author: MONTEMURO, Judge:

text:
    513 A.2d 1014
    William NOECKER and Theresa Noecker, Appellees, v. JOHNS-MANVILLE CORPORATION and Johns-Manville Sales Corporation, Defendant-Appellant, and Owens-Corning Fiberglas Corporation; Celotex Corporation; 48 Insulation; Eagle-Picher, Defendants-Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 13, 1986.
    Filed Aug. 8, 1986.

      Charles W. Craven, Philadelphia, for appellants.
    Martin Greitzer, Philadelphia, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   MONTEMURO, Judge:

On April 5,1977, plaintiffs-appellees, William and Theresa Noecker, brought an action against defendant-appellant, Johns-Manville Corporation (hereinafter Johns-Manville), and certain other corporate entities, claiming that Mr. Noecker had contracted asbestosis as a result of exposure at his place of employment (Combustion Engineering, Inc.) to asbestos products either manufactured or sold by the various defendants. In its responsive pleadings, appellant denied that Mr. Noecker’s disability was caused by asbestosis induced by exposure to any of its products. Appellant posited that the disability was either caused by silicosis (a disease resulting from prolonged exposure to silica) or resulted from exposure to products of the co-defendants. Appellant also filed cross-claims for contribution against the co-defendants.

Before trial, three of the defendants effected releases with plaintiffs-appellees which barred any recovery by plaintiffs-appellees against them. Based on its release, one of the settling defendants, Owens Corning Fiberglas Corp., then filed a motion for severance as to all cross-claims filed by it and against it. The release, which expressly denied Owens Coming’s joint tortfeasor status, provided, inter alia, that:

It is further agreed and understood by the parties hereto, that any other person or organization whom we [plaintiffs] claim are liable to us for our injuries, losses and damages shall not be entitled to a satisfaction or reduction or pro rata reduction of damages we are claiming against them by reason of the payment herein, unless it is adjudicated that Releasees are Joint Tortfeasors with said person or organization. In the event that Releasees are adjudicated to be Joint Tortfeasors then the payment herein shall constitute a reduction to the extent of the pro rata share of liability of Releasees for the damages recoverable by us from the other tortfeasors.

On the first day of trial, the court entertained Owens Coming’s motion for severance on its own behalf and on behalf of the other settling defendants as well. Appellant opposed the granting of severance solely on the basis that severance would prejudice it in its pursuit of contribution claims against the settling defendants in that it would be forced to bring a separate action for contribution at a later date. After hearing argument on the issue, the trial court granted severance for the settling defendants, directing separate trials as to any cross-claims for contribution and/or indemnity. The case proceeded to trial before a jury, with Johns-Manville as the sole defendant left in the case. The trial resulted in a verdict against appellant in the amount of $550,000 in compensatory damages and $50,-000 in punitive damages. Appellant subsequently filed a motion for judgment notwithstanding the verdict and for a new trial. On April 28, 1982, the trial court denied appellant’s motions and entered judgment (which reflected delay damages) in favor of plaintiffs-appellees. This appeal followed.

Appellant presents the following issues for our review:

Does a trial court commit reversible error when it severs and orders a separate trial of the claims for contribution made by a defendant against co-defendants, who have entered into joint-tortfeasor settlements with the plaintiff but without an adjudication or admission of their status as joint tortfeasors, and then enters a judgment for plaintiffs against the non-settling defendant for the full amount of the damages awarded by jury plus Rule 238 delay damages on that amount?
Did the trial court commit prejudicial error during its instructions to the jury when, in connection with the key factual disputes, it recited evidence in a view favoring only plaintiffs?
Did the trial court commit prejudicial error by refusing to permit Dr. Bolden from testifying that his opinion as to the nature and cause of Mr. Noecker’s illness remained unchanged?

Appellant’s brief at 5. Appellant asks us to vacate the judgment below and order a new trial on plaintiffs-appel-lees’ claim, with the settling defendants being required to remain in the case.

We will first address appellant’s contention that the trial court erred in ordering severance of the claims for contribution brought by appellant against the settling defendants.

Pa.R.C.P. 213(b) provides:

(b) The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.

Appellant contends that the trial court abused the discretion afforded it by Rule 213 in granting severance because such severance severely prejudiced appellant’s claims for contribution against the settling defendants, which claims are authorized by section 8324 of the Uniform Contribution Among Tortfeasors Act [hereinafter the Act]. The Act attempts to insure that where there are joint tortfeasors, none will have to pay more than its proportionate share of the common liability. Section 8324 of the Act provides for the right of contribution among joint tortfeasors. That is, if one joint tortfeasor pays more than its share of the common liability, it is entitled under section 8324 to contribution from the other tortfeasors, i.e., to be reimbursed by them proportionately. Section 8326 of the Act provides that, although a release by the injured person of one joint tortfeasor does not discharge the other tortfeasors, it does reduce the amount that the injured person can recover from the unreleased tortfeasor in the amount of the consideration paid for the release or by the proportion provided for in the terms of the release, whichever is greater. However, neither of these sections is applicable until joint tortfeasor status is established.

Appellant contends that, even though plaintiffs-appellees were precluded from recovering against the settling defendants as a result of the releases, the settling defendants should have been required to remain in the case so that, in reference to appellant’s contribution claims against them, their alleged joint tortfeasor status could have been determined at that point. Appellant contends it was severely prejudiced by the severance because it will now have to pursue its contribution claims against the settling defendants in a separate action before another jury. This, appellant contends, involves problems of additional expense, the reassembling of witnesses, and the use of aged proofs.

The trial court justified the severance by stating that, contrary to appellant’s assertion, a separate action for contribution would not be unduly burdensome. Noting the great number of asbestos related cases involving multiple defendants on file with the court and the fact that such cases were often both lengthy and complex, the trial court stated that the orderly administration of the judicial process required that efforts be made to simplify and reduce trial issues and trial time. The court concluded, “Absent a stronger showing of inconvenience, the party seeking to oppose a severance must defer to the exercise of discretion by a court endeavoring to assure the orderly administration of its docket and to facilitate and encourage the amicable resolution of its cases, in whole or in part.” Trial court’s opinion at 6. Defendants-appellees, the settling defendants, argue that the severance was correct in that the “court properly considered convenience to the court, the parties, and society, limited judicial resources, and the expense to those parties against whom the plaintiff no longer had a claim. It promoted the fair administration of justice by simplifying the issues for the jury.” Defendants-appellees’ brief at 3.

We find that the trial court considered the relevant factors in responding to appellant’s argument that severance would severely prejudice it in pursuing its contribution claims. Our research has not revealed any case, nor has appellant directed our attention to any case, which requires that settling defendants remain to participate in trial so that a non-settling defendant can pursue its contribution claims against them. Although it clearly would have been more convenient for appellant to have had its contribution claims against the settling defendants decided in one case, we find that requiring appellant to pursue those claims in a separate action is not so unduly burdensome as to render the trial court’s action in granting severance an abuse of discretion. We note that even if we were to accept the merits of appellant’s argument and order a new trial, such action would in large part be a futile gesture since appellant would still be faced with many of the problems which he argues rendered the severance severely prejudicial in the first place, i.e., the reassembling of witnesses, the use of aged proofs, and additional expense.

On appeal, appellant attempts to raise an additional argument supporting its contention that severance was erroneous. Appellant relies primarily on Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), which involved a defendant who had settled on a release providing for a reduction in the amount of damages the plaintiffs could recover from the non released defendant to the extent of the released defendant’s pro rata share of liability. Thus, under the release, if the settling defendant were determined to be a joint tort-feasor, the non settling defendant’s liability to plaintiff would be reduced to his proportionate share. The Davis court required the released defendant to remain in the case to enable the jury to determine his joint tortfeasor status, thereby protecting the non released defendant’s right to a pro rata reduction in the verdict.

Appellant argues on appeal that, under Davis and section 8326 of the Act, the settling defendants in the instant case were required to participate in the trial in order to protect appellant’s right to a pro rata reduction in the verdict pursuant to the terms of the releases. However, although appellant raised this argument in post-trial motions, it did not present the argument at any time during the trial. Therefore, the hearing on the motion to sever proceeded solely on the issue of appellant’s contribution claims and the prejudice it might suffer should it be forced to proceed on those claims in a separate action. In order to preserve an issue for appeal, a litigant must make a timely and specific objection at trial. Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). We will not consider a claim on appeal which was not called to the trial court’s attention at a time when any error committed could have been corrected. Kintner v. Claverack Rural Electric Co-operative, Inc., 329 Pa.Super. 417, 478 A.2d 858 (1984). We accordingly will not address the merits of appellant’s argument concerning retention of the settling defendants in order to effectuate a pro rata reduction in the verdict.

Appellant next argues that the trial court’s instruction to the jury impermissibly favored plaintiffs-appellees in three respects: (1) the identity of the suppliers of raw asbestos fiber to the plant where Mr. Noecker worked, (2) the respective quantities of silica and asbestos in the plant, and (3) the diagnosis by Mr. Noecker’s physician. Appellant contends that the charge failed to provide the jury with a balanced view of the evidence in the above three respects in that it recited only evidence in favor of plaintiffs-appellees.

In evaluating a jury charge to determine whether prejudicial error was committed with respect to the complaining party, we must consider the charge in its entirety. Dunlap v. Larkin, 342 Pa.Super. 594, 493 A.2d 750 (1985). The trial judge is afforded discretion in summarizing evidence adduced at trial, and the extent of his review of the evidence depends largely on the circumstances of the case. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980).

