author: POPOVICH, Judge: KELLY Judge,

text:
    547 A.2d 387
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph OGLIALORO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1987.
    Filed Sept. 1, 1988.

      Ronald H. Elgart, Levittown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before BECK, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Joseph Oglialoro, after he was convicted by a judge, sitting without a jury, of certain drug offenses. These offenses are possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia.

Appellant contends that the helicopter search which was conducted by the police was illegal because it interfered with appellant’s reasonable expectation of privacy. Appellant also contends that his pretrial motion to suppress should have been granted, and the fruits of the illegal search should have been suppressed. We agree and must reverse the judgment of sentence and grant a new trial.

The standard of review which governs a ruling on a motion to suppress has been set forth below:

In reviewing a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom. In determining whether the record supports the court’s findings of fact, we must accept the Commonwealth’s evidence and so much of the evidence of the defense as, fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Weik, 360 Pa.Super. 560, 562, 521 A.2d 44, 45 (1987); Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982).

Commonwealth v. Lemanski, 365 Pa.Super. 332, 342-343, 529 A.2d 1085, 1089 (1987).

In the instant case, the factual findings of the suppression court are supported by the record; however, we are unable to agree with the legal conclusions drawn from that record. The factual findings of the suppression court consisted of the following:

Appellant is the owner of a certain tract of land located in a rural area in Bucks County which tract contains, inter alia, the dwelling of defendant and his family and the pole-barn in which the marijuana was discovered. (N.T. pp. 85-86). Appellant’s property is bounded by Durham Road on one side, and by trees and shrubs on the other three sides. (N.T. pp. 89-90 and Exhibit DS-8). A fence extends along the rear of half of one side. (N.T. p. 89). The pole-barn which contains the marijuana is located at the rear of appellant’s property, approximately 446 feet from the road, and 251 feet from defendant’s residence. (N.T. pp. 87-88). It is a windowless wooden structure, known as a “pole-barn”, (N.T. pp. 7, 21) and measures approximately 31 feet by 48 feet. (N.T. p. 88). The material used to construct the barn’s roof is a clear plastic-type substance. (N.T. pp. 7, 21; Exhibit DS-26). However, it appears somewhat milky and translucent due to the fact that it is corrugated and is molded into rippled, rather than smooth, sheets.
On October 11, 1985, Pennsylvania State Police at the Trevose Barracks received an anonymous telephone tip, allegedly from a private aircraft pilot, reporting the presence of marijuana in the defendant’s pole-barn. (N.T. p. 15). Acting on the tip, three police officers flew over the premises in a State Police helicopter on October 16, 1985. (N.T. pp. 33, 15). The day was bright and sunny. (N.T. p. 40). The helicopter initially flew over appellant’s property at a height of approximately 500 feet above the appellant’s barn. However, the police were unable to ascertain the barn’s contents at that altitude and therefore reduced their altitude to approximately 50 feet over the barn. (N.T. pp. 23-24). The police were not using any visual aids to assist their observations. (N.T. pp. 33, 47). While hovering at 50 feet, police observed the tops of plants which were pressed against the barn’s roof, and which clearly matched the color, size and configuration of marijuana. (N.T. pp. 24, 56-57). The police helicopter hovered at a height of 50 feet for approximately 15 seconds and made a total of three or more passes over defendant’s property, lasting approximately five minutes. (N.T. pp. 25, 32, 45). Appellant’s wife was present in the home at the time. (N.T. p. 93). She experienced various sensations caused by the helicopter’s proximity, such as loud noise, and vibration of the house and windows. (Id.) After clearly identifying the marijuana from an altitude of 50 feet over the barn (N.T. pp. 63-64), the helicopter returned to the State Police Barracks. On the basis of the officers’ aerial observations, the local police chief proceeded to obtain a search warrant (N.T. pp. 25-26), while other officers drove to the site to secure the property in the interim. (N.T. p. 26).
The officers participating in the aerial viewing had significant training and experience in the detection of marijuana. (N.T. pp. 29-30, 55). Marijuana has a precise and identifiable growing configuration (N.T. p. 30), and grows in a distinctive color, distinguishable from other vegetation growing in Pennsylvania. (N.T. pp. 47-48, 58-60). From an altitude of 500 feet it was possible to observe through the barn roof a color identical to the color of growing marijuana plants. (N.T. p. 39). At 50 feet, it was possible to identify, clearly as marijuana the leaves of a plant which were pressed against the barn roof. (N.T. p. 39). In general, it was possible to observe objects inside the barn through the roof, especially if the object was positioned close to the roof. (N.T. p. 39). When the search warrant arrived, the police forcibly entered the barn and observed 91 very large marijuana plants. (N.T. p. 9, Exhibits CS-3, 13). The plants appear to have ranged in height between 12 and 18 feet tall, and some were stooped over and pressed against the barn’s roof. (Exhibits CS-3, 13). Trial Court’s Opinion pp. 1-4.

With these facts in mind, the inquiry becomes whether appellant had a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J. Concurring). Accord California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986).

There is no doubt that appellant had a subjective expectation of privacy since he did take precautions to maintain privacy. Further, a review of the law in this area reveals that appellant’s subjective expectation is one that society is prepared to recognize as reasonable. Katz, supra.

The case of People v. Sabo, 185 Cal.App.3d 845, 230 Cal.Rptr. 170 (1986), cert. denied, California v. Sabo, — U.S. —, 107 S.Ct. 2200, 95 L.Ed.2d 855 (1987) is instructive in our analysis.

In Sabo, the police observed marijuana plants growing inside a 15' x 10' greenhouse which was located in a defendant’s backyard during a routine helicopter patrol mission.

The helicopter was hovering at 400-500 feet during the time of the observation. Several roof and side panels were missing from the structure, and a tall pine tree and heavy vegetation inhibited a direct view into the greenhouse. A search warrant was issued, and marijuana was seized during the search.

The California Court of Appeals concluded that the helicopter “views from non-navigable airspace of the marijuana glimpsed through the missing panels of the greenhouse constituted an invasion of privacy, and the seizure of the contraband under the warrant issued pursuant to the helicopter viewing violated respondent’s Fourth Amendment rights.” Id. at 854, 230 Cal.Rptr. at 176.

The California Court distinguished two United States Supreme Court cases, both decided on the same day, California v. Ciraolo and Dow Chemical Co. v. The United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), which had concluded that no Fourth Amendment violations had occurred when the police observed activity from aircraft which had been flying within navigable airspace.

In Ciraolo, the marijuana was growing in a defendant’s backyard and had been observed from a helicopter which was flying from a 1,000 foot altitude. The United States Supreme Court recognized that the defendant’s field was within the curtilage because it was immediately adjacent to the suburban home and was surrounded by high double fences.

The Ciraolo court, however, said:

The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectation are most heightened.

Id., 476 U.S. at 212-213, 106 S.Ct. at 1812, 90 L.Ed.2d at 216.

The court in Ciraolo concluded that the defendant’s expectation of privacy was unreasonable and “is not an expectation that society is prepared to honor.” Id. at 214, 106 S.Ct. at 1813, 90 L.Ed.2d at 217 (footnote omitted). The Court succinctly set forth its rationale:

The observations by Officers Shutz and Rodriquez in this case took place within public navigable airspace, see 49 U.S.C.App. § 1304 [49 U.S.C.S.Appx. § 1304], in a physically nonintrusive manner; from this point they were able to observe plants readily discernable to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.

