author: ROWLEY, Presiding Judge:

text:
    655 A.2d 1011
    Susan H. KOCH and William C. Koch, H/W, Appellants, James HARSHAW, Sr., and Mary Harshaw, H/W, and James Harshaw, Jr., and Lillian Harshaw, H/W.
    Superior Court of Pennsylvania.
    Argued Oet. 5, 1994.
    Filed March 14, 1995.

      Mark Pinnie, Media, for appellants.
    Thomas S. Myers, Jr., Paoli, for appellees.
    Before ROWLEY, Presiding Judge, and KELLY and CERCONE, JJ.
   ROWLEY, Presiding Judge:

In this appeal, we are required to consider the consequences which result when statements contained in the text of the opinion or memorandum that accompany a mandate of this Court appear to conflict with the mandate. The trial court determined that it was required to follow the mandate and, as a result, entered judgment in favor of appellees James Harshaw, Sr. and Mary Harshaw, husband and wife, and James Harshaw, Jr. and Lillian Harshaw, husband and wife. Appellants, Susan Koch and William Koch, request that we reverse the trial court’s order and remand for a determination of the amount of damages claimed to be due them. We decline to do so.

The underlying facts of this case were set forth in this Court’s unpublished memorandum which addressed the merits of the appeal taken by the four Harshaws after the trial court entered judgment in favor of the Koches:

This case involves an agreement of sale for a property located at 3400 Horton Road in Newtown, Delaware County, Pennsylvania [hereinafter “property”]. The property was owned by appellants, James Harshaw, Sr. and Mary Harshaw [hereinafter “Harshaws Sr.”]. In the early 1980’s, the Harshaws Sr. permanently relocated to Florida and sought to sell the property. Toward this end, an agreement was entered into between the Harshaws Sr. and their daughter and son-in-law, appellees Susan and William Koch [hereinafter “Koches”], on January 10, 1981. The total sale price was $125,000.00. The agreement provided for an initial payment of $8,500.00 and an additional payment of $16,-500.00 one year later. The remaining $100,000.00 was to be paid at settlement, which would occur when Koches were able to finance the remaining balance due under the agreement.
Koches made the initial payment of $8,500.00, but never made the payment of $16,500.00. Koches regularly made payments of $850.00 per month under the agreement, until August of 1986. On September 8, 1986, Harshaws Sr. sent a letter through counsel declaring Koches in default under the agreement of sale due to the failure to make the August payment. The property was eventually sold by Harshaws Sr. to appellants, James Harshaw, Jr. and Lillian Harshaw [hereinafter “Harshaws Jr.”], for $125,000.00.

Koch v. Harshaw, 425 Pa.Super. 636, 619 A.2d 794, slip op. at 1-2 (1992) (footnotes omitted). After considering and discussing the issues raised by the Harshaws, this Court concluded with the following mandate:

Since we find no basis for granting appellees relief on their equity complaint, we reverse the order of the trial court and remand with direction that judgment be entered in favor of Harshaws Sr. and Harshaws Jr.

Order [denying post-trial motions] reversed.

Id. at 12 (emphasis added). The Koches’ request for-reargument or for clarification was denied, as was their request for allowance of appeal to the Supreme Court.

Upon remand of the case to the trial court, the Koches, notwithstanding the clear direction that judgment be entered in favor of the Harshaws, filed a petition to confirm judgment in their favor in the trial court. After the trial court denied their petition, the Koches filed this appeal. The Koches contend that statements in this Court’s prior memorandum that accompanied the foregoing mandate reveal that the Court “intended” that the Koches receive damages, only in a different amount than that originally awarded by the trial court. The Koches, although recognizing that this Court directed that judgment be entered in favor of the Harshaws, assert that this Court merely neglected to also “specific[ally] remand” for a finding of damages due the Koches. The Koches further assert, without citation to any authority, “It is the understanding of counsel that this court may overturn a trial court’s decision relative to the issue of damages without specific direction for remand, leaving it as the obligation of the collecting party in the court below to file for confirmation of entry of judgment.” Brief of Appellants at 10.

The earlier mandate of this Court, as set forth above, is unambiguous and clearly states, without qualification, that judgment be entered in favor of the Harshaws. “Where the direction contained in the mandate of the appellate court is precise and unambiguous, it is the duty of the trial court to carry it into execution without looking elsewhere for authority to change its meaning or direction....” 2 P.L.E. Appeals § 519 (1957) (footnote omitted). Under the law of the case doctrine, the trial court must, as it did, strictly comply with that mandate. Syno v. Syno, 406 Pa.Super. 218, 229, 594 A.2d 307, 313 (1991). Roskwitalski v. Reiss, 338 Pa.Super. 85, 90, 487 A.2d 864, 867 (1985), appeal denied, 514 Pa. 619, 521 A.2d 933 (1987). The trial court cannot modify, alter, amend, set aside or in any way disturb or depart from this Court’s judgment. Albright v. Wella Corp., 240 Pa.Super. 563, 567, 359 A.2d 460, 462 (1976); Blymiller v. Baccanti, 236 Pa.Super. 211, 213, 344 A.2d 680, 681 (1975). Because our mandate was dear and definitive in and of itself, the trial court was not required to interpret the views expressed in our memorandum. Cf. Commonwealth v. Tick, Inc., 431 Pa. 420, 425, 246 A.2d 424, 426 (1968) (trial court’s compliance with mandate to enter an “appropriate decree” required court to proceed in a manner consistent with views expressed in Supreme Court opinion and in accordance with the terms of the applicable statute). The trial court properly followed our earlier mandate by entering judgment in favor of the Harshaws.

The Koches urge, in effect, that the Court’s mandate, although unequivocally stating that judgment should be entered in favor of the Harshaws, should be read as, “Judgment to be entered in favor of defendants, except to the extent that damages are due to plaintiffs.” That we cannot do. When damages are due to a plaintiff, judgment is entered in favor of that plaintiff. On the other hand, judgment is entered in favor of a defendant when the plaintiff is not entitled to damages. A reading of the Court’s mandate reveals that the Court did not intend that damages, in any amount, be awarded to the Koches. Furthermore, a reading of both memoranda from the prior appeal, that is, the majority decision and Judge Johnson’s concurrence, reveals that the Court unequivocally intended that judgment be entered in favor of the Harshaws.

Although not on point, the Supreme Court’s decision in Murosky v. Spaulding, 402 Pa. 86, 166 A.2d 34 (1960), provides guidance to us in this case. In that case, the plaintiff initially filed an appeal to this Court, asserting that the amount of the verdict awarded to him by the jury was inadequate. In its opinion, the Superior Court stated that “there could’ be little doubt as to the negligence of the defendants.” However, in its order reversing the trial court’s denial of a new trial, the Superior Court granted a new trial generally rather than a new trial limited to the issue of damages. At that trial, a verdict in favor of the defendants was rendered. The trial court granted the plaintiffs motion for a new trial on the basis that the verdict in the second trial conflicted with the verdict in the first trial and the Superior Court’s decision. The Supreme Court reversed, declaring that the Superior Court’s statement that there could be little doubt as to the defendants’ negligence was not intended to render the question of the defendants’ liability res judicata. To conclude otherwise, according to the Supreme Court, would produce an unprecedented result, that is, “the Superior Court mandate of a new trial generally did not mean what it said[.]” Id. at 93, 166 A.2d at 38.

Similarly, in the present case, the Koches in essence argue that the Superior Court’s mandate that judgment be entered in favor of the Harshaws did not mean what it said. That argument, as the Supreme Court stated, is unprecedented.

Because our mandate is definitive, the Koches are effectively asking us to review our prior opinion. The Harshaws, in opposition to that request, cite In re Estate of Girard, 423 Pa. 297, 224 A.2d 761 (1966), wherein Justice Jones, in a concurring opinion, stated that the petitioners in that case inappropriately sought clarification of opinions of the Supreme Court rather than the accompanying orders. However, the Supreme Court in Lawler v. Commonwealth, 347 Pa. 568, 33 A.2d 432 (1943), utilized language which implies that a party can properly seek clarification of a court’s opinion. After determining that the petitioners’ improperly filed in the Court of Common Pleas a Bill of Review seeking clarification of an earlier Supreme Court decision, the Court stated, “[W]e nevertheless chose to disregard plaintiffs’ procedural error and to consider the bill as if it were a petition for clarification, which is the correct method of bringing to our attention a matter upon which our opinion supposedly lacks clarity.” Id. 347 Pa. at 570, 33 A.2d at 433.

It appears, therefore, that a party can properly seek clarification of an opinion of this Court. However, it is inappropriate at this stage for the Koches to request a clarification of this Court’s prior decision. See Brief of Appellants at 1 (characterizing this appeal from denial of their petition to confirm judgment as a “de facto request” for clarification of our prior decision). This Court denied the Koches’ prior request for clarification of its decision, as well as their request for reargument. Because we have already denied the Koches’ prior request for clarification, they are basically requesting that we now review our prior decision. We decline to do so for two reasons. First, it has been held that “an objection based on the opinion of an intermediate appellate court will not be reviewed, since the reviewing court reviews only the judgment, not the opinion.” Kehl v. Abram, 210 Ill. 218, 71 N.E. 347, 348 (1904).

Moreover, under the doctrine of the law of the case, it would be inappropriate for us to reconsider the merits of the issues raised in the first appeal. See Tioga Coal Co. v. Supermarkets General Corp., 403 Pa.Super. 391, 589 A.2d 242 (1991), appeal denied, 529 Pa. 658, 604 A.2d 250 (1992).