Our review of the charge in the instant case reveals that in referring to the supply of raw asbestos fiber to the plant, the judge stated that there was testimony that it came from various sources, and that several witnesses had testified that appellant had supplied either a majority or 75%. Appellant argues that the trial judge should have pointed out that when questioned as to the sources of the raw asbestos which he had unloaded, Mr. Noecker named several suppliers but did not mention appellant. Appellant’s second objection to the charge concerns the fact that in stating that the overall ratio of asbestos to silica in the plant was nine to one, the court should also have said that the evidence showed that Mr. Noecker worked primarily on the first floor, where the proportions were reversed, i.e., the ratio of silica to asbestos was nine to one. Finally, appellant objects to the court’s failure to qualify the testimony of Mr. Noecker’s physician, Dr. Philip Pearlstein, who testified that Mr. Noecker was suffering from asbestosis. Appellant contends that the trial court should have reminded the jury that Dr. Pearlstein had admitted on cross-examination that he had testified at an earlier deposition that Mr. Noecker suffered from silicosis.

We find appellant’s claims to be without merit. We note that none of the trial court’s statements objected to by appellant were misstatements of the evidence. In addition, before beginning its charge the court specifically told the jury that the case had been both lengthy and complex, and that it (the court) could not possibly summarize all the evidence; therefore, the jury members were to rely on their own memory as to the evidence adduced at trial. This admonition was repeated several times. After appellant objected to the charge on the above grounds, the trial court informed the jury:

I am also reminded to again state to you my reference to any portions of the testimony is not intended and was not intended to be all-encompassing. We would be here for days if I were to attempt to do that. I merely referred to portions of the testimony. That is not to suggest to you that you should not consider all of the testimony whether I refer to it or not.
And, again, if my recollection doesn’t tie with your recollection, you ignore mine no matter what I have said, no matter when I attempted to quote anybody or anything like that. If it differs from your recollection, you ignore it.

N.T. July 9, 1981, at 129. Our careful examination of the court’s brief summarization of the evidence reveals that it was not one sided in that it did include evidence favorable to appellant’s case. We conclude that, given the court’s repeated admonitions to the jury to rely on their own memory of the testimony and not the court’s summarization and the fact that the instruction was not one sided in plaintiffs-ap-pellees’ favor, appellant’s claim that the instructions contained reversible error is without merit.

Appellant’s final contention is that the court erred in impermissibly restricting the testimony of one of its witnesses, Dr. David M. Bolden.

Before addressing the merits of appellant’s claim, we point out that the trial judges of this Commonwealth exercise broad powers concerning the conduct of trial, and have wide discretion in limiting the scope of both direct and cross examination of witnesses. Williams v. Philadelphia Transportation Co., 415 Pa. 370, 203 A.2d 665 (1964).

The record reveals that Dr. Bolden was a staff radiologist at Suburban General Hospital who was called in for a consultation when Mr. Noecker was first admitted to the hospital in 1974. Dr. Bolden was asked by Mr. Noecker’s family physician, Dr. Philip Pearlstein, to read a series of X-rays on Mr. Noecker. Dr. Bolden did so and testified at trial on direct examination that, based on this reading, he had concluded that Mr. Noecker was suffering from silicosis, not asbestosis. Appellant wanted to further question Dr. Bolden as to whether he had seen any X-rays of Mr. Noecker since 1974 and, if so, was his conclusion unchanged. The trial court sustained plaintiffs-appellees’ objection to that question, stating that Dr. Bolden’s testimony would be restricted to the time when the doctor was actually involved in the case, i.e., the 1974 radiological study.

Appellant contends that the trial court’s action was unfair and biased in that the court had allowed one of plaintiffs-appellees’ witnesses, Dr. Donald Sesso, to testify as to Mr. Noecker’s prognosis on the basis of information the doctor had acquired in 1980, after he had ended professional contact with Mr. Noecker. We reject appellant’s claim. The record reveals that although Dr. Sesso, one of Mr. Noecker’s treating physicians, did not personally examine Mr. Noecker after 1977, his medical partner did so in 1980, and, at that point, Dr. Sesso discussed the case with his partner and reviewed the results of the examination. Thus, there was a rational basis for the court’s decision to admit Dr. Sesso’s testimony, which was based on professional contact with Mr. Noecker’s case, and to disallow the question to Dr. Bolden, which concerned events occurring after Dr. Bolden was no longer involved in the case. We can discern no bias or prejudice in plaintiffs-appellees’ favor in this regard.

Having determined that none of appellant’s claims are meritorious, we affirm the order entered below.

Order affirmed.

      . Motions for non pros and dismissal were granted as to the remaining defendants.

      . On appeal, briefs have been submitted by appellant, plaintiffs-appel-lees, and defendants-appellees (the settling defendants).

      . 42 Pa. C.S. § 8321 et seq.

      . In arriving at this conclusion, we have not considered the possibility that appellant’s right to seek contribution may, in fact, have been lost pursuant to 42 Pa. C.S. § 8327, which provides:
      § 8327. Liability to make contribution as affected by release.
      A release by the injured person of one joint tort-feasor does not relieve him from liability to make contribution to another tort-fea-sor, unless the release is given before the right of the other tort-fea-sor to secure a money judgment for contribution has accrued and provides for a reduction to the extent of the pro rata share of the released tort-feasor of the injured person’s damages recoverable against all the other tort-feasors. (Emphasis added).
      Clearly, if appellant may not now seek contribution against the settling defendants, the severance, which eliminated the possibility of any pro rata reduction in the verdict, worked to its extreme detriment. This point, however, was not raised below nor has it been raised on appeal.

      . Although we do not address appellant's claim, we wish to point out that the principle established by Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), i.e., that a defendant settling on a pro rata release is required to participate in the trial so that its joint tortfeasor status can be determined and the reduction in the verdict be accomplished, has been reaffirmed in numerous cases. E.g., Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639 (3d Cir.1981); National Liberty Life Ins. Co. v. Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1986); Charles v. Giant Eagle Markets, 330 Pa.Super. 76, 478 A.2d 1359 (1984).

      . Mr. Noecker’s job function consisted primarily of loading and unloading boxcars and trucks.

      . For example, the court reminded the jury that two of Mr. Noecker’s physicians had testified that appellant was suffering from silicosis, not asbestosis.


source: Caselaw Access Project

license: Public Domain

text:
    513 A.2d 1020
    Michael GRIFFIN, Appellant, v. Carmen C. TEDESCO and Rose Tedesco, Individually and t/a Cricket Bar and Carmen Joseph Tedesco, and Two Cricket, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 13, 1986.
    Filed Aug. 8, 1986.

      Allen L. Feingold, Philadelphia, for appellant.
    William H. Pugh, IV, Norristown, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   MONTEMURO, Judge:

This case presents the issue whether the trial court’s order imposing a severe sanction against appellant for his failure to comply with certain discovery requests was proper under Pa.R.C.P. 4019. We find that it was not.

The somewhat lengthy procedural history of this case is as follows: On June 2, 1975, appellant filed a complaint against appellees, both as individuals and trading as the Cricket Bar, alleging negligence and/or assault and battery in connection with an altercation which had occurred at the bar. Appellant claimed that on the night of February 7, 1975, one of appellees’ employees had slashed him across the neck with a broken beer bottle, causing him serious injuries.

A default judgment was entered against appellees on August 10, 1975, but the judgment was subsequently opened, and on January 24, 1977, appellant filed a new complaint. The two cases were consolidated by stipulation of the parties and discovery proceedings subsequently ensued. On July 16, 1980, appellees requested, pursuant to Pa.R.C.P. 4009(a), that appellant produce for inspection and photocopying all medical records, hospital records, medical reports, and bills relating to appellant’s claimed injuries. By letter of August 5, 1980, appellant’s counsel, Allen L. Feingold, advised appellees that he would be on vacation on the suggested day and thus would not be able to comply with the request. Appellees accordingly rescheduled the production for October 7, 1980. In a letter dated October 1, 1980, appellant’s counsel informed appellees that he would not comply with the discovery request because it was unduly broad, not framed with sufficient particularity, beyond the scope of the discovery rules, and not reasonably calculated to lead to the discovery of admissible evidence. Based on this refusal, appellees filed a motion for sanctions in which they asked the court to enter an order directing appellant to produce the requested items and, also, to award them attorney’s fees in connection with preparation of the motion. After considering appellees’ motion and appellant’s response thereto, the trial court entered an order dated July 2, 1981, in which it imposed the following sanction: Appellant was precluded from introducing at trial any testimony whatsoever concerning his mental or physical condition. Appellant filed a motion for reconsideration, which was denied after oral argument. He also filed an appeal to this court, which was dismissed on the basis that the July 2, 1981, order was interlocutory. The case subsequently came to trial before the Honorable Samuel W. Salus, II, sitting with a jury. In presenting his case, appellant was permitted to adduce testimony regarding the altercation in the bar. However, as a result of the sanction, he was precluded from presenting any testimony regarding his physical or mental condition after the incident. Thus, while appellant was permitted to adduce testimony on liability, he was not allowed to present any testimony on damages. At the close of appellant’s case, the trial court granted appellees’ motion for compulsory non-suit because (1) appellant failed to establish any damages, and (2) there were conflicts in the testimony which created doubt as to the merits of appellant’s cause of action.