Id.

In Dow Chemical v. United States, supra, the United States Supreme Court concluded that the taking of aerial photographs by the Environmental Protection Agency of Dow’s chemical plant and facilities from an altitude of 2,000 feet did not implicate the Fourth Amendment.

The Court made the following conclusions:

... the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the “curtilage” of a dwelling for purposes of aerial surveillance; such an industrial complex is more comparable to an open field and as such it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.

Id., 476 U.S. at 239, 106 S.Ct. at 1827, 90 L.Ed.2d at 238. (footnote omitted).

By comparison, People v. Sabo distinguished both Ciraolo and Dow. In Sabo, the California Court of Appeals noted that in Ciraolo, the marijuana was “easily visible to an observer from a fixed wing aircraft flying at 1,000feet in navigable airspace." People v. Sabo, 185 Cal.App.3d at 850, 230 Cal.Rptr. at 172. However, in Sabo, the greenhouse “was visible only to an eye in a circling helicopter positioned such as to enable a peek at the pot through the gaps.” Id.

In discussing Dow, the California Court said that Dow had failed to “make any effort to protect against aerial surveillance” because there were open areas and no enclosed structures. Id. at 850, 230 Cal.Rptr. at 173. The Sabo Court also found crucial, a footnote which appeared in Dow which said the following:

“We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.”

Id. (Quoting Dow, 476 U.S. at 237 n. 4, 106 S.Ct. at 1826 n. 4, 90 L.Ed.2d at 237 n. 4.)

Clearly, Ciraolo and Dow authenticate aerial surveillance taken within navigable airspace. Under 49 U.S.C.App. § 1304, a public right of transit exists through navigable airspace. The term “navigable airspace” is defined as that altitude above the minimum prescribed by the Civil Aeronautics Board. 49 U.S.C.App. § 1301(29).

The minimum safe aviation altitudes are set forth in 14 C.F.R. § 91.79 as follows:

Minimum safe altitudes; general.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas. Over any congested area of a city, town, or settlement, ... an altitude of 1,000 feet above the highest obstacle____
(c) Over other than congested areas. An altitude of 500 feet above the surface except over open water or sparsely populated area. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraphs (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface____

In the case before us, the officers, hovering in the helicopter at 500 feet, were unable with the naked eye to ascertain the contents of the pole barn. Consequently, they descended to 50 feet in order to gain a much improved view. Although the trial court specifically found that the pole barn was located within the curtilage, the court concluded that appellant forfeited his right to privacy because the roof which appellant had installed was essentially a “window facing skyward.” Trial Court’s Opinion at 8. Additionally, the trial court concluded that, although federal regulations restrict general air traffic to 500 feet, there was a “regulatory exception to the 500 feet restriction for law enforcement purposes.” Id. at 7.

We are unable to agree with the trial court. In our view, the case before us is similar to People v. Sabo, supra, and, in fact, presents an even stronger case for suppression. We find that the legal principle enunciated in Sabo is persuasive and is also controlling here. Although the federal regulations state that a helicopter may operate at less than minimum altitudes so long as no hazard results, 14 C.F.R. § 91.79(d), “it does not follow that such operation is conducted within navigable airspace.” People v. Sabo, 185 Cal.App.3d at 852, 230 Cal.Rptr. at 174 (footnote omitted). If a helicopter hovering below the minimum altitudes specified in 14 C.F.R. § 91.79 is operated safely and does not constitute a hazard to persons or property on the ground, the aircraft is lawfully operated. However, a helicopter lawfully operated below the specified minimum levels is not in navigable airspace. See Sabo, 185 Cal.App.3d at 852, 230 Cal.Rptr. at 174-175. Sabo persuades us to conclude that merely operating a helicopter in a legal fashion does not automatically legitimize observations made therefrom.

In Ciraolo and Dow, the Supreme Court concluded per se that observation from an aircraft in navigable airspace is not an invasion of a reasonable expectation of privacy. Accordingly, if the observation is made from a helicopter operated in a lawful manner and hovering within navigable airspace, then the naked-eye aerial surveillance per se validates the search under the Ciraolo-Dow rationale. However, if the observation is made from a helicopter operated in non-navigable airspace (below the levels specified in 14 C.F.R. § 91.79), then the observation is overly intrusive and violates the Fourth Amendment, even when the helicopter is operated in a lawful manner. Sabo, supra.

Instantly, we recognize that the helicopter was not hovering in navigable airspace at the time of their observation of contraband. Likewise, the Sabo court concluded that the helicopter was flying in nonnavigable airspace, distinguishing the case before it from Ciraolo and Dow. The Sabo court said:

Finally, our conclusion recognizes the reality of helicopter aerial surveillance. To say any sighting from a helicopter in nonnavigable airspace validates a search warrant sanctions a broad range of aerial acrobatics performed in lawful manner but admittedly intrusive, such as an interminable hovering, a persistent overfly, a treetop observation, all accompanied by the thrashing of the rotor, the clouds of dust, and earsplitting din. Views from navigable airspace are far removed from the situs observed. The lawfully operated helicopter need stand back only such distance as not to hazard persons or property.

Id. at 854, 230 CaLRptr. at 175.

Because appellant had a constitutionally protected expectation of privacy from intrusion by the police which occurs through aerial observation from nonnavigable airspace, the seizure which resulted pursuant to the warrant violated appellant’s rights under the Fourth and Fourteenth Amendments. Hence, the items which were seized and the photographs which were taken were the products of an illegally obtained search warrant.

Further, the plain view doctrine cannot justify the police officer’s view of the pole barn. Because the pole barn is situated within a constitutionally protected area, the police officer’s intrusion was not justified and cannot be an inadvertent view under the plain view doctrine. See Commonwealth v. Lemanski, 365 Pa.Super. at 351, 529 A.2d at 1094 (1987).

In conclusion, we hold that the evidence obtained as a result of the illegal search should have been suppressed. The judgment of sentence is reversed and a new trial is granted.

KELLY, J. filed a concurring opinion.

KELLY Judge,

concurring:

I concur in the result. I agree that the act of hovering in a helicopter at an altitude of 50 feet within 251 feet of a residential building was under the circumstances of this case an unreasonable encroachment upon the vertical curtilage of appellant’s home and his reasonable expectations of privacy within that zone; and therefore, observations from that vantage did not come within the plain view exception. See generally California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986).

I am concerned, however, that the majority opinion may be read to preclude any helicopter surveillance conducted at altitudes of less than 1000 feet (i.e. the distance approved in Ciraolo. In People v. Sabo, 185 Cal.App.3d 845, 230 Cal. Rptr. 170 (1986), cert. denied — U.S. —, 107 S.Ct. 2200, 95 L.Ed.2d 855 (1987), the California appeals court held unconstitutional and suppressible observations made from a helicopter hovering briefly at an altitude of 400-500 feet. The structure being observed was located an unspecified distance from a residence in a suburban back-yard. Even assuming that Sabo was correctly decided, it’s broad dictum that observations from levels below those specified in 14 C.F.R. § 91.79 (1000 feet in congested areas, 500 feet in non-congested areas) are per se unreasonable is not justified by the Ciraolo or Dow Chemical Co. decisions.