Matters passed upon at a prior appeal will not be reconsidered on a second appeal: Creachen v. Bromley Brothers Carpet Co., 214 Pa. 15, 63 A. 195. Where the record shows no question that was not decided on a former appeal, the second appeal will be dismissed on the ground of prior adjudication: McMahon’s Estate, 215 Pa. 10, 64 A. 321. A former judgment puts an end to all further litigation on account of the same matter and becomes the law of the case which cannot be changed or altered: Lafferty’s Estate, 230 Pa. 496, 79 A. 711. Points decided upon a first appeal will not be reconsidered on a second appeal: Welker v. Hazen, 247 Pa. 122, 93 A. 173. A previous decree affirmed on appeal is conclusive: Allen v. Pennypacker, 302 Pa. 495, 153 A. 734. The appellate court in a new proceeding will not reexamine and reverse a decision in a prior proceeding in which the same parties, subject matter and issues were before it: Girard Trust Co. v. Philadelphia, 359 Pa. 319, 59 A.2d 124.

Bonfitto v. Nationwide Mutual Insurance Co., 195 Pa.Super. 546, 550, 172 A.2d 176, 178 (1961), ajfd, 406 Pa. 184, 177 A.2d 453 (1962). The Koches cannot at this juncture seek either clarification of this Court’s prior memorandum or a relitigation of the merits of the underlying case.

For the above reasons, we affirm the order denying the Koches’ petition to confirm judgment.

Order affirmed.

      . Susan and William Koch were married at the commencement of this case, but they subsequently divorced. Susan Koch attempted to withdraw from the case prior to trial. However, the trial court denied her request.

      . The discussions relied upon by the Koches in support of their assertion that the Court intended that they receive damages only relate to the Harshaws Sr. The Koches do not allege any ambiguity in this Court’s determination that the trial court should have granted a non-suit in favor of the Harshaws Jr.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    655 A.2d 1015
    Allan K. SMITH and Donna J. Smith, Appellees, v. PENBRIDGE ASSOCIATES, INC., D/B/A Penbridge Farms, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1995.
    Filed March 14, 1995.

      F. Walter Bloom, III, Oil City, for appellees.
    Keith Michael Pemrick, Brian M. Paid, Franklin, for appellant.
    Before ROWLEY, P.J., McEWEN and POPOVICH, JJ.
   POPOVICH, Judge.

An emu is not uncommon in Australia or as a clue in an American crossword puzzle. But, unless our research was not extensive enough, we can state that emus have never before in Pennsylvania been the subject of litigation, litigation that has herein produced a small trove of contract law principles.

This is an appeal from the order of May 31, 1994, entered in the Court of Common Pleas of Clarion County denying appellant’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Herein, we are asked to determine whether appellant should be held liable for the sale of two male emus to appellees when appellant expressly warranted to appellees that the emus were a “proven breeder pair” i.e., a male and a female. Further, we are presented with issues pertaining to the award of damages to appellees and whether certain witnesses were qualified to testify as experts. Upon examination, we affirm.

Before delving into our analysis of the novel questions at issue, we shed informative light on this creature from “The Land Down Under”. An emu is a flightless bird which originates from Australia. An mature emu typically stands at 5¡á feet and weighs about 125 pounds. Its features resemble those of its bigger relative, the ostrich. For breeding purposes, emus have a better temperament than ostriches. The industry of emu breeding in the United States has grown significantly within the past decade because emus adapt easily to various climates and produce rapidly on far fewer acres of land in relationship to traditional livestock. Moreover, the popularity for emu breeding has grown because an emu efficiently produces the following: red meat which is low in fat and cholesterol but high in protein; oil which is used in medicinal and cosmetic products; leather which is used for boots, briefcases, purses and clothing; feathers which are used for fashion clothing and dusters; and broken eggs which are made into jewelry. A female emu usually begins laying at age 18-30 months and will continue laying for 20-25 years.

From our view of the record, we recount the history of this contract dispute over the sale of emus as follows: In July, 1992, appellee, Donna Smith, telephoned Tomie Clark, the manager of Penbridge Farms (“appellant”), in response to an advertisement appellant had placed in the July issue of Emu Finder Guide concerning the sale of proven breeder pairs. Trial N.T. 1/26/94 at 36, 39-41. A proven breeder pair of emus consists of one male and one female, which had previously bonded, successfully bred and produced fertile eggs. Trial N.T. 1/26/94 at 25; Trial N.T. 1/27/94 at 60. Upon additional telephone exchanges, appellant informed appellees that a proven breeder pair was available for purchase. Trial N.T. 1/26/94 at 44. On or about July, 23, 1992, appellees sent appellant a check in the amount of $4,000.00 as a down payment for the purchase of a proven breeder pair of emus. Trial N.T. 1/26/94 at 45. On August 4, 1992, appellees drove from Clarion County to appellant’s farm in Michigan to purchase the emus. Ms. Clark and another agent of appellant selected the pair of emus from a pen that held another emu. Donna Smith, concerned that she and her husband were properly getting the proven breeder pair, asked appellant’s agents several times whether the selected emus were a male and a female and whether they were a proven breeder pair.

The gender of an emu is not discernable by mere external observation, but appellant’s agents assured appellees that the pair selected had successfully produced chicks. Trial N.T. 1/26/94 at 47-49. Appellees agreed to purchase the pair of emus and paid appellant the balance of the total price of $12,500.00. Trial N.T. 1/26/94 at 49-50. Appellees then returned home that evening to their farm in Clarion County with their newly acquired birds which they named, “Andrew” and “Rachel”. Trial N.T. 1/26/94 at 52-53.

Upon arrival, appellees placed the two emus alone in the same pen. Trial N.T. 1/26/94 at 52-53. In late October, 1992, during the commencement of breeding season, Donna Smith noticed for the first time that both “Andrew” and “Rachel” were “grunting”. Grunting is a male trait. Trial N.T. 1/26/94 at 58. Donna Smith immediately telephoned appellant’s agent to inform appellant of the grunting. Trial N.T. 1/26/94 at 59. The agent advised Donna Smith that she should “vent sex” the emus to determine their gender. Trial N.T. 1/26/94 at 59-60. Vent sexing is a procedure whereby the inside of the emu is felt manually to determine the presence of a male organ. Trial N.T. 1/26/94 at 55. The next day, appellees performed the vent sexing on the two emus. The vent sexing revealed that “Andrew” was a male. But, much to their chagrin, appellees discovered that “Rachel” was also a male. Trial N.T. 1/26/94 at 60. Appellees then immediately mailed a video-tape of the vent sexing of “Andrew” and “Rachel” to appellant. Additionally, appellees telephoned appellant’s agents to notify appellant that both emus were males and to request that appellant rectify their predicament. Trial N.T. 1/26/94 at 60-61.

However, communications failed, and on December 2, 1992, appellees brought suit against appellant seeking damages on grounds that the two male emus were worth substantially less than a proven breeder pair, and appellees suffered consequential damages for not selling chicks that would have hatched from the 1992-93 breeding season. On January 26-27, 1994, the lower court held a bench trial, and on February 8, 1994, the court below entered a verdict in favor of appellees. On February 18, 1994, appellant filed a post-trial motion requesting the entry of judgment N.O.V. or, in the alternative, a new trial. By order dated May 31, 1994, the lower court denied that post-trial motion, and on June 24, 1994, judgment was entered on the verdict in the amount of $105,215.80. This timely appeal ensued.

Appellant poses five questions for our evaluation:

1. DID THE TRIAL JUDGE ERR IN AWARDING DAMAGES TO THE [APPELLEES] WHERE THEY FAILED TO INSPECT THE GOODS (EMUS) EITHER AT THE TIME OF DELIVERY, OR WITHIN A REASONABLE PERIOD OF TIME THEREAFTER, AS REQUIRED BY INDUSTRY CUSTOM AND THE UNIFORM COMMERCIAL CODE?
2. DID THE TRIAL JUDGE ERR IN AWARDING DAMAGES TO [APPELLEES] WHERE THEY FAILED TO GIVE NOTICE OF THE ALLEGED BREACH TO PENBRIDGE WITHIN A REASONABLE PERIOD OF TIME AS REQUIRED BY THE UNIFORM COMMERCIAL CODE?
3. DID THE TRIAL JUDGE ERR IN AWARDING DAMAGES FOR LOST FUTURE PROFITS OR PRODUCTION WHERE [APPELLEE’S] EVIDENCE WAS SPECULATIVE AND WAS INSUFFICIENT, AS A MATTER OF LAW, TO ESTABLISH THOSE DAMAGES?
4. DID THE TRIAL JUDGE ERR IN ALLOWING [APPELLEES] TO PRESENT EVIDENCE ON DAMAGES AT A TIME AND PLACE OTHER THAN THE TIME AND PLACE WHERE THE SALE OCCURRED?
5. DID THE TRIAL JUDGE ERR IN PERMITTING DONNA SMITH AND WILLIAM CISSEL TO EXPRESS OPINIONS ABOUT THE EXPECTED FUTURE PRODUCTION OF A BREEDER PAIR OF EMUS WHEN THEY WERE NOT QUALIFIED TO DO SO, AND WHERE [APPELLEES] FAILED TO LAY AN ADEQUATE FOUNDATION FOR THE OPINION TESTIMONY?

Appellant’s Brief at 5.

