author:
FORD ELLIOTT, Judge:
      TAMILIA, Judge,

text:
    670 A.2d 697
    COMMONWEALTH of Pennsylvania v. Donald L. McIVOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Filed Jan. 22, 1996.

      Robert J. Donatoni, West Chester, for appellant.
    Joseph W. Carroll, Assistant District Attorney, West Chester, for Com.
    Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging the denial of his Petition for Writ of Habeas Corpus entered October 6, 1994. Although the trial court entered an amended order November 7, 1994, declining to certify this matter for interlocutory appeal, we granted appellant’s petition for interlocutory appeal by order of March 24,1995.

Appellant was charged with three violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701 et seq. (“the Wiretap Act”). In particular, the charges against appellant were brought pursuant to 18 Pa.C.S.A. § 5703(1):

§ 5703. Interception, disclosure or use of wire, electronic or oral communications
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;

Appellant’s Petition for Writ of Habeas Corpus essentially alleged that the Commonwealth failed to establish a prima facie case against appellant at the preliminary hearing.

The charges against appellant arose out of the performance of his job as a police officer for the Borough of Oxford, Pennsylvania. It was apparently appellant’s practice to secretly tape-record his conversations with motorists during routine traffic stops. Testimony was adduced from three individuals whose conversations were recorded by appellant. Two motorists were stopped for speeding while the third was pulled over for a muffler violation. They testified that they were unaware they were being recorded and none gave consent. The motorists did state that only matters pertaining to their particular traffic stop were discussed. Further, these motorists did not consider these conversations to be confidential. Finally, a detective for Chester County testified that he conducted a consent search of appellant’s locker at the Oxford police department and found a voice operated tape recorder, a microphone wire with lapel clip, and various cassette tapes.

The basis of appellant’s argument on appeal is that his conduct did not violate the Wiretap Act because none of his conversations with the stopped motorists constituted an “oral communication” as it is defined by the Wiretap Act. Appellant contends that our case law has decreed that the surreptitiously recorded party must have an expectation of privacy in the conversation in question before it constitutes an “oral communication” under the Wiretap Act. He further argues that because none of the motorists could possibly have expected statements to a uniformed police officer to be private and, in fact, testified that they did not believe they were confidential, then no violation of the Wiretap Act occurred because no “oral communication” was intercepted. In the alternative, appellant argues that even if the intercepts are considered “oral communications” under the Act, that his actions are specifically authorized by § 5704(2)(i).

Before proceeding with our analysis of appellant’s rather thought-provoking contentions, it is necessary to reiterate two definitions from the definitional section of the Wiretap Act which affect our analysis:

‘Intercept.’ Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.
‘Oral communication.’ Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.

18 Pa.C.S.A. § 5702 (in pertinent part):

The centerpiece of appellant’s argument, and the crucial case to our discussion, is Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989) (“Henlen II ”). Appellant suggests that Henlen II requires a constitutional expectation of privacy whenever determining whether a conversation falls within the definition of oral communication as defined by the Wiretap Act. Our examination of Henlen II, however, leads us to believe that this was not the intended result of its holding. Paramount to our understanding of the supreme court’s ruling is a review of the history and particular facts of that case.

The appellant in Henlen II was a corrections guard at the Mercer County Jail who was suspected in the theft of an inmate’s personal property. Pursuant thereto, Mr. Henlen was interviewed by a state police trooper for approximately thirty to forty-five minutes. During the interview, the state trooper took notes, intending to compose a report later. A third party was also present for some of the interview. Unknown to anyone else, however, Henlen had secreted a tape recorder on his person and recorded the entire conversation. Later, believing that the state trooper had harassed him during their interview, Henlen filed a complaint with the Internal Affairs Division of the Pennsylvania State Police and submitted the tape he had recorded. As a result, Henlen was charged with a violation of the Wiretap Act.

The Court of Common Pleas of Mercer County granted Henlen’s petition for a writ of habeas corpus and dismissed the charges against him. Henlen and the trial court maintained that under the circumstances, the state trooper could have no reasonable expectation of privacy and that, therefore, the conversation was not an “oral communication” protected under the Wiretap Act. Gunderman v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 95 Pa.Cmwlth. 479, 505 A.2d 1112 (1986), was cited in support. In Gunderman, a claimant secretly tape-recorded his unemployment compensation hearing. Commonwealth Court held that because a record of the testimony at such hearings was always made, the participants had no legitimate expectation of privacy and the Wiretap Act did not apply.

After the favorable decision for Mr. Henlen, the Commonwealth appealed to this court. We reversed, distinguishing Gunderman. Central to our analysis was the following distinction:

Thus the expectation which must be justified under the definition of ‘oral communication’ is the expectation that one’s communication will not be recorded by any electronic, mechanical or other device. The fact that one may have reason to believe that he himself will have to reveal what transpired in a conversation, or that the other party to the conversation may relate to third parties the contents of a communication, does not necessarily mean that a party to the communication should have expected that the communication would be recorded, even though the party may not have a reasonable expectation of privacy in the communication.
It is the distinction between ‘reasonable expectation of privacy’ and ‘expectation that such communication is not subject to interception,’ which emphasizes the inapplicability of Gunderman to the facts before us. Because the hearing which was surreptitiously recorded in Gunderman was recorded officially, with the knowledge of the participants to the hearing, there was no expectation that the statements made at the hearing would not in fact be ‘aurally acquired through the use of an electronic, mechanical or other device.’ Hence, the oral statements made at the hearing were not protected by the Wiretap Act.

Commonwealth v. Henlen, 368 Pa.Super. 1, 5-6, 533 A.2d 457, 459 (1987) (emphasis in original) (Henlen I). We went on to indicate that the fact situations in Gunderman and in Henlen I differed crucially. In Gunderman, the conversation was being officially recorded and all participants knew so. Therefore, there was an expectation that the communication would be intercepted and that the communication was, therefore, not an “oral communication” as defined by the Wiretap Act. In Henlen I, -however, we held that the state trooper had no similar expectation that his words would be tape recorded and otherwise intercepted. We thus established a distinction between the expectation of privacy and the expectation of non-interception.

It is interesting to note that in varying situations this analysis can yield differing results as to whether there is either.an expectation of privacy or an expectation of non-interception. Generally, where there is an expectation of privacy there is also an expectation of non-interception. Such is not always the case, however. For instance, if one is being examined by his or her physician and knows from pást experience that the doctor often carries a small tape recorder in a pocket to record patient interviews, one’s expectation of non-interception is nearly non-existent, but the expectation of privacy is still extremely high. On the other hand, if one is speaking with the'town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one’s expectation of non-interception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of non-interception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis.

In reversing Henlen I, the supreme court did not reverse or even question the basic distinction that we drew in that decision regarding the expectation of privacy versus the expectation of non-interception. Rather, Justice Zappala, writing for the majority, believed that this court had set down a hard and fast rule that there must be a specific expectation of non-interception in order to qualify a communication as an “oral communication” under the Wiretap Act. The apparent intent of the supreme court in Henlen II was simply to indicate that while the definition of “oral communication” did require a specific expectation of non-interception to bring the communication within the ambit of the statutory definition, such expectation must be justified under the circumstances:

In the decision below, Superior Court held that the statutory language defining ‘oral communication’ required that the utterer of such a communication must have a specific expectation that the contents of a discussion will be electronically recorded. See, Commonwealth v. Henlen, 368 Pa.Super. 1, 5, 533 A.2d 457, 459 (1987). The definition of ‘oral communication’ and ‘interception’, indeed contains such a requirement, but these definitions also make it clear that such an expectation must be justifiable under the circumstances.

Henlen II at 519, 564 A.2d at 907 (emphasis in original). The supreme court analyzed the situation in Henlen II and decided that, under the circumstances, the state trooper should have had an expectation that his words might be intercepted and carried off and that the interview was, therefore, not an “oral communication” as it is defined by the Wiretap Act.

Moreover, the court did not direct that we must determine whether the parties had an expectation of privacy in their words in order for their conversation to qualify as an “oral communication.” No such litmus test was imposed, but rather the supreme court indicated that the existence of a privacy expectation was a factor in our determinations. Put another way, what the court actually said was that we must determine whether the parties had an expectation of non-interception, but that in making this determination, we may employ the same principles used to determine whether there is an expectation of privacy; and where an expectation of privacy arises, very often there will also be an expectation of non-interception:

[T]he broad principles of [Commonwealth v.] Blystone[, 519 Pa. 450, 549 A.2d 81 (1988), affirmed sub nom. Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990),] relating to the expectation of privacy in a conversation are applicable in determining whether circumstances support a conversant’s expectation that his or her conversation would not be intercepted. The broad language of Blystone makes it clear that ‘[w]hat one chooses to do with another’s secrets may differ from the expectation of the teller, but it is no longer his secret. How, when and to whom the confidant discloses the confidence is his choosing.’