The question of precisely how far horizontal and vertical curtilage extends is problematic. I am unaware of any case, ancient or modern (other than Sabo, of course), which has attempted to delineate in definitive distances the minimum or maximum bounds of horizontal or vertical curtilage. Given the heightened significance of the ancient concept of curtilage in modern Fourth Amendment jurisprudence, we will no doubt be called upon to apply that feudal concept in the strikingly non-feudal context of urban and suburban housing, as well as in cases such as the instant one involving the distinctly modern concept vertical privity. Difficult as the adaptation of the concept may be, I am not inclined to forego development via the case by case common law method in favor of the expedient alternative of adopting agency or statutory distances set for entirely separate purposes. If 14 C.F.R. § 91.79 were amended to alter the specified altitudes, would the constitutionally protected parameters of vertical curtilage be likewise altered ipso facto? Can state or federal legislators or administrators conclusively define curtilage for constitutional purposes? I think not.

Moreover, not all entries upon the curtilage of private property are unreasonable. See Commonwealth v. McKiernan, 337 Pa.Super. 403, 487 A.2d 7 (1985) (police officer’s trespass on private land was reasonable in order to investigate possible shooting and to speak with particular person though to be present at the property and the evidence obtained while trespassing was therefore admissible, collecting cases); Commonwealth v. Shannon, 320 Pa.Super. 552, 467 A.2d 850 (1983) (police officer’s entry into curtilage area was reasonable in response to a “flight in progress” radio report, the evidence obtained while trespassing was admissible); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980) (police officer’s approach to apartment, then “consensual” entry into apartment was reasonable in response to anonymous tip of an abduction in progress, the evidence obtained while trespassing was admissible); Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1976) (police officer’s entry in curtilage area was reasonable to retrieve black bag suspiciously discarded or hidden by suspect in a doghouse, the evidence obtained while trespassing was admissible); accord People v. Houze, 425 Mich. 82, 92 & n. 1, 387 N.W.2d 807, 811 & n. 1 (1986) (police officer’s entry into curtilage area to look into a garage through a window was reasonable to investigate anonymous tip concerning a stolen car, collecting cases); Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979) (police officer investigating an anonymous tip that a stolen truck was in a particular garage, who could not see into garage from street, reasonably walked up to driveway to look into the garage, and, therefore, was lawfully in a position to see the stolen truck in the garage when the garage door was opened); I LaFave, Search & Seizure, § 2.3 at 378-423 (2nd Ed.1987). Indeed, “the presence or absence of an accompanying trespass is merely a factor to consider in determining the reasonableness of a visual intrusion.” Commonwealth v. Soychak, 221 Pa.Super. 458, 464, 289 A.2d 119, 122 (1972).

With respect to visual observations from helicopters, I am not willing to embrace Sabo’s broad per se proscriptions. Rather, I would consider the totality of the circumstances, including the hour of day the observation occurs, the altitude at which the observations are made, the duration of the surveillance (including successive passes over the property); the distance between any residential structure and the helicopter, and the reason for and purpose of the surveillance, in determining whether the police were reasonably (lawfully) situated at the vantage point from which the observation were made. Here, review of those factors compels the conclusion that the encroachment was unreasonable.

Lamentably, it appears that the same observations could easily have been obtained lawfully. The initial tip regarding the marijuana came from an anonymous informant who was presumably the pilot of a fixed wing aircraft. In order to corroborate the tip, the police conducted the challenged helicopter surveillance. Inexplicably, the police attempted to make their observations with their naked eyes rather than with the lawful assistance of ordinary binoculars. Cf Commonwealth v. Williams, 494 Pa. 496, 500, 431 A.2d 964, 966 (1981) (though observations through a “Startron” night scope were unreasonable under the circumstances, observations with ordinary binoculars were not); Common wealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970); cert denied 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971) (observations through ordinary binoculars were reasonable); see also Nicholson, Mechanically Aided Observations Under Fourth Amendment, 11 Search and Seizure L.R. 1, 1-7 (1984). Had binoculars been used, the descent from public airspace into the vertical curtilage of appellant’s private property would probably not have been necessary. This hindsight is not offered as a reproach to the police, I note this fact only to highlight the fact that our decision in this case need not unduly hamper reasonable narcotics enforcement efforts in future cases.

      . Instantly, the lower court failed to cite any authority for this legal proposition. However, we will assume the lower court was referring to 14 C.F.R. § 91.79(d).

       I note that I place no reliance whatsoever upon the majority opinion of the divided panel in Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    547 A.2d 393
    Lawrence R. HALLER, Appellant, v. Mary M. HALLER.
    Superior Court of Pennsylvania.
    Argued June 28, 1988.
    Filed Sept. 6, 1988.

      James E. Richardson, Whitehall, for appellant.
    William L. Koslosky, Easton, for appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   TAMILIA, Judge:

Appellant father appeals a September 2, 1987 Order which granted primary physical custody of the parties’ two minor children to appellee mother, and directed that father be given liberal visitation rights. The facts and procedural history surrounding the appeal follow.

The parties are the parents of Lawrence R.S. Haller, born June 1, 1980, and Laura E.R. Haller, born April 19, 1982. The parties were divorced in February of 1985; father remarried in October of 1986, and mother has not yet remarried. Father is a career United States Army officer. Mother is a full-time baby-sitter for her brother’s six children. The family resided in Georgia until June of 1984 when father was assigned to serve as an Army R.O.T.C. officer on the campus of Lehigh University in Pennsylvania. At that time father moved to Pennsylvania, taking the children with him, while mother was unaware of the move because she was attending Army Reserve Training. On July 5,1984, father filed a complaint seeking custody of the two children. An Order was entered that same day directing mother to appear at a July 30, 1984 hearing. Subsequently, on August 2,1984, the court ordered home studies to be performed.

On October 9, 1985, the court entered an Order which awarded immediate temporary physical custody to the mother in accordance with an agreement by the parties. Soon afterwards, father sought visitation, and on December 13,1985, the court issued a rule to show cause why father’s petition for visitation should not be granted; the petition was dismissed, however, on December 19, 1985, for father’s failure to appear. The parties instead entered a stipulation whereby father’s visitation rights over the Christmas 1985 holiday were set out. The court approved the stipulation by an Order dated December 24, 1985 and filed January 7, 1986. After the Christmas 1985 visit, father again filed a petition for visitation and a rule to show cause was filed by the court on February 5, 1986. On May 20, 1986, the parties entered a stipulation regarding visitation which was adopted as an Order of court.

On April 15, 1987, father filed a petition for confirmation of custody, which is the subject of this appeal. In the petition father alleged that joint custody for two years had been awarded on October 8, 1985 in open court. Father averred that his remarriage and family stability and the instability of mother’s family living conditions, both present and future, constituted a substantial change of circumstances which warranted a change in the Order, and that the children’s best interest and permanent welfare would be served by granting the requested relief. In the petition he pointed to mother’s move from Georgia to Booneville, New York. He also sought an expeditious resolution of the matter since he had orders from the U.S. Army to relocate to Germany for five years commencing November 1987. A home evaluation of father’s Pennsylvania home was ordered on May 19, 1987 and filed July 8, 1987. A home study of the mother’s Booneville, New York, home was ordered June 19, 1987. The court entered an Order on May 22, 1987 granting mother physical custody of the children for much of the summer of 1987.

