author: OLSZEWSKI, Judge:

text:
    536 A.2d 453
    Jack F. DYER, Appellant, v. Joette DYER, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed Jan. 28, 1988.

      Michael Collins, Williamsport, for appellant.
    Harry V. Klein, Jr., Sunbury, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the trial court’s order awarding alimony pendente lite and permanent alimony to Joette Dyer. For the reasons stated below, we affirm the order of the trial court in part and reverse in part.

The parties to this action were married on March 24,1973 and separated on September 10,1974. During the marriage wife was employed full time earning slightly above minimum wage, while husband worked off and on as a laborer. The parties’ standard of living during this period was below average. Following the separation, wife lost her job and began a series of hospitalizations for mental illness. Presently, wife’s only income is Social Security disability benefits in the amount of $368 monthly.

Husband began working at a factory after the separation and has worked there off and on for thirteen years. In December, 1983 husband won $2.8 million in the Pennsylvania lottery, which he receives in 21 annual installments of approximately $110,000 each.

On January 24, 1983, husband filed a complaint in divorce and on October 11, 1983, he filed a Section 201(d) affidavit. This complaint was reinstated October 28, 1983.

On February 14, 1984 husband filed an amended complaint. On March 27, 1984 this complaint was reinstated and a second Section 201(d) affidavit was filed.

On May 24, 1984 wife filed an answer to the amended complaint along with a counterclaim for alimony, alimony pendente lite, equitable distribution of marital property, counsel fees, costs and expenses. Wife also filed a counter-affidavit under Section 201(d) denying that the marriage was irretrievably broken.

A hearing was held on April 30, 1986, at which the trial court found that the marriage was irretrievably broken and that the parties had lived separate and apart for over three years. A final decree in divorce was entered on January 30, 1987. On the same day, the court entered an order directing husband to pay wife alimony in the amount of $500 per month for the remainder of her life unless she remarried. The husband was also directed to pay wife alimony pendente lite in the sum of $500 per month for the period of May 25, 1984 (the date of wife’s answer and counterclaim) to the date of the entry of the divorce decree. Husband was also directed to pay wife an allowance for reasonable counsel fees. Both parties filed motions for post trial relief with husband taking exception to the awards of alimony and alimony pendente lite and wife claiming the awards should have been higher. On June 19, 1987, the trial court denied both parties’ motions for post trial relief. The trial court did, however, modify the alimony award directing that such payments shall be increased to the extent that the Social Security disability benefits received by wife are reduced as a result of alimony payments providing, however, that such alimony payments shall not exceed $868 per month. The trial court also revised the alimony pendente lite award, making it retroactive to May 5, 1986, the date husband requested a hearing on the economic issues.

Both parties appeal from this final order. Wife contends that the awards of alimony and alimony pendente lite should have been higher and that the award of alimony pendente lite should be retroactive to the date her counterclaim was filed. Husband contends that the trial court erred in awarding alimony pendente lite and permanent alimony. We affirm all portions of the trial court’s order except that portion pertaining to the retroactivity of the alimony pendente lite award. With respect to that portion of the trial court’s order we reverse, holding that the award of alimony pendente lite is to be retroactive to the date of wife’s counterclaim.

Preliminarily, we note that our standard of review with respect to orders awarding alimony and alimony pendente lite is limited to a determination of whether the trial court abused its discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

We now undertake a review of the parties’ contentions beginning with that portion of the court’s order awarding permanent alimony. Husband contends that an award of permanent alimony was error in light of the extremely brief duration of the marriage, the modest standard of living of the parties during the marriage, the length of the parties’ separation, and the lack of a showing of need by wife. Husband also contends that the court erred in finding that wife is incapable of employment when the record shows that she was often the sole wage earner during the marriage and that any incapabilities are a result of her voluntary drug use. We find these contentions to be meritless.

Alimony is provided for by 23 P.S. § 501. Alimony is to be awarded based on actual need and ability to pay of the parties ... in order to “effectuate economic justice between [the] parties”. 23 P.S. § 102(a)(6). In arriving at economic justice, 23 P.S. § 501 is to be applied in an non-mechanical fashion seeking to achieve a result which is compassionate and reasonable. Pacella v. Pacella, 342 Pa.Super. 178, 185-86, 492 A.2d 707, 711 (1985), citing Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). 23 P.S. § 501(b) sets forth fourteen relevant factors which are to be considered by a trial court when determining whether alimony is necessary and the nature, amount, duration and manner of payment of alimony.

The trial court prepared a comprehensive opinion which gave extensive consideration to the factors set forth in 23 P.S. § 501, dealing with each of the fourteen factors separately. The court acknowledged the modest standard of living of the parties during the marriage along with the short duration of the marriage. 23 P.S. § 501(b)(5), (8). The trial court recognized however, the other considerations which highlighted the disparity between the parties’ respective situations. Some of these considerations are as follows; (1) the relative earnings and earning capacities of the parties, 23 P.S. § 501(b)(1); (2) the ages and the physical, mental and emotional conditions of the parties, 23 P.S. § 501(b)(2); (3) the sources of income of both parties, 23 P.S. § 501(b)(3); (4) the relative assets and liabilities of the parties, 23 P.S. § 501(b)(10); and (5) the relative needs of the parties, 23 P.S. § 501(b)(13). After giving due consideration to these factors, as well as the other factors set forth in 23 P.S. § 501, the court determined that an award of permanent alimony was appropriate. We are satisfied that this is a just and proper award under the circumstances. Wife has limited education and work experience. Her medical history, along with her appearance and behavior at the hearing, convinced the court that her ability to provide for her reasonable needs through employment was completely lost. The fact that she worked during the marriage is irrelevant to the issue of whether she is now, or will be again, able to provide for herself. So too are the circumstances which brought about her present physical and mental condition. Presently wife’s only source of income is Social Security disability benefits in the amount of $368 monthly. She has no financial expectancies.

By contrast, husband is in good health physically and mentally. He is able to work and his employment at the factory produced, in gross wages plus unemployment compensation, a total of $19,713.19 in 1983, $16,579.00 in 1984 and $23,701.00 in 1985. In addition, husband’s lottery winnings guarantee him a yearly income of $109,978.60, after federal withholding, until the year 2003.

In view of the facts set forth above, we find it unnecessary to disturb the trial court’s finding in this regard. Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985) (award of permanent alimony appropriate).

Wife contends that the award of permanent alimony should have been greater. She contends that husband, as a result of his lottery winnings is able to pay a far larger award than the court directed and that although the award may appear generous, it is still less than ten percent of husband’s income. In response to this, we note, as the trial court did, that the duration of the parties’ marriage was very brief and that the standard of living of the parties’ during the marriage was extremely modest. 23 P.S. § 501(b)(5), (8). Furthermore, husband’s lottery winnings are his sole and separate property. They were not acquired during the marriage; therefore, they had no impact on the parties’ standard of living. While it is true that the husband is in a far better financial position than wife, we cannot say that the trial court’s award was an abuse of discretion.

The trial court’s opinion was comprehensive and well reasoned. It displayed compassion for wife’s situation. We are mindful of the intent of 23 P.S. § 501 to effectuate economic justice between the parties. Pacella v. Pacella, supra. We do not believe, however, that placing the parties on equal financial footing is the only way to achieve economic justice. A court must fashion an award based upon an evaluation of the relevant factors set forth in 23 P.S. § 501. The trial court did so in this case. We will therefore not disturb its award.