“The standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict.” Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, 375 (1992), alloc. denied, 532 Pa. 665, 616 A.2d 985 (1992), quoting, Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). “We must ... afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence, while rejecting all unfavorable testimony and inferences.” Pirozzi, 413 Pa.Super. at 312, 605 A.2d at 375, quoting, Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984).

“The standard of review for an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Pirozzi, 413 Pa.Super. at 312, 605 A.2d at 375, quoting, Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-421 (1987). “If support for the trial court’s decision is found in the record, the order must be affirmed.” Pirozzi, 413 Pa.Super. at 312-13, 605 A.2d at 375, quoting, Commonwealth ex rel. Meyers v. Stem, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985).

We begin our discussion by addressing appellant’s contention that appellees failed to inspect the emus at the time of delivery or within a reasonable period of time thereafter. Appellant maintains that an industry custom existed at the time the emus were purchased by appellees that required appellees to vent sex the emus at that moment. The crux of appellant’s argument is that the lower court erred in weighing expert testimony of industry custom presented by both parties in favor of appellees.

The lower court rejected appellant’s expert testimony of industry custom on the basis that it was irrelevant and immaterial to this matter which involved an express warranty to furnish “a proven breeder pair” of emus. Trial Opinion 5/31/94 at 7-9. We find that the lower court properly assessed appellant’s claim in light of 13 Pa.C.S.A. § 1205(d) of the Uniform Commercial Code. That section provides in pertinent part as follows:

(d) Construction. — The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade____

13 Pa.C.S.A. § 1205(d). The weakness of appellant’s argument is that it presupposes that appellant did not expressly agree to furnish appellees with a “proven breeder pair” of emus. “Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” 13 Pa.C.S.A. § 2313(a)(2), UCC. “[C]ustom cannot prevail where the terms of a contract are clear and unambiguous.” Commonwealth of Pennsylvania, State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commw. 246, 253, 430 A.2d 328, 331 (1981), citing, Gallizzi v. Scavo, 406 Pa. 629, 179 A.2d 638 (1962). Here, the record indisputably establishes that appellant expressly and unambiguously contracted to sell appellees a “proven breeder pair” of emus. Consequently, we hold that the lower court properly determined that the express terms of the agreement were not trumped by any evidence of industry custom or usage of trade.

Even assuming arguendo that the terms of the agreement at issue were not expressly stated, we would find appellant’s challenge to the lower court’s evaluation of the the expert witnesses’ credibility on industry custom to be merit-less. A determination as to the credibility of witnesses is within the exclusive province of the trier of fact who is free to believe all, part, or none of a witness’ testimony. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992), appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992). “[Credibility of witness is not for [an appellate court] to pass upon; we will not substitute our judgment for that of the fact finder when there is sufficient evidence to support his conclusions.” Commonwealth Ex Rel. Alexander v. Alexander, 445 Pa. 406, 411, 289 A.2d 83, 86 (1971); See Burston v. Dodson, 257 Pa.Super. 1, 13-15, 390 A.2d 216, 222 (1978) (Superior Court must defer to a lower court’s appraisal of witness’ credibility). “The fact finder treats an expert like any other witness and applies to him the same standards of credibility as to any other witness.” Kot v. Commonwealth of Pennsylvania, Department of Transportation, 128 Pa.Commw. 138, 142, 562 A.2d 1019, 1021 (1989), appeal denied, 525 Pa. 587, 575 A.2d 117 (1990).

Appellant also maintains that appellees failed to effectuate a revocation of an acceptance of the two emus within a reasonable time. In addressing this contention, we will scrutinize appellant’s second issue raised herein concurrently to determine whether notice of the breach was proper. Appellant directs our Court’s attention to 13 Pa.C.S.A. §§ 2608(b), 2607(c)(1), of the Uniform Commercial Code. Those sections read as follows:

§ 2608. Revocation of acceptance in whole or part (b) Time and notice of revocation. — Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
§ 2607. Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over (c) Notice of breach. — Where a tender has been accepted: (1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; ...

13 Pa.C.S.A. §§ 2608(b), 2607(c)(1) (emphasis added).

“Under Pennsylvania law, what is a reasonable time after tender or delivery for rejection or revocation of defective goods is generally deemed a question of fact to be resolved by the fact finder, and no express outside time limit is set.” Ford ' Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 564 A.2d 931 (1989) (citations omitted).

Upon review, we conclude that the lower court’s finding that appellees revoked their acceptance of the two male emus within a reasonable time is adequately supported by competent evidence. The record reveals that appellees ascertained that “Rachel” and “Andrew” were not a “pure breeding pair” of emus when they examined the birds internally in late October, 1992. Within two days after the sex venting, appellants were fully apprised by appellees of the breach. Trial N.T. 1/26/94 at 60-61. Appellants argue that appellees should have discovered the breach earlier. We disagree. Appellant rebukes appellees for not sex venting the emus on appellant’s farm at the time of purchase or immediately upon their return to Pennsylvania. Appellant maintains that this procedure was easily accessible to appellees and that appellees had a responsibility of exercising it themselves. We note that appellant blindly excuses itself from undertaking that same task before selling the emus to appellees. Further, the lower court, sitting as the fact finder in this case, determined that sex venting was dangerous both to the breeding emu and the person administering it. Trial Opinion 5/31/94 at 12.

Appellant expressly warranted the emus to be a “pure breeder pair” and reassured appellees that the emus were as represented. Indeed, we find that the nature of the agreement and goods at issue coupled with assurances had the effect of inducing appellees to delay an internal inspection of the emus. See 13 Pa.C.S.A. Comment 3 of § 2608, U.C.C. (effect of assurances is that they induce the buyer to delay discovery). Upon returning to their Clarion County farm, appellees were not presented with any facts or circumstances that would reasonably lead them to question the breeding ability of the emus until Donna heard both grunting in late October, 1992. Although “Rachel” may have looked like a female emu and walked like a female emu, it certainly did not sound like a female emu. Thereafter, appellees promptly notified appellant of the breach. Compare Rad Services, Inc. v. American Refining Group, Inc., 330 Pa.Super. 308, 479 A.2d 565 (1984) (retailer’s notice of breach to distributor was timely when several months had elapsed before retailer discovered gas shortage which was attributed to distributor’s faulty terminal meter). Accordingly, we find no error of law in the lower court’s disposition of appellant’s first and second issues raised herein.

We now turn to the merits of appellant’s claims challenging the lower court’s award of damages to appellees. Appellant’s third contention poses the question of whether evidence was speculative and insufficient to support an award of consequential damages, including damages for lost profits. Appellant structures its argument as follows:

Given the fact that the breeding of the emus is a relatively new business, and the fact that there is no reliable data to project the ultimate success in breeding emus, the [appellees’] claims for loss of chick production are entirely speculative and do not meet the “reasonable certainty” requirement of the law of damages.

Appellant’s Brief at 22.

The Uniform Commercial Code provides the following circumstances for the recovery of consequential damages resulting from the breach of the seller: (1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by “cover” or otherwise; and (2) injury to person or property proximately resulting from any breach of warranty. 13 Pa.C.S.A. § 2715(b). See Comment 4 to § 2715 (burden on buyer to prove consequential damages in manner which is reasonable under the circumstances rather than showing of certainty which requires almost mathematical precision).

“Pennsylvania allows consequential damages in the form of lost profits to be recovered.” AM/PM Franchise v. Atlantic Richfield, 526 Pa. 110, 119, 584 A.2d 915, 920 (1990) (citations omitted). “Lost profits are, in fact, the difference between what the plaintiff actually earned and what they would have earned had the defendant not committed the breach.” Id. at 123, 584 A.2d at 922. “The ... mere uncertainty as to the amount of damages will not bar a recovery where it is clear that damages were the certain result of the defendant’s conduct.” Standard Pipeline Coating v. Solomon & Teslovich, 344 Pa.Super. 367, 379, 496 A.2d 840, 846 (1985), citing, Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979).

In the case at bar, appellees alleged that the “proven breeder pair” bargained for would have produced about thirty (30) chicks in the 1992/1993 breeding season. The “proven breeder pair” had produced sixteen (16) chicks in the previous breeding season. Appellees presented testimony revealing that it was reasonable to expect a doubling of chick production from a proven breeder pair in the following year. Trial N.T. 1/26/94 at 32, 130-133.

The determination of damages lies with the fact finder, who weighs the evidence and assesses the credibility of the witnesses. Young v. Dart, 428 Pa.Super. 43, 53 n. 2, 630 A.2d 22, 27 n. 2 (1993). Although the court recognized that emu breeding was a relatively new commercial business, it determined that the award of consequential damages could be calculated with a reasonable degree of certainty from the evidence adduced at trial. The court below initially found that the value of a three-month old chick produced from the 1992/1993 season was $5,000.00. Trial Opinion 5/31/94 at 17. The lower court then concluded that appellees suffered incidental and consequential damages in the amount of $90,-000.00. In arriving at that figure, the court below was conservative in its finding of the expected chick production from the 1992/1993 breeding season absent appellant’s breach. Trial Opinion 5/31/94 at 18-19. From our thorough evaluation of the record, we conclude that the evidence was sufficient for the lower court to measure appellee’s lost profits with a reasonable degree of certainty. “[DJamages do not have to be determined with mathematical precision, but only a reasonable degree of certainty.” Solomon & Teslovich, 344 Pa.Super. at 379, 496 A.2d at 846. “The basis for this rule is that the breaching party should not be allowed to shift the loss to the injured party when damages, even if uncertain in amount, were certainly the responsibility of the party in breach.” Pugh, 486 Pa. at 297, 405 A.2d at 910, citing, Story Parchment Co. v. Paterson Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931).

