upon the trial judge’s filing of the decision with the prothonotary, the prothonotary shall notify the parties of the filing date. Likewise, Pa.R.C.P. 236 requires the prothonotary to give written notice by ordinary mail to the parties of the entry of any order or judgment and requires the prothonotary to note the giving of notice on the docket.

Here, the trial judge’s Order entering judgment in favor of appellee is dated Tuesday, October 27, 1987, filed in the prothonotary’s office on Wednesday, October 28, 1987, and entered on the docket on Thursday, October 29, 1987. Neither the docket nor the record indicates whether notice of the decision was ever sent to' appellee. Appellee claims he received notice of the trial court’s decision on October 29, 1987, the same day it was entered on the prothonotary’s docket. Appellant’s brief does not dispute this claim. In calculating a five-day period from October 29, 1987, the first day of October 29th is omitted and the fifth day of Tuesday, November 3, 1987 is included. However, because November 3, 1987 was Election Day, a legal holiday on which the prothonotary’s office was closed, it must be omitted from the calculation pursuant to Pa.R.C.P. 106 and 1 Pa.C.S. § 1908, making Wednesday, November 4,1987 the final day for a timely presentation of a petition for delay damages. Appellee’s petition was presented to the trial court on November 4, 1987 and is, therefore, timely.

In determining the petition was timely, the trial court concluded Craig does not apply to non-jury decisions and if it were to apply, the directive in Craig of five days would mean five “business days and not five actual days” (Slip Op., Smith, J., 1/26/88, p. 4). Employing this “business day” approach, the trial court concluded the fifth day from Tuesday, October 27, 1987 — the day the court executed its decision in favor of appellee — was November 4, 1987. The court did this by omitting from calculation the weekend of Saturday, October 30th and Sunday, October 31st, as well as the legal holiday of November 3rd. We do not agree with the trial court’s determination that Craig did not contemplate a non-jury situation, and we also disagree with its approach and conclusion as to computation of time, as has been indicated above.

To reiterate, the computation of time is clearly controlled by Pa.R.C.P. 106 and 1 Pa.C.S. § 1908, neither of which mention the concept of “business day” in formulating the method of time computation. The only time a Saturday or Sunday is omitted from the calculation of time is when it is the last day of the time period.

As we stated earlier, the Supreme Court’s directives regarding Rule 238 in Craig apply to all cases. Craig supra, 512 Pa. at 65, 515 A.2d at 1353. While formulating the procedure for presentation of claims for delay damages, Craig did not address a non-jury situation, Pa.R.C.P. 126 dictates that the rules are to be liberally construed to secure a just determination and the Court intended that Craig remedy the “inequitable operation” of Rule 238. Id. By imposing the five-day period directed in Craig without taking into account the normal delay in notice of a trial court’s decision in a non-jury case, we would violate Craig’s attempt to provide a forum to assess fault for the delay pursuant to Rule 238. To extend Craig to a non-jury situation, notice is essential for commencing the five-day period for presenting a petition for delay damages. In a jury trial, actual notice is given at the time of verdict. In a non-jury trial, actual notice likewise may be given at the time of verdict, but in those cases such as the present one, when the decision is delayed, notice must be ascertained from some specified point of record, which is the time the prothonotary sends notice of the entry of the award. Accordingly, we hold that commencement of the five-day period for presenting a petition for delay damages in a non-jury case begins only when the prothonotary formally sends notice of the trial court’s award, unless the award was made in open court immediately following trial.

This is in accord with the procedural rules’ treatment of non-jury trials in other respects. For example, Pa.R.C.P. 227.1(c)(2) provides: “[p]ost-trial motions shall be filed within ten days after ... notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.” Thus, the ten-day period for seeking post-trial relief commences only when the prothonotary formally sends notice of the nonsuit, decision or adjudication to the parties. McCormick v. Blue Cross of Western Pennsylvania, 360 Pa.Super. 210, 520 A.2d 59 (1987).

In this case, the docket and record do not indicate if, or when, the prothonotary sent the required Rule 1038(c) and Rule 236 notice of the trial court’s decision to the parties. We find this to be of no consequence here. The prothonotary entered the trial court’s Order on the docket on October 29, 1987. This was the earliest possible date on which the prothonotary could have given the required notice which would trigger the five-day period. Appellee admits to receiving notice on that day and, as previously illustrated, presentation of the petition on November 4, 1987 was within five days of that date. Appellee therefore filed a timely petition for delay damages.

Accordingly, Order affirmed.

      . Pa.R.C.P. 238, Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage (in pertinent part):
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.1010 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

      . Pa.R.C.P. 236, Notice by Prothonotary of Entry of Order, Decree of Judgment (in pertinent part):
      (a) The prothonotary shall immediately give written notice by ordinary mail of the entry of any order, decree or judgment:
      (2) In all other cases, to each party who has appeared in the action or to the party's attorney of record.
      (b) The prothonotary shall note in the docket the giving of the notice and, when a judgment by confession is entered, the mailing of the required notice and documents.

      . Appellate courts may affirm the decision of the trial court by reasoning different than that used by the lower court. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987); Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984).


source: Caselaw Access Project

license: Public Domain

text:
    548 A.2d 632
    Denise DOLAN v. Thomas D. DOLAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Oct. 5, 1988.

      James Pappas, Johnstown, for appellant.
    Mark A. Gregg, Johnstown, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant-father appeals an Order dated January 12,1988 denying his petition to modify the custody and visitation Order of July 21, 1986 and refusing to disturb the enrollment of the parties’ daughter in Forest Hills School District, Cambria County, Pennsylvania, until further order of the court. The Order also provided there would be no interference with the religious training of the parties’ children at Holy Name Church when the father has visitation and custody.

The factual and procedural history surrounding this appeal follows. The parties to this custody action were married in 1980. Two children were born of the marriage, Jessica Marie Dolan, born July 22,1982, and Thomas Dennis Dolan, born November 26, 1983. On February 28, 1986, the appellant-mother filed a complaint in divorce which included a count seeking custody of the two children. A custody Order ,was entered on July 21, 1986, awarding primary custody to the mother and shared legal custody to the father, with the father to have custody essentially on weekends, alternate holidays and two nonconsecutive weeks during the summer. The custody Order also stated, “3. The legal right to make major decisions affecting the best interests of the children including but not limited to medical, religious, and educational decisions, is hereby awarded to both parents.” This appears to be an appropriate Order under the Rules of Civil Procedure, ACTIONS FOR CUSTODY, PARTIAL CUSTODY AND VISITATION OF MINOR CHILDREN, Rule 1915.1(b).