At the end of July 1987, father petitioned to modify the stipulations; the court entered an interim Order on July 21, 1987 which granted father custody of the children from August 9, 1987 until the hearing on the matter, and which vacated the mother’s home evaluation Order of June 19, 1987 and replaced it with a new home evaluation Order. After a hearing before the custody hearing officer and upon the officer’s recommendation, the court on August 17, 1987 initially ordered the parties to have joint legal custody of the two children, with primary physical custody resting with the father, except for the summers of 1988 and 1989. Mother filed a demand for a de novo hearing on August 18, 1987. The mother’s home study report was filed by evaluator Patricia A. Connovitch on August 12, 1987. Mother also petitioned for special relief and stay of court Order from the hearing officer’s recommendation dated August 17, 1987 until completion of a de novo hearing before the court. On August 20, 1987, the court granted a de novo hearing, with priority status, and denied the request for a stay. After the de novo hearing, the court filed, on September 15, 1987, an Order dated September 2, 1987 granting primary physical custody of the children to the mother with liberal visitation rights to the father, who is now stationed in Korea on a two-year assignment. Other provisions for the children’s well-being were also part of the Order. Mother filed a praecipe to enter judgment on September 28, 1987 and judgment was entered against father that same day. Father filed this appeal on October 1, 1987.

On appeal father concedes that a substantial change of circumstances from the time of the entry of the October 9, 1985 stipulation existed in this matter in that he had been ordered by the U.S. Army to relocate at a base in Teagu, Korea. He argues, however, that the court erred in several ways. First, he says the hearing judge acted like an interested participant instead of an arbitrator; for this allegation he cites the judge’s emphasis on the mother’s testimony, which he says was in direct conflict with the testimony of disinterested witnesses, e.g., the children themselves. The father urges the court failed to consider testimony regarding reports the children had made to him of incidents which occurred while they were in New York with their mother including their having ridden in the car trunk for long distances, Larry’s hunting with the two minor children of the boyfriend of the mother without adult supervision, and Laura’s having been spanked very hard by the mother’s boyfriend; instead, the court believed the mother’s explanation of these events.

Next, father urges the court failed to consider all of the factors relevant to deciding the issue of custody, particularly the physical well-being and moral development of the children. He points out that the youngsters have lived their entire lives with him, with the exception of November 1, 1985 to August 2, 1986, when they lived with their mother. Father also points to the testimony of home evaluator, Patricia Connovitch, who said father provides a stable, secure, and predictable home environment for the children and that the children have a good relationship with him and his new wife. He also points to the home evaluator’s statement that Laura is very bonded to her father and should go with him, and the concern the evaluator expressed about the mother’s home. Additionally, father brings out the testimony of Marie Pelletiers, a clinical psychologist, who had met with him and his family, to the effect that he provides a stable, predictable nurturing environment, whereas mother is in a period of transition; she, too, noted Laura’s attachment to the father. He urges the separation of the children from him during his two-year tour of duty in Korea “can well be emotionally devastating to them.” Further, father urges the court failed to consider certain evidence regarding the stable environment he could provide for the children in Korea, the efforts of both him and his new wife to aid the children in their school work, and the children’s expressed desire to go with him.

Additionally, father finds error in the court’s failure to inquire into mother’s boyfriend, Kevin Crouse, whom she intends to marry and with whom the children will be spending much of their time. He also charges the trial judge failed to consider the adverse moral effect on the children of sleeping in the same one-room cabin with mother and the man she intends to marry.

Moreover, he argues mother is immature as to caring for the children; he says this is evidenced by mother’s attitude toward support payments and her statement that on a scale of one to ten, love is ten and money is one, and that she gives the children love.

Last, father contends the court is required pursuant to statute to consider which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the non-custodial parent and the child. See 23 Pa.C.S. § 5303. Here, he says the court erred in not considering the many attempts of mother in the past to prevent the children from having contact with him.

Our standard of review in custody matters was set forth in Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694 (1986), where we said:

[W]e as an appellate court are "empowered to determine whether the trial court's incontrovertible factual findings support the trial court’s conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ... and, thus, represent a gross abuse of discretion.” The burden of proving that the trial court’s custody decree is manifestly erroneous or constitutes a gross abuse of discretion rests on appellant. Absent such proof, we must affirm the decision of the trial judge who has the singular advantage of observing the demeanor of the parties and hearing the testimony of the witnesses.

Mahoney at 590, 512 A.2d at 696-97. (Citations omitted) (emphasis in original). See also Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987).

In Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984), we stated:

[T]he guiding principle in a child custody matter is to reach a decision which serves the “best interests” of the child. This interest encompasses the child’s physical, intellectual, emotional and spiritual well-being. In order to achieve this goal, an appellate court must closely scrutinize the factual findings of the lower court. If we ascertain, on review, that those factual findings are not supported by competent evidence, said findings are not binding upon us.

Id., 387 Pa.Superior Ct. at 4, 486 A.2d at 451 (citations omitted).

In the present matter, the trial judge explains in his Opinion the reasons upon which he determined it to be in the best interest of these young children that they be in the custody of their mother. The court said there was very little question in this case that both parents are fit to raise the children. The court found the mother has provided the children with a nurturing, loving environment, which included interaction with their extended family. The court also found that the lifestyle of the mother has become more stable since she moved to New York from Georgia. Further, the court accepted her testimony that she and the children resided at the family homestead, a four-bedroom cape cod house in Boonville, and only visited the cabin which her boyfriend is constructing.

A thorough review of the record does not reveal any instance where the trial judge became an active participant in this case rather than an arbitrator, as is argued by father. Instead, the record shows the judge presided over two days of testimony by witnesses who included father and his new wife, mother, mother’s former boyfriend, the home evaluator, a psychologist hired by father who counselled him and his new wife and the children, a U.S. Army R.O.T.C. administrator who had served a favorable tour of duty in Korea in 1983-84, mother’s brother who had been stationed in Korea as a U.S. Marine in 1977-81, mother’s sister, and the children themselves. At the close of testimony, mother’s counsel reminded the court of the fact that father was leaving for Korea the next day; the judge responded that he would make the decision in the same day, without any comment or objection from father’s counsel. We cannot agree with father’s contention that the fact that the trial court “took only one-half hour to render its decision considering the many factors to be reviewed in this case, clearly demonstrates that the lower court rendered its decision in a summary and capricious fashion.” Appellant’s brief at p. 47. Moreover, we disagree with father’s allegation that the trial judge did not base his decision on competent evidence, since we find the evidence relied upon in this matter was competent, and the trial judge was in a position to evaluate the credibility of mother’s testimony. Likewise, we reject father’s argument that the court erred in failing to consider the physical well-being and moral development of the children, and the stability of the environment which he provides them. The trial judge did not find father fails to provide a stable environment for the children; to the contrary, he found both parents to be fit. Additionally, he made a finding for the record, based on the evidence, that mother’s lifestyle is now more stable than it was when she lived in Georgia. As far as the contention that the court disregarded the children’s expressed preference, we find no error in the trial court’s conclusion that Laura, age five at the time of the hearing, was too young to express any rational understanding of where she would like to be. The son, Larry, who was age seven at the time of the hearing, gave as reasons for wanting to go with his father the fact he had never been to Korea before and that his father was going to get him into Karate school there. (N.T. 9/2/87, pp. 140-141.) Although the children expressed a preference of remaining with their father, the weight to be given their preference is to be determined by the trial judge. Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980). “[I]t is the responsibility of the trial judge to weight that preference according to the age, intelligence, and maturity of the child.” Ellingsen v. Magsamen, 337 Pa.Super. 14, 19 n. 2, 486 A.2d 456, 458 n. 2 (1984) (citing Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981)). Here, we find no error in the trial judge’s determination.