We now turn to that portion of the court’s order pertaining to the award of alimony pendente lite. Alimony pendente lite is awarded after commencement of a divorce action to enable the dependent spouse to maintain or defend the divorce litigation. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984); Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983) (citations omitted); Remick v. Remick, supra (citations omitted). In determining whether the dependent spouse is placed at a disadvantage in pursuing the divorce litigation, the court should look to the ability to pay of the financially independent spouse, the separate estate and income of the dependent spouse, and the character, situation and surroundings of the parties. See Orr v. Orr, supra (citations omitted). A court may also take into account the considerations set forth in 23 P.S. § 501 “Alimony”. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985).

Husband contends that the award for alimony pendente lite should not have been granted in view of the fact that wife did not show herself to be financially dependent. We find this claim to be meritless. The trial court stated that the fact that wife is receiving Social Security disability benefits is sufficient proof of her inability to work. The court, after observing the wife on the witness stand, and taking into consideration her extensive history of institutionalization, found that she is totally unable to provide for her reasonable needs through employment and will never be able to support herself through appropriate employment again. (Trial court opinion at 7). Such a finding is entirely consistent with Remick v. Remick, supra (in reviewing husband’s claim that wife had not proved that she was unable to support herself through appropriate employment, court found that wife’s testimony regarding physical ailments and the fact that she received Social Security disability benefits to be sufficient evidence of such inability).

Wife contends that the award of alimony pendente lite should have been retroactive to the date of her counterclaim rather than the date husband requested a hearing on this issue. With respect to the retroactivity of the alimony pendente lite award, the trial court found that wife’s boilerplate clause in her counterclaim for alimony pendente lite was not sufficient as a genuine indicator of her intent. The court found that such claims are generally set forth as a routine matter of form. As the issue does not come before the court or master until a party requests a hearing, the trial court found that the alimony pendente lite award should be retroactive only until the date husband requested a hearing on the matter. We are not persuaded by the trial court’s reasoning in this regard. Instead we feel that this issue should be determined in accordance with our ruling in Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987).

In Barner, this Court found that plaintiff’s request for child support included with the divorce complaint sufficiently raised the claim for child support so that the order for support could be made retroactive to the date of the divorce complaint. We noted in Barner that Pennsylvania Rule of Civil Procedure 1920.13(b) provides the method for pleading more than one cause of action in a divorce proceeding:

(b) The plaintiff may
(1) join in the complaint in separate counts any other claims which may under the Divorce Code be joined with an action of divorce or for annulment or if they have not been so joined, the plaintiff may as of course amend the complaint to include such other claims or may file to the same term and number a separate supplemental complaint or complaints limited to such other claims;

Those claims which may be joined with an action of divorce under the Divorce Code 23 P.S. § 101 et seq. are set forth in 23 P.S. § 301:

(a) The courts of this Commonwealth as defined in section 104 shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(footnote omitted)
(1) ... and the order of any alimony, alimony pendente lite, counsel fees, or costs authorized by law.

We find that wife properly raised her claim for alimony pendente lite when she filed her answer and counterclaim. The award for alimony pendente lite should, therefore, have been retroactive to the date of wife’s counterclaim.

We are now left only with wife’s contention that the award of alimony pendente lite should have been greater. We feel that our discussion responding to this same claim in connection with the alimony award is adequate response with respect to the present claim pertaining to the award of alimony pendente lite. We therefore affirm the order of the trial court in all respects except that pertaining to the retroactivity of the award of alimony pendente lite. We reverse that portion of the order and hold that the award of alimony pendente lite be retroactive to the date wife filed her counterclaim.

      . 23 P.S. Section 201(d) provides:

        It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken ...


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    536 A.2d 800
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Theodore ZACHARY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Dec. 9, 1987.
    Reargument Denied Feb. 5, 1988.

      Lee H. Rosenau, Philadelphia, for appellant.
    George Gerasimowicz, Jr., Spring City, for appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from the Order denying Appellant-State Farm Mutual Automobile Insurance Company’s Petition to Compel Medical Examination pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act. See 75 Pa.C. S.A. § 1796. The record shows that Appellee-Theodore Zachary sustained injuries in an automobile accident on November 15, 1985. At the time of the accident, Zachary was insured by State Farm and thereafter made claims for benefits from his insurer.

Subsequent to ten months of treatment for soft tissue injuries, State Farm filed its Petition for Medical Examination. Pursuant to Pa.R.C.P. 1028, Zachary filed preliminary objections challenging the trial court’s jurisdiction to entertain State Farm’s petition. By its January 27, 1987 Order, the trial court denied the preliminary objections. In addition, the underlying petition was denied without prejudice. This timely appeal by State Farm follows.

On appeal, Appellant raises the following issues:

1. Whether “good cause” under the Pennsylvania Financial Responsibility Act was shown when the claimant indicated that the amount of his bills were undetermined, he continued to treat for over ten months, and requests to supply the petitioner with all medical bills and reports were ignored; and,
2. Whether the trial court abused its discretion in overturning all prior guidelines for the determination of “good cause” by unilaterally requiring a doctor to review all medical records before an examination would issue.

Preliminarily, we observe that an order granting or denying a petition to compel a medical examination under 75 Pa.C.S.A. § 1796 is a final appealable order. Keystone Insurance Co. v. Caputo, 365 Pa.Super. 431, 529 A.2d 1134, 1135 (1987). Therefore, this appeal is properly before us.

The statute on which State Farm’s petition was based contained the following provisions:

(a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.

75 Pa.C.S.A. § 1796 (emphasis supplied).

By its opinion, the trial court stated that State Farm’s petition was denied inasmuch as it did not contain a showing of “good cause” justifying an independent medical examination. State Farm’s petition was found to be “long on averments ... but woefully short on demonstration.” (Trial Court Opinion, 11). On appeal, State Farm disagrees and contends that sufficient “good cause” was demonstrated by its petition.

Although this Court has never articulated explicit guidelines on what constitutes a demonstration of “good cause,” it is mandatory that the averments contained within a petition to compel a medical examination must rise to a level of specificity so as ensure that a claimant will not be forced to submit to unnecessary examinations sought in bad faith. Accordingly, such petitions must illustrate a need, rather than a mere desire, for an independent medical examination. In Nationwide Mutual Insurance Co. v. Fandray, 12 D. & C.3d 65, 70, 128 P.L.J. 63 (1979), the Honorable R. Stanton Wettick of the Court of Common Pleas of Allegheny County commented on the requirements of “good cause shown”:

[t]o establish ‘good cause shown’, an insurer’s petition, at the minimum, must contain facts showing that the proofs supplied in support of the claim are inadequate, that the proposed physical examination will substantially assist the insurer in evaluating the claim and that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.

Later, in Erie Insurance Exchange v. Dzandony,—Pa.D. & C.3d —, 134 P.L.J. 166 (1986), Judge Wettick further opined that the petitioner must show that “the information supplied by the insured in support of his or her claim does not eliminate reasonable doubt as to the validity of the claim.” Since we agree with these observations, we will examine the petition itself to determine whether or not its allegations met the “good cause shown” requirement.

