author: WIEAND, Judge: HOFFMAN, Judge,

text:
    661 A.2d 881
    COMMONWEALTH of Pennsylvania, Appellant, v. Alfred EVANS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 18, 1995.
    Filed June 27, 1995.

      Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    David M. McGlaughlin, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal by the Commonwealth from an order suppressing marijuana found in and removed from a vehicle being driven by Alfred Evans. The suppression order was entered by the Municipal Court of Philadelphia, and the Court of Common Pleas denied certiorari. It is from this order that the present appeal was taken.

“Where a motion to suppress physical evidence has been filed, ‘[t]he Commonwealth [has] the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights.’ The Commonwealth is required to establish the admissibility of the challenged evidence by a preponderance of the evidence.” Commonwealth v. Govens, 429 Pa.Super. 464, 472, 632 A.2d 1316, 1320 (1993) (en banc), quoting Pa.R.Crim.P. 323(h). See also: Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992); Commonwealth v. Frombach, 420 Pa.Super. 498, 500, 617 A.2d 15, 16 (1992). In reviewing an appeal by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988); Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985). “Where the factual findings of the suppression court are supported by the record, we may reverse only if the legal conclusions drawn therefrom are erroneous.” Commonwealth v. Frombach, supra at 500, 617 A.2d at 17. See also: Com monwealth v. Twyman, 425 Pa.Super. 198, 202, 624 A.2d 636, 637 (1993); Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990).

The pertinent facts may be described as follows:

On June 25, 1992, Officer Robert Snyder of the Philadelphia Police Department Highway Patrol Unit was patrolling Interstate 95 (1-95) in the area of Aramingo Avenue and York Street at approximately 6:30 a.m. when he observed appellee operating a vehicle with expired temporary tags. Upon noticing the expired tags the officer shined his spotlight in appellee’s back window, put on his dome lights and signaled for appellee to pull into a gas station located off the highway.
Appellee pulled into the gas station lot, proceeded to go around the gas station and headed back onto Aramingo Avenue towards the entrance of 1-95. Fearing that appellee was attempting to flee, the officer immediately pulled his vehicle in front of appellee’s in order to block his route of travel and ordered appellee to shut off his vehicle. The officer then testified that as he proceeded to get out of his [the officer’s] vehicle, appellee quickly exited his vehicle, closed the door and walked towards the back of his car. [Officer Snyder] then approached appellee and asked him to produce some form of identification as well as any paperwork for the car (i.e., title or registration).
After failing to find any identification or paperwork on his person, appellee walked back to his car to see if he could locate them. Officer Snyder testified that as appellee walked towards his vehicle, he kept looking back over his shoulder in the officer’s direction. Due to appellee’s suspicious behavior, the officer walked up behind appellee as he opened his car door. As appellee opened the car door and proceeded to bend down into the car, the officer noticed an object approximately 3 to 4 inches wide and two inches in height wrapped in plastic, protruding from underneath the driver’s seat. Suspecting that the object was narcotics, the officer handcuffed appellee and placed him under arrest. The officer then retrieved the object and it was later discovered to contain marijuana.
At the conclusion of Officer Snyder’s direct testimony and cross-examination by defense counsel, appellee took the stand on his own behalf. The court then heard brief argument before granting the motion to suppress, finding that the officer lacked sufficient probable cause to arrest appellee. Therefore, the subsequent search of appellee’s vehicle was illegal and all evidence derived therefrom was suppressed.

Court of Common Pleas Opinion at pp. 2-3.

“As a general rule, a search conducted without a warrant is presumed to be unreasonable unless it can be justified under a recognized exception to the search warrant requirement.” Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265, 1271 (1991). See also: Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. McBride, 391 Pa.Super. 113, 119, 570 A.2d 539, 542 (1990). “A search incident to a lawful arrest is one such exception.” Commonwealth v. Albino, 438 Pa.Super. 562, 565-66, 652 A.2d 953, 954 (1995). See also: Commonwealth v. Lewis, 394 Pa.Super. 403, 407, 576 A.2d 63, 65 (1990); Commonwealth v. York, 381 Pa.Super. 55, 61, 552 A.2d 1092, 1094 (1989). “To be constitutionally valid, a warrantless arrest must be supported by probable cause.” Commonwealth v. Anderson, 360 Pa.Super. 466, 470, 520 A.2d 1184, 1186 (1987). See also: Commonwealth v. Canning, 402 Pa.Super. 438, 441-442, 587 A.2d 330, 332 (1991); Commonwealth v. Merriwether, 382 Pa.Super. 411, 419, 555 A.2d 906, 910 (1989). Accordingly, “ ‘[w]hen a policeman has made a lawful arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ ” Commonwealth v. Jones, 396 Pa.Super. 304, 307, 578 A.2d 527, 529 (1990), quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981) (footnotes omitted). See also: Commonwealth v. Mickell, 409 Pa.Super. 595, 606, 598 A.2d 1003, 1009 (1991).

There also exists an exception to the requirement of obtaining a search warrant “for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the ‘diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.’” Commonwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346, 1349 (1985), quoting Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980). See also: Commonwealth v. Rodriguez, 526 Pa. 268, 272, 585 A.2d 988, 990 (1991); Commonwealth v. Camacho, 425 Pa.Super. 567, 576, 625 A.2d 1242, 1246-1247 (1993). “Once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of a vehicle and inadequate time to obtain a search warrant render a warrantless vehicle search proper even when the accused is in police custody.” Commonwealth v. Elliot, 416 Pa.Super. 499, 504, 611 A.2d 727, 729 (1992). See also: Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383-1384 (1988); Commonwealth v. Kilgore, 437 Pa.Super. 491, 496-98, 650 A.2d 462, 465 (1994). Where a vehicle has been stopped for an ordinary traffic offense, however, a warrantless search of the vehicle may only be conducted where police have independent probable cause “to believe that the contents of the automobile offend the law.” Commonwealth v. Germann, 423 Pa.Super. 393, 398, 621 A.2d 589, 592 (1993). See also: Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971); Commonwealth v. Talley, 430 Pa.Super. 351, 354-355, 634 A.2d 640, 642 (1993).

“In this Commonwealth, the standard for evaluating whether probable cause exists is the ‘totality of the circumstances’ test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).” Commonwealth v. Rodriguez, supra at 272, 585 A.2d at 990. See: Commonwealth v. Baker, 513 Pa. 23, 26, 518 A.2d 802, 803-804 (1986); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). “Probable cause exists where the facts and circumstances within the officers’ knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994). See also: In the Interest of D.W., 427 Pa.Super. 629, 632, 629 A.2d 1387, 1388 (1993); Commonwealth v. Fromal, 392 Pa.Super. 100, 113, 572 A.2d 711, 717 (1990); Commonwealth v. Butler, 354 Pa.Super. 533, 537-538, 512 A.2d 667, 669-670 (1986). In making this determination,

‘we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).’

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 524, 410 A.2d 822, 824-825 (1979). See also: Commonwealth v. Clark, 430 Pa.Super. 270, 275, 634 A.2d 254, 256 (1993); Commonwealth v. Frank, 407 Pa.Super. 500, 505-506, 595 A.2d 1258, 1261 (1991). “It is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause for a warrantless arrest. Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference.” Commonwealth v. Quiles, 422 Pa.Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc) (citations omitted). See also: Com monwealth v. Malson, 434 Pa.Super. 155, 160, 642 A.2d 520, 522 (1994); Commonwealth v. Burnside, 425 Pa.Super. 425, 430, 625 A.2d 678, 681 (1993). However, mere “Suspicion is not a substitute for probable cause as grounds for an arrest or search and seizure.” Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979). See also: Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886, 888 (1970); Commonwealth v. Brinkley, 423 Pa.Super. 289, 293, 620 A.2d 1226, 1228 (1993); Commonwealth v. Parker, 422 Pa.Super. 393, 402, 619 A.2d 735, 739 (1993).

In the instant case, it is undisputed that Officer Snyder made a lawful traffic stop of appellee’s vehicle upon observing that it had an expired, temporary registration tag. It is also clear that appellee’s constitutional rights were not violated when Snyder observed, in plain view, the brick shaped object protruding from under the driver’s seat of appellee’s vehicle. See: Commonwealth v. Steinmetz, 440 Pa.Super. 591, 592, 656 A.2d 527, 528 (1995) (“[A] search is not conducted nor is the Fourth Amendment implicated when a police officer observes the plainly viewable interior of a vehicle.”). What is disputed is whether Officer Snyder’s observation of the brick shaped object, under the totality of the circumstances presented, gave rise to probable cause to arrest appellee for possessing illegal drugs and to seize the suspected narcotics. The Commonwealth argues that a plastic wrapped brick is a commonly used means of packaging kilo-sized quantities of narcotics, and, when such an object is observed by an experienced police officer, it is tantamount to the officer’s viewing the drugs concealed therein.