Henlen II at 519, 564 A.2d at 907. By applying the broad principles of the Blystone case, the supreme court was essentially directing us to look not to the actual expectations of the speaker as to the likelihood of interception, but rather to the surrounding circumstances in determining what the speaker should expect.

We must also pause to consider what the Blystone analysis entails for any inquiry under the Wiretap Act. It is important to keep in mind, in any discussion of our supreme court’s decision in Blystone, that the issue presented and resolved therein was not the legality or illegality of the interception under the Wiretap Act, but rather the constitutionality of the intercept. In Blystone, the court decided that § 5704 of the Wiretap Act, which permitted participant monitoring in Pennsylvania by law enforcement officials, was not unconstitutional under the federal and state constitutions. This was not a difficult decision, because as Justice McDermott stated, the U.S. Supreme Court had specifically found participant monitoring generally not to violate a constitutional right to privacy:

The United States Supreme Court has held that a person cannot have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal that conversation to the police. Furthermore, as noted above, the Court has held that one party interceptions do not violate the Fourth Amendment.
Basically, the Supreme Court has recognized the simple fact that a thing remains secret until it is told to other ears, after which one cannot command its keeping. What was private is now on other lips and can no longer belong to the teller. What one chooses to do with another’s secrets may differ from the expectation of the teller, but it is no longer his secret. How, when, and to whom the confidant discloses the confidence is his choosing. He may whisper it, write it, or in modern times immediately broadcast it as he hears it.

Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), affirmed sub nom. Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) (citations omitted), discussing United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion), reh. denied, 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971). Our supreme court likewise found that Article 1, § 8 of the Pennsylvania Constitution was not violated.

Nevertheless, while Henlen’s or appellant’s actions might not be unconstitutional under the federal or state constitutions, that does not determine their legality under the Wiretap Act. We observe a divergence between the federal and Pennsylvania statutes in this regard. In point, the federal law specifically makes one party participant monitoring lawful for both law enforcement officials and any other person. Therefore Henlen’s or appellant’s actions would not have been unlawful under the Federal Act. Only nonconsensual third party intercepts are illegal and unconstitutional under federal law without a court order.

In Pennsylvania, we have enacted a much more stringent Act. Under the Wiretap Act, all participant monitoring is illegal, unless specifically excepted by § 5704. In Pennsylvania, our Legislature has determined that although intercepting a communication to which one is a party may not be a violation of a constitutional privacy interest, it so threatens the private nature of social communication as to be considered unlawful in this Commonwealth. Recognizing this concern of the legislation, any analysis of what constitutes an oral communication under the Wiretap Act cannot be limited to an analysis on strict constitutional privacy grounds. The interest protected by the Wiretap Act is directed to a right not to have one’s words electronically seized under circumstances which are reasonably justifiable.

Returning to appellant’s argument, we note that appellant also recites a recent decision of this court in support of his proposition that, in order to qualify as an “oral communication,” there must have been an expectation of privacy as well as an expectation of non-interception. We agree that certain language in Commonwealth v. Christopher, 423 Pa.Super. 51, 620 A.2d 494 (1992), allocatur denied, 536 Pa. 638, 639 A.2d 23 (1994), may have “muddied the water.”

The appellee in Christopher was a client of a social worker at the Bedford County Children and Youth Services. On February 18, 1992, Christopher arrived unannounced at Bed-ford County Children and Youth Services and was greeted in the lobby by his caseworker before being escorted back to the caseworker’s office, which was shared by another social worker. Christopher and his caseworker then discussed various aspects of his case in the presence of the other social worker. At the conclusion of the impromptu interview, Christopher’s caseworker noticed a small tape recorder on Christopher’s person. Christopher admitted recording their conversation, and the caseworker reported him to the local police. Charges were brought pursuant to the Wiretap Act, but were dismissed following the filing of a petition for a writ of habeas corpus. In affirming, this court adopted the rationale of the trial court:

As we agree with appellee’s argument, and concur with the well-reasoned conclusion of the hearing court, we adopt the rationale underlying the order, which states:
THE COURT: The Defendant argues that the caseworker had no expectation of privacy — confidentiality and relies on Commonwealth v. Henlen, a Supreme Court case which has to do with oral communications. Section 5703 defines oral communication as any oral communications uttered by a person possessing an expectation, but such communication is not subject to interception under circumstances justifying such expectation.
Intercept is defined in Section 5702 as aural, A-U-R-A-L, acquisition of the contents of any wire or oral communication through the use of any electronic or mechanical or other device. So, the real issue in this case comes down to the question of whether or not of [sic] the caseworker had an expectation of confidentiality.
Henlen is very close and we believe we’re bound by it. We believe, under the facts of this case, that the caseworker did not have an expectation of confidentiality under the circumstances. Particularly stated and testified at the Preliminary Hearing that there was nothing to be said to the Defendant that he couldn’t tell anybody else. That was his testimony and we’re bound by that.
So, ... [w]e find, as a fact, that the caseworker had no expectation of confidentiality and, therefore, the Defendant did not violate the wiretap act section, the section of the statute followed by wiretapping.

Christopher at 560, 620 A.2d at 496-97.

It seems clear from our reading of Christopher that Henlen II may have been misinterpreted. The court clearly bases its conclusion that the subject communication was not an “oral communication” as defined by the Wiretap Act on the fact that the caseworker had no expectation of privacy rather than no expectation of non-interception. To the extent that Christopher stands for this proposition, it is specifically disapproved.

We would also indicate that we believe subsequent decisions of our supreme court are thoroughly consistent with the interpretation that we have given to Henlen II. In Commonwealth v. Louden, 536 Pa. 180, 638 A.2d 953 (1994), the Loudens were convicted of endangering the welfare of a child. Neighbors had secretly tape recorded conversations of the Loudens which were of sufficient volume to be intercepted by a tape recorder located in the neighbors’ house. The trial court suppressed these recordings pursuant to our decision in Henlen I and the supreme court reversed the suppression pursuant to Henlen II. Nevertheless, the critical determinant was that the Loudens should have expected that their conversations might be intercepted. The expectation of privacy only entered the court’s analysis to help it decide whether an expectation of non-interception existed:

The question becomes whether, under these circumstances, the Loudens had a justifiable expectation that their secret conversations, audible next door, were not subject to being intercepted. We think not. As we noted in Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989), the broad principles of Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), cert. granted in part, Blystone v. Pennsylvania, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989), are applicable in determining whether circumstances support a conversant’s expectation that his or her conversation would not be intercepted. Blystone makes it clear that ‘[w]hat one chooses to do with another’s secrets may differ from the expectation of the teller, but it is no longer his secret. How, when and to whom the confidant discloses the confidence is his choosing. He may whisper it, write it, or in modern times immediately broadcast it as he hears it.’ Blystone, 519 Pa. at 462, 549 A.2d at 87, 88.
Applying these principles to the circumstances before us, we are satisfied that once the conversation, threats and arguments between the Loudens and the screams of the children became audible to the Kulovichs, through a dividing wall in their home, the Loudens lost whatever expectation of privacy they had that their secret discussions and conversations would not be overheard, intercepted and memorialized for posterity on tape or whatever device the listeners chose to broadcast the Loudens’ secret conversations.

Louden at 192, 638 A.2d at 959. We also note that, in dissent, Justice Zappala disagreed, not with the focus of the analysis, whether there must be an expectation of non-interception, but merely with whether an expectation of non-interception existed under the facts of the case.

Most recently, the supreme court again commented on the Henlen II rationale in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). Brion does nothing to change our view of Henlen II. We note that Brion, like Blystone, does not resolve the legality of an interception under the Wiretap Act. Rather, Brion speaks to the constitutionality of the intercept in the privacy of one’s home under our state constitution. Nevertheless, Brion does give some indication of our supreme court’s thinking as to Henlen II, and as with Henlen II, is again authored by Justice Zappala. The court indicated the nature of the inquiry under Henlen II:

We reiterated that the Act requires that a person uttering an oral communication, as that term is defined under the Act, must have a specific expectation that the contents of a discussion will not be electronically recorded. However, this expectation must be justifiable under the existing circumstances. Implicit in any discussion of an expectation that a communication will not be recorded, is a discussion of the .right to privacy.

Brion at 259-60, 652 A.2d at 288: Again, we find that the supreme court did not rule that there must be an expectation of privacy in the recorded communication in order to bring it under the definition of “oral communication” as used by the Wiretap Act. The court merely indicated that an expectation of privacy is an important consideration in the total analysis and. is crucial when the interception- occurs in one’s home.

Clearly, there are occasions when conversants have no expectation of privacy, but when they do have an expectation of non-interception. Interception of a communication on these occasions would still violate the Wiretap Act. The case presently under review presents just such an instance. Appellant posits that no one would have an expectation of privacy in any communication to a uniformed police officer. However, it is just as likely that no one would expect that a roadside traffic stop conversation would be secretly recorded. Under the circumstances of this case, while the stopped motorists had no expectation of privacy, they had a very real expectation of non-interception.' They legitimately could expect that their words would not be electronically seized and carried away by the officer. Thus, the communications recorded by appellant do qualify as “oral communications” under the Wiretap Act.