On April 29, 1983, appellant filed a motion to strike, set aside, and vacate the compulsory non-suit. The matter was held in abeyance, however, while appellant took an appeal to this court in which he challenged the trial court’s denial of his motion, filed May 19, 1983, to proceed in forma pauperis. We reversed and remanded the matter to the lower court for a hearing with regard to appellant’s petition to proceed in forma pauperis. Appellant subsequently withdrew his petition on February 4, 1985. On April 22, 1985, appellant filed a supplemental motion to strike, with accompanying brief. Appellees responded with an answer and new matter. On May 6, 1985, the trial court dismissed both the original and supplemental motion to strike, and this appeal followed.

Appellant raises the following questions on appeal: Whether the trial Court erred when it precluded the plaintiff from introducing any evidence concerning his physical or mental condition at the time of trial?
Whether the trial Court erred when it granted the defendant’s Motion for Compulsory Non-Suit?
Whether the trial Court erred when it instructed the jury that plaintiff is bound by the testimony of the witnesses he called as on cross-examination?

Appellant’s brief at 2.

Appellant contends that the trial court’s sanction order, precluding him from introducing any testimony at trial regarding his physical or mental condition, was improper. Appellant claims that such a severe sanction, i.e., one that effectively precluded any possibility of prevailing on his claim, was premature given that no prior order directing him to produce the documents had been entered. We agree that the trial court erred in the imposition of sanctions in this case.

The imposition of sanctions for failure to comply with lawful discovery requests is governed by Pa.R.C.P. 4019, which provides in relevant part the following:

Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
(vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested.
(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.

We recognize that Rule 4019 does not require the imposition of an order compelling discovery as a prerequisite to the trial court’s authority to impose an appropriate sanction. As stated in the explanatory note to Rule 4019, “Subdivision (a)(viii) is a blanket authorization to the court to enter a sanction order whenever there is a failure to make discovery or to obey an order of the court.” Explanatory Note to Rule 4019 — 1978 Civil Procedural Rules Committee (Emphasis added). See Crance v. Sohanic, 344 Pa.Super. 526, 496 A.2d 1230 (1985) (sanctions may be imposed where there is a disregard of a discovery order or an obligation stated in the rules of civil procedure) (emphasis added).

We determine, however, that, given the severity of the sanction imposed in this case and the fact that appellant’s counsel had tendered but one refusal to comply with appellees’ discovery request, the trial court should have first entered an order compelling compliance with the request. As support for this conclusion, we note that Rule 4009(a)(2) clearly contemplates that where there is no response or objection to a request for production of documents under Rule 4009, the appropriate motion for the requesting party to make is not a motion for sanctions, but rather a motion for an order under Rule 4019(a) to compel production. Explanatory Note to Rule 4009 — 1978 Civil Procedural Rules Committee. As the explanatory note points out, the hearing on the motion for an order to compel discovery provides an opportunity whereby the objecting party’s rights can be protected. That is, the merits of the objecting party’s reasons for non-compliance can be evaluated at that initial stage. If the trial court determines the reasons are not meritorious, the order compelling the production of documents would serve as a warning that if there is future non-compliance, sanctions will be imposed.

We also note that the federal rule regarding the entry of sanctions for failure to permit inspection, upon which Rule 4019 is based, does require a failure to comply with a court order compelling discovery before sanctions may be imposed. Finally, it is apparent that, in practice, sanctions for failure to respond to discovery requests are generally not imposed until there has been a refusal to comply with a court order directing compliance. Eg., Simpson v. Allstate Ins. Co., 350 Pa.Super. 335, 504 A.2d 335 (1986); Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985); Brunetti v. S.E. Pennsylvania Transport. Auth., 329 Pa.Super. 477, 478 A.2d 889 (1984); Shehady v. Pittsburgh Post-Gazette, 307 Pa.Super. 247, 453 A.2d 18 (1982).

We hold, on the facts of this case, that the trial court erred in imposing the severe sanction which precluded appellant from offering any evidence at trial as to damages where there was no prior order compelling the production of the documents relating to damages.

We accordingly reverse the trial court’s order denying appellant’s motion to strike, set aside, and vacate the court’s order granting appellees’ motion for compulsory non-suit. We also reverse the July 2, 1981 order imposing sanctions upon appellant. Appellees have conceded in their brief that appellant provided the requested documents to them soon after the trial court’s imposition of sanctions. Thus, the case can now proceed to a new trial, with appellant being permitted to adduce evidence as to damages.

Orders are reversed. Case is remanded. Jurisdiction is relinquished.

      . Rule 4009(a) provides in pertinent part:
      (a) Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents ... or to inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of Rules 4003.1 through 4003.5 inclusive and which are in the possession, custody or control of the party upon whom the request is served.

      . Proof of damages is a necessary element in a personal injury case. When a plaintiff fails to establish damages in a tort action, the defendant is entitled to a verdict. See Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). See abo Troutman v. Tabb, 285 Pa.Super. 353, 427 A.2d 673 (1981).

      . This second reason advanced by the trial court is clearly insufficient to support the entry of the compulsory non-suit. A compulsory non-suit may be entered only where the facts lead unerringly to the conclusion of absence of liability, and any conflicts in the evidence must be resolved in the plaintiffs favor. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). It was accordingly improper for the trial court to resolve conflicts in the testimony against appellant.

      . We must disagree with appellees’ contention that the propriety of the sanction order has already been decided by this court. Appellant's appeal from that order was dismissed by this court as being interlocutory.

      . Because of our disposition of this claim, it is unnecessary for us to consider appellant’s remaining claims on appeal.

      . Fed.R.Civ.P. 37.


author: WICKERSHAM, Judge:

text:
    513 A.2d 1024
    Carlyton M. GANONG v. Mildred D. GANONG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Filed Aug. 6, 1986.

      Ronald R. Bolig, Sellersville, for appellant.
    Rodney D. Henry, Quakertown, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

Mildred D. Ganong appeals from the judgment entered in the Court of Common Pleas of Bucks County in this equitable distribution of marital property case.

Carlyton M. Ganong, appellee, filed a complaint in divorce on January 12, 1982. Both parties filed petitions for equitable distribution of marital property, and Mildred Ga-nong also filed a petition for alimony, counsel fees, and expenses. A divorce decree was entered on August 4, 1983, reserving for future decision all rights to proceed on the economic issues.

The parties were married for approximately fifteen years. During the marriage, they acquired twenty-five acres of land in Springfield Township, Bucks County, upon which they built a house; a rental property in Quakertown; numerous vehicles; tools; household furnishings; bank accounts; and some pension and profit-sharing rights. The marriage also produced three children: Angeline, Julie and Carlyton. At the time of the hearing in March 1984, the children were ages 16, 12 and 10 respectively. They reside with appellee in the family home; their custody is not at issue.

The evidence produced at the hearing showed that the parties were similar in many respects. Appellant was 33 and appellee 34 years old. Each had a “G.E.D.” high school equivalency diploma, and each had taken 15-18 units of college credits. Both had worked throughout the marriage, although appellant had been laid off periodically. Appellee was employed in 1983 as a quality assurance supervisor and earned approximately $39,000, a portion of which was the result of voluntary overtime. Appellant was employed in 1983 as a drill press operator and earned approximately $13,000. The lower court found that neither party’s income was likely to increase significantly in the future.

On June 18, 1984, the lower court entered a nisi order dividing the parties’ marital property, with approximately 55% going to appellee and 45% going to appellant. The same order also denied appellant’s request for counsel fees. Appellant filed timely exceptions and supplemental exceptions to the nisi order, which were argued before the trial judge. On March 27, 1985, the lower court filed an amended nisi order, which made some minor changes in the distribution of certain items. No exceptions were filed to the amended nisi order, and it was subsequently entered as a final decree on May 1, 1985. This timely appeal followed.

Appellant presents two issues:

I. Has a trial judge abused his discretion in an equitable distribution matter where he has failed to consider legislatively mandated considerations?
II. Should the court enter an award of counsel fees and expenses to [appellant], where such an award is necessary to place her on a par with [appellee] in litigating her rights?

Brief for Appellant at 3.

Before we can address appellant’s issues, however, we must turn to appellee’s argument that the appeal should be quashed. Appellee filed a motion to quash the appeal, to which appellant responded. The motion was denied without prejudice to appellee’s right to argue the issue in his appellate brief and oral argument.

In order to answer appellee’s motion to quash, we must carefully examine the lower court’s orders. The first order entered on June 18, 1984 was entitled “Nisi Order for Equitable Distribution, Alimony and Counsel Fees.” Appellant filed exceptions to the nisi order, pursuant to Pa.R.C.P. Nos. 1920.52 and 227.1. On March 27, 1985, in response to the exceptions filed by appellant, the lower court entered an order entitled “Amended Nisi Order for Equitable Distribution,” which stated, in relevant part:

Each party shall have the right to file exceptions to the court’s findings, conclusion and this nisi order within ten days hereof, with additional proceedings, if any, related to this nisi order to be substantially in accordance with the procedures set forth in Pa.R.C.P. 1518 and 1519.

This was the same sentence the court had used in the prior nisi order. No exceptions were filed by either party to the amended nisi order. On May 1, 1985, the amended nisi order was entered as a final decree, and appellant filed this appeal.