Additionally, we find father’s argument that mother’s statement regarding support demonstrates immaturity on her part to be without merit.

Contrary to father’s contention, the court did examine which parent would be more likely to allow frequent and continuing contact between the non-custodial parent and the children insofar as the court found the ability of mother to visit the children would be seriously curtailed if the children were in Korea since it would be too expensive for mother to travel to Korea on commercial flights; father, on the other hand could visit the children in the United States much more readily by travelling with military travel reduced fares. We do reject the court’s allusion to preferring to see the children with the mother than on an Army base in Korea, and preference for having the children at their “very young age” with the mother (Slip Op., 2/24/88, Diefenderfer, J., pp. 5-6) as bordering on the irrelevant. In carefully reviewing this record, we cannot help but feel in light of a reversal of previous stipulations and orders wherein the parents had shared custody with the father having primary physical custody (Order of August 17, 1987) that the court was overly concerned about the father’s military duty in Korea combined with the children’s age. Peacetime duty in a country not at war, where the armed services provide accommodations for families of servicemen, must be considered no more relevant to an award of custody than service on a military base in this country. As to the reference to the “very young age” of the children, the trial court must be constantly vigilant in avoiding any inclination to be influenced by the mere youthfulness of the children. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), teaches that the tender years doctrine has been abrogated in Pennsylvania and where the scales are relatively balanced between the parents, the makeshift weight of the tender years doctrine is offensive to the constitutional principle of equality of the sexes.

Next, we consider father’s argument the court erred by failing to inquire about mother’s boyfriend, Kevin Crouse. Father cites J.F.G. v. K.A.G., n/b/m K.A.K., 278 Pa.Super. 25, 419 A.2d 1337 (1980), in which he says the Court found the trial court had failed to complete the record, because father’s parents and mother’s new husband did not testify, and the children there would be making their home with one or the other; without such testimony, the trial court could not make a valid comparison of those persons’ respective attitudes toward the children and their ability to care for them. The Court in J.F.G., however, also based its decision on the fact the trial court received no testimony from any disinterested source, nor did it have any testimony from any social worker or other investigator concerning the living conditions of the parties and their respective homes; also, the court believed the trial court might have improperly relied on the tender years doctrine.

In the instant case, home evaluator Patricia Connovitch testified that she had met with Kevin Crouse and that he appeared to have a good relationship with the children. (N.T., 9/1/87, p. 104). Mother testified that she and the children would be staying at her cape code home; (N.T., 9/2/87, p. 59), and Kevin Crouse lives with his parents (N.T., 9/2/87 at 60). The court also asked mother questions regarding Crouse’s employment status and living arrangements. (N.T., 9/2/87, pp. 106-107). However, as this Court said in Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985), where the custodial parent would be living in a meretricious relationship with another person, or a person will exert a substantial influence over the child, it requires that that person be viewed by the court and subjected to cross-examination as to his supervision, values and relationship with the children.

In this case, in light of the frequent contacts with the children by Crouse, his disciplining of them, being with them and the mother on camping trips, and in general acting in a quasi-parental role, it would appear unavoidable to have him present in court to determine his effect on the well being of the children and his fitness to be in constant association with them.

While we understand the difficulty in making a determination of custody in a case such as this where both parents appear to be fit, aside from the error in not requiring testimony from Kevin Crouse, we find no basis for reversal. However, so critical is the requirement that all essential relationships to the children be evaluated, this case must be remanded for that purpose as it might effect the ultimate determination by the court.

Order of custody vacated, case remanded for testimony consistent with this Memorandum. Should the court find, upon receiving testimony from Mr. Crouse, there should be no changes in the Order vacated, he shall reinstate the Order; otherwise an appropriate Order shall be entered.

Jurisdiction relinquished.

      . Mother had, in the meantime, filed for divorce in Georgia, and for custody of the children; this complaint was served on father on July 2, 1984. The Lehigh County court, after hearing oral argument and examining certain documents, ordered on March 28, 1985, that jurisdiction of the case was appropriate in and accepted by that court. Mother elected on April 4, 1985, to treat the March 28, 1985 Order as a final Order, pursuant to Pa.R.A.P. 311(b). She then on April 12, 1985 filed notice of appeal with this Court. The outcome of that appeal was that father’s motion to quash the appeal was granted by a Superior Court Order dated May 29, 1985, and filed June 17, 1985 in Lehigh County courts.

      . These home studies were filed on September 12, 1984 on father’s Pennsylvania home, and January 23, 1985, on mother’s Georgia home.

      . Father was later ordered to relocate to Teagu, Korea, where he is to serve a two-year tour of duty, rather than Germany.

      . We acknowledge the Supreme Court recently held in Karts v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988) that a petition for modification of partial custody to shared custody Order requires the court to inquire into the best interests of the child regardless of whether a ‘'substantial" change in circumstances has been shown.


author: MONTEMURO, Judge:

text:
    547 A.2d 399
    William J. FOX, Appellee, v. Frank K. GABLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1988.
    Filed Sept. 9, 1988.

      Bruce L. Thall, Philadelphia, for appellant.
    Lizabeth A. Auspitz, Ambler, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This appeal was taken by Frank K. Gabler from an order which found him in contempt and directed that he post bond in the amount of ten thousand ($10,000.00) dollars or face incarceration. Gabler has now posted the required bond and proceedings are continuing in the trial court. For the reasons that follow, we quash Gabler’s appeal.

The present appeal results from the culmination of a series of events \#hich began almost fourteen years ago in October of 1974, when appellee, William J. Fox, filed a complaint in equity alleging that he and appellant, Frank K. Gabler, had entered into a partnership agreement for the purpose of purchasing a tap room and restaurant known as the “Toll House Inn”. Alleging that he had been wrongfully excluded from the partnership, Fox’s complaint requested that he be determined an equal partner in the “Toll House Inn” and also that Gabler be required to account for all earnings, expenses and profits of the “Toll House Inn”. Fox sought to commence discovery; however, Gabler refused to comply with numerous discovery requests and court orders compelling discovery. As a result, default judgment was entered against Gabler, which the trial court subsequently refused to strike. On appeal, we reversed and struck the judgment because of a procedural irregularity in the prothonotary’s entry of judgment. See Fox v. Gabler, 282 Pa.Super. 490, 423 A.2d 351 (1980). On remand, Fox attempted to complete discovery but was again met with stonewalling tactics by Gabler. Fox moved for sanctions pursuant to Pa.R.C.P. 4019. Upon consideration of this motion, the trial court determined that default judgment was an appropriate sanction and again entered default judgment against Gabler. On appeal, we affirmed the entry of default judgment. See Fox v. Gabler, 335 Pa.Super. 638, 484 A.2d 815 (1984).