A divorce decree was entered on October 2, 1986 and a marriage settlement agreement, dated July 16, 1986, was incorporated by reference into the decree. The agreement, essentially the same as the July 21st Order, provided the parties would have shared legal and physical custody of the children, with the mother to be the principal physical custodial parent. The father was to have the same physical custody as granted in the July 21, 1986 Order. The only substantive difference between the agreement and the Order was the inclusion of Paragraph 3, as specified above, in the Order. Such an inclusion would, of course, supersede the agreement since incorporation into the divorce decree and a petition for a custody Order gave the court the power to modify the terms of the agreement in the best interest of the child. As such, the Order superseded the agreement. At 23 P.S. § 401.1 of the Divorce Code, an amendment, effective February 12, 1988, providing: “(b) A provision of an agreement [whether incorporated or merged into the divorce decree or not] regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances”, codifies the power of the court to modify an agreement of the parties, in the best interest of the child, when called upon to do so. While this section was not enacted into law at the time of the original Order, case law existed empowering the court to act. See Supko v. Monoskey, 314 Pa.Super. 469, 461 A.2d 253 (1983).

On May 7, 1987, the father filed a “PETITION TO MODIFY CUSTODY AND VISITATION ORDER” in which he stated Jessica would be five years old on July 22, 1987 and would begin kindergarten in the fall of 1987. The petition indicated appellant’s preference for Jessica’s attendance at Holy Name School, a Catholic facility located in Ebensberg, several miles from the mother’s home, while the mother intended to enroll the child in the public school, Forest Hills School, which was within walking distance of her home. The trial court, by the Order in question, denied the petition to modify. This timely appeal ensued.

Appellant first contends the court failed to examine the best interests of the children since it did not examine the evidence in its Opinion or make any findings in regard to the rationale behind each of the parties’ contentions and their reasonableness. Also, he argues that if the court affirmed appellee’s decision to enroll the children in Forest Hills School based on the sole fact that she has physical custody during the week, then the court’s decision is erroneous. Further, appellant urges the court erred in “reinstating” the July 21, 1986 Order, as he says this Order was modified by the agreement for shared legal custody which was incorporated as part of the divorce decree. As to the last contention, we have already discussed the relationship between agreements and Orders above, and in footnote 1, supra.

The standard of review under which appellate courts must operate in custody matters is broad; however, we may not reverse the decision of the trial court absent a gross abuse of discretion on the part of that court. See Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988); Barclay v. Barclay, 367 Pa.Super. 529, 533 A.2d 143 (1987). Broad review is necessary to insure the focus of the trial court was on the best interests of the child. Barclay, supra, 367 Pa.Superior Ct. at 531, 533 A.2d at 144.

In the instant case, a lengthy hearing was held on the issue of whether Jessica’s interests would be better served by her attendance at the local public school or the distant parochial school. Both parties testified and were cross-examined, as well as a second grade teacher from Holy Name, the superintendent of Forest Hills School District, a kindergarten teacher from Forest Hills, and a Catholic priest who is familiar with the arrangements Forest Hills parents make for the religious upbringing of their children.

Contrary to appellant’s contentions, the testimony of the witnesses revealed the rationale behind the mother’s desire for Jessica’s mode of education and her reason for deviation from the initial verbal agreement. While the mother did testify on cross-examination that prior to the divorce she had agreed with appellant to send the children to Holy Name in Ebensberg rather than to a different parochial school or public school which would be located closer to the marital residence in Mundys Corner than Holy Name, she explained that she felt the distance from her present home in Sidman to Holy Name was too great for the five-year-old (N.T. 11/15/87, p. 63-4). She expressed her concern that when the mini bus stops in front of their house in Sidman for Holy Name School, nobody is on it; and also, that the mini bus stops in Sidman at 7:25 a.m. and does not arrive at Holy Name until 8:25 a.m., and kindergarten does not begin until 9:00 a.m. (N.T. at 56, 64). As testified by Mr. Afton, Superintendent of Schools, Jessica would be the first on the bus in the morning and the last off the bus in the evening (N.T. at 33). She would be the only child from her community (Sidman) going to Holy Name (N.T. at 4). Also, she would be on the bus for extended mileage (66 miles each day according to objected to testimony (N.T. at 57)). To go to Holy Name she would have to arise at 6:30 a.m. and currently when she gets home, she needs a nap because she is tired, and she needs time with her brother, and the time and travel would cause her day to be long and rushed (N.T. at 58). In contrast, the mother said Jessica does take a bus to Forest Hills, although her home is within three tenths of a mile from the school and she could walk to the school (N.T. at 57). The mother explained her preference for the local school was based on her desire to have the five-year-old’s life “a little bit structured right now.” Id. The close proximity of Forest Hills School permits Jessica the option of walking, and provides her with playgrounds in a safe environment where she can engage in activities with neighborhood children and interact with neighborhood adults, and spend more time with her younger brother (N.T. at 57-62). She stated she wanted “what was best for Jessica” (N.T. at 61). The testimony also bore on the educational opportunities at each school thus presenting the court with many considerations beyond the fact of mother’s physical custody. The mother testified about her continuing intent to rear the children in the Catholic faith (N.T. at 59) and a Forest Hills teacher, who also teaches C.C.D. classes, testified that C.C.D. classes were available on Wednesday evenings (N.T. at 46). The mother was reared a Catholic and testified Jessica would be attending Holy Name if she was living in Ebensburg (N.T. at 67). Conversely, the father provided no testimony to rebut the mother’s position other than to rely on the original agreement without acknowledging the changed circumstances or the best interest of the child. The focus of the court was clearly on the child’s best interests. Our careful review of the record convinces us the mother’s decision to place the child in the Forest Hills school was sound, not motivated by any animosity or desire to disturb the custody agreement/order, and the Honorable H. Clifton McWilliams, Jr., President Judge, acted with sound discretion entering the only Order possible under the circumstances of this case.