With respect to his observation of the brick shaped object in appellee’s vehicle, Officer Snyder testified at the suppression hearing in the following manner:

Q. Officer, let me ask you this: Why did you associate that package with narcotics?
A. Because I had seen it on numerous occasions of what I would consider kilo, brick type packaging of narcotics.
Q. And approximately how many times in your career, be it [Bureau of Narcotics Investigation] or Highway Patrol, have you seen kilo or brick-size items?
A. I can only estimate. Maybe 50 times or more that I have actually seen either be part of where I have gotten something like that or other officers where I have actually seen kilos.
Q. So, your opinion is what you saw is what?
A. That it was definitely narcotics as soon as I seen that portion of it.
Q. And where were you standing?
THE COURT: Not to interrupt you.
You never described what you saw. Would you please describe what you saw?
THE WITNESS: Yes, Your Honor.
I saw approximately three or four inches of a wrapping with a — there was approximately maybe three or four inches, maybe two inches deep and the width was maybe three or four inches. It was wrapped in a clear plastic, I believe had a yellowish tint to it. Looked like a solid big, what they call a brick. That’s what I considered a package of narcotics.
BY MR. PETERSON:
Q. Where were you standing when you first saw this?
A. I was standing right next to the defendant, right next to the driver’s door looking in.
Q. Okay.
Was any part of your body in the car at that time?
A. In the car? No.
Q. What did you do next?
A. I took the defendant, pulled him back away from the car door and put him, spread-eagle, on the car, told him he was under arrest. And I handcuffed him, placed him in my police vehicle.
Q. What did you arrest him for?
A. I then retrieved the item and I arrested him for narcotics violations.
MR. PETERSON: Court’s indulgence Your Honor?
THE COURT: If I understand you correctly officer what you are telling me is that, based upon your observations of what you described as a brick protruding from under the driver’s seat, even though you cannot see through it, but based upon your experience, knowledge and so forth you concluded that was a controlled substance of some kind?
THE WITNESS: That’s correct.
THE COURT: Then you physically arrested the defendant before you actually retrieved the items; is that correct?

N.T. October 7, 1993 at pp. 61-64. The suppression court determined that Officer Snyder’s testimony had been entirely credible but concluded nonetheless that probable cause had been lacking to arrest appellee or to seize the brick shaped object.

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the United States Supreme Court suggested that some containers and packages “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Id. at 764 n. 13, 99 S.Ct. at 2593 n. 13, 61 L.Ed.2d at 245 n. 13. Subsequently, in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court held that a police officer, who, during a routine driver’s license checkpoint, made a lawful plain view observation of the defendant attempting to conceal a green party balloon of a type commonly used to store illegal narcotics, had probable cause to make a warrantless seizure of the balloon. The Supreme Court reasoned as follows:

[I]t is plain that Officer Maples possessed probable cause to believe that the balloon in Brown’s hand contained an illicit substance. Maples testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers, that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics. This testimony was corroborated by that of a police department chemist who noted that it was “common” for balloons to be used in packaging narcotics. In addition, Maples was able to observe the contents of the glove compartment of Brown’s car, which revealed further suggestions that Brown was engaged in activities that might involve possession of illicit substances. The fact that Maples could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.

Texas v. Brown, supra at 742-743, 103 S.Ct. at 1543-1544, 75 L.Ed.2d at 514 (Opinion Announcing the Judgment of the Court by Rehnquist, J.).

The Superior Court has recognized that “while a particular type of container may have lawful purposes, the circumstances under which a trained narcotics detective views its use may be tantamount to a view of actual contraband.” Commonwealth v. Burnside, supra at 430, 625 A.2d at 681. Thus, in Commonwealth v. Mallory, 418 Pa.Super. 614, 614 A.2d 1174 (1992), probable cause was found for an arrest of the defendant and the seizure of a clear plastic baggie which he had shoved into the waistband of his pants upon observing police arrive on the scene. This had occurred in an area known for drug activity and the defendant had been standing in close proximity to an identified drug dealer. With respect to probable cause to seize the clear plastic baggie, the Mallory Court opined:

[W]e do not hesitate in finding that there was probable cause to associate the concealed object with criminal activity, and we believe that the veteran officer (being involved with more than a hundred criminal instances of “narcotics in plastic bags”) was justified in thinking that the object he saw contained drugs. It is the “probability” of criminal activity and not its “certainty” which is the measuring rod against which the totality of the circumstances confronting the police are to be weighed in determining the presence of probable cause to arrest. Commonwealth v. Fiore, 281 Pa.Super. 1, 421 A.2d 1116 (1980).
We find that the facts, when viewed in toto, painted a “picture of probable cause” allowing the police to arrest the appellee. To do otherwise woüld be to take a myopic view of the facts and render a decision totally devoid of common sensical inferences to be drawn by trained police officers with regard to drug activity. We hold that the actions of the police, under the totality of the circumstances, was proper and not violative of either the Pennsylvania or United States Constitutions (Art. 1, Sec. 8; Fourth Amendment, respectively).

Id. 418 Pa.Super. at 623, 614 A.2d at 1179.

In Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984), police had stopped a vehicle because of several Vehicle Code violations. The driver had been observed trying to conceal a handgun, and thus, both driver and passenger were ordered out of the car and searched for weapons. A manilla envelope containing a small amount of “green weed” was found in the driver’s pocket. Several similar envelopes were seized from the passenger’s jacket pocket and, when opened by police, were found to contain illegal drugs. The passenger argued on appeal that he had been subjected to an unlawful search. In rejecting this argument, the Superior Court reasoned as follows:

The manilla envelopes were observable in appellant’s bulging pocket; however, according to the testimony, the drugs themselves were not visible until after the envelopes were extracted from the pocket. The “plain view” doctrine may be employed only if we accept the hypothesis that the manilla envelopes were so linked with the carrying of drugs that the officers’ view of the envelopes was tantamount to a view of the drugs themselves. One of the arresting officers contended that, in his experience, manilla envelopes are most often used to conceal drugs. The officers, therefore, predicated their seizure on the driver’s coincidental possession of “green weed” in a similar manilla envelope along with the fact that manilla envelopes are commonly used for drug packaging.
Under the circumstances, the officers did not have to turn a blind eye to the incriminating evidence. One arresting officer testified that in his fourteen years as a highway patrolman, he had on approximately 200 occasions come into contact with manilla envelopes used for the purpose of concealing drugs.
The envelopes were recognizable as a common drug packaging device, and similar envelopes were found on appellant’s companion. We hold, therefore, that the facts available to the police officers and the implications drawn therefrom, consistent with [Texas v.] Brown, gave them probable cause for the seizure under the “plain view” doctrine which “authorizes seizure of illegal or evidentiary items observable to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Illinois v. Andreas, 463 U.S. 765 [771], 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983).

Commonwealth v. Chamberlain, supra, 332 Pa.Super. at 115-118, 480 A.2d at 1213-1214.

A similar holding can be found in Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985). There, police were executing a warrant to search for drugs and were confronted by a man wielding a shotgun. While searching other persons present for weapons, police observed the defendant attempting to conceal in his hand a small black film vial. The vial was seized by police and, when opened, found to contain heroin. In upholding the search of the vial, the Court reasoned as follows:

This Court believes that a film vial, a common package for carrying narcotics, is more closely akin to those rare single-purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979). Admittedly, a film container has other uses and therefore is not purely a “single-purpose” container. However, given the circumstances of this case, we believe that the trained narcotics detective’s view of the container was tantamount to a view of the heroin itself. See Texas v. Brown, supra, 460 U.S. 730, 103 S.Ct. 1535 (Stevens, J., concurring at 748-50, 103 S.Ct. at 1547). Therefore, we hold that the search of the film vial was lawful.

Commonwealth v. Kendrick, supra at 573, 490 A.2d at 928-929. Compare: Commonwealth v. Kelly, supra, 487 Pa. 174, 409 A.2d 21 (plain view observation of small pill vial with drugstore label containing aluminum foil packets did not give rise to probable cause to search defendant’s vehicle as nature of vial was not “immediately apparent” and police had no other indication of drug related activity); Commonwealth v. Collini, 264 Pa.Super. 36, 45-46, 398 A.2d 1044, 1048-1049 (1979) (arrest of defendant and search of his vehicle not supported by probable cause where police officer with little experience or training in the area of drug enforcement mistakenly identified a block of wood inside defendant’s car as the controlled substance peyote).

The federal courts have recognized generally that illegal narcotics, especially cocaine, are commonly stored and transported in kilo-sized rectangular or “brick” shaped packages, which are wrapped in plastic and sealed with tape. See: United States v. Robles, 37 F.3d 1260, 1264 (7th Cir.1994). See also: United States v. Prandy-Binett, 995 F.2d 1069 (D.C.Cir.1993), rehearing denied, 5 F.3d 558 (D.C.Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1196, 127 L.Ed.2d 545 (1994); United States v. Moreno, 897 F.2d 26, 32-33 (2d Cir.1990), cert. denied, 497 U.S. 1009, 110 S.Ct. 3250, 111 L.Ed.2d 760 (1990); United States v. Barrios-Moriera, 872 F.2d 12, 17-18 (2d Cir.1989), cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989). However, the Seventh Circuit Court of Appeals has stated that “a wrapped brick of cocaine does not necessarily proclaim its contents so unequivocally as to justify a search without a warrant.” United States v. Cardona-Rivera, 904 F.2d 1149, 1154 (7th Cir.1990). See: 2 W. LaFave, Search and Seizure, § 3.6(b), at 43 (1987) (footnote omitted) (“The observation of a person in possession of a certain kind of envelope or other packaging which on other occasions involving other persons has been found to conceal narcotics does not, standing alone, constitute probable cause.”); United States v. Barrios-Moriera, supra, 872 F.2d at 17 (“We do not mean to suggest that the mere viewing and evaluation of the package alone constituted probable cause.”). But, “if the shape or other characteristics of the container, taken together with the circumstances in which it is seized ..., proclaim its contents unambiguously, there is no need to obtain a warrant.” United States v. Cardona-Rivera, supra, 904 F.2d at 1155. See also: United States v. Robles, supra, 37 F.3d 1260; United States v. Barrios-Moriera, supra, 872 F.2d at 17-18.

After careful review, we conclude that, under the totality of the circumstances with which he was confronted, Officer Snyder had probable cause to arrest appellee and to seize the brick of marijuana which had been partially concealed under the driver’s seat of appellee’s vehicle. In addition to his plain view observation of the brick shaped object in appellee’s vehicle, Officer Snyder could also consider appellee’s initial attempt to avoid being stopped, his nervous demeanor illustrated by his repeatedly looking over his shoulder to check the officer’s location prior to opening the door of his vehicle to retrieve his identification, and the fact that the brick shaped object was being kept partially concealed under the driver’s seat. When these factors are considered through the eyes of an experienced officer, who on at least fifty prior occasions had observed narcotics packed in kilo-sized bricks, and who immediately recognized the object in appellee’s vehicle as being such a brick of narcotics, we hold that probable cause existed to justify a warrantless arrest of appellee and a seizure of the container.