Appellee contends that the appeal should be quashed because appellant has waived all issues by failing to file exceptions to the amended nisi order. See Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 454 A.2d 572 (1982) (matters not addressed in exceptions are deemed waived). Since the amended nisi order clearly stated that each party had the right to file exceptions, appellee contends that, by choosing not to file exceptions, appellant has waived all issues. On the other hand, appellant argues that our rules of civil procedure do not authorize an “amended nisi order” to which further exceptions may be filed. She contends that the amended order was in reality a final order regarding her prior exceptions, and that the filing of further exceptions would have been a useless act.

It is generally true that by failing to file exceptions to the nisi decision of the lower court, appellant does not preserve any issue for appeal.

Our rules and case law require litigants to file exceptions to nisi determinations of trial courts because ‘appellate review is more meaningful when the trial court has first had an opportunity to review its decision and to address the specific allegations of error raised in exceptions.’ Jones v. State Auto. Ins. Ass’n., [309] Pa.Super. [477], [484], 455 A.2d 710, 713 (1983). However, there is no requirement that exceptions be filed after entry of final judgment.

Commonwealth ex rel. Wattman v. Graczyk, 501 Pa. 244, 246-47, 460 A.2d 1098, 1099 (1983). Therein lies the problem in the instant case — was the “amended nisi order” in reality a final order, requiring no additional exceptions? The parties have not cited any relevant caselaw, nor have we found any cases on point.

While appellant is correct that an “amended nisi order” is not authorized by our rules, under Pa.R.C.P. No. 227.1(a)(4) and (5), a court may “affirm, modify or change the decision or decree nisi” or “enter any other appropriate order.” We note that rescinded Rule 1519, which the lower court cited, provided the same options to the court. While the words “amend”, “modify” and “change” do not have identical meanings, we can see no reason to exalt form over substance in this instance. The intent of the rule is clearly to allow the court to revise its decision or decree nisi in response to a motion for post-trial relief, or in our case, exceptions. The lower court herein did exactly that — it amended its nisi order in response to appellant’s exceptions.

The question still remains, however, whether a second set of exceptions was necessary to preserve appellant’s prior exceptions for appellate review. It is clear that appellant’s first set of exceptions was necessary under Pa.R.C.P. Nos. 1920.52 and 227 to preclude waiver of her objections to the court’s nisi order. See, e.g., Taylor v. Taylor, 345 Pa.Super. 184, 497 A.2d 1365 (1985); Szakmeister v. Szakmeis-ter, 344 Pa.Super. 465, 496 A.2d 1199 (1985). Appellant argues that a second set of exceptions to the amended nisi order would have been futile. A close reading of the opinion and nisi order of June 18, 1984 and the opinion and amended nisi order of March 27, 1985 reveals that the second opinion made only minor changes in the original opinion. In its initial opinion and order, after making findings of facts and discussing the factors listed in 23 P.S. § 401(d) as they related to those facts, the lower court allocated the marital property in a ratio of 55% to appellee and 45% to appellant. Appellant filed numerous exceptions and supplemental exceptions to that order, dealing with a variety of topics. In its second opinion, the lower court noted that it was rendering the second opinion and amended order in response to the parties’ oral arguments and briefs regarding appellant’s exceptions. Then the court specifically noted: “Generally, our initial opinion stands as written. We will, however, address the following issues.” Lower ct. op., March 27, 1985, at 1. The court then went on to make certain technical corrections regarding the placement of an automobile, inclusion of appellee’s pension as a marital asset, and some mathematical errors. Notably, the court made no further statement on the primary exceptions raised. The proportionate distribution remained at 55% to appellee and 45% to appellant.

Keeping in mind that the purpose of filing exceptions to a trial court’s order is to allow the trial court an opportunity to review its decision and to address specific allegations of error, Commonwealth ex rel. Wattman v. Graczyk, supra, we find that under the facts of the instant case, this purpose has been met. The trial court had an opportunity to review the exceptions taken by appellant and we must assume that by its lack of discussion of all points but the few mentioned above, the court, in effect, denied the bulk of the exceptions. Being in her favor, appellant had no reason to except to the modifications made in the distribution in the second opinion. Despite the court’s language calling for exceptions, we do not see what purpose would be served by appellant filing a second set of exceptions, i.e., exceptions identical to those originally filed but excluding those exceptions the court had granted. Filing additional, repetitive exceptions would have been a futile waste of time and money in this case. Therefore, we will not fault appellant for taking a direct appeal to our court following the entry of judgment on the amended nisi order.

Appellant, however, does not fare so well when we turn to the merits of her appeal. First, appellant submits that the lower court abused its discretion by failing to consider the factors set forth in 23 P.S. § 401(d). In this regard, she makes the following contentions: (1) the court’s conclusion that the parties’ health and future income and employment prospects are similar is erroneous; (2) there was significant testimony that appellant is underweight and has debilitating residual effects to her left shoulder from an accident; (3) the court failed to consider the significant income differential between the parties; (4) the court’s conclusions that appellant has no financial obligations and has the opportunity to save money are not supported by the record; (5) the court improperly considered appellee’s custody of the parties’ three minor children in reaching its decision regarding equitable distribution; (6) the court erred in accepting ap-pellee’s expense statement as correct; and (7) the court failed to consider that appellee resided with a woman and her daughter, who did not make contributions toward expenses.

“The standard by which we review the equitable distribution of marital property, awards of alimony pendente lite, counsel fees, and permanent alimony is the abuse of discretion standard; absent an abuse of discretion by the trial court we will not disturb the award.” Taylor v. Taylor, supra, 345 Pa.Super. at 186, 497 A.2d at 1366. See also Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985); Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985); Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984). In determining the propriety of property distribution, we do not usurp the trial court’s duty as fact-finder. Rather, we apply the legislative guidelines of the divorce code to the record to determine whether or not the hearing court has abused its discretion. Estep v. Estep, 353 Pa.Super. 227, 509 A.2d 419 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985). On a previous occasion, this court has stated:

We note that there is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.

Sergi v. Sergi, supra, 351 Pa.Superior Ct. at 599-600, 506 A.2d at 934, quoting Semasek v. Semasek, 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984), aff'd in part, rev’d in part, 509 Pa. 282, 502 A.2d 109 (1985).

With this standard in mind, we have carefully reviewed the lower court’s findings and cannot say that the court abused its discretion in distributing the marital property. The court did consider the facts it found in light of the factors of section 401(d). See LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986). The court was aware of the disparity in the parties’ incomes and expenses, appellant’s past health problems, the parties’ future employment prospects, and the parties’ living arrangements. While another court may have given different weight to the factors of section 401(d), it is apparent that the lower court herein considered these factors in its determination. Since the record fails to reflect an abuse of discretion on the part of the lower court, its decision must stand with respect to the weight accorded the 401(d) factors. See Sergi v. Sergi, supra.

Nor do we find that the court abused its discretion in making a 55/45 division of the property. “[T]he use of a 50/50 starting point is not an end to the matter of equitable distribution. A court must then apply the § 401(d) factors to reach an equitable distribution.” LaBuda v. LaBuda, supra, 349 Pa.Superior Ct. at 532, 503 A.2d at 975 (emphasis in original). An equitable distribution often will not be even. The essence of the concept is that after considering all the relevant factors, the court may deem just a division that awards one of the parties more than half, perhaps even the lion’s share of the property. Sergi v. Sergi, supra; Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982). In making its division, the lower court noted that appellee has the financial obligation of raising the children, he is burdened with the mortgage payments on the marital home, he must purchase necessary household appliances and kitchen furnishings, and appellant has no financial obligations and thus the opportunity to save money. We find appellant’s first contention to be meritless.

Similarly, we are not persuaded by appellant’s contention that because of the three to one disparity of the parties’ incomes, the lower court should have awarded her counsel fees. Section 502 of the divorce code states that the court may, in proper cases, allow a spouse reasonable counsel fees and expenses. The lower court concluded that this was not such a case. It reasoned that despite the income disparity, given the distribution of property, appellant had more disposable monthly income than appellee, who had sufficient debt to dissipate all his income. Thus, the court held that each party would bear his or her own costs. We can see no abuse of discretion in the court’s denial of counsel fees to appellant. See Vajda v. Vajda, supra.

Finding no issue among those raised to warrant reversal of the instant appeal, we affirm the judgment of the court below.

Judgment affirmed.

      . Apparently appellant’s request for alimony was no longer contested by the time of the order.

      . We note that appellant’s first issue was not raised as such in her exceptions or supplemental exceptions. An examination of her argument under issue one, however, reveals that appellant is using issue one to encompass several of her exceptions raised below.

      . We note that Pa.R.C.P Nos. 1518 and 1519, to which the lower court referred in his orders, were rescinded on October 19, 1983, effective January 1, 1984. This was prior to the filing of both orders in this case. Rule 1518 called for the filing of exceptions within 10 days after notice of the filing of the decree. Rule 1519 stated, inter alia, that (a) if no exceptions were filed within 10 days, the decree nisi should be entered on praecipe as the final decree, and (b) if exceptions were filed, the court should sustain or dismiss them “and affirm, modify or change the decree nisi accordingly, or enter any other appropriate order.” Pa.R.C.P. No. 227 presently, and at the time of the instant nisi orders, covers all post-trial relief.