The desire to have shared legal or physical custody in these cases is the result of the sociological and legal search from time immemorial, to provide a solution which Solomon could not, that is to have two parties alleging an interest in the child to have their way while retaining the wholeness of the child. Shared legal custody works only when the parents agree. Should there be a disagreement, obviously one or the other’s, and perhaps neither, view will prevail. In ' such instances, the court, while looking to the interests and desires of the parties, must ultimately rule in the best interest of the child.

Finding no abuse of discretion, we accordingly affirm the decision of the trial court as being in the child’s best interest.

ORDER AFFIRMED.

      . Although the petition's caption requests modification of the custody and visitation Order, the text refers only to the marriage settlement agreement. This, of course, does not limit consideration by the trial court or this Court to the agreement, as review will encompass all relevant Orders in terms of their effect.


author: POPOVICH, Judge:

text:
    548 A.2d 1224
    In re HARMAR COAL COMPANY. Appeal of Joseph P. CONNORS, Sr., Donald E. Pierce, Jr., William Miller, William B. Jordan and Paul R. Dean, as Trustees of the United Mine Workers of America 1950 Pension Plan, 1950 Benefit Plan, 1974 Pension Plan, and 1974 Benefit Plan, Collectively Known as the UMWA Health and Retirement Funds.
    Superior Court of Pennsylvania.
    Argued May 5, 1988.
    Filed Sept. 2, 1988.
    Reargument Denied Oct. 31, 1988.

      Michael D. Bedrin, Pittsburgh, for amicus curiae, Com. of Pa., Dept, of Environmental Resources.
    Thomas M. Zwilling and Edwin J. Strassburger, Pittsburgh, for H. Yale Gutnick, Receiver and Harmar Coal Co. Jeffrey T. Morris, Pittsburgh, for appellants.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying a petition to compel partial distribution of assets by the appellants, Trustees of the United Mine Workers Association Health and Retirement Funds. We affirm in a case of first impression.

The facts are not in dispute and reveal that a complaint in equity was filed by Consolidated Coal Company, one of the two shareholders in Harmar Coal Company (Harmar), on April 29, 1985, seeking the appointment of a receiver to wind-up the affairs of Harmar pursuant to the applicable Pennsylvania Business Corporation Law, 15 P.S. § 1001 et seq. By order dated May 3, 1985, a receiver was named, and he began the task of liquidating Harmar’s assets and running the business until it was completed.

It was not until the receiver had presented his third partial accounting for approval to the lower court that the Trustees, in August of 1987, filed a Motion to Compel Partial Distribution of Funds pursuant to Pennsylvania Rule of Civil Procedure 1534(c), which provides in pertinent part that:

The court at any time may order a partial distribution of money or property in settlement of claims....

Objections to the Motion were filed by the receiver, the Pennsylvania Department of Environmental Resources (DER) and Harmar Township. After oral argument, and in consideration of the Stipulation of Facts and other filings, the lower court denied the Trustees’ Motion (for unpaid contributions due the Funds pursuant to a collective bargaining agreement to which Harmar was a signator) as a general unsecured pre-receivership claim, not entitled to preference in payment. The lower court further concluded that the expenses incurred by the receiver, in attempting to comply with the environmental laws of Pennsylvania, were entitled to an administrative expense status, and, as such, took priority over the claim of the Trustees. This appeal followed.

The Trustees raise three (3) issues for our consideration which, when synthesized, center upon whether the cost of environmental clean-up by the receiver, on behalf of Harmar, is entitled to priority status as an administrative expense.

All parties agree that the issue at hand has yet to be decided by an appellate court in this Commonwealth. However, before addressing the merits of the issue raised, we find it necessary to determine whether the order appealed is a final one for appellate purposes. This is so despite the fact that no one challenges the appealability of the order in question, a matter into which we have the authority to inquire sua sponte. See Turner v. May Corp., 285 Pa.Super. 241, 245 n. 2, 427 A.2d 203, 204 n. 2 (1981).

Although one may argue that the Trustees, being listed as creditors of Harmar, have a protected right to receive reimbursement for the monies claimed, the fact remains that the expenditures made and to be made by the receiver, to remedy the environmental faux pas by Harmar, will deplete, or even entirely consume, whatever funds are at the receiver’s disposal for distribution to creditors.

In this sense, whether priority is to be accorded the Trustees’ claim is a right too important to be denied review until Consolidated Coal Company’s complaint in equity, seeking a winding-up of the business affairs of Harmar, has run its procedural course. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). To wait for such a point in the winding-up process to permit an appeal would require one to face, as noted by the Trustees at page 8 of their brief, “the likelihood that the remaining funds held by [the receiver] would be dissipated if a partial distribution w[ere] not ordered.” We see no need to do so in the case at bar, and, thus, we find the order appealed final since it places the Trustees out of court as to their request for a partial distribution of Harmar’s assets, and to require the litigant to await the completion of the winding-up process to lodge any complaints to whatever distribution may be forthcoming jeopardizes one’s right to receive the maximum amount possible under the law. See Cohen, supra; Bell, supra.

Having determined that the order at bar is subject to appellate scrutiny at this time, we turn to the resolution of whether the cost of environmental clean-up efforts is entitled to priority status as an administrative expense in a state dissolution proceeding.

The lack of any clear direction in this jurisdiction as to the issue posed necessitates our review of various federal decisions to aid us in making our ruling. But, before doing so, we note the precarious situation facing this Court. For example, on the one hand, we have a state-created business corporation law which regulates the orderly dissolution of a company so as to assure, to the greatest extent possible, that any monies owed to creditors of the faltering company are paid. On the other hand, we have the environmental policies of Pennsylvania dictating the preservation and protection of natural resources by those within its borders and to require rectification of any damages to the environment by those responsible. The tension exerted by these two competing forces is evident on the occasion where the costs of reclamation and indebtedness exceed the assets available.

In the bankruptcy field we find a fertile area from which we may glean guidance in resolving the case instantly.