The setting of this case clearly distinguishes it from the interview/interrogation atmosphere of Henlenz Oral interrogations of suspects by police are often recorded, and at the least, notes are taken'to memorialize any conversation or statements of the suspect. Such an atmosphere does not exist in routine tráffic stops as occurred instantly.

Ultimately, if we were to accept appellant’s argument that there must be an expectation of privacy in order to meet the definition of “oral communication” under the Wiretap Act, there would be few if any conversations which would merit protection. Under a strictly interpreted Blystone analysis, no conversation to which the monitor is a participant would merit protection, because as soon as the speaker utters the words, he has lost his expectation of privacy in them. Thus, no conversation monitored by a participant qualifies as an oral communication. Such an interpretation would subvert the very spirit of the legislation. As set out earlier, the Wiretap Act regards participant monitoring as an illegal activity, albeit not an unconstitutional one, unless specifically permitted under § 5704.

Having determined that the intercepts conducted by appellant involved oral communications within the meaning of the Wiretap Act, we turn to appellant’s next contention. Appellant argues, in the alternative, that his conduct fell under one of the Wiretap Act’s exceptions to the prohibition of interception. The relevant exception is set forth as follows:

§ 5704. Exceptions to prohibition of interception and disclosure of communications
It shall not be unlawful under this chapter for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S.A. § 5704(2)(i) and (ii). Appellant argues, in effect, that any communication to which a law enforcement officer is a party is excepted from the interception prohibition of the Wiretap Act, pursuant to § 5704(2)(i). The Commonwealth responds, however, that the approval and supervision requirements contained in § 5704(2)(ii) apply to § 5704(2)(i) as well. Specifically, the Commonwealth argues that an interception made pursuant to § 5704(2)(i) requires the prior approval of the Attorney General or the district attorney. Appellant counters that the phraseology “under this paragraph” consigns the application of the second sentence of § 5704(2)(ii) solely to § 5704(2)(ii).

We agree with the Commonwealth’s interpretation. At first blush, we note that the meaning of “under this paragraph” appears to be ambiguous both from its structural setting and from the internal logic of the statute. Nevertheless, we believe that a closer examination resolves any ambiguity.

We first note that our Legislature has given clear instructions for the interpretation of ambiguous statutory language. Our object in statutory interpretation and construction is always to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S.A. § 1921(a). We are to give effect to all provisions. Id. Where the words are not explicit, we rely upon a variety of factors to aid us. These matters include delving into the occasion and necessity of the statute and examining the mischief to be remedied and the object to be obtained. 1 Pa.C.S.A. § 1921(c). Furthermore, grammatical errors will not cause a statute to fail, nor shall the punctuation control. 1 Pa.C.S.A. § 1923. Thus, we are not restricted by the mere structure of a statute, but have been given rein to make a common sense reconstruction if that will better effectuate the will of the Legislature.

As for the structural setting, then, we begin by analyzing the usage of the term “paragraph” as it is employed within the Wiretap Act itself. We find that while the usage is generally consistent, it is not universally so. We observe that the Wiretap Act generally refers to those subdivisions denoted by parenthetic, Arabic numerals as “paragraphs.” See, for example, § 5743(b)(1) and (2) and (c)(1). Under this usage, the requirements of § 5704(2)(ii) would appear to apply to all of “paragraph (2).” However, in § 5745(a)(3), we find a reference to “paragraph (1)(ii).” Under this usage, the requirements of § 5704(2)(ii) would appear to apply only to “paragraph (2)(ii).” Nevertheless, the Legislature has provided other, authoritative guidance in this area that resolves this matter.

In the Introduction to the Pennsylvania Consolidated Statutes, which introduction was enacted into law November 25, 1970, there are found the following remarks:

To encourage uniformity of style, and to provide helpful suggestions relating to the step-by-step mechanics of drafting a codification bill, Legislative Reference Bureau has published a detailed Style Manual for the Pennsylvania Consolidated Statutes. See 101 Pa.Code § 21.1 et seq.

1 Pa.C.S.A Introduction. This Style Manual, contained in the Pennsylvania Code, has as one of its provisions, the following:

§ 23.26. Internal divisions of sections.
Whenever internal divisions are necessary, subsections shall be identified by lower case letters, paragraphs by Arabic numerals, subparagraphs by lower case Roman numerals, clauses by capital letters and subclauses by capital Roman numerals, all contained within parentheses, as follows:
Terminology Illustrative Symbol
Subsection (a)
Paragraph (1)
Subparagraph (i)
Clause (A)
Subclause (I)

101 Pa.Code § 23.26.

Clearly, then, in section 5704, the approval and supervisory requirements contained in swhparagraph (2)(ii) apply to all of paragraph (2), including m&paragraph (2)(i).

Moreover, while the internal logic of § 5704(2) is also somewhat ambiguous, we find that closer examination again supports the Commonwealth’s interpretation. Appellant argues that the restrictions of § 5704(2)(ii) do not apply to § 5704(2)(i) and that § 5704(2)(i) authorizes him, as a police officer, to make any interception he deems appropriate in the pursuance of criminal investigation, without supervision by a local or state Commonwealth attorney, so long as he is a participant. Appellant construes § 5704(2)(ii) to the effect that the primary responsibility of the Commonwealth attorney under § 5704(2)(ii) is to ensure the voluntariness of the consent of one of the participants in an intercept. Based upon this interpretation, appellant further posits that consent is not an issue with a police participant. Appellant concludes that because one of the duties of the Commonwealth attorney under § 5704(2)(ii) does not apply to § 5704(2)(i), then none of them was intended to apply. We believe that analysis is flawed on several accounts.

In Commonwealth v. Clark, 374 Pa.Super. 308, 542 A.2d 1036 (1988), allocatur denied, 523 Pa. 635, 565 A.2d 444 (1989), we upheld the mandatory nature of the requirements set forth in § 5704(2)(ii) and in so doing set forth the purposes and importance of these requirements:

In his Dissenting Opinion in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), our colleague, Judge Rowley wrote that in his belief the limitations provided to consensual wiretapping found in § 5704(2)(ii) ‘are sufficient to guard against the unlimited and indiscriminate use of such interceptions and the evidence obtained therefrom and act as an adequate deterrent to inappropriate police activity. Moreover, such limitations drastically minimize the likelihood of an invasion of the lawabiding citizen’s legitimate expectations of privacy.’ Id. [370 Pa.Super. at 271] 536 A.2d at 400. However, even the minimum protection offered by § 5704(2)(ii) was not followed in this case. The provisions of the Act must be strictly adhered to in order to insure that safeguards are in place to protect persons from unauthorized surreptitious interceptions. Here, the supervision directed by the Act was not followed. The responsibilities outlined in the Act regarding the duties of the Attorney General, District Attorney or their designee are non-deligable. Those persons responsible for authorizing interceptions under the Act must personally review the facts, ascertain directly from the consenting party the voluntariness of his or her consent and give prior aipproval to the interceptions. The Assistant District Attorneys’ designated to authorize the interception of Appellant’s conversations with Mr. McCullough never performed these preparatory duties. Rather, these duties were wrongly delegated to and undertaken by the Pennsylvania State Police.

Clark at 316-17, 542 A.2d at 1040. We believe that these concerns apply with equivalent weight to § 5704(2)(i) as well.

Appellant’s argument overlooks the fact that § 5704(2)(i), by its clear language (“such officer or person is a party to the communication”), also authorizes participant interception by person participants. Certainly, the review of the voluntariness of the consent of such person participants is the precise focus of the voluntary consent language found in § 5704(2)(ii). Moreover, the other restrictions of § 5704(2)(ii), pertaining to recording, record keeping, and custodianship, should apply equally to police and person participants.

Furthermore, we note that appellant’s construction of § 5704(2) renders § 5704(12) mere surplusage:

It shall not be unlawful under this chapter for:
(12) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where the officer or the person is a party to the communication and there is reasonable cause to believe that:
(i) the other party to the communication is either:
(A) holding a hostage; or
(B) has barricaded himself and taken a position of confinement to avoid apprehension; and
(ii) that party:
(A) will resist with the use of weapons; or
(B) is threatening suicide or harm to others.

18 Pa.C.S.A. § 5704(12).

Obviously, if a police participant or other person participant may intercept any communication in a conversation pursuant to a criminal investigation without supervision by a Commonwealth attorney, as appellant’s interpretation of § 5704(2) requires, there is no need for the special authorization to do so in hostage situations, which § 5704(12) provides. Our rules of statutory construction prohibit such an interpretation. See 1 Pa.C.S.A. § 1922(2). See also Habecker v. Nationwide Insurance Company, 299 Pa.Super. 463, 445 A.2d 1222 (1982), and Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979).