We also find that the lower court did not err in its dispositiort of appellant’s fourth argument. Appellant contends that the court below erred in assessing damages at the time and place the breach was discovered rather than at the time and place the emus were accepted by appellees. The Uniform Commercial Code provides the following guidance on evaluation of damages for breach of warranty:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been warranted, unless special circumstances show proximate damages of a different amount.

§ 2714(b), U.S.C. See Comment 3 to § 2714 (measure of damages for breach of warranty at time and place of acceptance is not intended as an exclusive measure). “The Code permits an award of proximate damages of a different amount if special circumstances exist and further allows in certain cases for recovery of losses resulting from the particular need of the buyer.” Cober v. Corle, 416 Pa.Super. 191, 610 A.2d 1036 (1992).

In early August, 1992, appellees purchased the emus from appellant for a total price of $12,500.00. At trial, appellees presented evidence revealing that the value of a “proven breeder pair” of emus had substantially increased from August, 1992 to October, 1992. Trial N.T. 1/26/94 at 66-67. In late October, 1992, at the time appellees discovered the breach of warranty, the two male emus together were worth $15,-000.00. The value of a “proven breeder pair” was $28,000.00. Trial N.T. 1/26/94 at 66. The court below found that under the special circumstances of this case, appellees were entitled to $13,000.00, the difference between the aforementioned amounts. The determination of damages lies within the discretion of the fact finder, who weighs the evidence and assesses the credibility of the witnesses. Young, 428 Pa.Super. at 52-54, 630 A.2d at 27. Upon review, we find no abuse of discretion nor error of law in the lower court’s measure of damages at the time that the breach was discovered by appellees.

Appellant’s fifth and final assignment of error challenges the lower court’s evidentiary ruling that certain witnesses were qualified to give expert opinions. In evaluating this issue, we embrace the following principles as enunciated by our Supreme Court in Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991):

In general, it is for the trial judge to determine whether a particular witness qualifies as an expert, Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967), and his decision on this matter will be reversed only for a clear abuse of discretion. Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971). An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject. Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397 (1963). It is not necessary that the witness possess all the knowledge in his special field of activity. However, the witness must have a reasonable pretension to specialized knowledge on the subject under investigation. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).

527 Pa. at 10, 588 A.2d at 5. “The standard does not mandate, however, that the witness need possess all the knowledge in his or her special field of activity in order to qualify.” Yoho v. Stack, 373 Pa.Super. 77, 83, 540 A.2d 307, 310 (1988). “[T]here is no requirement that a witness acquire expertise as a result of formal schooling; expertise acquired by experience is expertise nonetheless.” Gottfried v. American Can Co., 339 Pa.Super. 403, 411, 489 A.2d 222, 226 (1985).

Appellant contests the trial court’s determination that appellee, Donna Smith and William Cissel were qualified to testify as experts on the expected future production of the “proven breeder pair” of emus bargained for by appellees. Specifically, appellant argues that Ms. Smith and Mr. Cissel lacked experience to have “specialized knowledge”.

Ms. Smith’s qualifications as an expert in this matter included the following: that she along with other investors had purchased approximately 100 emus; that she had made her first purchase of an emu in October, 1991; that she operated an emu farm consisting of 70 emus; that her emus had successfully produced 45 hatched eggs; that she belonged to the American Emu Association and Regional Emu Chapter; that she subscribed to several publications on emu farming; and that she had attended several seminars on emu farming. Trial N.T. 1/26/94 at 15-23.

Mr. Cissel’s qualifications as an expert in this matter included the following: that he had purchased and sold emus since 1990; that in 1993, he had grossed $199,000.00 in the sale of emus, that he had 6 breeder pairs in the 1992/1993 season; that he had 10 breeder pairs in the 1993/1994 season; that his breeder pairs had laid over 200 eggs; and that he organized seminars on emu breeding. Trial N.T. 1/26/94 at 105-111.

At the time of trial in January, 1994, emu breeding was a relatively new commercial business. Appellant’s own expert witness, Patrick Hoctor, testified on direct examination that the industry lacked commercial significance in the United States until 1988. Trial N.T. 1/27/94 at 44. Mr. Cissel and Ms. Smith had been engaged actively in the emu industry since 1990 and 1991, respectively. At first glimpse, their years of experience do not appear to be of great significance. Compare Yoho, 373 Pa.Super. at 82-84, 540 A.2d at 310 (expert had 10-15 years of experience); Gottfried, 339 Pa.Super. at 411-13, 489 A.2d at 227 (expert had 11 years of experience). However, in light of the evidence that emu breeding was a fairly young industry coupled with the dynamic involvement of Ms. Smith and Mr. Cissel within this short period of time, we are not inclined to disturb the lower court’s determination that both witnesses were qualified to deliver expert opinions on the breeding ability of emus. Thus, we find no abuse of discretion in the trial court’s ruling of appellant’s fifth and final issue raised herein.

We hold that there was sufficient competent evidence to sustain the verdict. Having scrutinized appellant’s points of error and finding that they do not avail relief to appellant, we, accordingly, affirm the order entered by the lower court.

Order affirmed.

      . On June 24, 1994, the order in question was reduced to judgment against appellant in the amount of $105,215.80.

      . We have gathered this general information about emus from an article published in the Lewisburg, Pennsylvania’s Valley Trader, February 1, 1995, at 1, 8. This information is not disputed in the instant case.

      . Appellant cites Electric Reduction Co. v. Colonial Steel Co., 276 Pa. 181, 120 A. 116 (1923), to buttress its contention that the lower court erred in not finding that industry custom required gender inspection at the time of the delivery. We are of the opinion that our Supreme Court decision in that case is not dispositive of the instant facts. There, our Supreme Court determined that evidence of industry custom and usage of trade was properly admitted to effectuate the meaning of the contract because its terms were unclear. Id. Here, on the other hand, the agreement expressly and unequivocally provided for the sale of a “proven breeder pair” of emus. Appellant does not contest the existence nor the viability of those terms.

      . The Uniform Commercial Code provides the following definition for "reasonable time”: "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.” 13 Pa.C.S.A. § 1204(b).

      . The Uniform Commercial Code defines "acceptance” as follows: . § 2606. What constitutes acceptance of goods
      (a) General rule. — Acceptance of goods occurs when the buyer:
      (1) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity;
      (2) fails to make an effective rejection (section 2602(a)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
      (3) does any act inconsistent with the ownership of the seller; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
      13 Pa.C.S.A. § 2606(a). The lower court ruled that appellees acted within a reasonable time after delivery of the emus to protect their interests regardless of whether their duly of notice was framed in terms of a rejection, see 13 Pa.C.S.A. § 2602, U.C.C., or a revocation of acceptance. Trial Opinion 5/31/94 at 11-12. Although we find an acceptance on the part of appellees, we' deem it timely revoked under the facts of this case.

      . Appellees presented testimony revealing that sex venting may cause an infection of the sex organs and may even cause an emu to go into shock. Trial N.T. 1/26/94 at 123-124. Further, the person administering the sex venting may become kicked or clawed by the emu. Trial N.T. 1/26/94 at 123.

      . ‘‘[T]he buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” 13 Pa.C.S.A. § 2712(a).

      . Appellant does not dispute whether it had reason to know that a breach would result in losses to appellees nor does it contest appellees' conduct in preventing their losses by cover.

      . Obviously, "Andrew” and "Rachel” could not breed with each other. Appellees tried unsuccessfully to breed the two male emus with female emus.

      . From $90,000.00, the lower court subtracted $200.00 which represented the maintenance cost for raising the chicks to age three months.

      . Appellant’s own expert witness also testified that the value of the two male emus was $15,000.00 in late 1992, and that the value of a proven breeder pair had climbed from $20,000.00 in August, 1992, to $30,000.00 by 1993. Trial N.T. 1/27/94 at 64, 65.

      . Appellant also asserts that the lower court committed an error of law in allowing Donna Smith to deliver her expert opinions because they were based upon hearsay from seminar materials and conversations she had with others in the industry. “The argument shall be . . followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a), 42 Pa.C.S.A. See Nimick v. Shuty, 440 Pa.Super. 87, 100, 655 A.2d 132, 138 (1995) (appellate brief must include pertinent discussion along with citation to pertinent authorities). Arguments that are not appropriately developed are waived. Id. See In re Estate of Smith, 492 Pa. 178, 180-82, 423 A.2d 331, 332 (1980) (appellant’s brief was inadequate to present issues for review where brief failed to refer specifically to record). Appellant has failed to cite any authority and has also neglected to cite to the record in support of its contention that Donna Smith's opinions were improperly admitted on the ground of hearsay. Therefore, we deem that claim waived.


author: WIEAND, Judge:

text:
    655 A.2d 1024
    COMMONWEALTH of Pennsylvania, Appellant v. Douglas D. SIMON, Jr.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed March 15, 1995.

      Matthew D. Weintraub, Asst. Dist. Atty., Doylestown, for Com., appellant.
    Andrew S. Hagler, Asst. Public Defender, Doylestown, for appellee.
    Before WIEAND, CIRILLO and TAMILIA, JJ.
   WIEAND, Judge:

This is an appeal by the Commonwealth of Pennsylvania from an order of the trial court which suppressed the results of a blood alcohol test performed on Douglas Simon, Jr. following an automobile accident. The Commonwealth has certified that the court’s suppression of this evidence substantially handicaps its prosecution of Simon for driving while under the influence of alcohol.