State Farm’s petition is quite lengthy. However, it is essentially comprised of two general accusations repeated throughout the document: Zachary had submitted neither the medical bills incurred nor a medical report containing a specific opinion as to the causation of the claimant’s maladies. For these two reasons, State Farm posited that the independent medical examination would have been of great value in evaluating the necessity and reasonableness of Zachary’s disability, treatment, and length of illness.

Upon review of State Farm’s petition, we agree with the trial court’s conclusion that the petition lacked a showing of “good cause.” Although State Farm challenged Zachary’s medical proofs, the allegations in the petition were generic in nature and did not adequately explain the reasons for the insurer’s dissatisfaction with the information provided. State Farm initially stated that it had received a medical report prepared by Dr. James A. Anthony, Jr. which described Zachary’s condition as an “aggravation of an underying (sic) mild degenerative condition of the left tip joint as well [as a] chronic strain/contusion of the paravertebral muscular structure area of the lumbosacral and cervical spine region.” (Petition, Exhibit “B”). The only specific averment made with respect to the medical report was that it lacked an explicit opinion as to causation and the possibility of serious and permanent injuries.

We recognize State Farm’s need for sufficient information concerning Zachary’s physical condition and his medical prognosis. However, we do not agree that State Farm has demonstrated that an independent medical examination is appropriate at this juncture. Absent from the record is any indication that State Farm requested additional medical information before it attempted to have Zachary submit to an independent medical examination.

The exhibits attached to the petition reflect the following history: On August 4, 1986, a letter from Zachary’s legal counsel was sent to State Farm notifying it that they were in receipt of the insurer’s request for an independent medical examination. The correspondence advised State Farm that it had not supplied Zachary with the necessary “unusual circumstances which make medical treatment received or need for treatment to be questionable.” Therefore, the insured would not submit to the examination. (Petition, Exhibit “G”). Instead of making an attempt to clarify its position on what further information was needed to evaluate Zachary’s claim, State Farm wrote to Dr. Daniel Gross on August 14, 1986 requesting that a medical examination of Zachary be scheduled. (Petition, Exhibit “H”). Subsequently, Zachary’s counsel sent a letter to State Farm’s attorney stating that Zachary would not submit to the scheduled examination insofar as the claimant still had not been apprised of the good cause in support of State Farm’s request. (Petition, Exhibit “K”). Thereafter, State Farm filed its petition.

Notably absent from the record is any indication that State Farm had requested Zachary to supplement his medical proofs before it attempted to schedule the independent medical examination. The correspondence from Zachary’s counsel explicitly invited State Farm to outline the specific areas of the insured’s claim which were troublesome. Rather than pursue a course of cooperation to resolve its concerns, State Farm instead petitioned for the independent medical examination. By its petition, State Farm for the first time intimated that the medical report it received did not contain a specific opinion with reference to causation and Zachary’s prognosis. We are of the opinion that an independent medical examination would have been improperly granted under these circumstances. State Farm did not possess the desired medical information simply because the insurer never requested it, not because State Farm had been denied access to it by Zachary. In addition, while the averments in the petition stated the aspects of the medical information which State Farm felt needed to be supplemented, they did not demonstrate in what manner those alleged deficiencies caused the insurer to harbor reasonable doubt as to the validity of the claim.

Finally, with respect to State Farm’s claim that Zachary had not supplied the insurer with medical bills and related items, we fail to see in what way an independent medical examination could have rectified that situation, if it indeed existed.

State Farm’s next allegation is that the trial court erred by establishing an unreasonable “good cause” standard contrary to prior case law and current legislation. State Farm first argues that the trial court procedurally erred by denying its petition without first allowing Zachary to file an answer. We disagree. The trial court stated in its Order that Zachary did not need to file an answer insofar as the petition severely lacked a showing of “good cause”. However, by virtue of the fact that the Order denied the petition without prejudice, we do not see in what manner State Farm was harmed by the trial court’s decision to deny the petition without first considering Zachary’s answer.

Second, State Farm alleges that discovery should have been taken, or a hearing scheduled, so that it would have had the opportunity to demonstrate good cause for its petition. In Keystone Insurance Co. v. Caputo, supra, we found that under circumstances in which factual disputes existed between the parties, the trial judge should not have granted the appellee’s petition for an independent medical examination without first permitting the parties to have depositions taken or to have argument listed as provided by Pa.R.C.P. 209. Id. 529 A.2d at 1136. However, the facts present in Caputo are distinguishable from those in the case at bar. Instantly, the petition contained allegations that were so general and conclusory that it could not raise factual disputes between the parties. Thus, the provisions of Rule 209 could not have been utilized.

Third, State Farm maintains that the trial court adopted an overly stringent standard in determining whether or not “good cause” has been shown. In its opinion, the trial court noted the analysis used by Judge Wettick in Erie Insurance Exchange v. Dzandony, supra. In that case, Judge Wettick wrote that, in addition to showing that the information supplied by the insured did not eliminate reasonable doubt as to the validity of the claim, the insurer must:

unless it is clear that the information of the treating physician is insufficient to support the claim for payment of medical and other rehabilitative treatment which the insured received, ... submit an affidavit from the physician whom the insurance company wishes to perform the examination stating that he or she has reviewed the information submitted in support of the claim and explaining why this information is insufficient and why the examination is necessary.

Id. at 134 P.L.J. at 166. Contrary to State Farm’s interpretation of the trial court’s opinion, there is no indication that the trial judge adopted this approach in reaching the decision to deny the petition. Moreover, the trial court’s decision turned on the fact that its petition inadequately articulated in what ways Zachary’s medical proofs were deficient and why a physical examination would substantially assist State Farm in evaluating the claim. (Trial Court Opinion, 11). Thus, we need not consider at this time whether or not the Dzandony guidelines are appropriate.

Order affirmed. Jurisdiction relinquished.

      . Hereinafter referred to as "State Farm".

      . Hereinafter referred to as "Zachary”.

      . The trial court stated in its opinion that, due to the deficient nature of State Farm's petition, it was unnecessary to grant Zachary additional time in which to file an answer.

      . By his brief, Zachary states that at the time State Farm filed its petition, there were no outstanding claims; State Farm had paid all that were submitted by Zachary. However, we are aware that this is the first time this information is provided to the Court. It has not been made part of the record. Thus, it shall have no bearing on our consideration of the case.


author: OLSZEWSKI, Judge: DEL SOLE, Judge,

text:
    536 A.2d 804
    Mildred CARNEY, Appellee, v. OTIS ELEVATOR COMPANY and Nacho Realty Co. Appeal of OTIS ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Submitted Sept. 16, 1987.
    Filed Jan. 25, 1988.

      Basil A. DiSipio, Philadelphia, for appellant.
    Marvin S. Haber, Philadelphia, for Carney, appellee. J. Michael Potter, Philadelphia, for Nacho, appellee.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered in favor of appellee following a trial by jury. Appellant claims that it is entitled to either judgment in its favor because the trial evidence did not satisfy the elements of negligence; or, in the alternative, a new trial because the verdict was contrary to the weight of the evidence and because the trial court committed reversible error during the course of the trial. For reasons discussed below, we affirm the decision of the trial court.

The trial court presented the facts as follows.