In conclusion, we hold that the requirements of § 5704(2)(ii), pertaining to the approval and monitoring of interceptions by a prosecuting attorney, apply with equal effect to interceptions authorized under § 5704(2)(i). We believe this interpretation comports with the broad purpose underlying the Wiretap Act, which is to restrict the unbridled and unsupervised interception of oral, wire, and electronic communications by private persons, by police, or by any other agency or concern without imposing any undue burden on law enforcement’s responsibility to ferret out criminal activity.

Accordingly, having found no merit in appellant’s arguments, we hereby affirm the order of November 7, 1994.

TAMILIA, J., files a dissenting statement.

ROWLEY, President Judge, notes his dissent.

This decision was reached prior to former President Judge ROWLEY’s retirement from this court.

TAMILIA, Judge,

dissenting.

I respectfully dissent. I do not believe there can be an expectation of privacy in an investigative stop by a police officer in the legitimate exercise of his duty as a police officer. The Wiretap Act was meant to preclude intercepts of communication without having established probable cause and the right to search, which is clearly an invasion of privacy prohibited by the Act, if not the Constitution.

      . Chapter 119—Wire Interception and Interception of Oral Communications, 18 U.S.C.A. § 2510 et seq. ("the Federal Act”).

      . 18 U.S.C.A. § 2511 (2)(c)(d):
      (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
      (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a part)' to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

      . For a fuller discussion of the various interests at stake in cases of participant monitoring, see Kent Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation, 68 Columbia L.R. 189 (1968).

      . Although we admit to some confusion in the Louden court's citation to and reliance upon the constitutional analysis in Blystone, we are bound to accept the court's analysis under the strict facts of the Louden case. Blystone involved the constitutionality of consensual participant monitoring while Louden concerned a non-consensual, third party interception. Perhaps, the court will someday revisit this analysis. For now, we must seek to reconcile Louden's analysis with other pronouncements of our supreme court.

      . The result would be the same if the motorist was the one doing the intercepting.

      . Our review of case law precedents reveals a single case interpreting § 5704 as to whether the approval and supervision requirements of (2)(ii) apply to (2)(i) also. Smith v. Commonwealth of Pennsylvania, Pennsylvania State Horse Racing Commission, 115 Pa.Cmwlth. 622, 542 A.2d 185 (1988), held that the review, approval, reporting, and record keeping requirements of § 5704(2)(ii) were not applicable to (2)(i). We are not bound by this holding, and for the reasons we will describe, we specifically decline to follow it.

      . We note that an argument could be made that the type of suspected criminal activity for which § 5704 exempts law enforcement officials is the same as the comprehensive and exclusive list set forth in § 5708. That section authorizes a court order for nonconsensual intercepts by investigative or law enforcement officers having responsibility for an investigation involving suspected criminal activities when such interception may provide evidence of the commission of any of the following of a laundry list of offenses: murder; kidnapping; rape; IDSI; arson; burglary; robbery; theft; bribery; official corruption; numerous gambling related offenses; any offense dangerous to life, limb, or property punishable by imprisonment; intimidation of and retaliation against witnesses or victims; harassment; counterfeiting; prostitution; and any illegal drug-related activities. In fact, the very definition of law enforcement officers as set forth in § 5702 references these crimes and offenses:
      ‘Investigative or law enforcement officer.’ Any officer of the United States or of the Commonwealth or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offense. The term shall include, but not be limited to, employees of the Pennsylvania Crime Commission, authorized to investigate crimes enumerated in section 5708 (relating to order authorizing interception of wire or oral communications).
      Clearly, the legislature was addressing the legitimate needs of law enforcement to combat serious crime. However, it is difficult to imagine that the General Assembly envisioned routine traffic violations as falling within the purview of such suspected criminal activities such that law enforcement officers could use electronic surveillance at their discretion.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    670 A.2d 708
    Robyn M. MELE, Appellant, v. Carmen OLIVA.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1995.
    Filed Jan. 23, 1996.

      Robert D. Clark, New Wilmington, for appellant.
    Norman J. Barilla, New Castle, for appellee.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   TAMILIA, Judge:

Robyn M. Mele takes this appeal from the February 6, 1995 Order dismissing her complaint in support and rejecting the request of the Domestic Relations Section for blood tests. According to the record, appellant/mother gave birth to a child born April 17, 1987, whereupon appellee informed her he wanted to be a father to the child and accept the responsibilities as the father. Mother, however, rejected appellee’s request by informing him he was not the biological father and refused to allow him to visit the child.

On May 22, 1987, mother filed a complaint in support naming appellee as the father, but appellee denied paternity. Shortly after filing the complaint, mother, pursuant to a voluntary motion for discontinuance, averred appellee was not the father of the child, thus the court granted the motion and discontinued the case. On November 10, 1993, mother filed the instant complaint in support, again claiming appellee was the father. In her complaint, she alleged at the time of the first complaint she was only 18 years old, immature and was intimidated by appellee to dismiss the claim. Appellee, on the other hand, responded to the complaint by filing a motion to dismiss on the theories of res judicata, equitable estoppel and laches. The trial court, following a hearing on the matter, determined mother’s testimony incredible and that appellee refrained from any contact with the child, married and had a child, all in detrimental reliance of mother’s statement he was not the child’s father. Accordingly, the trial court, applying the doctrine of equitable estoppel, granted appellee’s motion to dismiss the support complaint and dismissed the request for blood tests.

On appeal to this Court, mother argues appellee failed to meet his burden under the doctrine of equitable estoppel, and he entered court with unclean hands, based upon the threats made to her and her son. Mother also argues public policy requires that fathers be identified for any child living in this Commonwealth, and the trial court’s ruling, in essence, permits a mother to contract away the rights of her child.

This Court’s standard of review for a child support Order is a narrow one based upon an abuse of discretion. In these matters, abuse of discretion requires more than error of judgment, rather it requires an overriding or misapplication of the law or a manifestly unreasonable exercise of judgment. Ball v. Minnick, 414 Pa.Super. 242, 606 A.2d 1181 (1992), affirmed 538 Pa. 441, 648 A.2d 1192 (1994). Initially, we note the trial court applied the general rules of equitable estoppel to find prejudice to appellee as a result of his reliance upon mother’s prior statements.

Equitable estoppel arises when a party by acts or representation intentionally or through culpable negligence, induces another to believe that certain facts exist and the other justifiably relies and acts upon such belief, so that the latter will be prejudiced if the former is permitted to deny the existence of such facts.

Curran v. Eberharter, 361 Pa.Super. 65, 74, 521 A.2d 474, 479-480 (1987) (citations omitted).

First, we hold the general rules of equitable estoppel are not applicable in deciding the issue of paternity under the facts of this case. We find no hardship/prejudice endured by appellee even if the principles of estoppel applied. To the contrary, appellee has lived seven years with no responsibilities or burdens of parenthood and with no financial obligation to the child. Moreover, there is no evidence he would have foregone marriage and a child had he been required to pay support.

Next, we look to the theory of equitable estoppel as it applies to paternity, which the trial court acknowledged but incorrectly addressed. Specifically, our Supreme Court recently addressed the theory of equitable estoppel as it has developed in the area of paternity.

[UJnder certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding out and/or supporting the child.

Jones v. Trojak, 535 Pa. 95, 105-106, 634 A.2d 201, 206 (1993) (citations omitted). Here, the mother has not held out another person to be the father of the child nor has the record established such a relationship to the child with another man.

After thorough research, we have found no caselaw supporting the trial court’s rationale a mother may be es-topped from pursuing the paternity of the alleged father because of detrimental reliance on his part. The trial court, in relying on estoppel, cited Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976), which held that a father who supported a child for three years, after marrying the mother and holding the child out to be his, was estopped from denying paternity. This holding cannot be applied to deny a mother the right to pursue a paternity action when the paternity of the child has not been established pursuant to law. The trial court’s application of Gonzalez is antithetical to its meaning and the principles of family law and public policy. A mother has 18 years from the birth of a child born out of wedlock to commence an action or proceeding to determine paternity. 23 Pa.C.S. § 4343. See Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (Pennsylvania six-year statute of limitations (since repealed) did not withstand heightened scrutiny under equal protection claims; even six years did not provide reasonable opportunity to assert claim on behalf of illegitimate child). Clearly, a seven-year time frame does not violate this statute or raise an issue of laches. The discussion in Jeter by the Justices of the Supreme Court indicated their concern that the many currents and events which occur in the mother’s life and the varying needs of the child during minority preclude denial of an action in paternity when the need arises, despite the passage of several years. Accordingly, here, as in any proceeding involving a minor child, of paramount concern is the best interests of the child. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). Considering the best interests of the child, it clearly is against public policy to permit one parent to sign away the rights of the child to support. To rule otherwise places the onus on the mother alone or the Commonwealth to support a child when the father very well may be capable of providing support. Regardless of the reasons for mother’s request to discontinue the initial support claim or the circumstances surrounding the proceedings, this Court cannot permit the actions of the parties to control the determination of paternity and corresponding duty of support. Moreover, no statements, contracts or agreements by and with the mother will so prejudice an alleged father to the extent it would totally relieve him of the duty to support. Paternity proceedings involve two considerations. The first is a determination of paternity which must legally be made through acknowledgement, pursuant to 23 Pa.C.S. § 5103, Acknowledgement and claim of paternity, marriage to the mother of the child or pursuant to an action to determine paternity, pursuant to 23 Pa.C.S. § 4343(a), Paternity.