The case was then listed for a hearing pursuant to Pa.R.C.P. 1511(b) on October 6, 1986 to assist the court in framing a decree, but due to various delays, the hearing was not held until November 17, 1986. On that date, Gabler appeared and requested a continuance so that he could employ counsel. The court denied this motion and the case proceeded. On November 19,1986, Gabler experienced chest pains and was taken to the emergency room at Montgomery Hospital. When he appeared in court later that same day, the court entered an order prohibiting Gabler from removing any partnership assets from the business premises. The order also directed Gabler to furnish various documents and to prepare a list of all partnership assets. Upon discovering that Gabler had removed various items of personalty from the business premises, Fox filed a petition for contempt alleging that Gabler had violated the court’s order. A hearing date was set on the petition for November 24, 1986. When Gabler failed to appear at the hearing, the trial court, believing that this was just another delay tactic on the part of Gabler, conducted the contempt proceedings without Gabler present. By order dated November 24,1986, the trial court found Gabler in contempt of its previous order, but demonstrating remarkable judicial patience, imposed no sanctions at that time. Instead the court reinstated its previous order and directed that Gabler could purge himself of his contemptuous conduct by returning the items which had been removed from the business premises. Gabler continued to flagrantly disregard the trial court’s order and refused to return the property. Consequently, the court scheduled a hearing on March 20, 1987, to determine whether Gabler continued to be in contempt of its prior order. Following that hearing, the court found that Gabler had failed to purge himself of his contemptuous conduct, and required him to post a bond of ten thousand dollars ($10,000.00) or face incarceration. This timely appeal followed and on April 6, 1987 Gabler posted the required bond.

Part I

Initially, we must address Fox’s contention that this appeal should be quashed due to Gabler’s repeated flagrant contempt of several orders entered by the trial court. Our review of the record and case law reveals there is factual as well as legal support for the argument which Fox advances. See Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 548, 555, 198 A.2d 503, 504-505 (1964); Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 106-107, 188 A.2d 475, 477 (1962). However, in addition to his continuous blatant and contumacious disregard of court orders, we find several other reasons which dictate that we quash the present appeal.

Part II

While Gabler strenuously urges that we reach the merits of his claim, a review of the merits is virtually impossible because of his failure to supply this Court with an adequate record. It is the duty of the appellant to provide a record which is sufficient to permit meaningful appellate review. We have held that where the appellant is remiss in fulfilling this duty, the appeal must be quashed. See Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). In the present case, without a full transcript of the November 24, 1986 contempt hearing and without the photographs allegedly showing the condition of the Inn after various items had been removed therefrom, meaningful appellate review of this case would be extremely difficult, if not impossible.

Part III

We also believe that the case of Cedar Valley Civic Association v. Schnable, 239 Pa.Super. 486, 362 A.2d 993 (1976) is factually indistinguishable from the case at bar and dictates that we quash Gabler’s appeal. In Cedar Valley, the trial court had found the defendant in civil contempt of its order and had ordered that he be committed to prison. The incarceration, however, was stayed in order to permit the defendant to post a bond in the amount of five thousand ($5,000.00) dollars to ensure compliance with the courts order. Defendant filed a notice of appeal from the contempt order, but subsequently posted the bond which the court had required. Under these circumstances, we held that the order was interlocutory and, therefore, refused to decide the appeal. Because the facts of the present case cannot be distinguished from the Cedar Valley case, the present appeal must also be quashed. Cf. Phoenix Glass Co. v. Local 8381, United Steel Workers of America, 244 Pa.Super. 16, 366 A.2d 293 (1976) (payment of contempt fine ends matter and precludes subsequent appeal).

Part IV

While we find the Cedar Valley case to be dispositive of the present case, we note that the reasons behind our finding that the order was interlocutory in that case are not entirely clear. Because of the sometimes inconsistent analyses employed in determining what constitutes a final order, we feel that some comments on the final order doctrine are appropriate. In addition, we take this opportunity to set forth what we believe to be a logical analysis that should be employed in cases such as this where the order in question is one that is completely collateral to the underlying litigation, and where the underlying litigation will continue after appeal of the order has been resolved. As a general rule, we believe that such orders should not be considered final for purposes of appeal until the entire litigation between the parties in the trial court has been terminated. Such a rule would foster uniformity and predictability in the law with respect to appealable orders as well as this Commonwealth’s oft-stated policy against piecemeal appeals. In addition, the federal courts have adopted and adhered to this policy without substantial difficulty.

Under this analysis we conclude that the March 20, 1987 order requiring appellant to pay $10,000 or face incarceration did not constitute a final order. Nor did the order constitute an exception to the general rule that this Court will consider only final orders from the trial courts. Consequently, we find that this court is without subject matter jurisdiction and quash Gabler’s appeal for this reason as well as for the reasons espoused in parts I, II and III of our discussion.

The law is well-settled that an appeal “as of right” will lie only from a final order unless otherwise permitted by statute or rule. See 42 Pa.C.S.A. §§ 5105, 702(a); See also Pa.R.A.P. 311, 312 and 341(a); White v. Southeastern Pennsylvania Transportation Authority, 366 Pa.Super. 16, 530 A.2d 870 (1987). In the absence of a final order or an interlocutory order appealable “as of right”, an appeal from an interlocutory order may be taken only by permission, so long as specific prerequisites are met. 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 312, 1311. In determining whether a particular order constitutes a final order, our supreme court has stated:

We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court’. In Marino Estate, 440 Pa. 493, 494, 269 A.2d 645, 646 (1969), we said that an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court.

T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977) (citations omitted); see also Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982). One commentator has concisely set forth the policy considerations behind the general rule that an appeal is authorized only when the lower court disposes of the entire case as follows:

One might ask what is the rationale for such an arbitrary rule of thumb. The reasons are many, varied and sensible. The final order doctrine is a compound of legal requirement, policy, fairness and efficiency. Of paramount importance is the fact that most of the jurisdictional statutes invest the courts with jurisdiction (political, judicial power) only over ‘final orders’ of the lower courts. The doctrine also represents a prudential standard by which to best allocate and maximize judicial resources. The process of lower court litigation, for example, involves a sequential, on-going process of multiple decision-making. If an appellate court were to open its doors to every person aggrieved by a decision that occurred in the course of litigation, the appellate courts — financed by the citizenry — would be quickly overwhelmed and become bankrupt. Aside from avoiding the potentially debilitating effects upon the judiciary of a carte blanche rule of access to the appellate courts, the final order doctrine offers fairness and a comforting assurance to the litigants. The rule attempts to reasonably assure that the parties will economically have their ‘day in court’ and that the risks of expensive, piecemeal, and perhaps strategically dilatory appeals will be avoided.

1

Pines, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction (Part I), 91 Dick.L.Rev. 55, 80 (1986).

Other than obtaining permissive review of an order, 42 Pa.C.S.A. § 702(b), Pa.R.A.P. 312, 1311(b), there is one exception to the general rule that only final orders are appealable. That exception is the collateral order doctrine. The collateral order doctrine expands the traditional concepts of finality to permit an appeal of an interlocutory decision regarding an important right which is purely collateral to the main action. The collateral order doctrine was originally enunciated by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Pennsylvania adopted the concept in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975), and recently reaffirmed its vitality in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985):

In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Coken, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right mil be irreparably lost. Id. 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Id. at 94. 501 A.2d at 214, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (emphasis added).