... On May 17, 1982, at approximately 4:00 p.m.[,] plaintiff, Mildred Carney, and some of her co-workers left a conference and were heading home from their fourth floor offices which are located at 801 Arch Street, Philadelphia, Pa., in a building managed by Nacho. They intended to use one of the two self-operated elevators servicing the fourth floor. When plaintiff attempted to enter the elevator on the west side of the north wall immediately after her co-worker, the elevator doors closed suddenly and began crushing her. Plaintiff testified about injuries as a result of the elevator doors crushing her, including persistent headache, injuries to her neck, low back, shoulder girdles and rib cage, and soreness in her chest, legs and back. Plaintiff also alleged that she was out of work due to said injuries for [twenty-two and one-half] months.
The elevator in question was the subject of a maintenance agreement between defendants Otis and Nacho. The Otis employee responsible for the maintenance of the elevator testified as to his weekly maintenance visits, that, on April 26, 1982, the door chain to the elevator was loose and was repaired, and that the elevator in question had had prior problems concerning the open door locks. Further, plaintiff testified that, while there was nothing odd about the way the doors opened, she noticed that the doors closed much more quickly than usual when she was about to enter the elevator and that the doors did not release themselves, causing her to be crushed.
Finally, plaintiffs witness, Dr. Richard DiMonte, testified concerning plaintiffs injuries and was asked by the Court whether he had an opinion, with a reasonable degree of medical certainty, whether the injuries were the result of this accident. Dr. DiMonte replied in the affirmative and stated that the injuries would be related to the accident.

Opinion It 2-3.

On January 28, 1986, the jury returned a $25,000 verdict against appellant and Nacho. The jury apportioned liability, finding appellant 90% at fault. On February 10, 1986, the trial court entered a molded verdict of $20,000, reflecting a $5,000 settlement procured against Nacho prior to trial. The trial court denied appellant’s motion for judgment n.o.v., and motion for new trial on December 30, 1986. This appeal followed.

Appellant first alleges that it is entitled to a judgment in its favor because evidence presented at trial does not satisfy the elements of negligence. In reviewing appellant’s claim, we are guided by the following principles:

In reviewing an order denying judgment n.o.v., we must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to appellee as the verdict winner. See, e.g., Lynch v. Metropolitan Life Insurance Co., 427 Pa. 418, 423, 235 A.2d 406, 409 (1967). See also, Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980). Judgment n.o.v. should be entered when the facts are such that no two reasonable persons could disagree that the verdict was improper. See, e.g., Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 880-81 (1967); Bottorf v. Waltz, 245 Pa.Super. 139, 142-44, 369 A.2d 332, 334 (1976) ... [W]hen evidence is insufficient to sustain a verdict against a losing party, ... the court should enter a judgment n.o.v. McCloskey v. New York Life Insurance Company, 292 Pa.Super. 1, 5, 436 A.2d 690, 691-92 (1981).

Banas v. Matthews Internat'l Corp., 348 Pa.Super. 464, 474-475, 502 A.2d 637, 642 (1985).

Appellee established an inference of negligence by relying on the doctrine of res ipsa loquitur. Appellant maintains that the evidence was insufficient to establish the elements of res ipsa loquitur. Our Supreme Court, in Gilbert v. Korvette, 457 Pa. 602, 327 A.2d 94 (1974), adopted the res ipsa loquitor doctrine as provided in Section 328 D of the Restatement (Second) of Torts. The section provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

We have determined that the rationale behind the doctrine is to aid plaintiffs in making out a prima facie case of negligence against defendants by allowing an inference of negligence to be deduced from competent evidence on the theory that in the course of ordinary events, the injury or damage complained of would not have occurred in the absence of negligence. Smith v. City of Chester, 357 Pa.Super. 24, 27, 515 A.2d 303, 305 (1986). It is well established that the plaintiff must satisfy all three elements of section 328 D(l) before an inference of negligence can be drawn from an injurious incident. Id., citing Lanza v. Poretti, 537 F.Supp. 777 ([E.D.Pa.] 1982).

In the present case, the trial court determined that the facts were analogous to those of Gilbert, making res ipsa loquitur applicable. The court further held that the appellee had established the requisite elements of 328 D(l). We find that the record and the relevant case law support the trial court’s finding. First, the event is clearly one which would not have occurred in the absence of negligence. Appellee testified that as she was entering the elevator, the doors closed upon her and did not release, causing her to be crushed. Trial transcript, 28. Additionally, appellee stated that normally if the elevator door closed on someone, it would reopen. Id. Appellant’s employee responsible for maintenance, Gordon Wyatt, also indicated that an elevator “door slam” is a malfunction. Trial transcript, 75-78.

Second, regarding the elimination of other causes, we have declared that it is not necessary that a plaintiff exclude all other possible causes of the accident beyond a reasonable doubt. Smith, supra, 357 Pa.Super. at 28, 515 A.2d at 305. Rather, a plaintiff is required to present a case from which a jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Restatement (Second) of Torts Section 328 D comment f. Instantly, there was substantial evidence that appellee was not negligent. In addition, Gordon Wyatt testified that inspections were exclusively within his control. We are satisfied that appellee presented sufficient evidence to eliminate other responsible causes.

Finally, we conclude that the negligence was within the scope of appellant’s duty to appellee. It is this aspect of the doctrine that appellant emphatically asserts is not established by the testimony presented at trial. Appellant contends that it only had a contractual duty of reasonable inspection which was not breached. We have determined, however, that by contracting to service and maintain the elevator on a weekly basis, appellant is in exclusive control of the elevator and may be held liable for injuries caused by the malfunction of the elevator. Johnson v. Otis Elevator Co., 225 Pa.Super. 500, 311 A.2d 656 (1973). We have previously noted the duty upon appellant to service and maintain the elevators to prevent the elevators or their components from going “out of control.” Id., 225 Pa.Superior Ct. at 503, 311 A.2d at 657.

We find that the evidence presented was sufficient to satisfy the elements of res ipsa loquitur from which the jury appropriately inferred negligence. We conclude, therefore, that the trial court properly denied appellant’s motion for judgment n.o.v.

Next, appellant claims that it is entitled to a new trial because the verdict was contrary to the weight of the evidence. In reviewing this claim, we must consider that:

[t]he decision to either grant or deny a motion for'new trial [on grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion____ Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.
Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). See: Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951); Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Hawthorne v. Dravo Corp., Keystone Division, 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986).

Instantly, appellant asserts that the verdict and the apportionment of liability are factually unsubstantiated. Scrutiny of the facts, discussed supra, indicates, however, that there was adequate evidence to support the jury’s verdict. We will not disturb the verdict of the jury merely because a different verdict might have been reached. Thompson v. Motch & Merryweather Machinery, 358 Pa. Super. 149, 516 A.2d 1226 (1986). We are satisfied that the verdict was not against the weight of the evidence and, therefore, the trial court did not abuse its discretion in denying appellant’s motion for new trial.