Only after the paternity of the child has been established may the court proceed to determine the support obligation. This finding is made in the same fashion as is support for children born during wedlock and is made pursuant to the support law and support guidelines. Under these proceedings, the alleged father is fully protected from a spurious claim. of paternity and is required to pay support only to the extent he is legally obligated. The provision for blood tests and genetic testing have virtually eliminated the likelihood that an erroneous finding of paternity will be made despite the passage of time. See Jeter, supra.

Accordingly, we find the trial court erred in applying the doctrine of equitable estoppel and granting appellee’s motion to dismiss. We therefore vacate the Order of the trial court and remand this case for determination of paternity and support if required.

Order vacated; case remanded.

Jurisdiction relinquished.


author: CIRILLO, Judge:

text:
    670 A.2d 710
    Virginia M. CLAYTON, Administratrix of the Estate of Fred William Herrod, Deceased, Appellant, v. Rebecca McCULLOUGH.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed Jan. 24, 1996.

      William M. Radcliffe, Uniontown, for appellant.
    Miles A. Kirshner, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   CIRILLO, Judge:

Virginia Clayton, administratrix of the estate of Fred Herrod, her son, appeals from an order entered in the Court of Common Pleas of Greene County, dismissing her amended complaint. We affirm.

Herrod was struck by a vehicle operated by Wanda Steinhoff, resulting in Herrod’s death. Rebecca McCullough, the appellee, was a passenger in Steinhoffs car at the time of the accident. The facts alleged in Clayton’s amended complaint reveal that on December 30, 1993, Steinhoff and McCullough consumed alcohol at the Terrace Lounge between the hours of 7:00 p.m. and 11:00 p.m. Steinhoff was carrying a drink when the two women left the lounge. McCullough requested that Steinhoff drive her to the American Legion in Waynesburg, and subsequently asked Steinhoff if she could drive Steinhoffs car, as McCullough thought that Steinhoff was too intoxicated. Steinhoff refused McCullough’s request to drive, and McCullough held Steinhoffs drink as they headed towards the American Legion. After travelling approximately two miles, McCullough noticed that Steinhoff was driving erratically. Shortly thereafter, McCullough saw Herrod walking on the side of the road. McCullough warned Steinhoff of Herrod’s presence; nevertheless, Steinhoff struck Herrod, who eventually died as a result of his injuries.

Clayton’s amended complaint averred that McCullough was negligent in failing to prevent Steinhoff from bringing alcohol into the car and for faffing to prevent Steinhoff from driving. The complaint also asserted that, since Steinhoff was driving to the American Legion at McCullough’s request, Steinhoff was McCullough’s agent and McCullough was vicariously liable for Steinhoffs actions.

McCullough filed preliminary objections to the amended complaint for failure to state a cause of action. The preliminary objections were sustained and the complaint was dismissed. This appeal followed.

Clayton raises one issue for our consideration:
Is there a jury question as to a motor vehicle passenger’s duty to third persons when that passenger is aware that the driver is intoxicated and assists the driver’s intoxication?
Our standard of review is well settled.
When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.

Jackson v. Garland, 424 Pa.Super. 378, 380, 622 A.2d 969, 970 (1993).

“In order to hold a defendant liable for injuries sustained by a plaintiff, it must be shown that the defendant breached a duty or obligation recognized by the law, which required him to conform to a certain standard of conduct for the protection of persons such as the plaintiff.” Merritt v. City of Chester, 344 Pa.Super. 505, 508, 496 A.2d 1220, 1221 (1985) (emphasis added) (citing Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980)). “Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.” Cruet v. Certain-Teed Corp., 432 Pa.Super. 554, 557, 639 A.2d 478, 479 (1994), appeal denied, 541 Pa. 639, 663 A.2d 691 (1995). Certain situations between parties may give rise to a duty to act with due care, and other situations do not.

Although each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act.

Elbasher v. Simco Sales Service of Pennsylvania, 441 Pa.Super. 397, 398-99, 657 A.2d 983, 984-85 (1995).

Clayton first claims that McCullough was negligent in allowing Steinhoff to continue to drive the vehicle after McCullough knew or had reason to know that Steinhoff was intoxicated. Accepting the' facts alleged as true, Jackson, supra, Clayton cites no Pennsylvania appellate authority, and we know of no such authority, which imposes a duty on a passenger of a vehicle to a third person injured/killed by a driver of the same vehicle.

The appellate courts of this Commonwealth have examined “passenger duty” most often in the context of the passenger’s ability to recover when a defendant contends the passenger contributed to the accident by his or her actions, or failure to act. See, e.g., Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970) (where passenger’s estate sought damages in wrongful death/wrongful survival action, the Court noted that a passenger is required to exercise reasonable care for his own safety and will be barred from recovery if he unreasonably fails to warn driver of a danger which passenger discovers, or to make use of an ability to control the negligence which he may possess); Landy v. Rosenstein, 325 Pa. 209, 188 A. 855 (1937) (same); Phillips v. Schoenberger, 369 Pa.Super. 52, 534 A.2d 1075 (1987) (a passenger may be held contributorily negligent for his or her failure to warn driver of impending danger); Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981) (same); Yannuzzi v. Mitchell, 260 Pa.Super. 47, 393 A.2d 1005 (1978) (same); Weaver v. Clabaugh, 255 Pa.Super. 532, 388 A.2d 1094 (1978) (passenger was found to have “assumed the risk” of injury — which the court found overlapped with standards for contributory negligence — when he accepted a ride from a driver who he should have known was unfit to drive due to intoxication); Hill v. Reynolds, 384 Pa.Super. 34, 557 A.2d 759 (1989) (a determination of whether a passenger was contributorily negligent for falling asleep in the car when both she and driver had engaged in an extended social outing was a question for the jury); see also Karchner v. Flaim, - Pa.Commw.-, 661 A.2d 928 (1995) (contributory negligence instruction warranted where both passenger and driver had been drinking prior to accident). These cases are inapposite in that they involve the passengers’/plaintiffs’ conduct as constituting contributory negligence which would bar or limit recovery. Here, however, the argument concerning the passenger’s/defendant’s conduct is offered to establish a right to recovery.

Clayton contends that liability should be imposed pursuant to section 876(b) of the Restatement (Second) of Torts, which states in relevant part: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself....” The comment to section 876(b) states in part: “If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is an intended trespass ... and when it is merely a negligent act.” Clearly we are not bound by section 876(b) of the Restatement 2d, as it has not been adopted by the Pennsylvania Supreme Court. Assuming we were required to analyze Clayton’s claim pursuant to section 876(b), there would be no duty imposed upon McCullough to guard against harm to a third person such as Clayton. While McCullough arguably was aware that Steinhoffs conduct constituted a breach of Steinhoffs duty, there are no factual averments in the complaint to indicate that McCullough gave “substantial assistance or encouragement to [Steinhoff] so to conduct [her]self[.]” Restatement 2d of Torts, § 876(b). When we view the instant circumstances in light of our standard of review, we must conclude that Pennsylvania law says with certainty that no recovery is possible under Clayton’s negligence theory. Jackson, supra. McCullough has breached no duty or obligation recognized by the law in Pennsylvania. Merritt, supra.

Clayton next asserts that McCullough is vicariously liable for Steinhoff s conduct under an agency theory. Specifically, Clayton claims that Steinhoff was acting as McCullough’s agent at the time of the accident, and, therefore, McCullough is vicariously liable for Steinhoffs conduct. Initially we note that only factual allegations in a complaint are considered to be true for the purposes of a demurrer, not the pleader’s conclusions of law. Lobdell v. Leichtenberger, 442 Pa.Super. 21, 658 A.2d 399 (1995); Waklet-Riker v. Sayre Area Education Association, 440 Pa.Super. 494, 656 A.2d 138 (1995).