The order appealed from in the present case required appellant to post $10,000 or face imprisonment following his citation for civil contempt. The contempt citation imposed upon appellant was for civil rather than criminal contempt because the dominant purpose of the contempt citation was to coerce compliance with the previous orders of the trial court. See Rulli v. Dunn, 337 Pa.Super. 613, 487 A.2d 430 (1985). Only after demonstrating an extraordinary amount of patience did the court pose an ultimatum to appellant in order to compel obedience and afford relief to appellee. It is clear that the March 20, 1987 order is not archetypical of an order which ends the litigation or disposes of the entire case. Both parties are still in court and the pending action, seeking an accounting and division of the partnership assets, must be litigated further. Moreover, we do not believe that the present order is appealable under the narrow exception to the final order rule set forth in Cohen. While the order requiring appellant to pay $10,000 or be incarcerated is collateral to the main action, there is no compelling reason why it should be reviewed prior to final judgment in the principal action. Appellant’s $10,000 will not be irreparably lost if we refuse an interim review of the order. Rather, the main action can proceed to final judgment after more than fourteen (14) years of delay, and the order, as well as the final accounting, may be reviewed in one appeal. See McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985) (in the absence of unusual circumstances, we will not review such orders prior to final judgment in the main action); See also Cedar Valley Civic Association, supra (order finding contempt for failure to abide by court’s prior order and imposing sanctions found not appealable). Cf. Fenstamaker v. Fenstamaker, 337 Pa. 410, 487 A.2d 11 (1985). In the present case, which has been delayed for nearly fourteen years because of appellant’s dilatory tactics and intentional disregard of court orders, we find the words of Judge Wickersham in Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981), particularly enlightening:

(I)f this order were to be found to be presently appeal-able, it would tend to discourage the (trial) court’s use of the disciplinary tool, and it would merely become another weapon in the arsenal of dilatory practice for the attorney who wished to delay the judicial proceedings.

Id., 285 Pa.Superior Ct. at 548, 428 A.2d at 181.

The law in this Commonwealth with respect to finality is replete with inconsistencies and traps for the unwary party. As a result, the practicing attorney is frequently placed on the horns of a dilemma. He must either immediately appeal an order entered by the trial court and risk the possibility that the appeal will be found premature, in which case valuable time and money will have been wasted, or, he may decide to forgo an immediate appeal and risk waiver of claims regarding the order, exposing himself to a possible malpractice action by his client. Several members of this Court have recognized the need for reform and reevaluation in this area in order to develop a rule which will lead to greater predictability of results, and, at the same time, discourage piecemeal appeals. See Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988) (Beck, J., concurring); Danko Development Corporation v. Econocast Corporation, 369 Pa.Super. 120, 534 A.2d 1108 (1987). The present case provides a classic illustration of the inequitable results that can often occur because of the absence of a definitive analytical framework from which we may evaluate, with some degree of consistency, whether a particular order is reviewable.

The general rule in this Commonwealth is that a “contempt order imposing sanctions is final and appealable when entered____” Fenstamaker v. Fenstamaker, supra at 418, 487 A.2d at 15; College Watercolor Group v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976); Joseph Home Company v. Operating Engineers, Local Union No. 95-95A, 250 Pa.Super. 145, 378 A.2d 868 (1977). Conversely, “until sanctions or imprisonment is imposed, an order declaring a party in contempt is interlocutory.” Rulli v. Dunn, supra, 337 Pa.Superior Ct. at 616, 487 A.2d at 431; Hester v. Bagnato, 292 Pa.Super. 322, 323, 437 A.2d 66, 67 (1981). However, when sanctions are imposed for failure to comply with a discovery order the order imposing sanctions is not reviewable until final disposition of the underlying litigation. See Joyce v. Pivirotto, 358 Pa.Super. 50, 516 A.2d 763 (1986); Edney v. Southeastern Pennsylvania Transportation Authority, 356 Pa.Super. 160, 514 A.2d 194 (1986). This is so even though discovery sanctions are frequently imposed following a citation for civil contempt in an attempt to coerce compliance with the discovery order.

A careful examination of the trial court’s order in this case reveals that the order to pay $10,000 or undergo imprisonment embodies both an element of sanction and an element of security. On the one hand the order was clearly intended to punish Gabler for his conduct. However, it is equally as clear that the $10,000 payment was intended to compensate Pox for the costs incurred in enforcing the order. Because of the lack of a consistent test to be employed where we are concerned with an order which is completely collateral to the underlying litigation, the question of finality in a case such as this becomes largely a matter of semantics. If the order in question is termed a sanction for contempt, then under one line of cases the order would be deemed final. See Fenstamaker, supra. If, on the other hand, the order were determined to be a “bond” or “security” or a “discovery sanction” or “costs for contempt proceedings”, then the order would be interlocutory. See, e.g., Markey v. Marino, 361 Pa.Super. 92, 521 A.2d 942 (1987). The unjustness of such an ad hoc determination of the question of appealability is readily apparent. Mere semantics should not be permitted to transform an order which is technically unappealable into one requiring appellate review.

In McManus, supra, the plaintiff consistently refused to comply with a court order directing her to produce an insurance policy. The court held the plaintiff in contempt for failing to comply with its order and directed appellant to pay the costs of the motion for contempt, as well as prior assessments of costs. The order further stated that if these costs were not paid within 21 days, the plaintiffs action would be dismissed with prejudice. The plaintiff appealed before the expiration of the 21 day period and we quashed her appeal. In refusing to review the trial court’s order, the court applied the collateral order doctrine enunciated in Cohen and reasoned as follows:

An order awarding the expenses involved in presenting a motion for sanctions is collateral to the main action. However, there is no good reason why it should be reviewed before final judgment in the principal action. The purpose of the main action is to recover a money judgment. An ultimate review of the costs imposed pursuant to Pa.R.C.P. 4019(g), therefore, can be achieved at the time of reviewing the final judgment. Meanwhile, the right of review will not have been lost. Indeed, by refusing an interim review of the sanction order, the main action can proceed uninterrupted to a final judgment; and thereafter, the final judgment, as well as interlocutory orders entered by the court, can be reviewed in one appeal.

342 Pa.Super. at 409, 493 A.2d at 87.

We believe that this analysis and reasoning applies with equal force to the present case. Our supreme court has admonished “whenever possible, review must await the determination of a suit notwithstanding any resulting inconvenience to a party.” Pugar v. Greco, 483 Pa. 68, 75, 394 A.2d 542, 546 (1978). Moreover, the Third Circuit Court of Appeals has consistently held that sanctions imposed following a finding of civil contempt are not reviewable until the underlying litigation has terminated. In Cromaglass Corporation v. Ferm, 500 F.2d 601 (3rd Cir.1974) (en banc), the plaintiff appealed an order imposing sanctions for failure to answer interrogatories. Part of the order imposing sanctions included a finding that the plaintiff and his attorney were in civil contempt as well as the joint imposition of costs in the amount of $4000.00 against both the plaintiff and his attorney. The court held that the part of the order which held the plaintiff in civil contempt and imposed monetary sanctions upon him was interlocutory and not appeal-able until final judgment in the main action. Id. at 604; See DeMasi v. Weiss, 669 F.2d 114, 122 (3d. Cir.1982) (party has no immediate right to appeal from civil contempt citation imposed to gain compliance with a discovery order, but must await final judgment to have order reviewed unless review of the interlocutory order is granted by permission); Eastern Maico Distributors v. Maico-Fahrzeugfabrik, 658 F.2d 944 (1981) (neither final order doctrine nor collateral order exception permits appellate court to exercise jurisdiction over appeals from order imposing monetary sanctions for breach of discovery obligations).

If we are to do more than merely pay lip service to this Commonwealth’s stated policy against piecemeal appeals, we, like the federal courts, must adopt a strict definition of finality. As we recently stated in National Recovery Systems v. Perlman, 367 Pa.Super. 546, 551, 533 A.2d 152, 154 (1987):

[b]oth the bench and bar would be better served by a return to the strict definition of final order given in Pugar v. Greco: ‘one which usually ends the litigation, or alternatively, disposes of the entire case’, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), at least as to one party to the suit.