The order denying the Commonwealth’s petition for writ of certiorari is reversed, and the case is remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

HOFFMAN, J., files a Dissenting Opinion.

HOFFMAN, Judge,

dissenting:

The resolution of this case as noted by the majority, turns on the distinction between suspicion and probable cause to believe that criminal activity is afoot. In our recent decision in Benton, this court stated that an officer’s suspicion that criminal activity has occurred is not sufficient to establish probable cause. Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030 (1995). Instead, there must be reasonable and articulable grounds to support the ensuing search or seizure. Id. Our holding today directly contravenes this basic tenet to the Fourth Amendment and paves a foundation for random searches by authorities. Commonwealth v. Collini, 264 Pa.Super. 36, 398 A.2d 1044 (1979) (“If subjective good faith alone were the test [for probable cause] the protection of the Fourth Amendment would evaporate and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.”). Not only does Officer Snyder’s testimony demonstrate that he was unable to ascertain that the object under the driver’s seat of appellant car was narcotics, but the circumstances surrounding appellant’s arrest were not consistent with drug activity. Compare Commonwealth v. Mallory, 418 Pa.Super. 614, 614 A.2d 1174 (1992), appeal denied 533 Pa. 632, 621 A.2d 578 (1993) (probable cause found where defendant observed standing next to identified drug dealer, holding clear plastic baggie in an area known for drug activity) with Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (no probable cause where nature of vial was not immediately apparent to police and there was no indication of drug related activity). In my view, the principles encompassed in the Fourth Amendment and recently reiterated by this court in Benton require that we affirm the order of trial court. Accordingly, for the reasons stated above, I must respectfully dissent.

      . The Commonwealth has certified that the suppression order will substantially handicap its prosecution of the case. The appeal, therefore, is properly before this Court. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Appellee testified that he was on his way to work and had stopped for gas, when he was confronted suddenly by Officer Snyder. According to appellee, Snyder demanded the keys to his vehicle, and when he refused, the officer placed him in handcuffs, grabbed his keys and searched his vehicle, finding the marijuana in the trunk. However, the suppression court specifically credited the version of events recited in the testimony given by Officer Snyder.

      . Arkansas v. Sanders was overruled on other grounds in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).

      . The officer had also observed in the glove compartment of the defendant’s vehicle several plastic vials, quantities of loose white powder and an open bag of party balloons.


source: Caselaw Access Project

author: TAMILIA, Judge: CERCONE, Judge,

license: Public Domain

text:
    661 A.2d 889
    In re The BARNES FOUNDATION, a Corporation. Appeal of Nicholas TINARI. In re The BARNES FOUNDATION, a Corporation. Appeal of STUDENTS OF the Barnes Foundation. In re The BARNES FOUNDATION, a Corporation. Appeal of STUDENTS OF the BARNES FOUNDATION.
    Superior Court of Pennsylvania.
    Argued March 29, 1995.
    Filed July 10, 1995.

      Arthur L. Jenkins, Jr., Norristown, for appellants.
    Lynn R. Rauch & Sheryl L. Auerbach, Philadelphia, for trustees of the Barnes Foundation, participating parties.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

These consolidated appeals involve several issues concerning the administration of the Barnes Foundation (hereinafter “the Foundation”), a public charity possessing an extremely valuable art collection and dedicated to education in the fine arts.

NO. 02085 PHILADELPHIA, 1993

Appellant, Nicholas Tinari, appeals from the May 20, 1993 Decree granting the Petition to Dismiss Petition to Rescind his “Expulsion” and dismissing his Petition to Rescind his “Expulsion” from the Foundation. The Montgomery County Orphans’ Court entered the Decree on the basis that it lacked jurisdiction over the controversy.

The record, as relevant to the first appeal, establishes that appellant, a student and trustee ad litem of the Foundation, was suspended from course and visitation privileges at the Foundation for a period totalling three years. Appellant was first suspended on January 13, 1992 for a period of one year after repeatedly photographing and accosting visitors and scholars of the Foundation. He was suspended for an additional two-year period on June 11, 1992 after impersonating a Foundation employee on three occasions in order to gain access to the Foundation’s premises.

The determination of the Orphans’ Court that it lacked jurisdiction over appellant’s petition was based on its belief that “the court had become embroiled in a matter in which it had no business.” In support of this conclusion, the court relied exclusively on Barker v. Bryn Mawr College, 278 Pa. 121, 122 A. 220 (1923). Both parties agree, as they must, that Barker stands for the proposition that a court of common pleas “does not have jurisdiction to issue a writ of mandamus to compel [appellant’s] reinstatement” in a private institution.

Appellee agrees with the finding of the trial court and argues that, by seeking reinstatement in the Foundation, appellant is “effectively seeking the issuance of a writ of mandamus.” Thus, reasons appellee, the authority of Barker clearly prohibits the assumption of jurisdiction over appellant’s petition. Appellee also directs our attention to Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A.2d 170 (1954), which, finding Barker “a case practically identical with the instant one,” dismissed an action by a student of a private nursing school to compel a transfer of credits. Invoking Barker, the court concluded that it lacked jurisdiction over appellant’s mandamus action because of the contractual nature of the parties’ relationship.

On the other hand, appellant would have us find that “the Barker decision has not been the law of the Commonwealth of Pennsylvania since 1954.” Appellant then cites Strank, supra, the identical case cited by appellee as endorsing Barker, for the proposition that Barker is no longer viable. The seemingly diametric opposition of these two positions is easily reconciled because, as neither party recognizes, there are two Supreme Court Strank decisions. It is the difference between these two cases which compels us to reject the arguments of both appellant and appellee.

Strank I, the case cited by both parties, was a mandamus action wherein, as noted above, the court refused jurisdiction on the basis that the relationship between a student and a private institution is purely contractual. Therefore, the court concluded, since mandamus actions are limited to rights and duties imposed by law, jurisdiction will not lie where a mandamus action is predicated upon a private contract.

Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697 (1955) (Strank II), the case appellant presumably relies on as undermining Barker, involved a suit in equity brought by the same parties and on the identical issue as Strank I. The Court, distinguishing the mandamus action of Strank I, allowed the relief sought because the present action sounded in equity. Therefore, as Strank II did not deal with mandamus actions, appellant is flatly wrong in his contention that it overruled Barker. Indeed, the continuing validity of Barker has been expressly recognized by this Court as recently as 1990.

The flaw in appellee’s argument on appeal lies in the assumption that appellant’s petition requests mandamus. The trial court, by relying on Barker, also apparently believed that appellant’s petition prayed for a writ of mandamus. A fair reading of the petition, however, leads equally to the conclusion that it is addressed to the extensive equity powers of Orphans’ Court. If, in fact, the petition is construed as sounding in equity, there can be no doubt that jurisdiction attaches. Indeed, as stated by the Supreme Court in Strank II:

There is not the slightest merit in defendant’s contention that the court in equity was without jurisdiction to enter upon these proceedings; indeed the case is one peculiarly for determination by such a court____ [I]t is the peculiar province of equity to afford relief where the measurement of damages in such cases cannot be formulated and applied in a suit at law because of their being necessarily speculative and indeterminate, and therefore the legal remedy is not adequate and complete____ Indeed it might be said that it would be a reproach to our system of jurisprudence if plaintiff should be found entitled to the transfer credits which she seeks, but nevertheless neither law nor equity can furnish her any adequate means of redress.

Id. 383 Pa. at 55, 117 A.2d at 698.

Thus, the issue becomes not whether the court has jurisdiction of the petition, because it surely does, but whether it chooses to intervene in the relationship between a student and a private institution.

As this Court has noted in declining to preliminarily enjoin a student’s suspension from a private college:

The courts have been very reluctant to interfere with college proceedings concerning internal discipline. A college is a unique institution which, to the degree possible, must be self-governing and the courts should not become involved in that process unless the process has been found to be biased, prejudicial or lacking in due process.... From the days of the Medici’s, who created the colleges in Florence during the Renaissance, to modern times, colleges have been unique in their insulation from state taxation controls and their self-government.

Schulman v. Franklin & Marshall College, 371 Pa.Super. 345, 348, 538 A.2d 49, 52 (1988); see also Boehm v. U. of Pa. School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575, 579 (1990) (“the courts are more reluctant to interfere in the disciplinary proceedings of a private college than those of a public college”). We find the Schulman rationale, as reiterated by Boehm, applicable to the private educational mission of the Foundation.

The suspension of appellant was deemed necessary to protect the Foundation’s invitees from appellant’s repeated harassment and to protect the property of the Foundation from appellant’s repeated unauthorized entries. Particularly in light of the unique and priceless art maintained on the premises, we recognize the great discretion retained by the Foundation in exercising control over those permitted in its gallery and educational facilities. This discretion, when exercised in a reasonable manner, will not be subverted by the courts. Schulman, supra.

Thus, while we note that the authority relied on by the Orphans’ Court does not aid our resolution of the present case, we agree with the court’s conclusion that the judiciary has no business second-guessing the Foundation’s reasonable suspension of appellant. On appeal, our Court will affirm a trial court’s Order if it is correct on any legal ground or theory, regardless of the reason or theory relied on below. Estate of Mackarus, 431 Pa. 585, 596, 246 A.2d 661, 667 (1968) (“[i]f there is any basis for the Orphans’ Court’s decision, the decision must stand”); Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, 644 A.2d 188 (1994); Strickler v. Huffine, 421 Pa.Super. 463, 618 A.2d 430 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1994).