At or about 3:10 a.m. on the morning of November 17, 1993, Sergeant Richard Dechant of the Middletown Township Police Department arrived at the scene of an automobile accident in Langhorne, Bucks County. An unoccupied vehicle parked along the highway had been struck from behind by a moving vehicle. The driver’s door of the second automobile was open, and Douglas Simon, Jr., the driver, was partially outside the vehicle. Dechant detected a strong odor of alcoholic beverages, and Simon was shaking uncontrollably. Simon told Dechant that “he was coming from the Grateful Dead concert” and that “he was a member of the Grateful Dead band.” Several minutes later, Simon was taken by ambulance to St. Mary Hospital. Sergeant Dechant followed. Upon arriving at the emergency room, Dechant heard Simon tell the medical personnel there that he had been coming from a Grateful Dead concert and that he was “the lead singer with the Grateful Dead.” Dechant asked the attending physician whether he would draw blood from Simon and whether the blood sample would be tested for alcohol. Dechant informed the physician that, if he did not intend to perform blood alcohol tests otherwise, Dechant wanted such tests performed. The doctor replied that the hospital would draw blood and test for the presence of alcohol as part of standard hospital procedure.

Officer David Thornton, also of the Middletown Township Police Department, had arrived at the scene of the accident several minutes after Dechant arrived. His investigation revealed that the car which had been struck had become disabled and had been left at that location on the previous day. He also ascertained that the parked vehicle had been protruding approximately two feet into the highway before it had been struck. There were no eyewitnesses to the accident. After concluding his investigation, Thornton went to St. Mary Hospital, where Sergeant Dechant informed him that he had detected an odor of alcohol about Simon’s person and that the hospital would be performing a blood alcohol test.

On November 29, 1993, the Middletown Township police obtained a subpoena for copies of Simon’s medical records. These records revealed that, at approximately 4:00 a.m. on the morning of the accident, Simon had had a blood alcohol level of .268. On December 2, 1993, Officer Thornton filed a criminal complaint against Simon, charging him with driving while under the influence of alcohol' in violation of 75 Pa.C.S. § 3731(a)(1), (4) and (5). Simon filed a motion to suppress. The suppression court, after hearing, suppressed the results of the blood test. This appeal followed.

“When the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole [ ] remains uncontradicted.” Commonwealth v. Clark, 412 Pa.Super. 92, 95, 602 A.2d 1323, 1325 (1992), allocatur denied, 533 Pa. 606, 618 A.2d 398 (1992), cert. denied, -U.S.-, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993). See also: Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992); Commonwealth v. Twyman, 425 Pa.Super. 198, 202, 624 A.2d 636, 637 (1993); Commonwealth v. Taylor, 424 Pa.Super. 181, 183, 622 A.2d 329, 330 (1993); Commonwealth v. Morgan, 414 Pa.Super. 1, 3, 606 A.2d 467, 468 (1992). Our scope of review is limited primarily to questions of law. See: Commonwealth v. McElroy, 428 Pa.Super. 69, 71, 630 A.2d 35, 36 (1993); Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A.2d 678, 680 (1993); Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992). “We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.’ ” Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991), allocatur denied, 531 Pa. 638, 611 A.2d 711 (1992), quoting Commonwealth v. Person, 385 Pa.Super. 197, 560 A.2d 761 (1989), allocatur denied, 525 Pa. 644, 581 A.2d 570 (1990). See also: Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983); Commonwealth v. Stein, 369 Pa.Super. 409, 413, 535 A.2d 616, 618 (1987), allocatur denied, 520 Pa. 574, 549 A.2d 134 (1988).

It is well settled that “a prerequisite to the issuance of a subpoena [is] that there be some pre-existing matter or cause pending before the court.” Commonwealth v. Polak, 438 Pa. 67, 69, 263 A.2d 354, 356 (1970). See also: Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987), allocatur denied, 517 Pa. 604, 536 A.2d 1329 (1987); Commonwealth v. Jolly, 337 Pa.Super. 130, 486 A.2d 515 (1984). At the time the subpoena for Simon’s medical records was issued, no charges had been filed, no arrest had been made, and no warrant had been issued. The subpoena, the Commonwealth concedes, was invalid. However, where the police are otherwise lawfully entitled to blood test results, suppression is not mandated by the fact that the test results were obtained pursuant to an invalid subpoena. See: Commonwealth v. Haynos, supra at 5-7, 525 A.2d at 396-397. We must determine, therefore, whether the police were otherwise entitled to the results of Simon’s blood alcohol test.

The “implied consent” provision of the Motor Vehicle Code is, in part, as follows:'

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving,. operating or in actual physical control of the movemént of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both;

75 Pa.C.S. § 1547(a)(1). The “reasonable grounds” requirement of the implied consent statute has been interpreted to require probable cause. See: Commonwealth v. Urbanski, 426 Pa.Super. 505, 511 n. 2, 627 A.2d 789, 792 n. 2 (1993), allocatur denied, 535 Pa. 657, 634 A.2d 221 (1993); Commonwealth v. Cieri, 346 Pa.Super. 77, 87, 499 A.2d 317, 322 (1985).

Section 3755 of the Motor Vehicle Code also provides for blood testing to be performed as follows:

§ 3755. Reports by emergency room personnel (a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.

75 Pa.C.S. § 3755(a)

These sections of the Motor Vehicle Code were recently before the Pennsylvania Supreme Court in Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994). There, in a Fourth Amendment challenge, the Court observed that the defendant had been subjected to two different searches. The first search had occurred when the hospital took blood samples from the defendant, and the second had occurred when the police obtained the results of the blood test from the hospital’s laboratory. The blood had been withdrawn to facilitate medical treatment and without police request and, therefore, had not implicated the defendant’s Fourth Amendment rights. The second search, however, had involved police action and did implicate the defendant’s Fourth Amendment rights. The Court held that the Pennsylvania implied consent law nevertheless made it possible for a police officer having probable cause to request a blood test under 75 Pa.C.S. § 3755(a) to obtain the results of a blood test without a warrant. The results of the blood test could be obtained without a warrant even though the officer had failed to verbalize a prior request for the blood test. Three Justices, in a Concurring Opinion, suggested that a different result might have obtained if the second search had been challenged under Article I, § 8 of the Pennsylvania Constitution. To obtain the results of the blood test upon request, they said, police were required to make a request, when probable cause existed, for the withdrawal of blood samples. The concurring Justices reasoned:

A police officer may request that emergency room personnel take blood samples for testing from a person who requires medical treatment when probable cause exists to believe that the person was operating a vehicle under the influence of alcohol. 75 Pa.C.S.A. § 3755(a). When such a request is made, the hospital personnel have an affirmative duty to obtain the blood samples and to transmit them for blood alcohol content testing. The test results are released upon request of the person tested, his attorney, his physician, or governmental officials or agencies. When a police officer fails to follow this procedure and fails to request that blood samples be drawn, the statute does not authorize the officer to obtain medical records of a person suspected of operating a motor vehicle under the influence of alcohol.

Id. at 539 Pa. 188, 651 A.2d at 143 (Concurring Opinion by Zappala, J.).

In the instant case, however, Sergeant Dechant did make a request for hospital personnel to withdraw blood from Simon and was assured that it would be done. Under Pennsylvania’s implied consent statute, therefore, he was entitled, upon request, to a release of the test results. The fact that he attempted to obtain the results by the issuance of a spurious subpoena did not require suppression of the results of the blood test so long as the original request to withdraw blood from Simon had been supported by probable cause.

“Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance.” Commonwealth v. Welshans, 397 Pa.Super. 439, 443, 580 A.2d 379, 381 (1990), affirmed, 529 Pa. 571, 605 A.2d 1222 (1992). See also: Commonwealth v. Franz, 430 Pa.Super. 394, 401, 634 A.2d 662, 665 (1993); Commonwealth v. Dungan, 372 Pa.Super. 323, 333, 539 A.2d 817, 821-822 (1988), allocatur denied, 522 Pa. 573, 559 A.2d 34 (1989); Commonwealth v. Haynos, supra, 105 Pa.Cmwlth. at 11, 525 A.2d at 399. The Superior Court “has repeatedly upheld probable cause to conduct a blood alcohol test under subsection (a)(1) of the implied consent statute where the defendant has looked and smelled like he has consumed alcohol and a serious one car or head-on accident has occurred.” Commonwealth v. Smith, 382 Pa.Super. 288, 297, 555 A.2d 185, 189 (1989), allocatur denied, 524 Pa. 607, 569 A.2d 1366 (1989). Probable cause exists, moreover, where “a serious motor vehicle accident has occurred involving a driver who was found in a semiconscious state with the odor of alcohol on his breath. Accordingly, the absence of other physical characteristics of intoxication, such as an unsteady gait, a disheveled appearance and slurred speech, is inconsequential to our decision.” Commonwealth v. Pelkey, 349 Pa.Super. 373, 379, 503 A.2d 414, 416 (1985) (citations omitted).

Here, the police came upon the scene of a collision in which Douglas Simon’s vehicle had struck a parked vehicle in clear weather. When a police officer approached Simon, he was shaking, made nonsensical statements and had a very strong odor of alcoholic beverages about his person. These circumstances were sufficient to give an experienced police officer probable cause to believe that Simon had been drinking and that alcohol had been involved in the accident. See: Commonwealth v. Welshans, supra, 397 Pa.Super. at 444, 580 A.2d at 381; Commonwealth v. Haynos, supra, 105 Pa.Cmwlth. at 11, 525 A.2d at 399.