We have little difficulty in disposing of this argument. Clayton’s complaint fails to allege facts establishing an agency relationship. An agency is created where there is a manifestation by a principal that an agent shall act for him, the agent’s acceptance of the undertaking, and an understanding by the parties that the principal is to be in control of the undertaking. Volunteer Fire Co. v. Hilltop Oil Co., 412 Pa.Super. 140, 602 A.2d 1348 (1992). The inquiry for actual agency focuses on the day-to-day control over the manner of the purported servant’s performance; control is the hallmark of a master-servant relationship. Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 321-22, 634 A.2d 622, 626 (1993). Agency “cannot be assumed from the mere fact that one does an act for another.” Volunteer Fire Co., 412 Pa.Super. at 146, 602 A.2d at 1351. Here, the facts averred that McCullough requested that Steinhoff drive her to the American Legion. Such a contention, in and of itself, is not sufficient to establish an agency relationship.

Because Pennsylvania law says with certainty that under these facts no recovery is possible, the trial court properly sustained McCullough’s preliminary objections in the nature of a demurrer and, accordingly, correctly dismissed Clayton’s complaint. Jackson, supra.

Order affirmed.

      . For the reasons cited above, we likewise reject Clayton’s secondary arguments relating to the Restatement 2d of Torts, namely sections 876(a) and 877 (“persons acting in concert,” and "directing or permitting conduct of another,” respectively).


author: BECK, Judge:

text:
    670 A.2d 714
    G.B. v. M.M.B., Appellant, T.B. and A.B., Minor Children.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Piled Jan. 25, 1996.

      Robert J. Fields, Waymart, for appellant.
    Kimberly D. Borland, Wilkes-Barre, for appellee.
    Brian J. Cali, Dunmore, for the minor children, participating parties.
    Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.

       This decision was reached prior to the retirement of President Judge ROWLEY from this court.

   BECK, Judge:

We granted en banc review in this case in order to clarify when orders relating to child custody will be deemed final and therefore ripe for appeal. We hold that a custody order will be considered final and appealable only after the trial court has completed its hearings on the merits and the resultant order resolves the pending custody claims between the parties.

In the instant case we conclude that the order on appeal is interlocutory. The order allowed appellee, the children’s father, periods of partial custody of his two sons pending completion of hearings on the issues of primary and partial custody. Since the court contemplated an additional hearing on the ultimate issues in the case, the appeal is premature. On September 12, 1995, we entered an order without opinion quashing the appeal. This opinion will explain the reasons for our order..

FACTUAL AND PROCEDURAL HISTORY

This is a dispute regarding the custody of two minor children, T.B., born December 6, 1977, and A.B., born November 30, 1983. The parents of the children, M.M.B. (“mother”) and G.B. (“father”), separated in May, 1994.

The numerous petitions filed by the parties to this action demonstrate a custody war fought on the battlefield of the court. In this court’s view, the parties and the children would be better' served by resolving this family matter without judicial intervention.

On May 17, 1994, father filed a complaint in divorce including a claim for partial custody and visitation. On May 31, 1994, father filed a Petition for a Temporary Order of Partial Custody and Visitation pursuant to Pa.R.C.P. 1910.15. On July 5, 1994, he filed a Supplemental Petition for Interim Order of Partial Custody and Visitation averring that he had been precluded from any contact with the two children. On July 20, 1994, a hearing was held on father’s partial custody petition.' The issue of partial custody was deferred until psychological evaluations of both parents and the children were concluded.

On November 8, 1994, father filed a Special Petition seeking an interim order to permit him partial custody of the children over the upcoming holidays. On November 15, 1994, a hearing on this petition was held. The court entered an order directing the parties to submit plans for participation in counseling and for implementation of interim partial custody, but did not explicitly decide whether father would be awarded temporary partial custody over the upcoming holidays. The court stated that its goal was to implement temporary partial custody for father prior to February 1,1995.

On January 24, 1995, father again filed a Petition for Temporary Partial Custody and Visitation. A hearing was held on January 27, 1995, on this petition as well as the plans for counseling and partial custody submitted by the parties pursuant to the court’s November 18 order. At the conclusion of the hearing, the court ordered that contact between father and the children be limited to counseling sessions for the time being, but that by March 18, 1995, father should have partial custody from 10 a.m. Saturday until 7:00 p.m. Sunday. The court also scheduled a hearing on the claims for “permanent” custody and partial custody and visitation which were initially asserted in the father’s divorce complaint.

On March 17, 1995, the court commenced the custody hearing based on the divorce complaint. The court was unable to hear all witnesses on the issue of “permanent” custody and partial custody and therefore scheduled a further hearing for May 8, 1995. At the conclusion of the day’s proceedings, however, the court entered an order modifying its previous order for overnight partial custody. The revised order limited the father’s partial custody to five hours on Saturday at a resort near Mother’s home.

Pursuant to the March 17 order, the father visited with his sons. Shortly thereafter, on March 22, 1995, counsel for the children filed an Emergency Petition for Suspension of Visitation, asserting that the visit had been unsuccessful and that further visits would not be in the boys’ best interests. On March 24, 1995, father’s counsel transmitted a Motion for Entry of Partial Custody to the court via telefacsimile. That motion was filed with the trial court Prothonotary on March 27,1995.

On March 24,1995, the trial court entered another order for partial custody. Referring to its March 17 order, but without mentioning either the Emergency Petition filed by counsel for the children or father’s Motion for Entry of Partial Custody, the court’s order granted father partial custody and visitation every Saturday from 10:00 a.m. to 6:00 p.m. beginning April 1, 1995 and continuing until further order of court. It is this March 24 order that is challenged in the instant appeal.

On March 30, 1995, mother filed a Petition to Suspend Partial Custody and Visitation which was scheduled for hearing on May 1,1995. On April 6,1995, mother filed a Notice of Appeal on behalf of herself and the two boys from the court’s March 24 order. An oral motion for stay of the March 24 order pending appeal was denied on that same date.

On April 18, 1995, father filed with this court an application to quash mother’s appeal, asserting that the trial court’s March 24 order was not a final order for partial custody and was merely one in a series of interim orders directing contact between father and the boys until further hearings enabled the court to make a final determination of the parties’ primary and partial custody rights. We denied this application without prejudice to renew the jurisdictional argument before the court en banc. Both parties have briefed and argued to us the issue of the finality of the trial court’s March 24 order.

DISCUSSION

New legal principles are as well settled as that an appeal properly lies only from a final order unless otherwise permitted by rule or statute. See, e.g., Fried v. Fried, 509 Pa. 89, 501 A.2d 211, 213 (1985); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985). Pennsylvania Rule of Appellate Procedure 341 defines a final order as:

any order that:
(1) disposes of all claims or of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as a final order pursuant to subsection (c) of this rule Tallowing the trial court, in multi-claim or multi-party actions, to enter a final order as to one or more but fewer than all of the claims or parties upon an express finding that an immediate appeal would facilitate resolution of the entire case].

Pa.R.A.P. 341(b), 42 Pa.C.S. This rule, as amended by the Pennsylvania Supreme Court in 1992, has made it clear that an order is not final and appealable merely because it decides one issue of importance to the parties. Rather, for an order to be final and ripe for appeal, it must resolve all pending issues and constitute a complete disposition of all claims raised by all parties.

The matter before us, like many custody actions, was initiated by inclusion of a count for custody in father’s complaint in divorce. A strict reading of Rule 341 might therefore suggest that the trial court’s determination of custody will not be final until the divorce action and all other ancillary claims have been resolved. However, the language of Rule 341 does not explicitly address the rule’s applicability to custody matters, which have traditionally been subject, to procedures differing from those in other civil actions. Moreover, the official note accompanying the 1992 revision of Rule 341 does not list orders for custody among the types of matters affected by adoption of the rule. Note, Pa.R.A.P. 341, 42 Pa.C.S. Considering the policies underlying custody determinations, it is unlikely that the Supreme Court in promulgating revised Rule 341 intended to change existing law regarding the appealability of orders in custody matters. We conclude that the strict language of the rule does not apply to bar immediate review of a trial court’s final custody determination.

In support of our conclusion, we note that a custody action may not only be brought as a count in a divorce action, it may also be initiated in a separate complaint independent of a divorce action. See 23 Pa.C.S. § 3104; Pa.R.C.P. 1915.3. An independently asserted claim for custody would become final after the trial court decided the ultimate issue relating to custody. The principles established to define finality for custody orders' must be the same whether the action is brought as a count in a divorce complaint or in a separate custody complaint. Therefore, Rule 341 cannot appropriately be applied to a custody action brought as a count within the wider context of a divorce action.

There are important policy reasons to analyze the finality of custody orders differently from other civil court orders. Child custody orders are treated differently because they have significant, important and immediate impact upon the welfare of children. The state has a singular interest in families, and especially in children. Therefore, custody procedures have attempted to be especially responsive to the needs of families and children. A principal part of that responsiveness has been the prompt and comprehensive review of custody determinations.

In order to arrive at a workable standard for appealability, we review the case law as well as the underlying principles of finality in child custody matters. In doing so, we study not only the language of the particular order under review, but also the point in the proceedings at which the order is entered and the intended effect of the order upon further proceedings between the parties.