NO. 00794 PHILADELPHIA, 1994

This appeal from the Decree of February 1,1994 permitting the Trustees of the Barnes Foundation to add The Kimbell Art Museum and the Art Gallery of Ontario as additional venues to the tour authorized July 21, 1992 was quashed by this Court on March 8, 1995. The petition for reargument, reconsideration and reinstatement of the appeal was denied on March 28, 1995.

NO. 02605 PHILADELPHIA, 1994

Appellant, proceeding as the students’ appointed trustees ad litem, next contends that the Orphans’ Court abused its discretion in dismissing his petition to enjoin construction and capital improvements proposed by the trustees of the Foundation. The court below denied the petition, sua sponte, on the basis that appellant had exceeded the scope of his appointment as trustee ad litem and was presently engaging in “frivolous and harassing” litigation. On appeal, appellant chooses not to address the standing issue, instead asserting as error the court’s failure to hold a hearing on the merits of the petition to enjoin.

However, before a court can proceed to address the merits of a controversy, it must determine whether standing exists to maintain the action. Nye v. Erie Ins. Exchange, 504 Pa. 3, 470 A.2d 98 (1983), appeal after remand, 349 Pa.Super. 490, 503 A.2d 954 (1986).

Our Supreme Court has long held that standing requires a substantial, direct and immediate interest in the subject matter of the litigation. Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). The three requisites to standing have been defined as follows:

A “substantial” interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A “direct” interest requires a showing that the matter complained of caused harm to the party’s interest. An “immediate” interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question.

South Whitehall Twp. Police Service v. South Whitehall Twp., 521 Pa. 82, 86-87, 555 A.2d 793, 795 (1988) (citations omitted).

This is not the first time the question of standing, with specific regard to the Barnes Foundation, has been addressed by the courts of this state. Our Supreme Court, in Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953), confronted a claim by a citizen and newspaper editorial writer that the Foundation’s rules, as administered by the Board of Trustees, so limited public access that the charitable purpose of the Foundation was effectively defeated. The Wiegand Court, in affirming the dismissal of plaintiffs action for lack of standing, concluded:

In the absence of statutory authority, no person whose interest is only that held in common with other members of the public, can compel the performance of a duty owed by the corporation to the public. Only a member of the corporation itself or someone having a special interest therein or the Commonwealth, acting through the Attorney General, is qualified to bring an action of such nature---The protection of the public generally against the failure of a corporation to perform the duties required by its charter is the concern of the sovereign, and any action undertaken for such purpose must be by the Attorney General on its behalf.

Id. at 150-51, 153-55, 97 A.2d at 81, 82-83.

Since appellant herein also challenges actions of the board of trustees as violative of the trust indenture, Wiegand compels dismissal of the petition to enjoin unless appellant possesses some “special interest” in the present litigation. Thus, the specific question before us is whether appellant’s status as trustee ad litem, and one-time student confers standing where none would otherwise exist.

On June 24, 1991, the students sought to intervene into the attempt of the Foundation’s Board of Trustees to amend the trust indenture. The students’ petition to intervene, which was granted by Order of July 30,1991, expressed the intention of the students as follows:

Your Petitioners desire to provide the Court with facts about the educational process and curriculum of the Foundation’s Art Department from the perspective of current and future students and the impact that the Trustees’ proposed amendments will have on the educational purposes of the Barnes Foundation, on themselves and on future students.

Petition to Intervene, 6/24/91.

The Orphans’ Court, in dismissing appellant’s petition to enjoin, found:

The Court originally allowed the Students to intervene in the within action for the very limited purpose of providing the Court with facts about the educational process and curriculum of the Foundation’s Art Department from the perspective of current and future students. Unfortunately, the “Students” have used this wedge to engage in what must be described as frivolous and harassing conduct which has done nothing but run up attorneys’ fees for the Foundation.

Slip Op., Stefan, J., 8/9/94, p. 1.

As this finding issued from the same court which granted the petition to intervene, we find it particularly insightful on the permissible scope of intervention. Moreover, we agree with the court that initiating litigation to enjoin actions of the trustees clearly exceeded the permission, as requested by the students and as granted by the court, to provide facts concerning the impact of those actions.

Additionally, even the limited permission to intervene was based on appellant’s status as a student, a status terminated by appellant’s suspensions of January 13 and June 11, 1992. Thus, at all times relevant to appellant’s petition to enjoin, appellant was not a student of the Barnes Foundation. He could not, therefore, represent current and future students of the Foundation, as contemplated by the petition to intervene. ,

In sum, appellant’s status as trustee ad litem, did not extend to his initiation of the present action, and since appellant was not a student of the Foundation at any point during the pendency of this litigation, he held no status greater than that of the common citizenry. South Whitehall Twp. Police Service: Wiegand, supra. The Orphans’ Court was therefore correct in holding that appellant lacked standing to assert his •petition to enjoin.

Even assuming the existence of standing, appellant’s petition to enjoin must fail. The heart of appellant’s petition, paragraph 4, provides:

4. Your petitioners are advised and therefore aver that in derogation of the Trust Indenture and By-Laws the Trustees:
(a) intend to erect parking lots or parking facilities contrary to the Trust Indenture;
(b) intend to erect a permanent building known as a guard house or security house in derogation of the Trust Indenture;
(c) intend to diminish the size of the arboretum contrary to the Trust Indenture;
(d) intend to expand the facilities of the Barnes Foundation in order to accommodate society functions prohibited by the Trust Indenture;
(e) in other ways violate the Trust Indenture by construction and capital improvements presently unknown to your petitioners.

Appellant’s brief at 9-10.

Pennsylvania Rule of Civil Procedure 1019(a) requires that “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania Orphans’ Court Rule 3.4 provides that “(a) A petition shall set forth ... (3) a concise statement of the facts relied upon to justify the relief desired, together with the citation of any Act of Assembly relied upon....”

It is Hornbook law that only well-pleaded facts are accepted as true when determining a demurrer. See e.g., Jackson v. SEPTA, 129 Pa.Cmwlth. 596, 566 A.2d 638 (1989), appeal denied, 527 Pa. 656, 593 A.2d 426 (1990). Further, “[a pleading] should formulate the issues by fully summarizing the material facts”, General State Authority v. The Sutter Corp., 24 Pa.Cmwlth. 391, 395, 356 A.2d 377, 381 (1976), and “[a]s a minimum, a pleader must set forth concisely the facts upon which his cause of action is based”, Line Lexington Lumber-Millwork Co., Inc. v. Pennsylvania Publishing Co., 451 Pa. 154, 162, 301 A.2d 684, 688 (1973).

The Orphans’ Court concluded that appellant’s petition was an insufficient basis upon which to enjoin the proposed construction. “The lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” Pike County Hotels Corp. v. Kiefer, 262 Pa.Super. 126, 134, 396 A.2d 677, 681 (1978), citing Goodrich-Amram § 1019(2)-10 a 11. We will not disturb the Orphans’ Court determination that appellant’s “advice and averments” are a legally insufficient basis upon which to award relief.

The Decree at No. 02085 Philadelphia, 1993, is affirmed.

The appeal from the Decree at No. 00794 Philadelphia, 1994, is dismissed.

The Order at No. 02605 Philadelphia, 1994, is affirmed.

Jurisdiction relinquished.

CERCONE, J., files a concurring opinion.

CERCONE, Judge,

concurring.

Although the majority issues an insightful resolution of the issues raised in the appeal brought at No. 2605 Philadelphia, 1994,1 am somewhat perplexed with the majority’s characterization of appellant Tinari’s petition to rescind his expulsion as a complaint in equity.

Appellant Tinari filed before the Orphans’ Court of Montgomery County a pleading entitled “PETITION OF NICHOLAS TINARI, JANET CUSACK, AND DOLORES LOMBARDI FOR AN ORDER DIRECTING THE TRUSTEES OF THE BARNES FOUNDATION TO RESCIND THE EXPULSION OF NICHOLAS TINARI, TRUSTEE AD LI-TEM.” In the petition, appellant requests “that the Court enter an order directing that the trustees of The Barnes Foundation rescind the notice of January 19, 1992 and permit Nicholas Tinari to continue his studies and his visits to the Gallery and Arboretum.” The majority states that “[a] fair reading of the petition ... leads equally to the conclusion that it is addressed to the extensive equity powers of Orphans’ Court.” Slip Opinion at 5. However, a “fair reading” of the Supreme Court’s holdings in Barker v. Bryn Mawr College, 278 Pa. 121, 122 A. 220 (1923), and Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A.2d 170 (1954) (Strank I), would clearly indicate that Tinari’s petition sounds in mandamus, not equity. Therein lies the jurisdictional dilemma.

The facts in Barker are strikingly similar to those in the instant case. In Barker, plaintiff filed a mandamus action to compel Bryn Mawr College, a private institution, to reinstate Margery Barker as a student. The Supreme Court agreed with the lower court that “on the facts showing the character of Bryn Mawr College, as an institution privately conducted which receives no state aid, ‘the relation between the student and the college is solely contractual in character, [and] the court of common pleas does not have jurisdiction to issue a writ of mandamus to compel [appellant’s] reinstatement[.]’” Id. at 122, 122 A. at 221.

.The petition’s resemblance to a mandamus action grows even more apparent when contrasting the Supreme Court’s holding in Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A.2d 170 (1954) (Strank I), with Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697 (1955) (Strank II). In Strank I, a private nursing school expelled the nursing student/appellant for an infraction of the rules. The nursing student brought an action in mandamus before the Court of Common Pleas of Cambria County. In her complaint, the nursing student sought to obtain a judgment against the school and the hospital commanding them to give to her transfer credits for the two years’ work she had completed. With these credits, appellant nursing student could secure advanced standing in some other nursing school.