Under the facts of this case, therefore, we conclude that the suppression court erred when it suppressed the use of the blood test results by the Commonwealth. The evidence was available to the police on request under both the federal and state constitutions.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . The appeal is proper. See: Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985).

      . According to Sergeant Dechant, there had been such a concert in the area several months earlier, but there had not been one on the date of the accident.

      . Simon was also given a citation for careless driving, a violation of 75 Pa.C.S. § 3714.


text:
    655 A.2d 1028
    NORTHEASTERN BANK OF PENNSYLVANIA v. WILKINS, WILKINS INVESTMENT PROPERTIES Appeal of PNC BANK, N.A., Successor in Interest of Northeastern Bank of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed March 16, 1995.

      Karen L. Turner, Philadelphia, for appellant.
    James V. Fareri, Stroudsburg, for Wilkins, appellee.
    Before WIEAND, CIRILLO and TAMILIA, JJ.
   WIEAND, Judge:

This appeal is from an order of the trial court which dismissed a petition for a deficiency judgment without fixing the market value of the real estate previously sold at sheriffs sale. After making a careful review of the record and the pertinent provisions of the statute, we conclude that the trial court erred. Therefore, we reverse.

On February 13, 1992, a complaint in confession of judgment in the amount of $290,531.02 was filed against Wilkins, Wilkins Investment Properties, a partnership, (WWIP), by PNC Bank’s predecessor, Northeastern Bank of Pennsylvania. In execution on the judgment, the Sheriff of Luzerne County sold premises at 61-63 South Washington Street, Wilkes-Barre, to PNC Bank on July 10, 1992, for $75,000.00. PNC Bank then filed a petition to fix the fair value of the real estate pursuant to the Deficiency Judgment Act, 42 Pa.C.S. § 8103. The petition named as defendants, in addition to WWIP, Michael Wilkins and Douglas Wilkins, two of three partners, as persons who might be liable for a deficiency judgment. The petition asserted that the fair market value of the real estate was $290,000.00. No answer to the petition was filed by the partnership, but Michael and Douglas Wilkins filed a response in which they alleged generally that the real estate was worth more than $290,000.00.

At the hearing on the petition, the defendants offered no testimony as to the fair market value of the real estate. The petitioner offered testimony by a real estate appraiser that he had appraised the real estate on December 10, 1991, and that it had a fair market value of $290,000.00. He said he could not say whether the value of the real estate had increased or decreased prior' to the date of the sheriffs sale but that real estate values generally had declined during the interval. The bank also offered evidence that the real estate had been sold in an arms length transaction for $250,000.00 in October, 1992. The trial court dismissed the petition because there was no evidence of the value of the real estate on July 10, 1992, the date of the sheriffs sale.

Although the trial court properly observed that fair market value of the real estate is to be determined on the date of the sheriffs sale, it failed to give proper consideration to the mandate of the legislature which appears at 42 Pa.C.S. § 8103(c). The legislature there provided as follows:

(c) Action on petition.—
(1) If no answer is filed within the time prescribed by general rule, or if an answer is filed which does not controvert the allegation of the fair market value of the property as averred in the petition, the court shall determine and fix as the fair market value of the property sold the amount thereof alleged in the petition to be the fair market value.
(2) If an answer is filed controverting the averment in the petition as to the fair market value of the property, but no testimony is produced at the hearing supporting such denial of the fair market value, the court shall determine and fix as the fair market value of the property the amount thereof alleged in the petition to be the fair market value, and thereupon enter a decree directing the judgment creditor to file release of the debtors, obligors, guarantors or any other persons directly or indirectly liable for the debts, to the extent of the fair value so fixed, whereupon execution may be issued for the balance of the debt.
(3) If an answer is filed alleging as the fair market value an amount in excess of the fair market value of the property as averred in the petition, the judgment creditor may agree to accept as the fair market value of the property the value set up in the answer and in such case may file a stipulation releasing the debtors, obligors and guarantors, and any other persons liable directly or indirectly for the debt, and the owners of the property affected thereby, from personal liability to the judgment creditor to the extent of the fair market value as averred in the answer, less the amount of any prior liens, costs, taxes and municipal claims not discharged by the sale, and also less the amount of any such items paid at distribution on the sale.
(4) If an answer shall be filed and testimony produced setting forth that the fair market value of the property is more than the value stated in the petition, the court shall determine and fix the fair market value of the property, which shall in no event exceed the amount of the debt, interest, costs, taxes and municipal claims.
After the hearing and the determination by the court of the fair market value of the property sold, the debtor, obligor, guarantor and any other person liable directly or indirectly to the judgment creditor for the payment of the debt shall be released and discharged of such liability to the judgment creditor to the extent of the fair market value of said property as previously agreed to by the judgment creditor or determined by the court, less the amount of all prior liens, costs, taxes and municipal claims not discharged by the sale, and also less the amount of any such items paid at the distribution on the sale, and shall also be released and discharged of such liability to the extent of any amount by which the sale price, less such prior liens, costs, taxes and municipal claims, exceeds the fair market value as agreed to by the judgment creditor or fixed and determined by the court as provided in this subsection, and thereupon the judgment creditor may proceed by appropriate proceedings to collect the balance of the debt, (emphasis added).

The partners produced no evidence at the hearing to support their general averment that the real estate had a value in excess of $290,000.00. Under these circumstances, subsection (2) of 42 Pa.C.S. § 8103(c) directed the court to “determine and fix as the fair market value of the property the amount thereof alleged in the petition to be the fair market value.” This, as we have already observed, was $290,000.00.

At the hearing, only the petitioning bank offered evidence of the real estate’s fair market value. Its evidence was that the fair market value of the real estate had been $290,000.00 on December 10, 1991, that real estate values generally had declined thereafter, and that the real estate had been sold in October, 1992, for $250,000.00. This evidence was probative even though it did not pinpoint a value specific to the date of the sheriffs sale. It was on the basis of this information that PNC Bank, the petitioner, alleged a fair market value of $290,000.00.

When the trial court, on the basis of the foregoing record, refused to determine and fix the fair market value of the real estate and dismissed the petition, it erred. It erred by failing to follow the statutory mandate. That mandate was to fix the fair market value at $290,000.00. There was no basis in the evidence presented by the petitioner that would preclude such a determination. Moreover, a value of $290,000.00, rather than a lesser amount, would have been an interpretation of the evidence most favorable to the judgment debtor.'

The order of the trial court is reversed. The fair market value of the real estate is determined and fixed at $290,000.00; and the case is remanded to the trial court for further proceedings in accordance with the statute. Jurisdiction is not retained meanwhile.

      . Thomas Wilkins, the third partner, was in bankruptcy and, therefore, was not named as a party in the petition. A settlement was subsequently reached between PNC Bank and Thomas Wilkins, and he is not involved in this appeal.


author: BECK, Judge:

text:
    655 A.2d 1030
    COMMONWEALTH of Pennsylvania v. Ronald BENTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1994.
    Filed March 16, 1995.

      Ronald Benton, pro se.
    John M. Morganelli, Dist. Atty., Easton, for Comm.
    Before DEL SOLE, BECK and CERCONE, JJ.
   BECK, Judge:

In this appeal from the judgments of sentence for possession of cocaine with intent to deliver and conspiracy, we address the conclusions of the suppression court, specifically the propriety of the stop of appellant’s vehicle. We conclude that the findings of the suppression court are not supported by the record, that the Commonwealth did not meet its burden of proving that the stop was lawful and that the court’s denial of suppression was, therefore, erroneous.

In December of 1992, appellant was a passenger traveling in an automobile which was stopped by Pennsylvania State Trooper Gerard Walsh on Interstate Route 78. The purpose of the stop, as testified to by Walsh, was the presence of an object hanging from the rear view mirror of the car. Walsh described the item, later identified as an air freshener, as a thin object several inches long. Believing the existence of this object to constitute a violation of 75 Pa.C.S.A. § 4524, Walsh signaled for the driver to stop his vehicle and provide identification and registration. Neither the driver nor appellant could produce a valid driver’s license or registration. Further, neither man claimed ownership of the car or could identify the car’s registered owner. Concluding that he could not permit appellant or the driver to remain in control of the vehicle under these circumstances, Walsh intended to impound the vehicle, issue a warning for traffic violations and transport both appellant and the driver from the highway to a telephone so that they could secure transportation from the scene.

Because he intended to impound the car, Walsh conducted an inventory search in order to identify and safeguard the contents of the vehicle. He also asked for and received permission from the driver to search the car. Upon searching, Walsh found a brown bag containing 289 grams of cocaine under the passenger seat.

Appellant was brought to trial on charges of possession, intent to deliver and conspiracy. Prior to trial, he filed a motion to suppress, alleging that the initial stop of the vehicle was unlawful and the evidence yielded must be suppressed. The suppression court denied the motion and appellant was found guilty of all charges. On appeal, he argues that the suppression court’s decision was erroneous. We agree.

When a defendant files a motion to suppress, it is-the burden of the Commonwealth to prove, by a preponderance of the evidence, that the challenged evidence is admissible. Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030, 1031 (1992). When reviewing a suppression order in favor of the Commonwealth, we consider the evidence presented by the prosecution and so much of the evidence for the defense as, fairly read in the context of the whole record, remains uncontradicted. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74, 78 (1986). Our task is clear; we must determine whether the suppression court’s factual findings are supported by the record, and whether inferences and legal conclusions drawn from those findings are legitimate. Commonwealth v. Davis, 418 Pa.Super. 318, 614 A.2d 291, 292 (1992).