Finally, appellant urges that it is entitled to a new trial because of various alleged errors committed by the trial court during the course of the trial. We will address appellant’s contentions seriatim. First, appellant claims that the trial court improperly questioned appellee’s witness, Dr. DiMonte, in an attempt to establish an element of appellee’s cause of action. It is well established, however, that a trial judge has the right and sometimes the duty to interrogate witnesses. Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977) (quoting Commonwealth v. Myma, 278 Pa. 505, 507-508, 123 A. 486, 487 (1924)); See also Commonwealth v. Whiting, 358 Pa.Super. 465, 517 A.2d 1327 (1986). When an important fact is indefinite or a disputed point needs to be clarified, the Court may see that it is done by taking part in the examination. Commonwealth v. Britton, 334 Pa.Super. 203, 208, 482 A.2d 1294, 1297 (1984) (quoting Myma, supra, 278 Pa. at 507-508, 123 A. at 487). In exercising this prerogative, the trial court cannot unduly protract testimony or show bias. Seabrook, supra, 475 Pa. at 45, 379 A.2d at 567; Whiting, supra, 358 Pa.Super. at 473, 517 A.2d at 1331.

In the instant case, a review of the record indicates that the trial judge questioned the doctor in order to clarify the opinion of the doctor, which the court initially felt differed from statements made in the doctor’s reports. Opinion at 5. This type of clarification is well within the trial court’s discretion.

Appellant also complains that the trial court erred in permitting the introduction of a document which showed that appellant had inspected the elevator on May 13, 1982 and replaced a door on June 4, 1982. Appellant asserts that the document contains inadmissible evidence of subsequent repairs. The trial court permitted the evidence to impeach the testimony of Mr. Fox, a maintenance worker, who claimed he found the doors in working order on June 4, 1982.

“It is well settled that evidence of subsequent repair is not admissible to impute antecedent negligence, but such evidence may be admissible for other relevant purposes.” O'Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 289, 423 A.2d 1251, 1260 (1980), citing, Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971). Therefore, the evidence of subsequent repair was permissible to impeach the credibility of Mr. Fox.

Finally, appellant maintains that the trial court erred in refusing to charge the jury as to appellant’s suggested point for charge on burden of proof (“point Forty”). Appellant, however, did not object with specificity to the trial court’s charge. Instead, the following dialogue transpired when the judge invited the attorneys to request additional instructions:

MR. DI SIPIO: Also my supplemental point number Forty. It ties in with the one I just pointed out to the Court.
THE COURT: I will deny that.
MR. DI SIPIO: If I could have an exception to the statement about the wage loss in that there was no evidence, specific evidence of her wage loss.

Trial record at 240.

We have declared that a specific exception, indicating the language or omission complained of, must be lodged to preserve an objection to a jury instruction. Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 443 A.2d 849 (1982). Instantly, the record discloses that appellant failed to specifically object to the portion of the jury instructions now in question. Therefore, the alleged error is deemed waived. Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 521 A.2d 25 (1987); Orlando v. Herco, Inc., 351 Pa.Super. 144, 505 A.2d 308 (1986).

The judgment of the trial court is affirmed.

DEL SOLE, J., concurs with opinion.

DEL SOLE, Judge,

concurring:

I concur in the result reached by my colleagues in the majority but write separately for two reasons.

First, I disagree with the conclusion in the majority Opinion that the Appellant has failed to preserve for appellate review an averred court err in refusing to charge the jury as to the Appellant’s suggested point for charge on burden of proof (point Forty). I believe that the colloquy set forth was sufficient to raise that issue for the trial court, however, I am in agreement with footnote 2 of the majority Opinion that the trial court’s charge was correct and that no reversible error occurred in failing to grant point Forty.

I write secondly to point out a matter that is inherent in the case from which no appeal was filed. The record reflects that the jury returned a verdict of $25,000 against the Appellant and Nacho Realty Co., and found the Appellant 90% at fault, Nacho 10% at fault. Previous to the trial, Nacho and the Plaintiff settled for $5,000. The trial court in molding the verdict as a result of that settlement reduced the amount recoverable against the Appellant to $20,000.

Recently, the Supreme Court determined that the amount paid by a settling tort feasor in excess of its proportionate share of damages, as determined by the jury, does not relieve the nonsettling tort feasor of the obligation to pay its full, pro-rata share under the Comparative Negligence Act. Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987). Applying that analysis to this case, the verdict should have been molded in favor of the Plaintiff and against the Defendant-Appellant in the sum of $22,500. Since this matter was not appealed or preserved, the verdict as it was molded by the trial court should stand in this case.

      . This is an appropriate case for the utilization of res ipsa loquitor. See Gilbert, supra; see also Williams v. Eastern Elevator Co., 254 Pa.Super. 393, 386 A.2d 7 (1978).

      . We note, nonetheless, that appellant’s suggested point for charge requested instruction on the incorrect duty standard, discussed supra, and an inaccurate burden of proof. We conclude that the trial court determined the applicable law and correctly instructed the jury thereon. See Johnson v. Otis Elevator Co., 225 Pa.Super. 500, 311 A.2d 656 (1973).


author: CERCONE, Judge:

text:
    536 A.2d 809
    COMMONWEALTH of Pennsylvania v. John Richard LOHMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1987.
    Filed Jan. 25, 1988.

      Craig P. Miller, Lock Haven, for appellant.
    Donna L. Rae, Assistant District Attorney, Lock Haven, for Com., appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the March 5, 1987 order of the Court of Common Pleas of Clinton County.

Appellant, John Richard Lohman, was charged with rape and simple assault of his fourteen (14) year old step-daughter. Appellant was found guilty by a jury of both charges. Post-verdict motions were timely filed and denied. Appellant was sentenced to a term of incarceration of five (5) to ten (10) years. Appellant’s timely motion to modify sentence was denied. This appeal followed.

Appellant raises a total of nineteen (19) issues on appeal. After reviewing the record on appeal, the briefs of the parties and the lower court opinion, we find that the court below has thoroughly addressed and correctly disposed of all but one of appellant’s contentions which we will address herein.

Appellant avers that the lower court erred in permitting a child witness to testify via closed-circuit T.V. This issue was recently addressed by an en banc panel of this court in Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987).

In Ludwig, the defendant was charged with sexually abusing his six (6) year old daughter. Although the child was able to discuss the details of the case, she “froze” and was unable to testify in front of her father during the preliminary hearing. To avoid this occurrence at trial, the court permitted the daughter to testify via closed-circuit T.V. The only people present with the child while she was testifying were the child’s foster mother and a camera operator. All others observed the child’s testimony from the courtroom.

The defendant in Ludwig asserted that permitting his daughter to testify via closed-circuit T.V. constituted a violation of his right to confront her as a witness, a right guaranteed by the Pennsylvania Constitution in Article 1, § 9.

Judge Wieand, writing for the majority, espoused that the right of confrontation is not an absolute right.

The decided cases teach that the right of confrontation occasionally may be required to give way to considerations of public policy and the necessities of a case. A limitation can be placed on the right of confrontation, however, only where it is necessary because of a compelling interest; and any infringement must be as minimally intrusive as possible.
The use of closed circuit television in child abuse cases, where the child is unable or reluctant to testify against an adult member of the family, is a minimally intrusive infringement on the right of confrontation. Considerations of public policy require that testimony from the alleged victim of abuse be received without further psychological injury to the child. So long as the right of cross-examination is preserved in such cases and all interested persons can observe the alleged victim as he or she testifies, the use of closed circuit television is not prohibited by the confrontation clause of the federal or state constitution.

Id., 366 Pa.Superior Ct. at 369, 531 A.2d at 463. (footnote omitted).

In the instant case, the child was reluctant to testify against her step-father. As long as the right of cross-examination was preserved and all interested persons could observe the child while she testified, the appellant’s right of confrontation was not abridged.