The nursing student’s petition and defendants’ answer thereto admitted that The Mercy Hospital of Johnstown was a non-profit corporation operating a school for the education and training of nurses. The sole question before the Supreme Court on appeal was whether the cause of action sued upon and sought to be enforced by mandamus was within the general class of controversies committed to the jurisdiction of the lower court. The Supreme Court, referring to its prior holding in Barker v. Bryn Mawr College, 278 Pa. 121, 122 A. 220 (1923), held that the nursing student sought to enforce a right arising out of contract, not one imposed by law, against a private institution. In accordance with its holding in Barker, the Supreme Court concluded that the lower court was without jurisdiction to hear the action. See id. (court of common pleas lacks jurisdiction to issue writ of mandamus against a non-profit corporation which receives no state aid in order to enforce a contract).

Thereafter, the nursing student initiated the cause of action commonly referred to as Strank II. To overcome the jurisdictional problem, the nursing student reformulated her petition for mandamus into a complaint in equity. Rather than merely demanding that the school transfer her credits, the nursing student (1) set forth her oral arrangements made with the school at the time of her admission; (2) alleged that the arrangements and understandings underlying her agreements imposed upon the school the legal duty to give her proper credits for work completed; and (3) averred that the school’s failure to issue her credit caused her to lose time (the two years of schooling), a damage for which no adequate remedy at law exists. The school again filed preliminary objections. This time, the lower court dismissed the objections and ordered the school to file an answer. The school appealed.

The Supreme Court, after reviewing the averments set forth in the nurse’s complaint, concluded that the new action sounded in equity, not in mandamus. Accordingly, the Supreme Court held that the lower court had jurisdiction over the controversy. In doing so, the Supreme Court noted that the courts of common pleas have jurisdiction to enforce obligations, whether arising under express contracts, written or oral, or implied contracts, including those in which a duty may have resulted from long recognized and established customs and usages. The Supreme Court further recognized that it is the peculiar province of equity to afford relief where the measurement of damages cannot be ascertained. Strank II. Thus, jurisdiction is vested where the action properly invokes the equity powers of the lower court.

In the instant case, appellant Tinari seeks relief in the nature of mandamus through an inartfully drafted petition requesting the trial court to compel The Barnes Foundation to rescind his expulsion. The majority points out the inadequacies of the petition and reaches the conclusion that the petition, therefore, must be a complaint in equity. However, a complaint does not automatically sound in equity merely because it is poorly drafted. A careful reading of Tinari’s petition reveals striking similarities to the mandamus petitions filed in Barker and Strank I, and no resemblance at all to the equity complaint filed in Strank II.

Tinari’s petition avers that he was not expelled for violations of the rules of conduct, but for his efforts to document violations of the trust indenture. See Petition at ¶ 5. Unlike the complaint in Strank II, Tinari does not set forth obligations arising out of contract, either express or implied, nor does he aver that a recovery in damages would provide an inadequate remedy. I am compelled to disagree with the majority’s contention that an inadequate mandamus petition inescapably results in a complaint in equity.

The majority also notes that “numerous courts have assumed jurisdiction over claims similar to that presented by appellant herein.” Slip Opinion at 6 n. 11. In addition to Strank II, discussed supra, the majority cites Psi Upsilon v. U. of Pa., 404 Pa.Super. 604, 591 A.2d 755 (1991); Boehm v. U. of Pa. School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575 (1990); and Schulman v. Franklin and Marshall College, 371 Pa.Super. 345, 538 A.2d 49 (1988) in support of its position. This court’s holdings in Psi Upsilon, Boehm and Schulman addressed the merits of specific requests for preliminary injunctions, not generalized complaints in equity. It appears that the majority additionally seeks to characterize Tinari’s petition as closely resembling a request for a preliminary injunction. However, I find this analysis is even more strained than a comparison of Tinari’s petition to the complaint in Strank II. Tinari does not aver even one of the prerequisites to an action seeking a preliminary injunction.

Although the petition is not captioned as an action in mandamus, the nature of the action became apparent to the lower court during a hearing conducted on May 11,1993. The Orphans’ Court opined:

Succinctly put, it became quite obvious at the time of [the] hearing on May 11, 1993, that the court had become embroiled in a matter in which it had no business. See Barker, appellant, v. Bryn Mawr College, 278 Pa. 121 [122 A. 220] (1923) [mandamus action].

Trial Court Opinion at page 2. Rather than straining to find a tenuous resemblance to an action in equity, I would affirm the lower court’s determination that Tinari’s petition seeks relief in mandamus.

Accordingly, I concur with the majority’s result, but would affirm the Orphans’ Court’s determination that it was without jurisdiction to rule in a mandamus action.

      . In the interest of judicial economy, these appeals were consolidated for purposes of oral argument and our resolution of this litigation.

      . In a proceeding unrelated to the present appeal, appellant and two other students were appointed trustees ad litem to represent the interests of the current and future students of the Barnes Foundation. On August 5, 1992, the other two students resigned as trustees ad litem.

      . Although appellant's suspensions would have terminated on January 13, 1995, rendering his appeal moot, we will address appellant’s claim in order to avoid a recurrence of this litigation.

      . Slip Op., Stefan, J., 5/20/93, p. 2.

      . Barker v. Bryn Mawr College, 278 Pa. 121, 122, 122 A. 220, 221 (1923).

      . Appellee’s brief at 8.

      . Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 310, 102 A.2d 170, 172 (1954).

      . Appellant’s brief at 10.

      . See Boehm v. U. of Pa. School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575 (1990).

      . For discussions of the inherent equity powers of Orphans’ Court, see In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984); In re Gerlach’s Estate, 364 Pa. 207, 72 A.2d 271 (1950).

      . We also note Judge Cercone’s conclusion, in his Concurring Opinion, that appellant’s petition does, in fact, request relief in mandamus and not in equity. In support of this conclusion, Judge Cercone states, "neither [appellant] nor the majority sets forth how [appellant] has suffered damages which cannot be remedied at law.” However, it is precisely this omission which forecloses the possibility of reading appellant’s petition as sounding in mandamus. Mandamus is an “extraordinary remedy,” Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778 (1992), which lies only where “the absence of any other adequate remedy at law ... is properly pleaded,” County of Allegheny v. Com., 507 Pa. 360, 490 A.2d 402 (1985). See also Pa.R.C.P. 1095(6) ("The plaintiff shall set forth in the [mandamus] complaint ... (6) the want of any other adequate remedy at law”). Thus, appellant’s petition cannot request mandamus relief and we decline to assume that it can merely in order to then dismiss it as fatally defective. Further, a mandamus complaint is addressed to a court of law, City of Pittsburgh v. Pa., 490 Pa. 264, 416 A.2d 461 (1980), whereas an Orphans’ Court "is [a] court in equity within [the] limited sphere of its operations.” In re Burr’s Estate, 381 Pa. 547, 113 A.2d 712 (1955); see also In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). Therefore, as appellant’s petition was filed in Orphans’ Court without further guidance as to the source of relief requested, we restate our belief that, the petition sounded in equity. The cases relied on by Judge Cercone for the proposition that appellant’s petition requested mandamus relief, Strank I and Barker, were, as noted above, actions at law and are therefore inapposite. Finally, we note that numerous courts have assumed jurisdiction over claims similar to that presented by appellant herein. See e.g., Psi Upsilon v. U. of Pa., 404 Pa.Super. 604, 591 A.2d 755 (1991); Boehm, supra; Schulman v. Franklin and Marshall College, 371 Pa.Super. 345, 538 A.2d 49 (1988); Strank II, supra.

      . Appellant also makes the completely unsupported allegation that "[cjlearly, the expulsion without being afforded even the crudest of due process rights offends Pennsylvania law.” (Appellant’s brief at 11.) Since appellant cites absolutely no authority in support of his claim, and did not raise it below during the complete hearing on the merits of appellant's suspension, we find the issue waived. "We decline to become substitute counsel for appellant”, Commonwealth v. Rodgers, 413 Pa.Super. 498, 520, 605 A.2d 1228, 1239 (1992), and we will deem an issue abandoned where it has been identified on appeal but not properly developed in appellant’s brief. Id.; Commonwealth v. Nelson, 389 Pa.Super. 417, 422-23, 567 A.2d 673, 676 (1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990). Additionally, we are aware of no Pennsylvania authority applying the traditional requisites of due process to a private, non-accredited educational institution.

      . As noted, supra, the other two students appointed with Nicholas Tinari as trustees ad litem withdrew on August 5, 1992 and have not participated in this appeal. Thus, despite the fact that Tinari has proceeded in the name of all three students as trustees ad litem, we will regard Tinari as the sole appellant.

      . Slip Op., Stefan, J., 6/22/94. As the court found that appellant was never permitted to intervene in the instant litigation, the dismissal was premised on the absence of standing.

      . The Attorney General declined to participate in appellant’s attempt to enjoin the proposed construction.

      . An action in mandamus lies "to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate and appropriate remedy at law.” Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 20, 493 A.2d 1351, 1355 (1985). A mandamus action is proper to compel the performance of legal duties, even where the existence and scope of the duties must be defined and found in the course of the mandamus action itself. Id.

      . A preliminary injunction is an extraordinary remedy available only where the party seeking it establishes that: 1) it is necessary to prevent immediate and irreparable harm not compensable in damages, 2) greater harm would result from denying it than from granting it, 3) the right to it is clear and 4) the status quo would be restored if it were to be granted. John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977).


author: CAVANAUGH, Judge:

text:
    661 A.2d 1375
    Juanita COBBS, Administratrix of the Estate of Thomas Cobbs v. ALLIED CHEMICAL CORPORATION, Johns-Manville Corporation, Philip Carey Corporation, and Keene Corporation, and Celotex Corporation, v. EAGLE PICHER, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh-Corning Corp., GAF Corp., and Pacor. Appeal of OWENS-ILLINOIS, INC. (TWO CASES)
    Superior Court of Pennsylvania.
    Argued March 2, 1995.
    Filed June 12, 1995.
    Reargument Denied Aug. 18, 1995.