      . 23 P.S. § 401(d) states:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.


author: CAVANAUGH, Judge:

text:
    513 A.2d 1029
    Rose ROLAND and Frank Roland, Appellants, v. KRAVCO, INC. and Peppelman Brothers, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 13, 1986.
    Filed Aug. 6, 1986.

      Joseph P. Grimes, Philadelphia, for appellants.
    Fred J. Silverman, Willow Grove, for Kravco, appellee.
    Jay H. Karsch, Doylestown, for Peppelman, appellee.
    Before CAVANAUGH, WICEERSHAM and ROBERTS, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Rose Roland, was injured when she slipped and fell on the parking lot at the Hunting-don Valley Shopping Center which was owned and operated by appellee, Kravco, Inc. She and her husband, Frank Roland, commenced an action in trespass against Kravco, Inc., trading as Huntingdon Valley Shopping Center, which joined Peppelman Brothers, Inc. as an additional defendant. Both defendants below, the appellees herein, filed motions for summary judgment which were granted by the court. The plaintiffs have appealed to this court.

The complaint against Kravco alleged that:

6. On or about February 10, 1982, plaintiff, Rose Roland was a business invitee of the defendant, Hunting-don Valley Shopping Center, and as such was lawfully on or about the premises of the defendant.
7. On or about the aforesaid date, time and place, as plaintiff, Rose Roland, was walking across the parking lot after exiting her car, plaintiffs feet were caused to slip and slid [sic] on ice which had accumulated upon said parking lot causing plaintiff to fall to the ground.

The only evidence as to how the accident occurred is found in the deposition of Rose Roland in which she testified:

A. Well, I drove in and stopped and looked to see if there was any parking places close to the drugstore for me.
Q. Right.
A. I didn’t see anything up there. It was filled up, and the first two lanes were filled, and so I drove around into the second set of cars, and I pulled in there and found a parking space and pulled in there.
Q. Fine. Now, when you were driving through the parking lot to find a parking place, what was the— was there any water or anything? Was there dampness on the surface of the parking lot?
A. I would say it was wet.
Q. It was wet.
A. Yes.
Q. But it was not actually raining at the time.
A. No, there was no rain.
Q. Was there any snow in the parking lot?
A. Yes. Well, it was all piled up on one side.
Q. Like it had been cleared.
A. Yes, it was all cleared up.
Q. What did you do after you parked your car?
A. I got out of my car, closed the door and walked straight ahead.
Q. And what happened?
A. And — I don’t even know. I don’t know whether I was in between the next two cars, but — I mean, I only took about three, four, five steps and I just went.
Q. What do you mean when you say you went?
A. I just went right down, slid right down.
Q. You mean you slipped?
A. I went right on down, slipped right down, yes.
Q. What did you slip on?
A. I don’t know.
Q. Did you fall forward or backward?
A. Backward. I fell straight back.
Q. Let’s go back to the date of the accident. Where were you looking when you fell down?
A. Straight down to the ground. I walk with my eyes on the ground. I always look at the ground when I’m walking.
Q. What did you see immediately before you fell on ~ the ground?
A. Nothing, just it was wet, but I knew that when I went there.
Q. Did you see any snow in your path?
A. No, there was no snow. I didn’t see any snow.
Q. Did you see any ice in your path?
A. No, I didn’t see any ice.
Q. What kind of surface was it?
A. What do you mean, the shopping center?
Q. The shopping center parking lot.
A. I’d say it’s like a blacktop.
Q. Like a blacktop.
A. Yes.
Q. Now, in your complaint I believe there’s an allegation that you slipped on ice. What is the basis of that statement?
A. Slipping on ice?
Q. Yes.
A. I just figured it must have been. I mean, I just couldn’t think of — I mean, I know — I mean — well, I don’t know, but I didn’t see a thing on the ground except — you know, it was wet and I know there was nothing in my path to trip over or to fall on.
Q. So you just concluded that since you slipped that there must have been ice that you didn’t see.
A. That’s right.
Q. Were there any puddles in your path?
A. Well, I didn’t see any puddles — I mean, no, I didn’t see any puddles.
Q. So the ground was just wet.
A. That’s all. That’s all I can see.

The accident occurred at about ten o’clock in the morning and the weather was described by the plaintiff as cold and misty. There was no evidence that there was ice on the surface of the parking lot, and in fact Mrs. Roland, who testified that she always looks at the ground when she is walking, did not see any ice on the surface and stated that it was merely wet.

In Pennsylvania there is no liability created by a general slippery condition on the surface of a parking lot. It must appear that there were dangerous conditions due to ridges or elevations, which were allowed to remain for an unreasonable length of time. Bacsick v. Barnes, 234 Pa. Super. 616, 341 A.2d 157 (1975); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962). Plaintiff must also show that these ridges or elevations were the cause of the fall and in the absence of proof of this, the plaintiff has no basis for recovery. Izzo v. Meyer, 259 Pa.Super. 95, 393 A.2d 733 (1978). The Supreme Court stated in Rinaldi v. Levine, 406 Pa. at 78-79, 176 A.2d at 625-626 (1962):

Where a property owner is charged with negligence in permitting the accumulation of snow or ice on his sidewalk, the proof necessary to sustain such a charge has been clearly defined by our decisional law. It is encum-bent upon a plaintiff in such situation to prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, plaintiff has no basis for recovery. See Miller v. City Ice & Fuel Co., 363 Pa. 182, 184, 69 A.2d 140 [1949]; Milburn v. Knights of Columbus Home Association, 167 Pa.Super. 509, 511, 76 A.2d 466 [1950].

See also Strother v. Binkele, 256 Pa.Super. 404, 389 A.2d 1186 (1978).

In the case before us, it is clear that there were no ridges and elevations of ice that caused Mrs. Roland to fall as she would have seen them had they existed. She was looking at the ground and observed no obstacles or hazardous conditions whatsoever, and the only condition of the surface was that it was wet. There is simply no indication that there was a dangerous condition on the land. Even if a dangerous condition existed, the property owner is not liable if it is reasonable for the possessor of land to believe that the dangerous condition would be obvious to and discovered by an invitee. Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970). In Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983) the Supreme Court speaking through Chief Justice Roberts held that there would be no liability imposed upon the owner of a parking lot which had icy patches where other areas were free of ice. The plaintiff who slipped on the ice, was aware of an ice free area in which to park. The court held at 503 Pa. at 185-6, 469 A.2d at 124: “Although the question of whether a danger was know or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion.”

Based on the record before us, we must decide if the court below properly granted the motions for summary judgment. Such a motion should be granted where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985); Pa.R.C.P. 1035 (b). A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiffs pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976). Nevertheless, Pa.R.C.P. 1035 (d) provides that where a motion for summary judgment has been supported by depositions, answers to interrogatories or affidavits, the non-moving party may not rest merely on the allegations of his pleadings. “Where the allegations of the non-moving party’s pleading have been controverted by the moving party’s supporting material, the non-moving party must by affidavit, or in some other way provided for by the rule, set forth specific facts showing that a genuine issue of material fact exists.” Tom Morello Construction Co., Inc. v. Bridgeport Federal Savings and Loan Association, 280 Pa.Super. 329, 334-5, 421 A.2d 747, 750 (1980). See also First Mortgage Company of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983).

The appellants contend that the court below erred in placing the burden of proof upon them to set forth facts showing that a genuine issue of material fact exists. However, as provided for in Pa.R.C.P. 1035 (d) the non-moving party in his response to a properly supported motion for summary judgment must in the response “by affidavits or as otherwise provided in this rule, ... set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.” *5The appellant admitted that she did not see any ice or icy ridges on the parking lot surface, notwithstanding that she was looking at the ground at the time that she fell, and that she did not know what caused her to slip. Since by her own statements she did not observe any ice when she fell, she had the obligation to show by affidavit or otherwise that there were icy ridges or elevations which caused her to fall. On appeal, the appellant argues that she could produce two witnesses, a friend, Margaret Coyle, and Officer McNamara, who “could testify to the icy conditions of the parking lot within an hour of the appellant’s fall.” Nevertheless, the appellant did not disclose this information by way of affidavit, or otherwise, in response to the motion for summary judgment. As noted in Goodrich Amram, Procedural Rules Service, 2nd, § 1035 (d):5, page 460: “The purpose of this amendment [Pa.R.C.P. 1035 (d)] is to assure that the motion for summary judgment may ‘pierce the pleading’ and to require the opposing party to disclose the facts of his claim or defense.” (Emphasis added.) Even if we assume that the undisclosed evidence might have affected the grant of summary judgment, the appellants chose not to disclose the basis for Mrs. Roland’s claim with respect to the cause of her fall, and she did so at her own risk. That the appellant has misread Pa.R.C.P. 1035 (d) is evident by the statement in the appellant’s brief at page 7-8: “Appellant contended that since plaintiff identified these witnesses on her behalf, it was appellee’s burden to obtain statements from them and demonstrate to the Court that they would not so testify. To hold otherwise would place the burden of proof upon the non-moving party in a Motion for Summary Judgment proceeding and would further give defense counsel an unintended discovery tool by requiring appellant’s counsel to respond to Motions for Summary Judgment by supplying statements of witnesses to refute allegations contained in the Motion. ” (Emphasis added). Rule 1035 (d) requires the non-moving party to respond and set forth specific facts showing that there is a genuine issue for trial. Our rules of civil procedure are designed to eliminate the poker game aspect of litigation and compel the players to put their cards face up on the table before the trial begins. The appellant has done nothing to establish a genuine issue of material fact and accordingly summary judgment was properly entered.