In contrast to Ludwig in which the trial court permitted only the foster mother and camera operator in the room with the child while she was testifying, the trial judge, the court reporter and both counsels were all present during appellant’s step-daughter’s testimony. The appellant, unbeknownst to the jury, was sequestered in another room and was able to communicate with counsel via direct telephone line. The structure utilized by the trial court in the instant case went further to preserve appellant’s constitutional right of confrontation than those deemed adequate in Ludwig. Thus, the lower court did not err in permitting the child to testify via closed-circuit T.V.

Accordingly, the order of the lower court is affirmed.

      . Appellant’s sentence was to run consecutively with the sentence he received in the companion case, Commonwealth v. Lohman, J-69045 (210 Harrisburg, 1987), of five (5) to ten (10) years so that appellant actually received a minimum cumulative sentence of ten (10) to twenty (20) years.

      . "When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebutable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy.” Hughes v. GAF Corp., 364 Pa.Super. 311, 314, 528 A.2d 173, 175 (1987) (quoting United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir.1982)).

      . Appellant’s nineteen (19) issues included the following:
      1. Was the evidence presented sufficient to convict the appellant?
      2. Whether the lower court erred in allowing Commonwealth witness, Lori Kalos, to testify via closed-circuit T.V.?
      3. Did the trial court err in denying appellant’s motion for a mistrial concerning the jury hearing the telephone ring in the Judge’s chambers?
      4. Did the trial court err in allowing Mr. Robyn Johns to testify?
      5. Did the trial court err in denying appellant’s requests for experts to be appointed and/or for examinations to be performed?
      6. Did the trial court err in denying appellant’s request for a
      subpoena duces tecum concerning Clinton County Women’s Center and wise options for women files of these incidents?
      7. Did the trial court err in limiting Linda Malloy’s testimony?
      8. Did the trial court err in allowing Michelle Kalos to testify?
      9. Did the trial court err in not permitting Martha Lohman to
      testify about the actions of the victim around appellant?
      10. Did the trial court err in permitting the Commonwealth to present evidence which contradicted information supplied in the bill of particulars?
      11. Did the trial court err in permitting Officer Cindy Bies to testify concerning an alleged statement of appellant after he was arrested when the Commonwealth had not provided said statement to appellant through pre-trial discovery?
      12. Did the trial court err in refusing to dismiss the charges when the Commonwealth failed to identify appellant as the person who committed the charges?

        13. Did the trial court err in refusing to dismiss the charges when the Commonwealth produced evidence that the alleged assault and rape occurred on July 7, 1985 and the Commonwealth did not amend the information which charged him with committing these acts on July 10, 1985?
      14. Should a new trial be granted due to the Assistant District Attorney’s refusal and failure to comply with the court’s order to turn over any statements of witnesses prior to their testimony?
      15. Did the trial court err in objecting from the bench to the manner that defense counsel was using in cross-examining Commonwealth witness Betty Merryman when the Commonwealth had not voiced any objections?
      16. Is the Mandatory Sentencing Statute, 42 Pa.C.S.A. § 9718 ambiguous?
      17. Does 42 Pa.C.S.A. § 9718 require prior notice by the Commonwealth to the appellant before proceeding under this statute?
      18. Did the sentencing court violate appellant’s due process rights by not requiring the Commonwealth to prove by a preponderance of the evidence the needed elements to implement a mandatory sentencing statute?
      19. Did the trial court err in denying appellant’s exception to the prosecutor’s closing remarks?

      . The holding in Ludwig reflects the legislature’s resolution of this issue recently enacted at 42 Pa.C.S.A. § 5985(a) which reads:
      (a) Closed-circuit television. — The child victim or material witness, through his parent or guardian, or, where applicable, the child’s advocate or the attorney for the Commonwealth may move, for good cause shown, that the testimony of a child be taken in a room other than the courtroom and televised by closed-circuit equipment to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial.

      . Pa. Const. Art. I, § 9 reads in pertinent part “[i]n all criminal prosecutions the accused hath a right ... to meet the witness face to face ..."

      . The U.S. Supreme Court this term will consider whether screens and closed-circuit television are constitutional ways to reduce the emotional trauma that child abuse victims experience when testifying. State v. Coy, 397 N.W.2d 730 (Iowa 1986), prob. juris, noted, — U.S. —, 107 S.Ct. 3260, 97 L.Ed.2d 760 (U.S.1987). Currently, twenty-one states allow for the use of closed-circuit television to broadcast a child’s live testimony simultaneously from one room to another during trial. Five states allow two-way broadcasts.


author: ROWLEY, Judge:

text:
    536 A.2d 811
    COMMONWEALTH of Pennsylvania, Appellant, v. Arthur R. PINE.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1987.
    Decided Jan. 27, 1988.

      Hugh J. Burns, Assistant District Attorney, Philadelphia, for Com., appellant.
    Owen Larrabee, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth of Pennsylvania from an order granting a motion to suppress evidence that was filed by appellee Arthur Pine, who was charged with first degree felony burglary, theft, and criminal trespass after he allegedly stole a television set. The order effectively suppresses all evidence connecting appellee with the theft. There are two issues in this appeal: 1) whether the identification of appellee by a Philadelphia police officer must be suppressed as the fruit of an unlawful stop and detention of appellee; and 2) whether the serial number of the television set that appellee was carrying when he was stopped by the police officer must be suppressed as the fruit of an unlawful search. We conclude that neither the identification of appellee nor the serial number should be suppressed. Therefore, we reverse the order of the suppression court.

It is settled law that when the Commonwealth asserts in good faith that the granting of a suppression motion substantially impairs or effectively terminates the prosecution because of a lack of evidence, the Commonwealth has the right to appeal the suppression order. Commonwealth. v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985); Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). In the present case the Commonwealth has certified that the suppression order of November 25, 1986, terminates or substantially handicaps its case. The Commonwealth’s certification is sufficient, in and of itself, to authorize this appeal. Commonwealth v. Dugger, 506 Pa. at 545, 486 A.2d at 386. Accordingly, we turn to the merits of the case.

The pertinent facts of the case are as follows: On March 4, 1986, at approximately 1:40 a.m., Officer Mark Bugieda was patrolling the area of 200 West York Street, Philadelphia, in his marked police car when he observed appellee sitting on a step at Fourth and York. As the officer approached appellee, appellee looked in the officer’s direction, stood up, and walked away. The officer resumed his patrol and, moments later, returned to York and Fourth. Again, he saw appellee sitting on the step. Again, appellee stood and walked away. For a few minutes Officer Bugieda continued to watch appellee, who walked away, looked back at the officer, and kept walking.

Ten or fifteen minutes later, the officer again saw appellee. This time he was walking east on York Street and was carrying a television set on his shoulder. On the basis of appellee’s actions and the officer’s personal knowledge of numerous burglaries in the area, Officer Bugieda stopped appellee and asked him what he was doing. Appellee replied that he had just come from his grandmother’s house at 317 West Lehigh Avenue and that he was taking the television set home to repair it. The officer asked appellee for identification both for himself and for the television set. Appellee said that he had identification for himself but not for the set. The officer then checked his “Part One Sheet,” which lists thefts or burglaries reported from the previous night or day, but found no listing for a television set. Officer Bugieda asked appellee where he was going and appellee replied, “Home.” Appellee then “allegedly said, 'You can take me back to 317 Lehigh and ask my grandmother.’ ” Trial Court Opinion at 2; see also N.T. at 6. The officer placed appellee and the television set into the police car, drove to 317 West Lehigh Avenue, knocked on the door, and received no response. The officer then attempted to check the television set through the police computer that keeps track of lost or stolen goods, but the computer was inoperative. Officer Bugieda recorded the serial number that was affixed to the rear of the television set and examined appellee’s forms of identification.