      Eric J. Kadish, Philadelphia, for appellant.
    Robert J. Murphy, Philadelphia, for Cobbs, appellee.
    Before ROWLEY, P.J., and CAVANAUGH and McEWEN, JJ.
   CAVANAUGH, Judge:

Owens-Illinois, Inc. (“Owens”) appeals from two judgments entered following a jury verdict in favor of appellee/plaintiff, in a suit for personal injuries arising from the occupational exposure of appellee’s decedent to asbestos. After carefid review, we vacate both judgments and remand this case for further proceedings.

On January 26, 1981 appellee brought suit against Allied Chemical Corporation, Johns-Manville Corporation, Philip Carey Corporation, Keene Corporation, and Celotex Corporation, alleging injuries and death to her husband due to occupational exposure to asbestos. Celotex Corporation, on March 11, 1983, filed a third party complaint against, inter alia, Pittsburgh-Corning Corporation, Owens-Corning Fiberglas Corporation, and appellant Owens, joining them as additional defendants. Owens thereafter filed an answer and new matter in which it raised the statute of limitations defense to appellee’s/plaintiffs lawsuit.

Several years later, in 1992, the case, after having been consolidated with five other asbestos cases, was tried before a jury in a reverse-bifurcated proceeding (damages phase of trial tried before liability phase). The jury subsequently returned a verdict in favor of appellee in the amount of $175,000. Thereafter, on March 2, 1992, Owens and Keene entered into a stipulation with appellee, wherein it was agreed that if the liability phase of the case would have proceeded, it would have been determined that the asbestos-containing products, manufactured by original defendant Keene and additional defendants Owens, Pittsburgh-Corning and Owens-Corning, were all a substantial factor and cause of decedent’s injuries, disease, damages, and death.

Owens and Keene subsequently filed post-trial motions. In its motion, Owens raised, inter alia, the statute of limitations issue. Specifically, Owens argued that it was joined following the expiration of the limitations period on any direct claim which appellee/plaintiff could bring against Owens. As such, Owens maintained that it could not be held directly liable to appellee, but rather, it could only be held liable to Keene for contribution. The trial court denied Owens’ post-trial motions, specifically finding that the statute of limitations issue “was not raised before nor decided by the trial judge.” Owens subsequently filed the present appeals, raising the identical issue in each:

Whether the trial court erred in denying appellant Owens-Illinois’ motion for judgment on the basis that plaintiffs claim against Owens-Illinois was barred by the statute of limitations?

Owens initially contends that the trial court erred in failing to consider its limitations defense. Conversely, appellee alleges that Owens’ admission of liability, in the stipulation between the parties, acted as a waiver of Owens’ rights to post-trial relief. Appellee further contends that even if Owens has not waived its rights to post-trial relief, the statute of limitations issue was not raised or preserved in either the damage phase of the trial, or as part of the stipulation. In resolving this dispute, it is necessary to first examine the terms of the stipulation.

It is well-established that parties, by stipulation, may bind themselves on all matters except those affecting jurisdiction and prerogatives of the court. Longenecker v. Matway, 315 Pa.Super. 411, 415, 462 A.2d 261, 263 (1983). When interpreting a stipulation, courts employ the rules for construction of contracts, with the primary focus placed on ascertaining and giving effect to the intention of the parties. Tyler v. King, 344 Pa.Super. 78, 89, 496 A.2d 16, 21 (1985). The language of a stipulation, like that of a contract, is construed against the drafter. Id. In construing a stipulation, the court will adopt the interpretation that is the most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement. Wrenfield Homeowners Association v. DeYoung, 410 Pa.Super. 621, 627, 600 A.2d 960, 963 (1991). The court will not extend the language by implication or enlarge the meaning of terms beyond what is expressed. Ballard v. Heppe, 403 Pa.Super. 441, 445, 589 A.2d 266, 268 (1991).

Following the damage phase of the trial, appellee’s counsel placed on the record, in the presence of the trial court, a stipulation regarding the liability of Keene, Pittsburgh-Corning, Owens-Corning, and appellant Owens. After reviewing the stipulation, we conclude, from its clear and unambiguous language, that it was limited to the narrow issue of legal causation. At no point were Owens or any other defendants’ rights to post-trial relief discussed, mentioned or otherwise implicated. Examining the stipulation on its face, and narrowly construing its terms, we can only conclude that Owens’ rights to post-trial relief were unaffected by the stipulation and remained intact.,

We must now determine whether Owens has preserved the statute of limitations issue. As previously noted, appellee also contends that the statute of limitations issue was waived because Owens failed to raise or preserve it in either the damage phase of the trial or in the stipulation.

The statute of limitations is a procedural bar to recovery which may be waived by explicit consent or by conduct. Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 377, 496 A.2d 840, 845 (1985). Here, the liability phase of the trial did not take place due to Owens’ and the other defendants’ stipulation regarding the narrow issue of causation. This issue was entirely separate and apart from the purely legal defense of the statute of limitations. The limitations defense was likewise not implicated, and thus not necessarily raised, in the phase of the trial regarding damages. With respect to the preservation of an issue for post-trial review, Pa.R.C.P. 227.1(b) provides:

(b) Post-Trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the motion.

In this case, Owens raised the statute of limitations defense in its answer and new matter, filed in response to the third party complaint which joined Owens as an additional defendant. Moreover, Owens specified, in its motion for post-trial relief, the grounds upon which it contended that the time bar of the statute of limitations was applicable. We do not find Owens’ failure to raise the limitations defense at trial to be fatal to its request for relief, particularly in view of the nature and conduct of the trial in this case (reverse bifurcated proceeding where liability stipulated to following verdict on damages), and the fact that Owens complied with our procedural rules in raising the limitations defense both in pre-trial proceedings and in post-trial motions. See Armacost v. Winters, 258 Pa.Super. 424, 392 A.2d 866 (1978) (trial court did not err in instructing jury on statute of limitations defense, where defense was raised in answer, and, despite defendant’s admission of liability, he had not waived limitations defense). As such, we conclude that the trial court erred in finding that the statute of limitations had been waived.

At this point, we would normally address the merits of Owens’ statute of limitations defense. However, because we sit as reviewing court, and not as a court of first impression, we remand this case in order for the trial court to decide the statute of limitations issue in the first instance.

Judgments vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

      . We note that a single jury verdict is the basis for both judgments in this case. The trial court, following Owens’ appeal from the first judgment, vacated that judgment at the request of Owens, and entered the second judgment, from which Owens also appealed. Appellee, in one of several motions filed with this Court, has challenged the propriety of the entry of the second judgment, and has moved to quash and/or dismiss the appeal taken from the second judgment. Because our disposition requires that we vacate the judgment(s) appealed from in this case, we need not determine which of the two judgments is correct.

      . We note that at the time of trial, only original defendant Keene Corporation and additional defendants Owens, Pittsburgh-Corning, and Owens-Coming remained as active litigants. When the jury returned its verdict, only Keene and Owens remained active in the case.

      . At some point following the filing of post-trial motions, but before the trial court’s ruling thereon, Keene filed for bankruptcy and was thus afforded an automatic stay.

      . We briefly note that appellee points to several cases, including Pinkney v. Erie Railroad Co., 266 Pa. 566, 109 A. 700 (1920) and Commonwealth v. Callahan, 153 Pa. 625, 25 A. 1000 (1893), in support of its argument that Owens waived its appellate rights since it did not expressly preserve them in the stipulation. The cases cited by appellee involve a “case stated.”
      A case stated is an agreement by the parties whereby the court will enter a judgment based upon an agreed statement of facts submitted by the parties. Falcione v. Cornell School Dist., 383 Pa.Super. 623, 627, 557 A.2d 425, 427 (1989). Agreement by the parties to the entry of a final judgment is an indispensable element of a case stated. McCarron v. Upper Gwynedd Twp., 139 Pa.Cmwlth. 528, 537, 591 A.2d 1151, 1155 (1991). A judgment based upon a case stated is not appealable unless the parties expressly reserve the right to appeal. Id.

      Here, there is no evidence that the parties agreed to the entry of a final judgment by the trial court. Moreover, the stipulation entered into by the parties did not contain an agreed upon statement of facts, or any facts, for that matter. The stipulation simply contained a concession by Owens that its asbestos products were a substantial factor and cause of appellee's decedent’s death. Finally, the parties at no point refer to the stipulation as a case stated, and there is no indication whatsoever, that the parties intended the stipulation to be submitted as a case stated. As such, the cases cited by appellee are not controlling.

      . Although it is unnecessary to look beyond the terms of the stipulation, we note that Owens’ counsel stated on the record, immediately following the stipulation, that he believed that Owens’ rights to pursue any available post-trial and appellate remedies had been preserved. We further note that appellee's counsel acknowledged that these rights had been preserved to the extent provided for by law. Because the stipulation was clear and unambiguous on its face, we are prohibited from examining evidence, as to the intent of the parties, which is not within the four comers of the stipulation. See Walton v. Philadelphia National Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988) (intent of parties must be ascertained from contract itself when terms are clear and unambiguous). We have recited these additional comments of Owens' and appellee’s counsels solely for illustrative purposes, as they serve to buttress the conclusion that the stipulation did not affect Owens' post-trial rights. We take care to note that our finding that Owens’ post-trial rights had not been waived was entirely in accordance with the applicable law, as our conclusion was based solely upon the clear language of the stipulation.