In Penn Terra Ltd. v. Dept. of Environmental Resources, 733 F.2d 267 (3d Cir.1984), the Penn Terra mining operation was cited by the DER for violation of various state environmental protection statutes. Penn Terra entered into a consent order and agreed to rectify the infractions. However, instead of correcting the problems, Penn Terra filed for bankruptcy under Chapter 7 of the Bankruptcy Code — its debts ($660,000.00) exceeded its worth ($14,000.00).

After the DER obtained a preliminary injunction from Commonwealth Court against Penn Terra to correct the violations, Penn Terra filed a petition for contempt in bankruptcy court against the DER for violating the automatic stay provision of 11 U.S.C. § 362(a) by seeking a preliminary injunction. On appeal, the Third Circuit Court of Appeals reversed the bankruptcy and district courts’ rulings enjoining the DER from acting to force Penn Terra to remedy the environmental problems.

The Penn Terra Court, albeit not explicitly giving preference to state environmental laws calling for a debtor’s reclamation of land over the bankrupt’s creditors, impliedly sanctioned the priority to be accorded to a state’s efforts in remedying environmental hazards and the accountability for the restoration of the same by a bankrupt. In this regard, the Court wrote:

... it first is clear to us that the actions taken by DER in obtaining and attempting to enforce the Commonwealth Court’s injunction falls squarely within Pennsylvania’s police and regulatory powers. DER seeks to force Penn Terra to rectify harmful environmental hazards. No more obvious exercise of the State’s power to protect the health, safety, and welfare of the public can be imagined. Indeed, both the Senate and the House committee reports on the Bankruptcy Reform Act explicitly acknowledge environmental protection as a part of the State’s police power.

733 F.2d at 274 (Footnote omitted). Further, and more importantly, the Court noted that the preservation of the corpus of the debtor’s estate is not paramount when the rehabilitation of the environment is at stake. Id. at 278.

Even more to the point is the case of In re Laurinburg Oil Co., 49 B.R. 652 (Bkrtcy.D.N.C.1984), wherein the Bankruptcy Court was requested to decide whether the reasonable and necessary expenses to abate violations of North Carolina environmental pollution laws at a waste disposal facility could be classified as administrative expenses necessary to preserve the debtor’s estate pursuant to 11 U.S.C. §§ 503(b)(1)(A) and 507(a)(1). The Court did so hold in concluding that requiring the debtor to restore its waste disposal facility to a condition in which it would no longer constitute a public nuisance was a proper means by which to achieve the State’s objective of “preventing] further deterioration of the property and ... enhancing] its economic worth in the future.” 49 B.R. at 654.

Moreover, the concern of the judiciary in taking steps to prohibit a trustee, of a hazardous waste disposal company, from abandoning the situs of the problem in the face of state and federal environmental laws was exemplified by Midlantic National v. New Jersey Dept., 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986).

The Court in Midlantic refused to adopt a position which would have allowed a trustee in bankruptcy to exercise its power to “abandon” property under 11 U.S.C. § 554(a) because it posed dangers as a result of hazardous waste stored on the premises. As the United States Supreme Court worded it:

Neither the Court nor Congress has granted the trustee in bankruptcy powers that would lend support to a right to abandon property in contravention of state or local laws designed to protect public health or safety. As we held last Term when the State of Ohio sought compensation for cleaning the toxic waste site of a bankrupt corporation:
“Finally, we do not question that anyone in possession of the site — whether it is [the debtor] or another in the event the receivership is liquidated and the trustee abandons the property, or a vendee from the receiver or the bankruptcy trustee — must comply with the environmental laws of the State of Ohio. Plainly, that person or firm may not maintain a nuisance, pollute the waters of the State, or refuse to remove the source of such conditions.” Ohio v. Kovacs, 469 U.S. 274, 285, 105 S.Ct. 705, 711, 83 L.Ed.2d 649 (1985) (emphasis added).
sis sH
... Congress has expressly provided that the efforts of the trustee to marshal and distribute the assets of the estate must yield to governmental interest in public health and safety.

106 S.Ct. at 760 (Citation omitted).

The Court went on to observe that Congress did not intend for the Bankruptcy Code to pre-empt state laws by enacting 28 U.S.C. § 959(b), which provides in pertinent part that a trustee must “manage, and operate the property in his possession ... according to the requirements of the valid laws of the State.” The Court took pains to emphasize its and Congress’ endorsement of a “goal of protecting the environment against toxic pollution”, see Chemical Manufacturers Association, Inc. v. National Resources Defense Council, Inc., 470 U.S. 116, 143, 105 S.Ct. 1102, 1117, 84 L.Ed.2d 90 (1985), by rebutting the trustee’s argument that § 959(b) only applied to the “operations” phase of a business under receivership and not when it was being “liquidated”, as was the case there. Despite conceding the trustee’s assertion, the Court found § 959(b) to support its conclusion that Congress did not intend the Bankruptcy Code to pre-empt all state laws that otherwise constrain the exercise of the trustee’s powers, especially when it came to averting endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance.

Thus, the public health and safety took precedence over a trustee’s abandonment powers, with the absorption of the cost to neutralize the hazard being placed with the estate under receivership. See also In re Wall Tube & Metal Products Co., 831 F.2d 118 (6th Cir.1987), wherein the Court re-affirmed Midiantic’s position that the violation of a hazardous waste statute by a company involved the public’s health and safety, such that the appointment of a trustee in bankruptcy did not relieve either the bankrupt or its trustee from accountability for failure to correct the violation(s).

Since the State of Tennessee had to remedy the environmental health hazard at public expense, it was entitled to reimbursement. The Court in In re Wall Tube found “... those expenses to be actual and necessary, both to preserve the estate in required compliance with state law and to protect the health and safety of a potentially endangered public.” 831 F.2d at 124. The overriding consideration weighing on its decision was the Court’s detection in “the Midlantic and [Midlantic, Ohio v. ] Kovacs[, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985),] cases ... [of the] creat[ion of] a special emphasis on the importance of complying with laws that protect public health and safety.” Id. at 123.