Order affirmed.

      . As further illumination of what was observed by Rose Roland, the defendant's requests for admissions and the plaintiff's answers are helpful. Request for admission No. 1. was admitted and the request was as follows:
      1. At the time of the occurrence referred to in the Complaint, Rose Roland did not see any snow or ice on the surface of the parking lot in the area where she fell.
      Request for admission 2 states:
      2. At the time of the occurrence referred to in the Complaint, Rose Roland did not see anything in her path on the surface of the parking lot which caused her to trip or fall.
      The answer is as follows:
      2. Admitted as stated. By way of further answer, Rose Roland avers that she knows what caused her to fall giving the swiftness with which her feet slipped from under her and the nature of her fall in that her feet slipped forward and she fell backward on the parking lot which appeared wet. The temperature, moreover, was below freezing.

      . Pa.R.C.P. 1035 (d) provides in part:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

      . In its motion for summary judgment, defendant Kravco, Inc. stated in paragraph 5.
      5. In response to defendant’s Request for Admissions, plaintiffs admitted that Rose Roland did not see any ice on the surface of the parking lot in the area where she fell at the time of the occurrence.
      In the answer to the motion, the appellants stated:
      5. Admitted. By way of further answer, plaintiff avers that although she did not actually "see” that she fell on ice, she can prove by circumstantial evidence that her fall resulted from slipping on ice.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    513 A.2d 1034
    COMMONWEALTH of Pennsylvania, Appellant, v. Eric GAITHER, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 7, 1986.
    Filed Aug. 11, 1986.

      Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Ronald J. Pressley, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from the order of the Court of Common Pleas of Philadelphia County reducing the grade of appel-lee’s robbery conviction. Appellee was found guilty in a non-jury trial before the Honorable Judge D’Alessandro of robbery, a felony of the first degree, and related charges. While post-trial motions were pending, appellee’s codefend-ant was tried before Judge D’Alessandro and was convicted of robbery, a felony in the third degree and the same accompanying offenses. In response to appellee’s post-trial motions which, inter alia, challenged the sufficiency of the robbery conviction, Judge D’Alessandro amended his findings, and downgraded appellee’s conviction to robbery, a felony of the third degree. Appellee was then sentenced to a term of four to eight months in the county prison on the third degree felony robbery conviction. This appeal is brought by the Commonwealth, which raises one issue for our consideration: whether the trial court erred in arresting judgment of appellee’s conviction of first degree felony robbery and substituting a lesser third degree felony robbery conviction.

It is clear that a trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Following the recording of a verdict in a non-jury trial, the trial judge is limited to a consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982). In a motion for an arrest of judgment, the trial judge cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of the evidence. Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982).

In the case at bar, the trial judge states that he changed the degree of appellee’s conviction using the discretionary powers of the court. Thus, he claims that the court will not confine its review of the evidence to that typically undertaken in an arrest of judgment. In effect, the trial judge used a hybrid of sua sponte reconsideration and reconsideration based on a motion in arrest of judgment. There is, however, no authority cited for the trial judge’s action. Therefore, it is incumbent upon our court to determine whether the trial judge acted properly. We find that the trial judge acted improperly.

In Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982), the trial judge found the appellee, Parker, guilty of robbery and possession of an instrument of crime following a non-jury trial. Four days past the deadline for filing post-verdict motions, the lower court entered an order reconsidering its verdict of guilty. Parker’s trial judge ordered, upon reconsideration of the facts, that the verdict of guilty be changed to a verdict of not guilty. Id., 305 Pa.Super. at 518-522, 451 A.2d at 768-769. On appeal, this Court vacated the trial judge’s order and reinstated the verdicts of guilty, as we held that the trial judge exceeded his post-verdict authority in reconsidering the facts of ap-pellee’s conviction.

In Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), the trial judge changed a jury verdict of first degree murder to a finding of third degree murder upon consideration of appellee, Rawles’, post-verdict motions which alleged, inter alia, that the evidence was insufficient to support a finding of first degree murder. Upon review of the evidence presented to the trial court, the Supreme Court of Pennsylvania concluded that the trial judge erred in granting an arrest of judgment motion, and reversed the trial court order. Id. In so acting, the Pennsylvania Supreme Court stated that although the trial court may have been disturbed over some of the facts established at trial, the trial judge was limited to a determination of whether the facts as found below were sufficient to uphold the first degree murder conviction. Id., 501 Pa. at 522, 462 A.2d at 623.

In the case at bar, the trial judge was obviously concerned with the discrepancy between the degree of robbery for which appellee was convicted, and that of his co-defendant. It was, however, improper for the trial judge to simply change appellee’s degree of conviction. We feel that the trial judge should have either reviewed the evidence as found by him at trial to determine its sufficiency, or granted a new trial to the appellee if he was not confident of the initial conviction. See Commonwealth v. Brown, 192 Pa. Super. 498, 162 A.2d 13 (1960). Therefore, we are compelled to reverse the trial judge’s order and reinstate the original verdict of robbery, a felony of the first degree, and remand for reconsideration only of appellee’s post-trial motion for new trial, as this motion was not addressed by the trial court.

Order reversed, verdict of guilty of robbery, felony of the first degree reinstated, and case remanded for consideration of post-trial motion for new trial. Jurisdiction is relinquished.

WIEAND, J., files concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority that the trial court erred when it arrested judgment on a verdict of first degree felony robbery and “substituted” a verdict of guilty of third degree felony robbery. The evidence was clearly sufficient to sustain the original verdict of the trial judge, and he could not, in response to a motion in arrest of judgment, reevaluate the weight and credibility of the evidence to reach a different result.

The effect of a motion in arrest of judgment is to admit all facts which the Commonwealth’s evidence tends to prove. Commonwealth v. Davis, 477 Pa. 197, 199, 383 A.2d 891, 892 (1978). In determining whether the evidence is sufficient to sustain the verdict, the evidence must be read in the light most favorable to the Commonwealth, which is entitled to all reasonable inferences arising therefrom. Commonwealth v. Rawles, 501 Pa. 514, 520, 462 A.2d 619, 622 (1983); Commonwealth v. Davis, supra.

In the instant case, the evidence showed that during the early morning hours of November 3, 1983, Officer Edward Cottrell, a member of the Philadelphia Police Department’s “grandpop” squad, entered a subway station in Center City. He was followed by Eric Gaither, who is the appellee, and by an accomplice. Gaither demanded that Cottrell “Give me your f-— money.” When Cottrell said, “No,” Gaither told his accomplice to “shoot him.” Cottrell, at this time, observed the butt end of a revolver in the belt of the accomplice. Gaither grabbed Cottrell by his jacket lapels, slammed him against the wall of the subway station, and removed from his person a roll of marked bills. Gaither and his accomplice were apprehended as they fled up the subway stairs by a back-up team of police officers. The marked money was recovered from Gaither, and a .22 caliber blank gun, loaded with live rounds, was removed from the accomplice.

This evidence was sufficient to establish that Gaither was guilty of robbery in violation of 18 Pa.C.S. § 3701(a)(1), which provides as follows:

A person is guilty of robbery if, in the course of committing theft, he
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury.

This was a felony of the first degree. 18 Pa.C.S. § 3701(b). See: Commonwealth v. Hurd, 268 Pa.Super. 24, 407 A.2d 418 (1979).

The trial court found Gaither guilty of robbery, a felony of the first degree, but later, in response to a motion in arrest of judgment, reduced the crime to a felony of the third degree because of “an inherent equitable power to amend its own judgment.” The equitable consideration which moved the trial court to amend its verdict was the fact that the accomplice had been found guilty of robbery, a felony of the third degree.

To substitute a finding that Gaither was guilty only of robbery, a felony of the third degree, as the majority correctly holds, was improper. The trial judge had no greater authority to amend the nonjury verdict than he would have had to amend a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205 n. 5, 369 A.2d 1266, 1268 n. 5 (1977); Commonwealth v. Parker, 305 Pa.Super. 516, 523, 451 A.2d 767, 770 (1982). As Judge Spaeth observed in a concurring opinion in Commonwealth v. Nelson, 245 Pa.Super. 33, 38-39, 369 A.2d 279, 282 (1976)

Anyone who has been a trial judge will recognize what happened here. The judge had a difficult decision to make. He made it — he found appellant guilty — but then he started to worry that perhaps he had made a mistake. We have all experienced such worry. It can be very painful. It does not, however, justify a change of mind. Had the judge been sitting with a jury, and had one of the jurors come to him after the trial and expressed the wish to change his verdict, the judge would have told him that he could not. Here, the judge was the jury. He should have said to himself what he would have said to the juror.

For the foregoing reasons, I agree that the trial court’s order arresting judgment and substituting a lesser verdict was erroneous and must be reversed. I also agree that a remand is necessary to permit the trial court to consider and decide appellee’s undetermined motion for new trial.

      . 18 Pa.Cons.Stat.Ann.Sec. 3701(a)(l)(ii) (Purdon 1985).