      . Both Owens and appellee have cited this Court’s decision in Normann v. Johns-Manville Corp., 406 Pa.Super. 103, 593 A.2d 890 (1991). In Normann, a panel of this Court held that an asbestos manufacturer, which stipulated to a one-tenth share of liability following the damage phase of a reverse-bifurcated trial, had preserved its appellate rights where the stipulation itself conditioned the admission of liability upon the preservation of these rights. Normann did not hold that a party’s appellate rights would only be preserved where the stipulation expressly so stated. To the contrary, the decision of the panel in Normann was in accordance and consistent with caselaw governing stipulations; the language of the stipulation, on its face, clearly and unequivocally set forth the parties’ intention that the manufacturer’s appellate rights would be preserved. The Normann decision is completely silent as to the issue of whether appellate rights are preserved where the stipulation is silent as to this matter. As such, the Normann decision is inapposite in the present case. We do point out, however, that our conclusion was likewise in accordance with caselaw governing stipulations, and is consistent with the decision in Normann, as the stipulation in this case evidences no intent that Owens relinquished its appellate rights.

      . We note that the day after the stipulation was entered into by the parties, Owens’ counsel posted a letter to the trial court and counsel for the other parties. In this letter, Owens brought to the court’s attention that the stipulation had not made clear that Owens had been joined following the expiration of the limitations period on appellee's action, and that any order of court based on the stipulation should reflect the fact that Owens liability was over to Keene and not directly to appellee. The letter also went on to state that Owens expected to file post-trial motions.
      A review of the record, however, reveals that this letter is not contained in the record certified to this Court. As such, we cannot consider it in our disposition of this case. See Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622 (1993) (it is black letter law that an appellate court may not consider anything which is not part of the record in disposing of the case). We note that if Owens wished this Court to consider this letter on appeal, it should have petitioned the trial court, pursuant to Pa.R.A.P. 1926, to correct the record; or Owens could have protected itself by filing a copy of this letter with the lower court prothonotary at the same time it posted the letter to the trial court.
      In any event, we would find, if we were able to consider this letter, that it supports our conclusion that this issue has been preserved. The letter clearly demonstrates that Owens, at all times, acted both to protect its rights to post-trial relief and to preserve the statute of limitations issue for appellate review.

      . Appellee’s outstanding motions to quash, dismiss and/or strike are denied.


author: TAMILIA, Judge:

text:
    661 A.2d 1379
    Natawadee STEINHOUSE, M.D., and Roy Steinhouse, H/W, Appellants, v. HERMAN MILLER, INC., and St. Agnes Medical Center.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed June 13, 1995.
    Reargument Denied Aug. 18, 1995.

      William D. Marvin, Bensalem, for appellant.
    Anne Mauero, Philadelphia, for Herman Miller, Inc., appellee.
    Nancy L. Siegel, Philadelphia, for St. Agnes Medical Center, appellee.
    Before TAMILIA, SAYLOR and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellants, Natawadee Steinhouse and her husband Roy Steinhouse, appeal the October 11, 1994 entry of judgment on a jury verdict in favor of appellees.

This case was initiated after appellant/wife, a family practice physician, fell from a chair at St. Agnes Medical Center (St. Agnes) and was allegedly injured. Appellants brought a products liability suit against the chair manufacturer, Herman Miller, Inc., and a negligence suit against St. Agnes, alleging a dangerous condition of land. Appellees conceded that appellant/wife was a business invitee of St. Agnes. Following trial, the jury returned a verdict in favor of both appellees, finding that the chair was not defective and that St. Agnes was not negligent.

On appeal, appellants do not contest the verdict as to the chair manufacturer, choosing instead to assign as error two rulings of the trial court regarding St. Agnes. Initially, appellants assert that the trial court’s failure to adequately instruct the jury on the duty owed by St. Agnes to a business invitee constitutes reversible error. Appellants had requested the following charge:

31. A possessor of land is subject, such as St. Agnes Medical Center, is subject [sic] to liability for physical harm caused to their invitees, such as Dr. Natawadee Steinhouse, by a condition of the land if, but only if they
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that the invitees would not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Plaintiffs’ Proposed Points for Charge No. 31.

The trial court, charged, in relevant part, as follows:

The duty issue is not in dispute here. It’s no question that St. Agnes Hospital would owe a duty of reasonable care to all the parties who would go on the premises; doctors, nurses, visitors, patients.
Did they breach that duty by acting or failing to act as a reasonable and prudent hospital would under the particular circumstances of the particular case?
In analyzing whether they were negligent or not involving this chair, you have to decide these two things: did the chair present an unreasonable risk of harm to the users; the people that would sit on it?
If you answer that question, yes, then you have to decide, if that were so, did the hospital know or have reason to know about this fact? They are the two areas of inquiries you should make in determining whether or not St. Agnes Hospital was negligent.

(N.T., 4/25/94, pp. 169-170.)

Specifically, appellants contend that the phrase “reason to know” as used by the court below is only applicable to cases involving “mere licensees” and did not appraise the jury of St. Agnes’ affirmative duty to inspect for dangerous conditions (Appellants’ brief at 19). Appellants’ proposed point for charge No. 31, quoted above, is taken verbatim from Restatement, Torts, 2d, § 343, which is entitled “Dangerous Conditions Known to or Discoverable by Possessor.” Appellants are entirely correct in their assertion that section 343 establishes a duty of inspection owed to invitees. However, as section 343(a) indicates, the duty applies only to conditions that involve “an unreasonable risk of harm to such invitees.” Since the jury found that the chair did not present an unreasonable risk of harm, the duty of inspection, as it relates to the chair, never arose. Thus, any error in the trial court’s charge concerning duty was harmless.

The trial judge’s charge discussed the following special interrogatories, as submitted to the jury:

The first two questions deal with the liability of the chair manufacturing company, Miller. Was the chair defective? If you answer that, no, your inquiry ends, as far as Miller is concerned.
If you answer it, yes, you’ve got to go to the causation question. Miller would be found liable only if you answered both of those two questions that there was a defect, the defect caused the accident. Yes.

(N.T. at 159.) The judge then defined “defect” as follows:

What is a defect? A defect occurs in a product when it contains a condition or lacks an element that makes it unsafe for its reasonably intended use.
In this case, what you have to ask yourself is: was this chair defective? Did it contain a condition or lack an element that made it unsafe for its reasonably intended use ? That’s what you have to decide in determining whether or not the chair was defective.

(Id. at 168 (emphasis added).)

The jury’s determination that the chair was not defective, therefore, manifested its belief that the chair was not “unsafe for its reasonably intended use.” We find no reason to distinguish this definition, as relied on by the jury, from the definition of dangerous condition contemplated by section 343(a), namely, “[a condition] that involves an unreasonable risk of harm.” In short, under the facts of this case a chair that is not “unsafe for its reasonably intended use” does not involve “an unreasonable risk of harm.”

Appellants, in their reply brief, contend that the two definitions are not interchangeable because defectiveness is gauged at the time the chair leaves the manufacturer’s possession, whereas the negligence of the hospital in allowing this “worn-out” chair to be used on a hard-tile floor must be gauged when the injury occurred (Appellants’ reply brief at 9). Specifically, appellants assert that since St. Agnes’ negligence lies in using this chair “under conditions existing many years later and unknown to the manufacturer,” a finding that the chair was not defective when sold does not insulate the medical center from liability (Appellants’ brief at 8).

Appellants’ contentions that the condition of the chair somehow changed after sale and that use of the chair on a tile floor was a fact “unknown to the manufacturer,” both offered for the first time during this litigation, are so explicitly belied by appellants’ own pleadings and trial strategy that we find them to be disingenuous. As to appellants’ first contention, Court III of appellants’ complaint, sounding in product liability against the chair manufacturer, states:

16) The aforesaid chair was in substantially the same condition at the time of the accident as it was at the time it left Defendant’s possession and control.

Averments in pleadings constitute binding judicial admissions, conclusive in their nature insofar as their effect is confined to the case in which they are filed. Hutchison Enterprises v. Data Basics East, Inc., 345 Pa.Super. 91, 497 A.2d 659 (1985). Moreover, virtually the entire thrust of the expert testimony offered by appellants, “which went both to the inherent stability of the chair, as well as its suitability for the use given it by St. Agnes,” was that the castors on the chair were dangerous (Appellants’ brief at 8). Therefore, the linchpin of appellants’ entire case, asserted as the basis of liability of both defendants, hinged on the fact that the castors were not changed to accommodate the chair’s use on a tile floor. Appellants may not now present a new theory of their case simply because the former theory failed to persuade the jury.

Undermining appellants’ second contention (that use of the chair on a tile floor was “unknown to the manufacturer”) is the fact that a necessary requisite of appellants’ product liability claim was that the injury was a foreseeable consequence of the manufacturer’s conduct. Indeed, Count II of appellants’ complaint is based on:

e. failure [of the manufacturer] to exercise due and reasonable care under the circumstances in view of the foreseeable dangers and/or foreseeable accidents and injuries that could occur from using said chair, particularly with regard to the use of dangerous wheels on said chair[.]

Thus, a claim of imputed knowledge of foreseeable injuries was necessary to appellants’ case against the manufacturer. Now that the claim has failed, appellants cannot on appeal aver the contrary to bolster their case against St. Agnes.

In sum, appellants failed at trial to aver or prove any changed conditions or unexpected use by St. Agnes which would justify a distinction between the time of sale of the chair and the time of injury. To the . contrary, the evidence presented demonstrated that the chair did not undergo substantial change which contributed to appellant/wife’s injury and that use of the chair on tile was foreseeable by the manufacturer. Therefore, because no change in condition or unforeseeable use was proven, we find that the chair, determined to be reasonably safe when it left the manufacturer’s possession, continued to be reasonably safe, within the meaning of section 343, at the time Dr. Steinhouse was injured. Pennsylvania Courts will not presume defects.