Instantly, as noted most appropriately by Amicus Curiae in its brief to us, with the discontinuance of operations by Harmar in May of 1985, no provisions were made for the long-term maintenance and treatment of mine water, nor was there implemented any approved mine closure and reclamation plan. Any approved plan would require, as written by Amicus Curiae at page 7 of its brief:

... at a minimum, the sealing and closure of all mine entires, boreholes, slopes, shafts, tunnels, removal and reclamation of all surface structures and buildings and provision for the long term pumping, treatment and/or abatement of any post-mining discharge. (R. 77a, 91a, 92a).

Further, Amicus points out:

Today, the Harmar Mine is the source of at least five (5) uncontrolled and untreated discharges of acid mine drainage. * * * At this time, these discharges are flowing at the aggregate rate of more than 1 million gallons per day, which is up from approximately 300,000 gallons per day in August, 1987. If pumping does not soon begin, this flow could increase to as much as four million gallons per day.
The discharges are pollutional in nature in that they have chemical characteristics indicative of acid mine drainage and do not meet the effluent limitations set forth in Harmar’s NPDES Permit or the Department’s Regulations. (R. 108a, 109a, 116a-118a). The discharges have caused, and are continuing to add, pollution to Guys Run and the Harmar Harbor of the Allegheny River, causing degradation therein, and posing a hazard to public health, safety and welfare. (R. 88a, 92a, 93a, 101a). Several public water supply intakes, including those used by Fox Chapel Water Authority, the Wilkinsburg-Penn Joint Water Authority, the City of Pittsburgh, and the Borough of Millvale, are located downstream of the area where the discharges from the Harmar Mine enter the Allegheny River. (R. 109a). In addition, the discharges are seriously jeopardizing valuable fish and aquatic communities, including spawning grounds, found in the Harmar Harbor. (R. 109a).

(Brief at 8 & 9; footnote omitted)

From our review of the facts, we find that the receiver, as directed by the court below, was to comply with this Commonwealth’s laws in carrying out his obligations to wind-up the affairs of Harmar. This encompassed the abatement of unlawful nuisances and hazards to the health and safety of the citizenry of Pennsylvania. See Midlantic, supra; In re Wall Tube & Metal Products Co., supra. Such is quite evident from the host of environmental laws promulgated by the Legislature in this Commonwealth to protect the interests of the people and the preservation of the natural resources within the boundaries of this jurisdiction.

The protestations of the Trustees that the hazards on the Harmar property existed prior to the appointment of the receiver and, therefore, should not be given status as a post-receivership administrative expense, along with the other creditors in existence, are unpersuasive.

The law is quite clear that the health and safety of the public is of paramount concern and will take precedence over those of a debtor’s creditors; otherwise the remedial measures necessary to ameliorate a situation involving reclamation of land and hazardous waste would have to be shouldered by the public instead of the profit-oriented entity or person now placed into the hands of a receiver. See generally Midlantic, supra.

The reclamation and water pollutant problems were extant at the time the receiver was appointed, and, as such, it was his obligation^ under pain of state law, to rectify and bring into compliance Harmar’s non-compliance with environmental legislation. In this sense, the receiver would be “preserving” the estate. And, consequently, such costs of preserving the estate are entitled to administrative expense priority. See In re Wall Tube & Metal Products Co., supra; In re Laurinburg Oil Co., supra; but see In re Pierce Coal and Construction, Inc., 65 B.R. 512 (Bkrtcy. S.D. Ohio 1986).

Lastly, as for the Trustees’ contention that its claim against Harmar is entitled to priority treatment as a wage claim under the Pennsylvania wage statute, 43 P.S. § 221, and should not have been characterized by the lower court as a purely general unsecured claim having no priority, we find the same to be meritless. The remarks of the appellee/receiver are appropriate in responding to the Trustees’ contention; to-wit:

The Harmar Mine was placed on stand-by status on May 31, 1980. Subsequent to May 31, 1980, there were no wages earned by UMW members in conjunction with Harmar. Harmar did not become involved in receivership proceedings until May 3, 1985. The Pennsylvania Wage Act cited by and relied on by Appellants clearly provides in relevant part that:
“All moneys that may be due or hereafter become due for labor and services rendered by any miner or merchant ... for any period not exceeding six months preceding the sale or transfer of the real or personal property ... by execution or otherwise, on account of the death or insolvency of such employer ... provided however, that the claim thus preferred shall not exceed two hundred dollars ...”

43 P.S. § 221.

The facts of this case clearly [d]o not fall within the restrictions of the Wage Act. The property was sold subsequent to May 31,1985 and the Trustees cannot point to any facts showing wages earned within six (6) months prior to the sale.

(Receiver’s Brief at 12) We agree and, thus, affirm the order of the court below.

ORDER AFFIRMED.

      . Joseph P. Connors, Sr., Donald E. Pierce, Jr., William Miller, William B. Jordan and Paul R. Dean are the named trustees of the United Mine Workers of America 1950 Pension Plan, 1950 Benefit Plan, 1974 Pension Plan and 1974 Benefit Plan, collectively known as the United Mine Workers Association Health and Retirement Funds.

      . No one disputes the contention of the Trustees in their brief at pages 10-11 that a fund which exceeded $600,000.00 as of the third partial accounting, had dwindled to approximately $500,000.00 at the time of the presentation of the Trustees’ Motion to Compel Partial Distribution.

      . Amicus Curiae is the Commonwealth of Pennsylvania, Department of Environmental Resources, whose brief we found very informative and helpful in reaching our decision.

      . Illustrative of this comprehensive program of environmental protection are the following statutes, each designed to address a particular area of concern: The Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq. (Clean Streams Law — Water Pollution); The Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.1 et seq. (Surface Mining Conservation and Reclamation Act — Surface Mining); The Act of January 8, 1960, P.L. 2119, as amended, 35 P.S. § 4001 et seq. (Pennsylvania Air Pollution Control Act — Air Pollution); The Act of July 7, 1980, P.L. 380, No. 97, 35 P.S. § 6018.101 et seq. (Pennsylvania Solid Waste Management Act — Solid Waste); The Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17 (The Administrative Code of 1929 — Abatement of Nuisances).


author: WIEAND, Judge:

text:
    548 A.2d 1230
    COMMONWEALTH of Pennsylvania v. Robert C. STEIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1988.
    Filed Sept. 15, 1988.
    Petition for Allowance of Appeal Denied Feb. 23, 1989.