In Parker v. MacDonald, supra, we examined an order, entered after a full hearing on all issues relevant to custody, which directed a schedule for shared custody by the parties and stated that the court would entertain an application for review of those arrangements several months in the future in order to consider arrangements for the child’s enrollment in school. We held that the language making the order open to further review did not defeat the finality or appealability of the order because the order completely disposed of the parties’ rights to custody unless and until a petition for reexamination of custody was filed by one of the parties. We concluded that the language of the trial court’s order merely made explicit what is always implicit in a custody order — the availability of modification upon a proper showing by the parties — and hence that the finality of the order, which otherwise constituted a complete resolution of the parties’ dispute, was not vitiated. Id. at 558, 496 A.2d at 1247.

Similarly, in Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983), this court found final an order which resolved the ultimate issue of custody in an action between a mother and her parents. The order was entered after the completion of hearings on the issues relevant to custody and directed that custody of the children, who had resided with the maternal grandparents for several years, should be transferred to their mother. However, the order also directed that the transfer of custody be delayed pending further studies of the children in both parties’ homes and the court’s formulation of a plan for implementation of the transfer of custody. We held that the order in question finally resolved the ultimate issue between the parties, namely, whether custody should be transferred to the children’s mother. We noted that the further proceedings contemplated by the court were not designed to allow reconsideration of its determination, but rather to implement that determination in a way that would minimize the traumatic impact of the change in custody upon the children. Accordingly, we concluded that the fact that details of implementa tion of the order remained to be worked out did not vitiate the finality of the court’s determination. Id. at 487, 464 A.2d at 426.

In contrast, in Williams v. Thornton, 395 Pa.Super. 276, 577 A.2d 215 (1990), we examined an order entered in response to an emergency petition for custody filed during the pendency of a father’s petition to vacate a previous award of custody to a third party. The order determined the parties’ rights to primary and partial custody pending resolution of father’s petition to vacate custody and directed that the petition to vacate proceed through the normal pretrial and trial processes of the court. We held that the order was interlocutory and that the appeal should be quashed, noting that the order was entered prior to a full hearing on the ultimate custody issues and concluding that it was intended only to determine the parties’ relations during the pendency of the custody litigation, not to resolve the ultimate issues central to the parties’ dispute. Id. at 279, 577 A.2d at 217.

. In Sawko v. Sawko, 425 Pa.Super. 450, 625 A.2d 692 (1993), we touched upon the issue of finality in a situation which presented a middle ground between Parker, supra, and Cady, supra on the one hand (where the order appealed from was entered after a full hearing and was intended to constitute a determination of the ultimate issues between the parties) and Williams, supra on the other (where the order appealed from was entered before a full hearing and was intended to determine the parties’ rights only during the pendency of the litigation).

Sawko involved an appeal from an order entered in response to a mother’s petition to modify an order entered five weeks earlier which awarded primary custody to her child’s father. The trial court conducted a hearing on the petition to modify at which both parties were permitted to put on as much evidence as they wished. At the conclusion of the hearing, the court entered an order which denied the petition to. modify primary custody but increased the mother’s partial custody rights and scheduled an additional reviéw hearing about four months in the future. This court noted, without elaboration, that the order was interlocutory and that mother’s appeal therefrom was premature and subject to quashal. Id. at 458, 625 A.2d at 696.

The reasons for’this conclusion are clear. Although the court’s order was entered after a full hearing, it clearly was not intended to constitute a complete resolution of the issues pending between the parties. Unlike the order in Parker, supra, or Cady, supra, the trial court’s order did not' completely resolve the issues raised by the parties unless and until further proceedings were iñitiated by a party. Rather, the Sawko court’s order, although declining to grant the ultimate relief sought by the petitioner-mother, made an adjustment in its previously ordered cústody arrangement and scheduled a further review of the matter. By scheduling further review for a date certain rather than leaving it up to the parties to seek such review, the trial court made it clear that the ultimate issues between the parties remained under consideration. The court’s order was merely intended, in light of the brief time period between its initial custody order and the petition for modification, to allow the court more time to study the effects of the ordered arrangement upon the child and to make a final determination at a later date as to whether a modification of primary custody would be in the child’s best interest.

Based on the case law cited above and the important policy concerns implicated in custody proceedings, we hold that a custody order will be considered final and appealable only if it is both: 1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties., We conclude that this holding will protect the child from the protraction of custody litigation through repetitive appeals while still allowing prompt and comprehensive review of custody determinations. It will also support judicial economy and efficiency and uphold the integrity of the trial court’s process in deciding custody matters. On the one hand, to permit piecemeal appeals subjects, the child to the uncertainties of ongoing litigation. A custody proceeding, whether on the trial or the appellate level, threatens a child’s stability. On the other hand, a custody decision once finally made must be subject to review. Drawing a bright line by which finality may be determined will encourage judicial economy and efficiency by making it clear both to litigants and to trial courts when the appellate process may properly be invoked. Our holding also serves to uphold the integrity of the trial process by not interfering with the trial court’s efforts to craft a final decision and by not permitting premature challenges to those efforts. In striking a balance between postponing and granting an appeal, we have attempted to serve primarily the best interests of the child.

Applying the rule of finality defined above to the instant case, it is clear that the trial court’s March 24 order is not final. The trial court’s order was entered before it had completed hearings on the merits. Although father had presented his evidence in support of his petition for partial custody, mother had not yet had the opportunity to put on her case in opposition to the petition. Moreover, at the time of entry of the March 24 order, the trial court had already scheduled a date for continuation of the hearings on partial custody.

Nor was the March 24 order intended to constitute a complete resolution of the ultimate issues between the parties. The order clearly stated that the periods of weekend partial custody were to continue only until further order of the court. Moreover, the order was entered pursuant to the court’s prior order of March 17, which indicated that temporary orders for visitation would be entered periodically until the scheduled hearing on May 8. Read in the context of the procedural history of this case, it is clear that the March 24 order was subject to further review at a date certain. It is also clear that the order was not intended to constitute a complete resolution' of the parties’ dispute regarding partial custody. Rather, it was designed to order the parties’ relations during the pendency of the custody litigation and to allow the court to assess the effect of the interim visits upon the children and thus better determine their best interests in making its decision on the ultimate issues in the case. As the order in question was neither entered after the conclusion of all hearings in the matter nor intended to constitute a complete resolution of the ultimate issues between the parties, it is clearly interlocutory.

Appellants assert that even if the March 24 order is not final, it should be appealable as a collateral order under Rule of Appellate Procedure 313. Pa.R.A.P. 313, 42 Pa.C.S. Rule 313 is based upon long-standing Pennsylvania case law engendered by the decision of the United States Supreme Court in Cohen v. Beneficial Industrial Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). It allows an appeal as of right from a collateral order of an administrative agency or lower court. Subsection (b) of the rule defines a collateral order as

an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313(b), 42 Pa.C.S.

Appellants argue that the trial court’s March 24 order is a collateral order as defined by Rule 313. They assert that because previously ordered visits have been unsuccessful, such visits place the children at risk of psychological and possible physical harm. Based on the assertion of risk to the children’s welfare if further visits take place, appellants argue that the children’s right to avoid such risk is too important to be denied review, and that if review is postponed until final judgment, the children may be irreparably damaged.

We agree with appellants that the trial court’s order touched upon important rights of all parties — the children’s right to be protected from potentially harmful situations, the mother’s right to protect her children from contacts she perceives as harmful, and the father’s right not to be foreclosed from contact and communication with his children. However, appellants do no more than make a bald assertion that the trial court’s interim order for immediate partial custody dealt with a matter separable from and collateral to the main cause of action for partial custody. They do not demonstrate how this is so, nor do they cite any authority for the proposition that an interim order for partial custody is collateral to a pending action for custody.

In Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701 (1991), as part of our review of a trial court’s disposition of a father’s petition for modification of custody, this court reviewed an earlier interim order denying father’s petition for a writ of ne exeat to prevent removal of his child from the state by its mother, who had primary custody under a prior agreed order. In response to the mother’s argument that we should not review the interim order because father should have sought immediate interlocutory review under the collateral order doctrine, we held that father’s arguments regarding the interim order were correctly raised in the appeal from the final order disposing of the petition for modification. The panel of this court reasoned that the earlier order was not appealable because, although the father’s right to contact with his child was extremely important, the order was not separable from and collateral to the main cause of action. Rather, we held, the issue of where the child should live during the pendency of the proceedings on the petition to modify was “intertwined with the issue of which parent should maintain custody over the minor child.” Id. at 149, 597 A.2d at 704.

Here, as in Plowman, supra, the interim order of which appellants seek review is one which is intertwined with the ultimate issue in the case — whether Father should be granted partial custody of his two sons. Such an order is an integral part of the trial court’s progress towards a decision of the ultimate issues in the case and thus cannot be viewed as either separable from or collateral to proceedings in the main cause of action. Accordingly, review of the interim order must await the entry of a final order disposing of Father’s petition for partial custody.