      . Appellee was also convicted of theft by unlawful taking or disposition (18 Pa.Cons.Stat.Ann.Sec. 3921), theft by receiving stolen property (18 Pa.Cons.Stat.Ann.Sec. 3925), simple assault (18 Pa.Cons.Stat. Ann.Sec. 2701), possession of an instrument of crime, generally (18 Pa.Cons.Stat.Ann.Sec. 907(a)), possession of an instrument of crime, weapons (18 Pa.Cons.Stat.Ann.Sec. 907(b)), and criminal conspiracy (18 Pa.Cons.Stat.Ann.Sec. 903).

      . 18 Pa.C.S. § 3701(a)(1)(H) & (b).

      . 18 Pa.C.S. § 3701(a)(l)(v) & (b).

      . Robbery is a felony of the third degree if a person "physically takes or removes property from the person of another by force however slight.” 18 Pa.C.S. § 3701(a)(l)(v) & (b).

      . Aff’d in part at 476 Pa. 269, 382 A.2d 715 (1977).


author: McEWEN, Judge:

text:
    513 A.2d 1037
    Ethleen BRISSETT v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Allstate Insurance Company. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985;
    Filed Aug. 11, 1986.

      Stephen S. Dittmann, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellee.
    Before BROSKY, McEWEN and HESTER, JJ.
   McEWEN, Judge:

We here consider an appeal from an order in which preliminary objections in the nature of a demurrer filed by Allstate Insurance Company (“Allstate”) were sustained and the complaint filed by appellant Southeastern Pennsylvania Transportation Authority (“SEPTA”) was dismissed. SEPTA raises but one issue for our consideration on appeal, namely, whether, under Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983), a self-insurer must provide uninsured motorist coverage to an insured passenger who has received basic loss benefits under a separate policy. We affirm.

The facts are not disputed and the distinguished Judge Ethan Allen Doty has in his able opinion provided an apt summary of the events which give rise to this appeal:

On December 20, 1982, plaintiff, Ethleen Brissett, sustained personal injuries when the SEPTA bus in which she was a passenger was involved in an accident with a motor vehicle driven by an unidentified individual. At the time of this accident, plaintiff resided in the same household as her son, who was insured under a policy issued by additional defendant, Allstate. Consequently, plaintiff applied for and subsequently received basic loss benefits from Allstate, pursuant to the provisions of the Pennsylvania No-Fault Act.
On April 13, 1984, plaintiff instituted the present action against SEPTA, seeking recovery of uninsured motorist benefits. SEPTA filed a complaint joining Allstate as an additional defendant, claiming that it was responsible for the payment of any uninsured motorist benefits due to plaintiff. Allstate responded by filing preliminary objections in the nature of a demurrer seeking dismissal of SEPTA’s Complaint. This motion was granted by Order of this Court dated October 19, 1984.

The standard of review to be applied to an order which sustains preliminary objections in the nature of a demurrer is well-settled:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-462 (1983), quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord: Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 815 (1985); Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 639, 487 A.2d 817, 818 (1985). See also: Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 192, 500 A.2d 470, 472 (1985).

The Allstate policy under which Ms. Brissett is an insured contains an “excess coverage” clause which states that in the event that an insured is injured while occupying a vehicle not owned by the Allstate policyholder, Allstate will not be liable for payment of uninsured motorist payments until coverage available under other policies is exhausted. The pertinent clause provides:

If the injured person was occupying a vehicle you do not own which is insured for this coverage under another policy, this coverage will be excess. This means that when you are legally entitled to recover damages in excess of the other policy limit, we will pay the amount by which the limit of liability of this policy exceeds the limit of liability of that policy.

SEPTA contends that Allstate is primarily responsible for paying the uninsured motorist benefits to its insured and that this “excess coverage” clause is an impermissible attempt by Allstate to evade its statutorily imposed obligation to provide its insured with uninsured motorist coverage.

We cannot accept the contention of SEPTA since the Pennsylvania Code authorizes the precise type of “excess coverage” clause contained in the Allstate policy:

7. Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit or liability for this coverage exceeds the applicable limit of liability of such other insurance. Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.
* tfc * sf: * ¡fc

31 Pa.Code § 63.2 (Exhibit C). Thus it is seen that the “excess coverage” clause in the Allstate policy conforms to the statutory scheme regarding priority of payments in those instances where there is more than one available source for uninsured motorist coverage.

SEPTA concedes that under Modesta, supra, self-insurers are required to provide uninsured motorist coverage to injured passengers who are uninsured, but argues that self-insurers are not required to provide uninsured motorist coverage to insured passengers. We differ. Our Supreme Court in Modesta, supra, determined that a self-insurer was required to provide the substantial equivalent of uninsured motorist coverage. Modesta, supra 503 Pa. at 445, 469 A.2d at 1024. The requirement that self-insurers provide uninsured motorist coverage or its equivalent was imposed to alleviate the situation where uninsured passengers injured in a self-insured vehicle were unable to obtain uninsured motorist benefits. Id., 503 Pa. at 443 n. 5, 469 A.2d at 1023 n. 5. As a self-insurer, however, SEPTA is required to provide the equivalent of uninsured motorist coverage and, therefore, will be treated under the law as though it had in place a policy of insurance providing uninsured motorist coverage. “[T]he sole purpose of self-insurance is to relieve the self-insurers of the burden of expending their assets on insurance premiums; self-insurance is not a means by which self-insurers may avoid the claims of those individuals for whose protection the insurance laws have been enacted.” Id., 503 Pa. at 441, 469 A.2d at 1022.

The hearing court ruled that the uninsured motorist coverage provided by SEPTA was the “other policy” for the purposes of the “excess coverage” clause in Allstate’s policy. Modesta, supra, and the Pennsylvania Code required such a ruling. Thus, SEPTA is the party primarily liable for the recovery of such uninsured motorist benefits as may be determined to be due this claimant. Therefore, the hearing judge properly sustained the preliminary objections and dismissed the complaint of SEPTA alleging that Allstate was solely liable to the claimant for uninsured motorist benefits.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, Section 101, et seq., 40 P.S. Section 1009.101, et seq. Repealed. Act of February 12, 1984, P.L. 26, No. 11. (Effective October 1, 1984).

      . § 63.2. Extent of coverage to be offered.
      (a) The extent of the coverage which shall be offered as "Uninsured Motorists Coverage” shall be at least that coverage contained in the sample form attached hereto as Exhibit C and made a part of this section, which is the National standard form for this insurance. 31 Pa.Code § 63.2(a).

      . We note that had this claim been made under the new Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq., the priority for recovery of uninsured motorist benefits where multiple policies are present, that is, where coverage is available under more than one policy, would be the same as provided under the Allstate policy in question. Uninsured motorist benefits would first be paid from a policy covering the vehicle occupied by the injured person at the time and only after that source is exhausted would benefits be paid from a policy covering a motor vehicle not involved in the accident but under which the injured person is an insured. See 75 Pa.C.S. § 1733.


author: KELLY, Judge:

text:
    513 A.2d 1041
    COMMONWEALTH of Pennsylvania v. Victor REDDIX, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 18, 1986.
    Filed Aug. 6, 1986.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before KELLY, MONTGOMERY and HESTER, JJ.
   KELLY, Judge:

Appellant was arrested September 27, 1984 and charged on November 9, 1984 with three counts of robbery, two counts of receiving stolen property and one count of criminal conspiracy. Appellant filed an Omnibus Pre-trial motion on April 10, 1985 asserting, inter alia, lack of probable cause to stop the car in which appellant was a passenger on the evening of September 27, 1984 and lack of probable cause to arrest. Hearing on that motion, and the trial, were assigned to the Honorable Judge Lee of the Court of Common Pleas. On April 25, 1985, the day of appellant’s trial, two co-defendants pleaded guilty before Judge Lee; that same day Judge Lee denied appellant’s suppression motion. Nonetheless, appellant waived his right to trial by jury and proceeded to trial without jury before Judge Lee.

Appellant was adjudicated guilty on all but one of the robbery counts. After denial of motion for new trial and/or arrest of judgment, appellant was sentenced on July 21, 1985 to a period of incarceration. This appeal timely followed.

The facts of this case were aptly summarized by the court below:

On September 27, 1984, at approximately ten o’clock p.m., Valerie McIntosh, Susan Lippert and Janet Bartoletta were seated in a bus shelter in Munhall. They were approached by three black males who attempted to take their purses. One of the actors knocked down Ms. Lip-pert, who was in her ninth month of pregnancy, and the actors fled with her purse and Ms. Bartoletta’s. The actors then entered a large reddish or brownish car driven by a fourth black male which drove off in the direction of Whitaker Borough. The women reported the robbery to a mill guard; Munhall police arrived in a short time and interviewed the women, receiving a partial license plate number, a description of the car and its direction of travel, and a description of the actors. Munhall police radioed these descriptions to the Whitaker police who spotted a car fitting this description in Whitaker and pursued it into Rankin. Whitaker police stopped the car in Rankin and, after the arrival of assistance from police officers from Rankin and several other neighboring municipalities, a search of the car was conducted which revealed Ms. Lippert’s and Ms. Bartoletta’s purses. Defendant Victor Reddix and co-defendants Robert Spencer, James Phillips and Robert Johnson, the occupants of the car, were placed under arrest.
At the scene, the victims identified both their property and the actors.