      Joanne Kelhart, Bethlehem, for appellant.
    Daniel G. Spengler, Assistant District Attorney, Bath, for Com., appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Robert Stein was tried by jury and was found guilty of kidnapping, attempted homicide, aggravated assault, robbery, and various lesser offenses committed upon the person of Nazir Ishak during the late evening of January 28 and the early morning of January 29, 1985. From the judgment of sentence thereafter imposed, Stein appeals. He argues that the trial court committed numerous trial errors and that the trial court also erred when, on motion of the Commonwealth, it reconsidered and imposed a second, more severe sentence. We find no merit in Stein’s contentions and affirm the judgment of sentence.

The evidence established that on the evening of January 28, 1985, Tina Jezick, her husband, Michael, her sister-in-law, Michelle, and Stein devised a plan by which Tina and Michelle would pose as prostitutes in order to lure a man to their house, where Michael Jezick and Robert Stein would be waiting to rob him. Pursuant to this plan, Michelle was able to enter a vehicle driven by Nazir Ishak, after which she directed him to the Jezick home on Oak Street in the City of Allentown. Tina, meanwhile, had alerted the male conspirators that Michelle and a man were on their way. When Ishak arrived at the Jezick home, he was frisked and taken at rifle point to the basement. There he was beaten by Michael Jezick and Robert Stein. The women remained upstairs but heard Ishak being beaten and pleading for help. Jezick and Stein removed Ishak’s wallet and watch and then went for a ride in his car. While they were gone, Michelle went into the basement where she observed Ishak lying on a mattress. His hands and feet were bound, and he was bleeding from wounds to his head and hands. When Stein and Michael Jezick returned several hours later, they wrapped Ishak in a blanket, placed a pillow case over his head; and put him in the trunk of his car. Ishak was then driven into Northampton County, where the men intended to leave him. En route, when Ishak was heard to be groaning, the men stopped the car, opened the trunk and cut Ishak’s throat. He was thereafter thrown into a fifteen foot deep, dry canal, where he was found approximately twelve hours later. Ishak survived.

Later the same morning, Jezick and Stein picked up Robin Burian and took her for a ride in Ishak’s car. While she was with them, Jezick changed the license plate with that of another car. They also went to an automatic bank machine where Jezick unsuccessfully attempted to obtain cash by using a card found in Ishak’s wallet. At this time, Jezick told Robin Burian that she was riding in a “dead man’s car” and related to her the events of the prior evening and early morning hours.

Several days later, Jezick and Stein appeared at a welding shop and gas station where they attempted to sell tools which had been removed from the trunk of Ishak's car. The car was later abandoned in Allentown.

At trial, appellant denied that he had been involved in the kidnapping and assault of Ishak. He testified that on the early evening of January 28, he had visited Michael Jezick, had drunk a beer and smoked marijuana, and had departed. He said that he had fortuitously met Jezick several days later while Jezick was driving Ishak’s car. He went with Jezick, he said, when Jezick attempted to sell some tools that were in the trunk of the car. Jezick also testified as a defense witness and confirmed that Stein had not been involved in the beating of Ishak. However, his testimony was impeached by a prior inconsistent statement which he had made to police following his arrest. In that statement, he had implicated appellant in the several offenses committed against Ishak.

Appellant argues that the trial court erred when it denied a pre-trial motion for change of venue. Whether to grant a motion for change of venue is within the sound discretion of the trial court. Commonwealth v. Cohen, 489 Pa. 167, 178, 413 A.2d 1066, 1072 (1980); Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978). Ordinarily, to be successful on a motion for change of venue, a criminal defendant must demonstrate that pre-trial publicity resulted in actual prejudice in empaneling a jury. Commonwealth v. Howard, 358 Pa.Super. 259, 267, 517 A.2d 192, 195-196 (1986). “In some instances, however, 'there can be pre-trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting on the defendant any burden of establishing a nexus between the publicity and actual jury prejudice.’ ” Id., 358 Pa.Superior Ct. at 267, 517 A.2d at 196, quoting Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977). To determine whether pre-trial publicity has been so pervasive as to relieve a defendant of the burden of proving actual prejudice, a trial court, in exercising its discretion, must consider:

“whether the pre-trial publicity was, on the one hand, factual and objective, or, on the other hand, consisted of sensational, inflammatory and 'slanted articles demanding conviction,’ United States v. Sawyers, 423 F.2d 1335, 1343 (4th Cir.1970); whether the pre-trial publicity revealed the existence of the accused’s prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers.”

Commonwealth v. Cohen, supra 489 Pa. at 178, 413 A.2d at 1072, quoting Commonwealth v. Casper, supra 481 Pa. at 152-153, 392 A.2d at 292. Further, the court should consider the extent of saturation and whether there has been a sufficient “cooling-off period.” Id., 481 Pa. at 153-154, 392 A.2d at 292-293.

The events involved in the instant case occurred in January, 1985. A first trial was held in January, 1986, but this trial ended in a mistrial when the jury became deadlocked. A second trial began on September 8, 1986. All newspaper articles submitted to the court by appellant in support of his pre-trial motions to change venue had appeared in local newspapers immediately following the crime. The latest article introduced during the pre-trial hearing had appeared approximately one month after the crime’s commission. An examination of the newspaper articles discloses that they were objective and based on fact. Although one article referred to the fact that appellant had a prior criminal record, the extent thereof and the nature of the crimes committed were not revealed. Eighteen months elapsed between the incident and the second trial, and a six month period intervened between the first and second trials. The record discloses that although pre-trial publicity had occurred, it was not so pervasive that appellant was unable to receive a fair trial in the community in which the incident had occurred. For appellant to have prevailed on his motion for change of venue, therefore, it was necessary that he show actual prejudice in empaneling the jury.

A review of the voir dire transcript discloses that no juror recognized appellant. Although seven of the thirty-two jurors on the panel recalled reading about the incident, none had formed a fixed opinion regarding appellant’s guilt or innocence. Appellant has alleged nothing to suggest that any juror had a fixed bias as a result of pre-trial publicity, and the record does not disclose any such bias. Thus, the pre-trial hearing court could properly conclude, as it did, that appellant had failed to sustain his burden of showing actual prejudice.