We find additional support for the conclusion that appellants failed to prove the chair was unreasonably dangerous in the case of Kramer v. Meyer, 168 Pa.Super. 13, 76 A.2d 481 (1950). In Kramer, the finger of a minor business invitee became caught in the hinge of a step ladder upon which the plaintiff was attempting to sit. The plaintiff brought suit against the store owner upon the identical theory advanced by appellant here. In affirming a compulsory nonsuit for defendant, our Court held:

It does not follow from the fact of the injury in this case that the ladder was a dangerous instrumentality.... That burden of proof was on the plaintiffs.
Here, so far as disclosed by the testimony, the instrumentality which caused the injury was a small folding stepladder of the ordinary conventional type. As such it was no more dangerous that a folding chair or other folding device in common use.

Id. at 15-16, 76 A.2d at 482.

The fact that appellants, apparently unlike the plaintiff in Kramer, presented expert testimony that the chair from which Dr. Steinhouse fell was in fact dangerous does not alter our conclusion that appellants failed to prove that the chair was a dangerous condition of land. The testimony of appellants’ expert was rebutted by the testimony of appellee’s expert that the chair was suitable for use on tile. The jury resolved this conflicting expert testimony in favor of appellee and we will not disturb its determination on appeal. Junge v. Garlock, Inc., 427 Pa.Super. 592, 629 A.2d 1027, appeal denied, 537 Pa. 610, 641 A.2d 310 (1993).

Since appellants failed to prove that the chair was unreasonably dangerous, St. Agnes owed no duty of inspection to appellants with regard to the chair. Thus, any error in the jury charge concerning duty was harmless.

Appellants next contend “the trial court abuse[d] its discretion by allowing the hospital defendant to effectively introduce affirmative evidence through cross-examination of the other defendant’s expert, while depriving the plaintiffs of their right to make the final rebuttal closing speech” (Appellants’ brief at 3). Appellants’ basis of appeal, which actually presents three issues for our review, stems from the following cross-examination of the manufacturer’s expert, Tom Ankey, by counsel for St. Agnes:

Q. [Counsel for St. Agnes] Will you agree with me that the chair as it’s here today, it was appropriate to use that chair on that particular floor surface?
[Objection]
[Overruled]
Q. It was appropriate to use this chair on the surface — the floor surface that was described in the nurse’s station?
A. [Manufacturer’s Expert] A chair outfitted with CA castors is appropriate to use on tile or carpet.
Q. And you’ve had a chance to look at the chair during the course of this trial?
A. Yes.
Q. To examine the chair?
A Yes.
Q. Did you find that there was any unreasonable risk of harm presented by that chair?
THE WITNESS: No. The chair is in good shape. Everything is in working order. I don’t see any risk with that chair at all.

(N.T. at 84-85.)

Appellant initially objects to this testimony as exceeding the scope of both the manufacturer’s direct examination and the appellant’s cross-examination.

The manufacturer’s expert testified on direct examination as follows:

Q. With respect to the CD Casters that were on the chairs that was sold to St. Agnes, what derometer reading under the Shore D scale did they have?
A. Those casters fall right around the forty range.
Q. In terms of applicability to the type of surface, how could St. Agnes utilize that type of chair?
A. In the price book, the caster options all have a description. It talks about the sizes of caster a number of wheels and whatever else might be in there. Then we also talk about the floor surface. Why a caster is acceptable for use on either hard floors or carpeting.

(Id. at 63.)

Q. Finally, Mr. Ankney, Do you have an opinion as to whether this chair line is stable and meets the A.N.S.I. requirements for stability?
A Yes I do.
Q. What is that opinion?
A. My opinion is the chair meets and exceeds all existing stability requirements. And, in fact, the performance of the chair from a stability standpoint is quite acceptable and doesn’t pose an unreasonable risk.

{Id. at 66.)

Subsequently, the expert testified on cross-examination by appellants as follows:

Q. Would it be fair to say that it’s a middle of the road type caster in terms of suitability for both hard and carpeted floors?
A. Performance is such that it provides acceptable performance on either hard floors or soft floors, carpeted floors.
Q. That’s because as you testified, it falls somewhere — and I don’t want to misquote you. “Casters fall right around the forty range?”
A Right.
Q. Which is right in the middle between used for hard and carpeted floors.
A. That’s correct.

(Id. at 80.)

A trial judge has considerable latitude in determining the scope of cross-examination and his determination will not be reversed in the absence of an abuse of discretion unless a party suffers an obvious disadvantage. Tolomeo v. Harmony Short Line Motor Transp. Co., 349 Pa. 420, 37 A.2d 511 (1944). Here, the door had been opened as to the suitability of the chair to tile flooring by both the manufacturer and appellants. As the testimony elicited by St. Agnes essentially reiterated and clarified previous testimony, its admission was not in error. Additionally, the cross-examination of the manufacturer’s expert by St. Agnes was proper because it sought to rebut the inference, raised both by the manufacturer and appellants, that St. Agnes was somehow negligent in choosing the chair in question.

On direct examination by the manufacturer, the expert testified as follows:

Q. Given all the various features that you talked about to the jury; the height adjustment, tilt feature, in a customer such as St. Agnes Hospital, who would determine the type of chair that would be provided to the customer?
A. That’s typically a give and take discussion with a customer and somebody who might be representing our product, a dealer representative. It’s real similar to going into a car dealer and you trying to pick out the things you want on a brand new car. It’s the same type of thing with chairs.

(N.T. at 58-59.)

Q. Now, it indicates on that, that there are a number of options offered on that particular page of the chair that was purchased by St. Agnes; correct?
A. Yes.

(Id. at 59.)

Q. This type of chair is depicted -with glides as opposed to the casters; correct?
A. Correct.
Q. That was an option that St. Agnes could have ordered with this chair as opposed to the casters; correct?
A. Yes. ...

(Id. at 60.)

Plaintiffs’ attorney then cross-examined the expert as follows:

Q. Now, you testified that — and I don’t want to misquote you — that when the chairs are purchased, there is a give and take between the dealer who represents the line of chairs and the person who wants to purchase them?
A. In some cases, yes.
Q. It’s ultimately, from what I gather, the consumer’s responsibility to choose what type of chair they want; is that correct?
A. When you say, consumer, you mean the people purchasing the chair?
Q. Yes.
Q. From your testimony, its up to the consumer or the person purchasing the chair to decide whether they want a GD Caster or a CA Caster?
A. The ultimate decision is the person making the purchase.

(Id. at 73-74.)

Thus, as this testimony clearly raises the inference that it was St. Agnes’ responsibility to choose an appropriate chair, St. Agnes was well within its rights to elicit testimony, via cross-examination, that the chosen chair was, in fact, appropriate. Indeed, the very purpose of cross-examination is to elicit testimony tending to refute all inferences and deductions raised by direct examination. Rafter v. Raymark Industries, Inc., 429 Pa.Super. 360, 632 A.2d 897 (1993).

Appellants next claim that since St. Agnes offered “affirmative evidence” during cross-examination, it was improperly allowed to deliver the final closing speech (Appellants’ brief at 31). Specifically, appellants assert a violation of Philadelphia Civil Rule 223.1(D), which states:

(D) After the evidence is closed, only one attorney for each party or group of parties may address the jury. The attorney for the party or group of parties having the burden of proof shall first sum up, stating explicitly the grounds relied upon. The attorney for each adverse party or group of parties may then address the jury, and, if any such party has offered evidence, the attorney who commenced may conclude, restricting himself or herself to answering the arguments advanced.

Both parties agree that this rule provides that a party who offers no evidence at trial is to be given the final opportunity to address the jury. In light of our determination that cross-examination of the manufacturer’s expert by St. Agnes was proper, the testimony presented was not the admission of affirmative evidence. Commonwealth v. DePofi, 362 Pa. 229, 66 A.2d 649 (1949), cert. denied, 338 U.S. 852, 70 S.Ct. 82, 94 L.Ed. 522 (“Admission of evidence” refers to admission of affirmative evidence in chief, and not to what may be asked of a defendant on cross-examination). Appellants’ contention is therefore without merit and St. Agnes was properly permitted to deliver the final speech.

Lastly, appellants claim St. Agnes’ introduction of expert testimony via the above-quoted passage, “under the guise of cross-examination,” unfairly surprised and prejudiced appellant (Appellants’ brief at 30). We reject this contention for several reasons. Initially, Mr. Ankey was the expert for the manufacturer, a party which, as noted, maintained a position potentially adverse to that St. Agnes. Therefore, the examination of Mr. Ankey was not, as appellants suggest, “friendly.” Further, Mr. Ankey was clearly identified prior to trial as an expert who would testify for the manufacturer. Appellants also received Mr. Ankey’s expert report which expressed the opinion that the chair in question “would be acceptable for use on hard floors.” Thus, since appellants were aware of the expert’s identity, as well as the substance of his testimony prior to trial, we fail to see how appellants were surprised or prejudiced by the testimony elicited during St. Agnes’ legitimate cross-examination of Mr. Ankey. See e.g., Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986) (no prejudice exists where appellant knew identity of expert and knew the substance of his testimony, despite failure of party offering the testimony to list expert in pretrial statement).

Based on the foregoing discussion, we affirm the judgment of the trial court.

Judgment affirmed.

      . Unless otherwise noted, all references to the testimony are from the transcript of April 25, 1994.

      . As will be discussed, infra, there is no evidence the condition of the chair was materially altered subsequent to its sale by the manufacturer.

      . Indeed, the manufacturer’s expert testified that ”[i]t was appropriate to use this chair on [tile].” (N.T., 4/25/94, p. 84.)

      . We neither assume nor decide that the charge was erroneous.