At this point ten to fifteen minutes had elapsed from the time that Officer Bugieda first spoke to appellee. The officer brought appellee back to the place where he had originally stopped him and allowed him to continue on his way with the television set. Later that day the officer learned that a television set with the same serial number as the one in appellee’s possession had been stolen. On that basis an arrest warrant was issued for appellee, and he was subsequently arrested. Because the television set has never been recovered, the only evidence actually linking appellee to the stolen set is the serial number recorded by Officer Bugieda.

Appellee filed an omnibus pre-trial motion seeking to suppress all identifications and physical evidence obtained as a result of his encounter with Officer Bugieda and subsequent arrest. The trial court suppressed all of the evidence related to the encounter because it concluded that both the “stopping” and the “detention” of appellee by Officer Bugieda had been improper. Trial Court Opinion at 3. The court reasoned that because the officer had had no probable cause to justify the stop, the information, including the serial number, obtained as a result of that stop must be suppressed. Id. In the view of the trial court, “[t]he officer had a duty under the circumstances to tell the [appellee] to go on his way and not accede to the [appellee’s] ‘request’ to go to his grandmother’s house. The placing of the [appellee] in the police car was an arrest.” Trial Court Opinion at 4.

In determining the propriety of a suppression order, we are required to review the unique facts and circumstances of each case. Commonwealth v. Mackie, 456 Pa. 372, 376, 320 A.2d 842, 844 (1974). Our scope of review is limited primarily to questions of law. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). We are bound by the suppression court’s findings of fact, if those facts are supported by the record. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985); Commonwealth v. White, supra. In determining whether the findings of fact are supported by the record, we may consider only the evidence of appellee and so much of the Commonwealth’s evidence as, read in the context of the entire record, remains uncontradicted. Commonwealth v. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. White, supra. Questions of credibility are to be resolved by the suppression court as the trier of fact rather than by us as a reviewing court. Commonwealth v. Eden, 456 Pa. 1, 4, 317 A.2d 255, 257 (1974); Commonwealth v. White, supra.

In the case before us, appellee offered no testimony at the suppression hearing. The Commonwealth’s testimony was therefore uncontradicted. While the testimony of Officer Bugieda, the Commonwealth’s only witness, was subject to the suppression court’s evaluation of its credibility, the suppression court did not make a specific finding with regard to the officer’s credibility.

The first issue in this case requires us to determine whether either the initial stop or the subsequent transportation of appellee to what was alleged to be his grandmother’s residence was unlawful. We conclude, contrary to the trial court, that neither action by the police officer was unlawful. Initially Officer Bugieda made a “Terry ” stop of appellee. Such a temporary, investigatory stop may be made in the absence of probable cause for arrest if the police officer reasonably suspects that criminal activity is afoot. Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969); Commonwealth v. Jackson, 359 Pa.Super. 433, 437, 519 A.2d 427, 429 (1986); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). The police officer must be able to point to specific and articulable facts which, in conjunction with rational inferences derived from those facts, reasonably warrant the intrusion. Common wealth v. Murray, 460 Pa. 53, 61, 331 A.2d 414, 418 (1975); Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981). Given the combination of appellee’s actions, the late hour, and Officer Bugieda’s knowledge of the character of the neighborhood, we conclude that the officer had a reasonable suspicion that criminal activity was afoot. Although the mere fact that appellee twice walked away upon seeing the officer’s police car is insufficient in itself to support a stop, see Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973) (quickening of one’s pace at sight of police officer and starting to run when chased by officer is not enough to justify Terry seizure); Commonwealth v. Stratton, 231 Pa.Super. 91, 95, 331 A.2d 741, 742 (1974) (allocatur denied) (flight alone, even upon seeing police officer, is insufficient to justify a stop and search), the stop of appellee was justified by the fact that on the officer’s third sighting of appellee the latter was carrying a television set, it was nearly two a.m., and the officer knew that numerous burglaries had occurred in the area. See also Commonwealth v. LeSeuer, 252 Pa.Super. 498, 500-1, 382 A.2d 127, 128 (1977) (allocatur denied) (reasonable suspicion for stop where police officers observed defendant carrying expensive stereo equipment in a high-crime area and observer told them he had seen defendant running out of a house carrying the equipment); Commonwealth v. Wascom, 236 Pa.Super. 157, 160, 344 A.2d 630, 632 (1975) (allocatur denied) (reasonable suspicion for stop where shortly after midnight police officer saw defendant and a companion walking in a business district that contained clothing and appliance stores, defendant carrying a radio and men’s trousers and companion carrying a radio).

We also cannot agree with the suppression court’s conclusion that appellee was under arrest when he was placed in the patrol car and taken to the address that was allegedly his grandmother’s. The court based its conclusion on a finding of fact that “at all times pertinent hereto the [appellee] was in reality under the actual control of the police officer.” Trial Court Opinion at 4. However, we are not bound by a finding that is wholly lacking in evidence, Commonwealth v. White, 358 Pa.Super. at 123, 516 A.2d at 1213, and there is no evidence in the record to support the finding just cited. The uncontradicted testimony of Officer Bugieda is that when he asked appellee where he was going, appellee replied “Home” and then said, “You can take me back to 317 Lehigh and ask my grandmother.” N.T. at 6. Because the court’s finding of fact is unsupported by any evidence, we must reject the inference that the court drew from that finding, namely, that appellee’s request to go to West Lehigh Avenue to verify his story was not voluntary. We conclude that appellee consented to go with Officer Bugieda to West Lehigh Avenue and therefore was not under arrest.

The suppression court relied on the case of Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983), to support its conclusion that appellee was under arrest when he was placed in the patrol car. In Lovette our Supreme Court held that the placing of the defendant in a police vehicle in order to transport him, absent either the defendant’s consent or exigent circumstances, to the scene of the offense so that the complainant could view the objects in the defendant’s possession, constituted an illegal arrest without probable cause even though the seizure was undertaken in order to further the investigation rather than to arrest and charge the defendant. Because appellee in the case at bar consented to go with Officer Bugieda, the suppression court’s reliance on Lovette is misplaced.

The facts of the present case resemble more closely those of Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984), cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985). In that case police officers questioned the defendant, who had been found trying to hitchhike on the Pennsylvania Turnpike, as to his identity. He volunteered the name and room number of someone at a nearby inn who could identify him. The defendant accompanied the police to the inn, where the person he had named implicated him in a murder that had been committed near the inn. We stated in Petrino that:

Appellant ... was asked to properly identify himself. He volunteered the name and whereabouts of a person who could identify him. He went with police to the Inn and was implicated by that person. While this court is mindful that such intermediate responses[] are lawful only in narrow instances and that the transporting of individuals is very persuasive of the fact that an arrest has occurred, such a response was lawful here. There is no evidence that Appellant would not have been free to go after he was properly identified or that he was forced to accompany police____ [T]he response was both necessary and justified____

Id. 332 Pa.Super. at 23, 480 A.2d at 1165.