Appellant argues that several photographs depicting the victim’s injuries were inflammatory and highly prejudicial and should not have been received.

The question of admissibility of photographs ... is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978)____ Whether the photographs are admissible depend[s] on a two step analysis. First, the court must decide whether a photograph is inflammatory in nature. “If, but only if, the photograph is deemed to be inflammatory, the Court must then apply the balancing test ... i.e., is the photograph of ‘such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.’ ” [Citations omitted.] Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980).

Commonwealth v. Buehl, 510 Pa. 363, 392, 508 A.2d 1167, 1181-1182 (1986).

The eleven photographs to which appellant objected at trial depicted the victim immediately following the incident. Nine of the photographs were black and white and depicted the victim in the hospital, with bandages on his head and a tube in his mouth. They also showed Ishak’s head wounds and the wound of his throat. Two of the photos were in color, showing the victim’s bandaged head, a tube emerging from his mouth, and the throat wound. One of the color photographs showed the throat wound being held open by someone’s fingers. The Commonwealth argued that the color photographs were necessary so that the jury could distinguish the head wounds from shadows and from the victim’s hair.

In. order to prove the crime of attempted homicide, the Commonwealth was required to show an intent to kill the victim. Appellant’s co-defendants had denied that there had been any intent to kill. Evidence of the extent of the victim’s wounds, therefore, was relevant to prove intent. The trial court determined that the photographs were inflammatory in nature, but held that the photographs were essential to the Commonwealth and that their probative value, therefore, outweighed any danger that they might inflame the passions of the jury. We find no abuse of the trial court’s discretion. Appellant will hot be permitted to brutalize his victim and then keep the jury from learning exactly how brutal the assault was.

Michael Jezick testified as a defense witness and confirmed Stein’s testimony that the two of them had been together only for a short time early in the evening, during which they had drunk a beer and had smoked marijuana before separating. He said that he had not seen Stein again for several days. On cross-examination, the Commonwealth confronted Jezick with a prior statement in which he had narrated the details of the assault and Stein’s involvement therein. Appellant contends that this was error because, by using a statement referring to the details of the assault, the Commonwealth was able to cross-examine the witness regarding matters not included in his direct testimony.

There is no merit in this argument. Jezick’s trial testimony that appellant had not been present at the time of the assault was directly contradicted by the statement which he had earlier made to the police. Cross-examination regarding the prior inconsistent statement was clearly proper; it did not exceed the scope of direct examination.

During cross-examination, Jezick said that his prior statement to police had not been true and that he had retracted it. The prosecuting attorney, in an effort to show motive for the retraction, questioned Jezick about the fact that the retraction had occurred only after Stein had been transferred to the Northampton County Prison where Jezick was being held. Jezick was also asked about threats allegedly made against him by Stein. Appellant argues that the information that he had been incarcerated in another prison suggested that he had been convicted of prior criminal conduct. There is no merit in this argument. Appellant was being held in default of bail for the instant offenses, and there was no suggestion in this cross-examination of Michael Jezick that appellant had had a prior criminal record. The cross-examination, moreover, was proper. Evidence regarding threats made by a defendant against a witness is relevant and admissible when introduced for the purpose of explaining testimony which is inconsistent with an earlier, pre-trial statement. Commonwealth v. Bryant, 316 Pa.Super. 46, 462 A.2d 785 (1983).

Michelle Jezick testified as a Commonwealth witness. She was cross-examined by defense counsel about a statement which she had made during a period of hospitalization to the effect that when called to the District Attorney’s office to prepare for trial she intended to “lie [her] ass off.” To rehabilitate the witness by showing a prior consonant statement, the Commonwealth played a videotaped statement given by the witness to police a week after the incident. During the course of being interviewed by police and after having been asked where appellant lived at the time of the incident, the witness responded:

He has been staying at Michael Herman’s, behind the laundromat on 8th and Liberty, across the alley, behind the laundromat. He has been staying at his house since he got out of, well when he got out of jail he was staying at his aunt’s. Then from his aunt’s he started staying with Michael. That was a couple weeks ago____

A copy of the transcript of the videotaped interview with the witness had been supplied to defense counsel prior to trial. Before the jury heard the above portion of the interview, however, the defense did not object thereto. After the jury had heard it, a defense objection was made, which the court sustained. The trial judge also offered to give curative instructions, but the defense refused the offer. Instead, the defense requested a mistrial. This the court denied. Appellant argues that this was error requiring a new trial. We disagree.

References by a Commonwealth witness to prior criminal activity on the part of a criminal defendant are generally impermissible. Commonwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973); Commonwealth v. Watson, 355 Pa.Super. 160, 167, 512 A.2d 1261, 1265 (1986). The probative value of such evidence is outweighed by the risk that a jury will infer guilt based on a perception of the defendant’s propensity for crime. Commonwealth v. Allen, 448 Pa. 177, 181-182, 292 A.2d 373, 375 (1972). However, not every passing reference to prior criminal behavior mandates a new trial. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). A mistrial is only warranted if the reference manifests prejudice to the defendant. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979).

Whether to grant a mistrial is a decision within the discretion of the trial judge who has had the benefit of being present and observing the effect of the improper evidence. His decision will not be disturbed on appeal absent a “flagrant abuse of discretion.” Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984), quoting Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983). In determining whether a reference to a defendant’s prior criminal conduct requires a mistrial, the trial court must consider “the circumstances under which the irrelevant evidence was given and its probable effect on the jury.” Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981), quoting Saunders et al. v. Commonwealth, 345 Pa. 423, 425, 29 A.2d 62, 63 (1942).