(Trial Opinion at 3-4). Appellant raises three contentions on direct appeal of his conviction: (1) The trial court erred in failing to suppress certain inadmissible evidence; (2) The trial court erred in failing to recuse itself after appellant’s codefendants had pleaded guilty before it; (3) The evidence was not sufficient to sustain appellant’s conviction. We shall address these issues seriatim.

I

The appellant first contends that the trial court erred in failing to suppress evidence which was gained by the illegal stop and search of a vehicle in which he was a passenger. Appellant has maintained since the filing of his pre-trial motion and subsequent suppression hearing that his stop and arrest were improper because there was no probable cause to stop the car in which appellant was a passenger, and because the Whitaker police had no jurisdiction to make the stop and subsequent arrest in Rankin Borough. He then asserts that the evidence is tainted by the illegality. We disagree with both contentions and find no merit in the proffered arguments.

Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:

[Wjhether the record supports the suppression court’s factual findings and the legitimacy of the inferences ana legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. W.P., 302 Pa.Super. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

The existence of probable cause is determined by an examination of whether:

“the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Wagner, 486 Pa. 548, 556, 406 A.2d 1026, 1030 (1979), quoting Commonwealth v. Perry, 468 Pa. 515, 520, 364 A.2d 312, 315 (1976). “A warrantless arrest for a felony will be upheld where police have probable cause to believe (1) that a felony has been committed and (2) that the person to be arrested is the felon.” Commonwealth v. Derrick, 322 Pa.Super. 517, 532, 469 A.2d 1111, 1119 (1983). An arresting officer, in executing a valid arrest, may rely upon radio broadcasts emanating from police facilities provided, however, that the arresting officer has been either (1) ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest; (2) received information justifying arrest; or (3) heard information which, coupled with facts he personally observed, provided probable cause to arrest. Commonwealth v. Gambit, 274 Pa.Super. 571, 577-578, 418 A.2d 554, 557 (1980), aff'd., 501 Pa. 453, 462 A.2d 211 (1983). Accord Commonwealth v. Prengle, 293 Pa.Super. 64, 67, 437 A.2d 992, 994 (1981).

Commonwealth v. Evans, 343 Pa.Super. 118, 128, 494 A.2d 383, 388 (1985).

Applying the law to the facts of the instant case, the trial court properly found that probable cause existed to validate the stop and arrest. Officer Facciano of the Mun-hall Police Department, after talking with the victims, broadcast a detailed description of the suspects. He noted the suspects were fleeing in a “brownish early model vehicle” and that of the three “young black males” described by the victims, one was wearing a red shirt, one a blue-gray jogging top. He also noted that the car had fled in the direction of the Rankin bridge. (N.T. at 18-19). Relying on this broadcast information, Officer Karnes of the Whitaker Police Department stationed his marked police vehicle on the Whitaker side of the bridge. From his vantage point he was able to see the car drive by and in the glare of his car beams he specifically noted that one of the four occupants of the brownish car was wearing a blue-gray jogging top. The correlation of the broadcast description with the details the officer observed gave rise to probable cause to stop the vehicle.

Furthermore, the fact that there were four black youths in the car rather than three as broadcast over the police radio does not invalidate the finding of probable cause. Commonwealth v. Bunch, 329 Pa.Super. 101, 477 A.2d 1372 (1984). The court in Bunch concluded it was reasonable for the arresting officer to conclude that some three of the four occupants of the car were suspects. Similarly, we believe it was reasonable of Officer Karnes to conclude that some three of the occupants of the car matching the broadcast description were the suspects.

Once he stopped the car in Rankin Borough after it crossed the bridge, the Officer observed other items, further correlating to the broadcast description and further buttressing the probable cause requirements. Commonwealth v. Prengle, supra. Officer Karnes spotted a red shirt “stuffed down between two of the occupants in the rear.” (N.T. 26). Thus there is ample evidence on review to affirm the finding of probable cause to arrest.

However, this finding of probable cause will be irrelevant if the arrest was effectuated without proper authorization. The statute conferring jurisdiction on officers making arrests outside of their primary jurisdiction is 42 Pa.C. S.A. § 8953, Statewide Municipal Police Jurisdiction Act. That statute specifies six “cases” or situations wherein officers may act outside their primary jurisdiction. Cases 2, 3, and 6 are applicable in the circumstances of appellant’s arrest. They read as follows:

(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.
(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S.A. § 8953(a)(2)(3)(6). The circumstances of this case present us with an unique situation. Jurisdictional authority to pursue the felons must be traced first from the Munhall Borough to Whitaker Borough and then from Whitaker into the Borough of Rankin. Appellant contends that this exact situation is not covered by any statutory case and so is not covered by the statute. We, however, disagree with appellant, and affirm the finding of jurisdictional authority.

First, under a mutual aid agreement between Munhall and Whitaker Boroughs, the officers of Whitaker had “all the powers and authority conferred by law” that the police of Munhall would have. 53 Pa.C.S. § 46202(35). Second, the officers were requested to aid in apprehending the suspects. 42 Pa.C.S.A. § 8953(a)(3). Thus, jurisdictional authority was properly passed from the Munhall to Whitaker police.

Next, the Whitaker officers were in “hot” or “fresh” pursuit of the suspects as they passed from Whitaker into Rankin Borough. 42 Pa.C.S.A. § 8953(a)(2). The concept of hot pursuit applies even though the officers were not originally at the scene of the crime but initiated their pursuit in response to a radio broadcast to aid a fellow officer. See Commonwealth v. Brown, 298 Pa.Super. 11, 444 A.2d 149 (1982). Moreover, the Whitaker officers had probable cause to believe a felony had been committed, due to the radio broadcast; they attempted to identify themselves as police officers, and then gave chase to the vehicle in a marked police car with the lights flashing and siren sounding. 42 Pa.C.S.A. § 8953(a)(6). This gave Whitaker police authority to conduct the search and arrest in Rankin. Thus the arrest, effectuated outside the borough where the offense occurred, was sustained by valid jurisdiction. Therefore, we deny appellant’s contention and affirm the lower court as to this first issue for review.

II

Appellant’s second issue presented for review states that the trial judge should have recused himself in order to avoid the appearance of impropriety. The trial judge had, the same day that the appellant went to trial, heard the guilty pleas of appellant’s co-defendants and had presided over appellant’s suppression hearing.

Initially, we must consider the applicable standard of review.

The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Furthermore, the ‘decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.’ Commonwealth v. Kane, 199 Pa.Super. 89, 91, 184 A.2d 405, 406 (1962).
In general a ‘trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.’ Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting from A.B.A. Standards Relating to the Function of the Trial Judge § 17).

Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983).

Judge Lee clearly had no doubt of his ability to preside impartially in this criminal case. The question remains as to whether appellant met his burden of proof in asserting that Judge Lee’s impartiality can reasonably be doubted. We find that appellant has not met his burden of proof, and thus we affirm Judge Lee’s decision not to recuse.

Although our research has not uncovered cases dealing with the issue of recusal of a trial judge under these exact circumstances, there are cases enunciating the standard for when a trial judge presides over the pre-trial suppression hearing. The facts of Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) are on point. In Goodman, our Supreme Court held that “ ... a judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise inadmissible during the trial of the cause.” Goodman, 311 A.2d at 654. The case before us is clearly distinguishable. Judge Lee correctly decided that the evidence presented at the suppression hearing was admissible in toto, and thus the Judge was not prejudiced by hearing it.

Morevoer, appellant has failed to demonstrate that Judge Lee, in handing down a conviction of guilt, acted out of “bias, prejudice or unfairness.” Perry, supra. We take into consideration two pertinent facts which the trial judge relied upon in his opinion. The first is that the trial judge would have discovered the fact of the co-defendant’s guilty pleas when the co-defendants took the stand as Commonwealth witnesses. Appellant’s trial counsel knew the Commonwealth intended the co-defendants to take the stand and testify against appellant. The second is that appellant and his trial counsel chose to go forward with a non-jury trial before Judge Lee, armed with the knowledge that Judge Lee had heard the co-defendants’ guilty pleas and had decided against recusal. Appellant nonetheless decided to forego his option of trial by jury. Surely appellant and his counsel made a duly informed decision, and impliedly placed trust in the fact that the trial judge had not been prejudiced by this knowledge of co-defendants’ guilty pleas. See United States ex rel. Bennett v. Myers, 381 F.2d 814 (3rd Cir.1967) (Where trial judge had heard co-defendant’s guilty plea, decision by counsel to continue with trial before same judge was “an acknowledgment” that trial judge was not prejudiced and constituted no basis for recusal). Accordingly we affirm the lower court with regard to the second issue.

Ill

Appellant’s third and final contention is that the evidence was insufficient to support the verdict. Our standard on review is that the evidence must be read in the light most favorable to the verdict winner, with all reasonable inference arising therefrom. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Mad ison, 501 Pa. 485, 462 A.2d 228 (1983). In this case the verdict winner, the Commonwealth, called co-defendant James Phillips as a witness; he testified as to appellant’s role in the crimes charged. This testimony, once found credible, is sufficient to support the verdict beyond a reasonable doubt. The trial judge found Phillips’ testimony to be credible and we will not disturb this finding on review. Issues of credibility are for the trier of fact to determine and will not be disturbed on review. See Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984); see Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979). Therefore we find no merit to appellant’s final allegation and again affirm the trial court.

Judgment of Sentence AFFIRMED. Jurisdiction relinquished.