With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291, 292 (1993). Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350, 353 (1992). However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678, 680 (1993). Only factual findings which are supported by the record are binding upon this court.

Appellant’s claim concerns the propriety of the initial stop of the vehicle. He argues, essentially, that the stop was pretextual, and that Trooper Walsh did not observe a violation of Section 4524, or even a perceived violation of Section 4524, when he noticed an air freshener hanging from the rear view mirror of the car.

Section 4524 does not prohibit the hanging of an object from a car’s rear view mirror but prohibits the hanging only where such object serves to materially obstruct, obscure or impair a driver’s vision. See 75 Pa.C.S.A. § 4524 (emphasis added). As the Commonwealth notes in its brief, a police officer who has reasonable and articulable grounds to believe that a vehicle or driver is in violation of the Motor Vehicle Code lawfully may stop the vehicle. 75 Pa.C.S.A. § 6308(b); Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35, 40-41 (1993). And, as noted by the trial court, an officer need not stop a vehicle only where he or she intends to issue a citation, but can effectuate a stop solely for purposes of issuing the driver a warning. Commonwealth v. Fisher, 294 Pa.Super. 486, 440 A.2d 570, 572 (1982).

In sum, a traffic stop must be the result of a reasonable belief on the part of the officer that the Vehicle Code is being violated. While an actual violation need not be established, a reasonable basis for the officer’s belief is required to validate the stop. See McElroy, supra, 428 Pa.Super. at 69, 630 A.2d 35.

Following the suppression hearing in this case, the court specifically found that Trooper Walsh’s testimony was credible and that he possessed reasonable and articulable grounds to believe a Vehicle Code violation occurred. Suppression Court Op. at 3, 7-8. Despite these findings, the suppression judge noted that the air freshener was not fully described at the hearing and “it [was] not easy to imagine a hanging air freshener which would materially impair a driver’s vision.” Id. at 7. We agree with the suppression court on both these points. With respect to his observations of the vehicle, the direct testimony of Trooper Walsh was as follows:

Q: What was the basis for the stop?
A: As I was traveling westbound on Interstate 78, I approached a ’91 Chevrolet Cavalier. I observed there was an object hanging from the rear-view mirror, and at that point, I determined to stop it....
Q: The basis for the stop was something was on the rear-view mirror?
A: That’s correct. That’s a violation of the Vehicle Code for having an object or device from that — hanging from the rear-view mirror.

Suppression Hearing Transcript at 13 (emphasis supplied). On cross-examination, Trooper Walsh was asked how he came to observe the object and to describe its size.

Q: ... At some point ... you observed what you considered to be a violation of the Motor Vehicle Code. Right?
A: Yes.
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Q: Well, now this violation you’re talking about consisted of an air freshener hanging from the rear view mirror. Didn’t it?
A: That’s correct.
Q: And that, according to your testimony, that violated section what, 40?
A: 4524.
Q: 4524 of the Motor Vehicle Code. Right?
A: Yes.
Q: And you say that when you were several car lengths behind [the driver] in the left hand lane, you looked into his vehicle and saw an air freshener hanging from the rear view mirror. Is that right?
A: That’s correct.
Q: And when you saw it, were you able to identify it as an air freshener?
A: No. It was an object hanging from the rear view mirror.
Q: Now, could you tell, when you first saw it, what size it was, if you know?
A: No.
Q: You couldn’t tell what size it was. Could you tell what color it was?
A: No, not at that time.
Q: Could you tell who manufactured the air freshener, what make or model of air freshener?
A: As I stated, I didn’t know what it was at first. I knew it was an object. I wasn’t sure it was an air freshener.
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Q: What size of an air freshener was this, approximately, inch, two inches?
A: Several inches.
Q: Several inches?
A: Uh-huh.
Q: Is this in the form of a tube?
A: A tube?
Q: A tube. Is it tubular?
A: No, sir. It’s a flat object.
Q: It’s a flat object. How thick is it?
A: I wouldn’t know. It’s thin. It’s thin.
Q: It’s a thin object. And when you say several inches, what do you mean by that? You mean — is this rectangular? A: The exact shapes I couldn’t—
Q: You don’t know the exact shape. Is that what you’re trying—
A: No. I couldn’t describe it.
Q: You couldn’t describe it?
A: That’s correct.

Suppression Hearing Transcript at 27-31 (emphasis supplied). At this point the prosecutor objected to the line of questioning, asserting that it did not matter what the size of the object was. The suppression court judge disagreed, stating that he understood the point of the questions to be that it was appellant’s position that the car was stopped for a “trumped up reason.” The cross examination continued:

Q: ... Now did you conclude, from looking at this object, Trooper, that [the driver] had violated Section 4524? Did you conclude when you saw the object—
A: Yes.
Q: —out of the rear-view window that he had committed the violation of 4524?
A: It’s a violation to hang objects.

Suppression Transcript at 32-33 (emphasis supplied).

After a thorough review of all the testimony on this issue, we disagree with the suppression court that Trooper Walsh possessed reasonable and articulable grounds to believe a violation of the Motor Vehicle Code occurred. There was no testimony whatsoever that the object materially obstructed, obscured or impaired the driver’s vision, or appeared to do so, nor did the court hear how the item constituted or appeared to constitute a safety hazard. As a result, the finding of the suppression court that Trooper Walsh reasonably believed a violation existed is not supported by the evidence.

Because the suppression court’s finding is not supported by the evidence, its legal conclusion based on that finding, namely, that the stop was lawful, was erroneous.

The court’s finding that Trooper Walsh was credible does not alter our conclusion. A close reading of Walsh’s testimony leads to the conclusion that the trooper believed that all objects hanging from a rear view mirror constitute violations of § 4524. (See emphasized portions of testimony excerpted above.) The plain language of the statute establishes otherwise, however, and makes unlawful only those items which materially obstruct, obscure or impair a driver’s vision. Though credible, Walsh’s testimony simply did not set out reasonable and articulable grounds for believing a Section 4524 violation occurred. See McElroy, supra at 77-79, 630 A.2d at 40 (in determining the validity of a traffic stop, the question is whether the officer’s testimony amounts to reasonable and articulable grounds to suspect a violation of the Vehicle Code).

An officer may not make a traffic stop based on improper reasons. We recognize that in making traffic stops the police act to keep the highways safe and minimize accidents on the roads. However, in carrying out this important function an officer does not have unfettered discretion to stop cars for further investigation. He cannot use pretexual reasons for the stop. The law does not permit an officer to stop a vehicle based on reasons other than the officer’s reasonable belief that a violation of the Motor Vehicle Code has occurred. In the instant case, the record does not support the conclusion that the officer had a reasonable belief that the Motor Vehicle Code was being violated. See McElroy, supra, 428 Pa.Super. at 69, 630 A.2d 35. The stop was unlawful and therefore the evidence flowing from it should have been suppressed.

Judgments of sentence vacated. Matter remanded for proceedings consistent with this opinion; jurisdiction relinquished.

      . Section 4524 prohibits a person from operating a motor vehicle which has an object hanging from the rear view mirror that "materially obstruct[s], obscure[s] or impair[s] the driver's vision through the front windshield” or "constitutefs] a safety hazard.” 75 Pa.C.S.A. § 4524(c).

      . Appellant makes numerous other allegations of error including sufficiency of evidence and ineffectiveness of counsel claims. He also argues that Trooper Walsh should not have impounded the vehicle and that an inventory search was unnecessary. While the evidence presented at trial was sufficient to support the convictions under a theory of constructive possession, we need not delve into the actions of Trooper Walsh subsequent to the stop or the other alleged errors committed at trial. Our conclusion that the motion to suppress was improperly denied makes consideration of these other issues moot.


author: HUDOCK, Judge:

text:
    655 A.2d 1035
    DiLUCENTE CORPORATION and Allegheny Surety Co., Appellants, v. PENNSYLVANIA ROOFING CO., INC., and The American Arbitration Association, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Decided Jan. 31, 1995.
    Reargument Denied April 5, 1995.

      Timothy P. O’Reilly, Pittsburgh, for appellants.
    Andrew L. Horvath, Pittsburgh, for appellees.
    Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

This is an appeal from the order of the trial court which denied DiLucente Corporation’s (DiLucente) motion for a preliminary injunction which sought to enjoin an arbitration hearing. We affirm.