The videotaped statement in this case was lengthy, spanning more than twenty pages of transcript. The reference to appellant’s getting out of jail was general. It did not refer to the commission of any specific crime or to any conviction therefor. There was only a single reference to the fact that appellant had been in jail, and this was not exploited by the Commonwealth. Although appellant knew or should have known that the reference was included in the videotaped interview — his counsel had a copy of a transcript thereof — he did not alert the trial judge to the objectionable portion. Moreover, when the trial court offered to give curative instructions, appellant rejected such instructions. Under these circumstances, the trial court did not abuse its discretion when it denied the motion for mistrial. See: Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442 (1987); Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

Robin Burian did not testify at the first trial. She was called by the Commonwealth as a rebuttal witness at the second trial. After having been cross-examined by the defense, the witness was shown and confirmed a typed police report containing an oral statement as follows:

We drove back and that is when I found out I was in a dead man’s car. Mike Jezick told me. He was really “scitz” a hit man was after him. He was on Meth. The man was in the trunk of the car and making noise. Stein said about the noise and Mike went out and opened the trunk and slit his throat. Robert Stein didn’t know Mike was doing this. When Robert found out he got nervous.

Appellant argues that this was exculpatory and that a copy of the statement should have been made available to appellant’s counsel prior to trial. Because it was not disclosed prior to trial, he contends, he Should be awarded a new trial.

First, we note that this statement was not exculpatory. “ ‘Exculpatory evidence’ has been defined as ‘evidence which [intrinsically tends to establish defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.’ ” Commonwealth v. Woodell, 344 Pa.Super. 487, 490, 496 A.2d 1210, 1212 (1985), quoting Commonwealth v. Gee, 467 Pa. 123, 131, 354 A.2d 875, 878 (1976). In the instant case, the witness's statement placed appellant at the scene of the crime and did not contradict evidence of his involvement. Therefore, it was not exculpatory. Where one actor in a conspiracy commits a crime in furtherance of that conspiracy, all co-conspirators are chargeable with the same crime, Commonwealth v. Ford, 315 Pa.Super. 281, 288-289, 461 A.2d 1281, 1284-1285 (1983), citing Commonwealth v. Vaughn, 459 Pa. 35, 39-40, 326 A.2d 393, 395 (1974).

Moreover, and in any event, the identity of the witness had been known to appellant’s trial counsel well in advance of the trial, and the police version of her statement was, in fact, produced at trial and read to the jury. The Supreme Court of Pennsylvania, in interpreting Pa.R. Crim.P. 305(B)(1)(a) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), upon which the rule is based, has observed:

This is not a situation where the withheld information was discovered only after conviction, but one where the evidence became available to the defense during trial. Moreover, the defense had the opportunity to effectively present this evidence before the jury. Under these circumstances, we find no justification for granting a new trial. The rationale for doing so in Brady and [United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ] was that the jury had convicted without the benefit of the non-disclosed testimony. Such a purpose would not be served in this case where the jury did consider the evidence in question before reaching its verdict. We therefore hold that even if the evidence would be deemed to be exculpatory[,] where it is effectively presented at trial and the belated disclosure does not prejudice the defense, no due process violation has occurred.

Commonwealth v. Murphy, 493 Pa. 35, 45-46, 425 A.2d 352, 357 (1981) (footnote and citations omitted). Similarly in the instant case, appellant was not prejudiced by disclosure of this evidence at trial. The statement was provided to appellant prior to Burian’s testimony at trial, and the entire statement was read to the jury during the Commonwealth’s case-in-chief. Defense counsel had the opportunity to cross-examine the witness regarding the statement and could refer to any portion thereof on the defense side or during closing argument.

Finally, the evidence was cumulative. Other Commonwealth witnesses testified that Jezick had admitted having slashed the victim’s throat. Because the statement was not exculpatory, and because no prejudice to appellant resulted from its use, appellant is not entitled to a new trial because of the Commonwealth’s failure to produce the police version of the witness’s statement prior to trial.

Appellant argues that the trial court erred when it denied two requested points for charge. The first was for a specific instruction regarding the effect on Michelle Jezick’s credibility of her admitted use of drugs on the night of the incident. The court denied this point for charge because the substance thereof had been covered in the court’s general instructions. The court had instructed the jury generally that in weighing the evidence, it should consider the witness’s ability to perceive and recall the incidents to which she had testified. Because this instruction adequately covered the requested point, it was not error for the trial court to refuse to give additional instructions. See: Commonwealth v. Alvin, 357 Pa.Super. 509, 518-519, 516 A.2d 376, 381 (1986); Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 170, 500 A.2d 453, 461 (1985).

The second alleged error pertains to a requested instruction that when a witness has given an inconsistent statement, it is the later testimony at trial which is controlling. The trial court refused this instruction because the prior statement of Michael Jezick, to whom the requested instruction referred, had been received only for purposes of impeaching his trial testimony and not as substantive evidence, and the jury had been instructed accordingly. This instruction was more favorable to appellant than he was entitled to receive. Both it and the instruction requested by appellant were erroneous statements of the law. See: Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). There is in this part of the trial court’s jury instructions no basis for awarding a new trial.

Finally, appellant complains because the court, on motion of the Commonwealth, increased his sentence for robbery from seven and one-half (7V2) years to fifteen (15) years in prison to not less than ten (10) years nor more than twenty (20) years in prison. Pursuant to Pa.R.Crim.P. 1410, the Commonwealth may move to modify the sentence within ten days after imposition, and the court upon such motion may vacate a previously imposed sentence if it determines that the prior sentence was inappropriate. Modification of sentence by the court upon the Commonwealth’s motion does not violate principles of double jeopardy. Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed, 515 Pa. 454, 530 A.2d 74 (1987); Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985). Here, the court determined, based on the circumstances of this case, that the first sentence was inappropriate and increased it. This it could properly do. We find no abuse of discretion.

Judgment of sentence affirmed.

      . Appellant's argument that he should be discharged because his second trial violated principles of double jeopardy is lacking in merit. The law is clear that the discharge of a jury prior to rendering its verdict will not bar retrial if the discharge was based on manifest necessity. Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). A hopeless deadlock among the members of the jury which cannot be broken by further deliberations is deemed manifest necessity. Id. A court, sua sponte, may summon the jury and determine whether a deadlock exists. Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981). Here, the jury deliberated for a total of about thirteen and a half hours over two days and told the court unequivocally that it was deadlocked. The trial court was justified in declaring a mistrial under these circumstances.

      . Appellant filed pre-trial motions to change venue before both the first and second trials. The news articles in evidence were submitted to the court at the hearing on the first motion. No further media reports were submitted to the court in support of the second motion.

      . Lesser sentences for the remaining offenses were ordered to be served concurrently.