In the case before us, appellee not only volunteered the identity and location of a person who could verify his story, but also requested that the police officer take him there. Moreover, appellee was free to go after Officer Bugieda received no response at West Lehigh Avenue. On these facts we hold that Officer Bugieda adopted an appropriate intermediate response to .the situation. Because the officer’s identification of appellee resulted from a lawful Terry stop, which at no time became an unlawful arrest, the identification is admissible as evidence.

The second issue in this appeal requires us to determine whether the police search of the television set to obtain the serial number was lawful. Appellee contends that even if a Terry stop was lawful under the circumstances of this case, the resulting search exceeded the permissible scope of a search incident to a Terry stop. As to the scope of a search pursuant to a Terry stop, appellee is correct. A search may be conducted incident to a Terry stop only if the police officer reasonably believes it to be necessary for his own safety or that of others. Commonwealth v. Berrios, 437 Pa. 338, 341, 263 A.2d 342, 343 (1970). The search must be limited to the detainee’s person and immediate surroundings and can go no further than is necessary to discover any dangerous weapons which may be used on that occasion against the officer. Commonwealth v. Carter, 334 Pa.Super. 369, 373, 483 A.2d 495, 497 (1984). We agree with appellee that the search in this case exceeded the scope of a Terry stop. However, we also conclude that the search for the serial number was permissible under the “plain view” doctrine.

For the plain view doctrine to apply, three elements must be satisfied: 1) the initial intrusion must be lawful; 2) observation of the item must be inadvertent; and 3) there must be probable cause to link the observed property with criminal activity. Commonwealth v. Kendrick, 340 Pa.Super. 563, 570, 490 A.2d 923, 927 (1985). Here, because there was a proper Terry stop, the intrusion was lawful. It is also not disputed that observation of the television was inadvertent, although it was necessary to turn the television in order to see the serial number. Finally, by the time the police officer obtained the serial number, he had probable cause to link the television with criminal activity: it was the middle of the night; the incident occurred in an area known to have had a series of burglaries; appellee’s actions in walking away from the police officer were at least suspicious; the third time within fifteen minutes that the officer spotted appellee, after appellee had already left the area twice, the appellee for the first time had a television; and appellee’s excuse for having the television could not be corroborated. Despite the fact that Officer Bugieda could not confirm that a television had been reported stolen because the police computer was not operational and/or the television had not yet been discovered to have been stolen, the set of circumstances just noted gave the officer probable cause to link appellee’s carrying of the television with criminal activity. Therefore, the television itself could have been seized by the officer without a warrant because it was within plain view.

The question, then, is whether the serial number must be excluded from evidence because the number itself was not within the plain view of the police officer even though the television, which necessarily had to have a serial number affixed to it, was unmistakably within plain view and could have been seized. It is anomalous to say that the entire television could have been seized and placed into evidence, but that the police officer’s lesser act of interference with appellee, simply turning the television and obtaining the serial number, resulted in the evidence of the serial number being inadmissible. See Arizona v. Hicks, —U.S.—, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

Although our research has not uncovered a Pennsylvania case on point, we find the facts of the present case to be indistinguishable in any pertinent regard from those in State v. Singleton, 660 S.W.2d 13 (Mo.App.1983). In Singleton, a private security guard received a telephone call that there were people at a nearby apartment building who were carrying merchandise but who did not live in the apartment building. The guard looked outside his guard shack and saw two people walking alongside the apartment building. A fire engine then passed with sirens blaring, and the two men put down what they were carrying and pressed themselves against the building. After the fire engines had passed, they picked up the packages and resumed walking. The guard notified the police and walked out of his shack, calling to the two men. One stopped, but the other kept walking until he was out of sight. The guard drew his gun and told the hiding person to come out where he could be seen. The person who had been hiding was carrying a plastic bag through which a stereo could be seen. The other person, who was carrying a television, claimed that all of the items belonged to him and that he lived in the apartment building and was on his way to pawn the items. The police, who by then had arrived, noticed an identification number on the television and asked if there was one on the stereo. The alleged owner said he did not know. The police then opened the bag and saw that the same identification number was on the stereo. Although no burglaries had been reported, the two people were taken to the police station, where it was subsequently learned that the items had been stolen that night.

The defendant objected to the admission of the identification number on the stereo. However, the court determined that a police officer who can see an object within plain view may turn or move the object so as to see some other part of the object that is out of the officer’s line of vision. Thus, because the court found that the officer, at the time he removed the stereo from the bag, had probable cause to believe that the two men were involved in criminal activity, because the men were legitimately stopped, and because the stereo, although inside a plastic bag, was in plain view, the court concluded that the identification number was admissible.

The present case is substantially similar to Singleton. In both cases, the defendants were carrying portable electronic equipment in the dark. In both cases, the defendants acted in a suspicious manner when they perceived someone in authority to be approaching: in Singleton, the defendants flattened themselves against a wall upon hearing sirens, and when someone called out to them to stop, one of them moved out of sight; in the case presently before us, appellee twice walked away when the police officer appeared, and looked back to see if the police officer was still watching. In both cases, when the defendants were stopped, they offered weak excuses for carrying the items in their possession: in Singleton, one of the defendants claimed to be a tenant in the nearby apartment building, despite a report by a resident of the building that people who were not residents were carrying merchandise away from the building; in the case before us, appellee claimed to have received the television from his grandmother just a few moments before the police officer saw him with it, yet no one would answer the door at the alleged grandmother’s house. Finally, in both cases, the electronic equipment was within plain view, but the identification/serial numbers could be seen only by moving the equipment. Having considered the factual similarities of the two cases, we conclude that the reasoning of the Singleton court is appropriate to the case before us. Because Officer Bugieda could see in plain view the television set that appellee was carrying, it was lawful for the officer to turn the set in order to see its serial number. Thus, the serial number is admissible as evidence.

Because Officer Bugieda executed no more than a lawful Terry stop of appellee and conducted a permissible search of an object that was in plain view, we conclude that both the serial number of the television set and the officer’s identification of appellee can be admitted into evidence at appellee’s trial. Accordingly, we reverse the order of the trial court and remand the case for trial.

Order reversed and case remanded. Jurisdiction relinquished.

      . Appellee’s motion to suppress was originally granted by the court on October 22, 1986. The Commonwealth petitioned for reconsideration of the order on November 18, 1986. On that date the court vacated its original order pending a hearing. A hearing was held on November 25, 1986, and the court reinstated its original order on that date. This timely appeal followed.

      . “N.T.” refers to the notes of testimony given at the suppression hearing on October 22, 1986.

      . Appellee argues that the suppression court did not believe the officer’s “self-serving claim” that appellee had requested that he be taken to his grandmother's. Brief for Appellee at 10. We do not find appellee’s argument persuasive. The court did not say that appellee had not made the request. Rather, the court concluded, with no evidence to support its finding, that the encounter between appellee and Officer Bugieda was so inherently coercive that appellee could not have voluntarily made the request. We will not accept findings of the suppression court that lack support in the record.

      . An "intermediate response” is a request by police for information where the facts may not warrant an arrest. See Commonwealth v. Daniels, 280 Pa.Super. 278, 284-85, 421 A.2d 721, 724-25 (1980); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).