The underlying action arose from a contract dispute between a general contractor, DiLucente, and a subcontractor, Pennsylvania Roofing Co., Inc., also known as Pennsylvania Roofing Systems, Inc. (Roofing), relative to construction work performed by the latter pursuant to a contract dated November 1, 1993.- The contract included an arbitration clause, which reads in pertinent part:

ARBITRATION
30. In case of any dispute or disagreement under this agreement, or with respect to any other work performed on the job site, it is agreed that such dispute shall be submitted to the American Arbitration Association under the rules then pertaining to contractors or construction disputes. No law suit or any other action at law may be substituted without first complying with the terms of this arbitration provision.
Should any dispute or controversy whatsoever arise between the Contractor and Subcontractor, ... then Subcontractor shall follow all of the provisions of the contract documents with respect to conditions precedent to the making of claims and shall give twenty (20) days written notice to Contractor of Subcontractor’s intent to resort to legal action; in which case Contractor, by mailing a notice within said twenty (20) day period, may elect to require the said Subcontractor or parties who contract with him to proceed pursuant to the American Arbitration Association Construction Industry Rules, in which case the judgment and award rendered by the arbitrators may be entered in any court having jurisdiction thereof; and should Contractor not elect to proceed through American Arbitration Association Rules, the Subcontractor and parties who contract with him shall then be limited to an action at law initiated in either Allegheny County or the site where the project is to be constructed, at the election of the contractor. In any event, regardless of any election, Contractor may at any time demand that Subcontractor be limited to the type of action to which the Contractor is limited, whether legal or by arbitration, if the contractor avers that another party is liable over to him for claims by this Subcontractor. Contractor may initiate an action against the Subcontractor in arbitration, law, or equity, at its option, and Subcontractor agrees that the various courts located in Allegheny County, Pennsylvania, or the site where the project is located, at the election of the Contractor, shall have jurisdiction of both the person and matter alleged in any complaint, and any arbitration shall be within the Pittsburgh district, unless Contractor desires to file elsewhere. The Subcontractor shall carry on the work and maintain the progress scheduled during any arbitration proceedings, unless otherwise agreed by Subcontractor and Contractor in writing.

Subcontract Agreement, 11/1/93, ¶ 30 (emphasis added).

Pursuant to this clause, Roofing gave DiLucente written notice on February 2, 1994 of its intention to proceed to arbitration if their dispute remained unresolved. On March 15, 1994, Roofing filed a Demand for Arbitration with the American Arbitration Association (AAA). By letter dated March 21, 1994, DiLucente raised a qualified objection to arbitration of the underlying dispute. By letter dated April 1, 1994, the AAA set a hearing date of May 25, 1994 on the underlying contractual dispute. On May 2, 1994, DiLucente filed a Complaint in Equity in the Court of Common Pleas of Allegheny County, at GD94-7283, seeking to stay the scheduled AAA arbitration proceeding. On May 6, 1994,- Roofing filed preliminary objections to DiLucente’s complaint. On May 13, 1994, DiLucente filed a motion for injunction seeking to enjoin arbitration proceedings. On that same day, oral argument was held before the trial court on Roofing’s preliminary objections and DiLucente’s motion for injunction, after which the trial judge denied DiLucente’s motion. On May 19, 1994, DiLucente filed an appeal to this Court.

Before reaching the merits of DiLucente’s appeal we must determine whether it is interlocutory. Roofing claims that the May 13, 1994 order appealed from was interlocutory since DiLucente’s motion for preliminary injunction was more in the nature of a petition requesting a stay of arbitration. Roofing relies on prior case law which held that an order compelling arbitration and staying court action is interlocutory since it “forces the parties into, rather than out of, court.” Gardner v. Prudential Insurance Co., 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984).

We cannot agree with Roofing’s analysis. DiLucente followed proper procedure when filing a motion for injunctive relief. This Court has previously held that a trial court possesses subject matter jurisdiction to issue injunctive relief enjoining arbitration, prior to a determination of whether the underlying dispute is arbitrable. Langston v. National Media Corporation, 420 Pa.Super. 611, 616-19, 617 A.2d 354, 357-58 (1992).

Having concluded that DiLucente could properly seek injunctive relief to enjoin the arbitration, we refer to Pa.R.A.P., Rule 311(a)(4), 42 Pa.C.S., which states that an appeal may be taken as of right from an order refusing an injunction. Accordingly, DiLucente’s appeal is not interlocutory and we may now address whether the trial court properly denied the preliminary injunction.

A preliminary injunction is an interim measure designed to preserve the status quo and protect the parties until a final hearing is held. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987). Injunctive relief is considered an extraordinary equitable remedy and may only be granted if the plaintiff has established a clear right to the relief requested. Id. The party seeking the injunction must establish that “there is an urgent necessity for interim relief before the case can be heard on the merits” and that immediate and irreparable harm, which cannot be compensated by damages, will result if the injunction is denied. Id. Furthermore, the plaintiff must demonstrate that greater injury would result by refusing the preliminary injunction than by granting it. John G. Bryant Company, Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977) (citation omitted).

When reviewing the denial of a preliminary injunction, this Court will not inquire into the merits of a controversy, but will examine the record to determine if any apparently reasonable grounds exist for the trial court’s action. S.D. Bowers, Inc. v. National Bank of the Commonwealth, 404 Pa.Super. 512, 513, 591 A.2d 324, 325 (1991). We will not reverse the trial court’s order denying a preliminary injunction unless there has been a clear abuse of discretion or an error of law. Id.

DiLucente must prove that it has a clear right to enjoin the arbitration proceeding before it is entitled to injunctive relief. Absent an express agreement between the parties to submit their disputes to arbitration, a court may not compel arbitration. Hoffman v. Gekoski, 250 Pa.Super. 49, 53, 378 A.2d 447, 448 (1977). Furthermore:

When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision. In accordance with the general policy favoring the arbitration of contractual differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute.

Sanitary Sewer Authority of the Borough of Shickshinny v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 210-11, 532 A.2d 862, 863-64 (1987) (citations omitted). In addition, when parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements. Hassler v. Columbia Gas Transmission Corporation, 318 Pa.Super. 302, 307, 464 A.2d 1354, 1357 (1983).

In order to resolve whether DiLucente had a clear right to enjoin arbitration, we must examine the express language of the contract to ascertain the parties’ intent. “Arbitrability of an issue is to be determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.” PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 377-78, 632 A.2d 903, 905 (1993). Moreover, “[t]o ascertain the intent of the parties, a court must first look to the four corners of the document — the express language of the contract.” Id.

Paragraph 30 of the parties’ contract provides that in case of any dispute between DiLucente and Roofing, the parties agree that “such dispute shall be submitted to the American Arbitration Association.” (emphasis added). According to the plain meaning of this clause, DiLucente agreed that all claims arising out of the contract would be subject to arbitration. The remainder of the arbitration clause gives Roofing the option to file a lawsuit in the Court of Common Pleas of Allegheny County which DiLucente could accept or reject. In the event that Roofing chooses to file a legal action in court and it notifies DiLucente of its choice, DiLucente may disapprove of Roofing’s choice and force Roofing to proceed in arbitration.

We disagree with DiLucente’s interpretation of the arbitration clause that “[t]he case goes to Court unless DiLucente elects otherwise.” DiLucente’s Brief, at p. 7. Our interpretation of the clause is that Roofing must submit its claim to arbitration unless it notifies and receives DiLucente’s approval to pursue the claim in court.

In the present case, Roofing did not choose the option of filing a lawsuit in court. Rather, it notified DiLucente that it intended to file a demand for arbitration. According to the terms of the contract, DiLucente could not object to this choice. Only when Roofing sought to file a suit in court could DiLucente overrule its decision and force Roofing into arbitration.

Based on the plain meaning of the arbitration clause, DiLucente agreed that Roofing must submit its contractual disputes to arbitration unless it first received DiLucente’s approval to proceed in court. Therefore, we conclude that DiLucente is bound by the terms of the arbitration clause which it willingly entered. We conclude that the trial court was correct in denying DiLucente’s request for injunctive relief since it was not clearly entitled to enjoin arbitration.

Order affirmed.

      . On May 25, 1994, and June 28, 1994, hearings were conducted by the AAA on the underlying contract dispute. An award in favor of Roofing and against DiLucente in the amount of $30,000 was entered on July 14, 1994. On August 15, 1994, DiLucente filed an application to vacate the arbitration award in the Court of Common Pleas of Allegheny County at GD94-13141. The next day, Roofing filed a petition to confirm the arbitration award and enter judgment in the Court of Common Pleas of Allegheny County at GD94-13141. On September 2, 1994, an order was entered consolidating the two actions and scheduling oral argument on both the application and petition for September 27, 1994. Thereafter, an order was entered staying all matters until the present appeal is determined. We note that these additional facts are not of record and cannot affect our decision on appeal. An appellate court may not consider any material submitted in a party’s brief which has not been duly certified in the record. Starr v. Zdrok & Zdrok, P.C., 419 Pa.Super. 60, 64-65, 614 A.2d 1209, 1212 (1992).

      . We recognize that the contract in dispute in Langston was governed by the Uniform Arbitration Act, 42 Pa.C.S. § 7301 el seq. The contractual dispute in the present appeal, however, is governed by rules of common law arbitration since the parties’ contract does not expressly provide for arbitration under the Uniform Act. See Dearry v. Aetna Life & Casualty Insurance Company, 415 Pa.Super. 634, 637, 610 A.2d 469, 471 (1992). We do not find that this distinction changes the decision in Langston. The trial court could properly grant DiLucente's motion for injunctive relief provided it established the prerequisites for such equitable relief.

      . Although we affirm the trial court’s order denying DiLucente’s motion for an injunction, we do so for a different reason. An appellate court is permitted to affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter. Soloski v. Hetrick, 396 Pa.Super. 140, 154, n. 8, 578 A.2d 445, 453, n. 8 (1990). According to the trial court's interpretation of the arbitration clause, DiLucente had twenty days from the date it received Roofing’s notice of intent to file a claim in arbitration to object to such forum. Since DiLucente failed to object to Roofing's decision to file a claim in arbitration within twenty days, it waived its right to challenge arbitration. Although we disagree with this interpretation, we reach the same result that DiLucente may not challenge Roofing’s decision to file a claim in arbitration.