CONCLUSION

After thorough review of the record in this case and careful consideration of the applicable law, we are compelled to conclude that the order under appeal is not a final order and that it is not an appealable collateral order. As the order does not fall within any category of orders otherwise made appealable by statute or rule, we have concluded that we have no jurisdiction to review it. 42 Pa.C.S. § 741 (superior court has jurisdiction of appeals from final orders of the courts of common pleas). Accordingly, we entered the order of September 12, 1995, quashing the appeal.

Appeal quashed.

      . We note that after the entry of our order quashing this appeal, but prior to the filing of this opinion, the parties' elder son, T.B., attained the age of 18. As a result, the trial court’s order no longer applies to him.

      . Although the trial court used the term "permanent custody and visitation” to differentiate proceedings on Father’s primary petition for partial custody from proceedings on the parties’ various requests for emergency or interim relief, it is axiomatic that no custody order is permanent. All custody orders are subject to modification upon a showing that a change in current custody arrangements would be in the child's best interest. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973).

      . The March 17 order provided:
      NOW TO WIT, this 17th day of March, 1995, the court hereby modifies its order of January 27, 1995, as to Paragraph 4 in that on March 18, 1995, there will be five (5) hours of partial custody and visitation by [G.B.] with his two sons, [T.B. and A.B.] at the Shadow Brook Resort, Tunkhannock, Pennsylvania, beginning no later that [sic] 12:00 Noon on said date. The court will further make orders as to visitation to occur on a weekly or bi-weekly basis until the court hearing of May 8, 1995, at 9:00 A.M. The children are to be delivered to Shadow Brook Resort.

      . The March 24 order provided:
      NOW TO WIT, this 24th day of March, 1995, the Court having represented in the order of March 17, 1995, that it would make further orders as to visitation between the children and the father, the Court orders as follows:
      [G.B.] shall have partial custody and visitation with his two minor children, [T.B. and A.B.], every Saturday from 10:00 A.M. until 6:00 P.M. with the young men being transported from their mother’s place of residence to the Big Boy Restaurant in Clarks Summit, Pennsylvania, and picked up at the same location by their father for the purposes of visitation. Subsequent to the visitation by the father he is to return them to the Big Boy Restaurant in Clarks Summit at which time the mother will regain physical custody.
      We further order that [M.M.B] do no acts to dissuade the young men from acting appropriately with their father and in [sic] engaging in meaningful and rational visitation.

        Said visitation is to begin on Saturday, April 1, 1995, and to continue thereafter until further order of this Court.

      . The Emergency Petition filed by counsel for the children was withdrawn after this appeal was taken. The trial court never explicitly ruled upon father's Motion for Entry of Partial Custody.

      . A supersedeas was subsequently granted by this court on April 7, 1995.

      . The provisions of subsections (b)(3) and (c) of Pa.R.A.P. 341, relating to multi-party or multi-claim litigation, are not applicable to this matter, which involves only father’s claim for partial custody and visitation. Father’s requests for interim partial custody and visitation during the pendency of hearings on his initial petition for "permanent” partial custody and visitation did not constitute separate claims or causes of action.

      . Although we decide the application of Rule 341 only to custody matters, our analysis may also be applicable to other types of domestic relations orders, such as child support orders, which have traditionally been viewed as final even when entered in the context of a pending divorce action.

      . Pennsylvania's appellate courts have acknowledged that the finality of custody orders is analyzed differently from other civil orders.
      [C]ustody orders are unique and never final. In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983). Child custody orders are temporary in nature and always subject to change if, new circumstances affect the welfare of a child. Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 188 A.2d 475 (1962). The Commonwealth has a duty of paramount importance, to protect the child's best interests and welfare. To that end, it may always entertain an application for modification and adjustment of custodial rights. Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973).

        Parker v. MacDonald, supra at 558, 496 A.2d at 1247.

      . This court’s decision in Belan v. Belan, 399 Pa.Super. 458, 582 A.2d 684 (1990) is completely consonant with Parker, supra and Cady, supra. In Belan, the parties had entered into a custody agreement which gave primary custody of the parties' child to her mother, but provided that if the mother was unable to provide an appropriate home environment, custody of the child would be transferred to the father. Approximately two years later, the father filed a petition to modify custody, asserting that the child’s mother was not providing a proper home environment. After a complete hearing on the claim for modification, the trial court entered an order directing that the provision of the agreement providing for transfer of custody to the father “temporarily be in force and effect.” Id. at 462 n. 2, 582 A.2d at 686 n. 2. The panel deciding Belan did not explicitly address the issue of the appealability of the order in light of its language suggesting that the transfer of custody might be temporary. However, in addressing the father-appellant's argument that the court erred in including such language because the agreement intended the transfer of custody to be permanent, the panel found that the use of the word “temporarily” had no effect upon the order’s effectiveness as a complete resolution of the parties' dispute. Like the panel in Parker, supra, the Belan panel recognized that custody orders are, in a sense, always temporary and subject to modification upon an appropriate showing by the parties. The panel concluded that the trial court’s order was intended to transfer custody to the father unless and until the trial court determined otherwise upon consideration of a petition by the parties and thus that it was no more temporary than any other custody order. This reasoning also clearly renders the order final and appealable under the holdings of Parker, supra, and Cady, supra.

      . We emphasize that by requiring a complete resolution of pending claims, we refer to. a resolution of the core substantive issues underlying the parties’ custody dispute. The fact that details regarding implementation of the court’s custody order remain to be worked out, as in Cady v. Weber, supra, or that subsidiary interim petitions of the parties may not explicitly have been disposed of will not render a custody order interlocutory so long as the order decides the ultimate substantive question — the parties’ respective rights to custody, partial custody or visitation unless and until further proceedings are initiated by petition of one of the parties.

      . In two custody decisions by panels of this court, the panel opinions include language which could be interpreted as suggesting that interim orders entered prior to the final custody orders under appeal could or should have been appealed.
      In Boylan v. Boylan, 395 Pa.Super. 280, 577 A.2d 218 (1990), the panel reviewed a final order awarding primary custody to the mother of the parties' four children. Among the arguments raised by the appellant-father was the claim that he was denied due process of law when the mother was awarded temporary custody of the children based on an emergency petition filed during the pendency of the main custody proceedings. The Boylan panel declined to address the merits of the emergency petition because the appeal was taken from the final order. However, the panel did not make clear whether it did so on the basis that the temporary custody order was independently appealable and the father's challenge to the order was therefore waived or on the basis that the father’s challenge to the award of temporary custody was rendered moot by the subsequent entry of a final custody order after full hearings. To the extent that the opinion can be read to support the former proposition, we overrule it because the temporary custody order clearly did not meet the standards of finality established in our case law and summarized in our decision today.
      Similarly, in M.C. v. R.W., 398 Pa.Super. 183, 580 A.2d 1124 (1990), a panel of this court reviewed a final order denying a mother’s emergency petition for modification of custody based on allegations of abuse by the child's father, who had partial custody rights. In response to the mother’s petition, the trial court had entered an emergency order restricting the father to supervised visitation with the child’pending further hearings on .the petition to modify custody. This emergency order was later vacated based upon a finding by Children and Youth Services that the allegations of abuse were unfounded, and a further hearing was scheduled. Mother subsequently filed a second emergency petition for modification of custody based on new allegations of abuse, which again prompted a temporary vacation of the father’s partial visitation rights pending further hearings. After hearings, the trial court entered the final order denying the mother's petition and restoring the father’s partial visitation rights from which the appeal was taken. In recounting the procedural history of the appeal before them, the panel of this court noted, without further comment, that the mother had not appealed the prior order which vacated the first emergency order for supervised visitation and scheduled further hearings in the matter. The panel did not expressly conclude that such order was final or appealable, and we must conclude that under the case law we have discussed above it clearly was neither. Thus to the extent that an implication could be drawn from the panel’s opinion that the first order restoring the father’s partial custody rights was final and appealable, it is overruled.

      . We recognize that in Walker v. Walker, 362 Pa.Super. 75, 79 n. 4, 523 A.2d 782, 784 n. 4 (1987), we held that an interim order directing an adult mentally retarded woman to comply with an established schedule for visitation with her mother during the pendency of proceedings pursuant to the mother’s petition for contempt against the woman's father was immediately appealable under the collateral order doctrine. There, however, the question which we found separable from and collateral to the main cause of action was whether a mentally retarded adult had the right to make her own decisions about visitation rather than being bound by an order entered in a custody action between her parents. Because appellant, the adult subject of the order, was not a named party to the original action for contempt but was nevertheless compelled to comply with the court’s order, her claim was clearly collateral to and separable from the main cause of action, which involved the question of her father’s compliance with previous court orders. Our decision in Walker is thus distinguishable from that in Plowman, supra and from that we reach today.