While we recognize that the return to the strict view of finality may be best effectuated via a rule of procedure, rather than by the common law, we cannot close our eyes to the inconsistent results and logic which pervade Pennsylvania case law with respect to the appealability of various orders. There is no apparent logic in applying one method of analysis to discovery sanctions imposed on a party for failing to comply with a court order and a different analysis to sanctions issued following a finding of civil contempt, especially since a finding of civil contempt frequently precedes imposition of discovery sanctions. We conclude that the appropriate method of analysis to determine the appeal-ability of such orders is to determine whether the order constitutes a final order within the strict definition, that is, whether it ends the litigation or disposes of the entire case. If the order does not constitute a final order, it is interlocutory. Review of such an interlocutory order may only be had if the right involved constitutes an important right which is purely collateral to the main action and which may be lost if immediate appellate review is not allowed, or if permissive review of the order is not granted. In Firestone Tire and Rubber Company v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673-74, 66 L.Ed.2d 571 (1981), the Supreme Court of the United States explained:

[The] rule that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of 'avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.’ (citations omitted).

If ever there were a case where reviewing an order prior to resolution of the entire case would undermine the authority and independence of the trial judge, this is it. Appellant has kept this case on the docket for fourteen (14) years as a result of his flagrant disregard of the trial court’s orders. To review this order prior to final judgment in the main action would merely serve to further stifle the expedition of the underlying accounting action. Because the order in this case is of a type that invariably involves no determination of the substantive rights in the underlying litigation, Gabler should be required to raise all of his grievances following judgment in the primary action, at which time both the propriety of the $10,000 payment and the final accounting may be reviewed. Accordingly, for all of these reasons, the present appeal must be and is hereby quashed.

APPEAL QUASHED.

      . An appeal from this order was quashed on February 26, 1987.


author: WIEAND, Judge:

text:
      547 A.2d 406
    COMMONWEALTH of Pennsylvania v. Johnnie B. COOK, a/k/a Eugene Thomas, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1988.
    Filed Sept. 9, 1988.

      George T. Guarnieri, Philadelphia, for appellant.
    Joan Weiner, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

Johnnie B. Cook a/k/a Eugene Thomas was tried without jury pursuant to an agreed statement of the evidence and was found guilty of criminal trespass and theft by unlawful taking. He did not file post-trial motions. He was sentenced to serve a term of imprisonment for not less than two and one-half years nor more than five years for criminal trespass, and sentence was suspended on the conviction for theft by unlawful taking. A written motion to modify the sentence was denied, and Cook filed a direct appeal from the judgment of sentence. When defense counsel failed to file a brief, however, the appeal was dismissed without prejudice to his right to proceed under the Post Conviction Hearing Act. Upon the filing of a P.C.H.A. petition, the Commonwealth stipulated that an appeal should be allowed nunc pro tunc. The trial court entered an order allowing an appeal nunc pro tunc, and this appeal followed.

Our review, in view of appellant’s prolix brief, will be limited to the issues which he has framed in his statement of questions involved. These are as follows: (1) the sufficiency of the evidence to sustain the conviction for criminal trespass; (2) the adequacy of the jury-waiver colloquy; (3) the alleged ineffectiveness of trial counsel; and (4) the alleged excessiveness of the sentence.

Because post-trial motions were not filed, the alleged insufficiency of the evidence to sustain the finding that appellant committed criminal trespass has been waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Pa.R.Crim.P. 1123(c)(3). Appellant seems to believe that he can avoid the effect of his failure to file such post-trial motions by breathing the magic words that counsel was ineffective for failing to file the same. We have read his brief carefully and have been unable to find any suggestion that counsel was instructed to file post-trial motions and either refused or failed to follow appellant’s instructions. The trial court had specifically advised appellant of his right to file post-trial motions and the time within which they had to be filed, but neither the record nor appellant’s brief in this Court suggests that appellant acted on that information. In the absence of a request to file post-trial motions, counsel will not be deemed ineffective for failing to file the same. Counsel is not required to file post-trial motions in all cases. Because appellant has failed to aver facts which, if true, would have rendered counsel ineffective for failing to file post-trial motions, and because he has failed to aver any other extraordinary circumstances that would prevent his failure to file post-trial motions from acting as a waiver of trial issues, the issue of the alleged insufficiency of the evidence will be deemed waived.

Appellant’s argument, moreover, is lacking in merit. At trial, the parties stipulated that the assistant manager of Woodland Shoppers World, if called, would have testified that on June 19, 1984 she heard a noise in the stockroom. This room was open only to employees of the store and not to members of the public. The door to the room had been closed, and had been held in a closed position by an unlocked padlock. Thus, the door could be opened by lifting the padlock and removing it. When the assistant manager entered the stockroom, she saw appellant folding a bag. A security officer was summoned, and, upon examining appellant’s bag, found clothing from both the store and the stockroom. The clothing had a value of $110.00. When appellant was arrested, he had on his person only $21.00.

The crime of criminal trespass is defined by 18 Pa.C.S. § 3503, which provides as follows:

(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
(2) An offense under paragraph (l)(i) is a felony of the third degree, and an offense under paragraph (l)(ii) is a felony of the second degree.
(3) As used in this subsection:
“Breaks into.” To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.

Appellant was charged in separate counts of the same information with violating both subsections of 18 Pa.C.S. § 3503(a)(1).

After a careful review of the record, we conclude that the stipulated Commonwealth evidence was sufficient to show criminal trespass under 18 Pa.C.S. § 3503(a)(l)(i). Although the store was open to the public, the stockroom in which appellant was found was not. Moreover, there was nothing to suggest that appellant had believed he was authorized or privileged to enter the stockroom. The door to the room had been closed and secured by an unlocked padlock. Appellant lifted the padlock, entered the stockroom and closed the door behind him. When interrupted by the store’s assistant manager, he had concealed items of clothing in a bag which he had been carrying on his person. This evidence was sufficient to show that appellant, knowing that he was not authorized or privileged to do so, had entered a separately secured portion of the building.

Appellant’s argument that his agreement to be tried non-jury on the basis of stipulated evidence required a colloquy of the same type and including the same details as a guilty plea colloquy has also been waived by his failure to file post-trial motions. Because it is also without merit, it will not support a claim that trial counsel rendered ineffective assistance. Appellant waived a jury trial and agreed to be tried by the court sitting without a jury. This was preceded by an explanation of his right to trial by jury. His agreement to be tried without jury was also preceded by an explanation that his counsel intended to stipulate to the testimony of the Commonwealth’s witnesses and that, therefore, appellant would not be able to confront and cross-examine his accusers. Appellant said that he understood this and agreed to waive his constitutional rights to trial by jury and to confront the witnesses against him. This colloquy was adequate to show a voluntary and intelligent waiver of appellant’s right to trial by jury, as well as the right to confront his accusers. At trial, he was given the opportunity to present a defense but declined to do so. Under these circumstances, a guilty plea colloquy was unnecessary. See: Commonwealth v. Tate, 487 Pa. 556, 410 A.2d 751 (1980). Appellant was fully advised of the rights which he was surrendering and nevertheless agreed to proceed by trial without jury.

Appellant also contends that his trial counsel was ineffective because he failed to move pre-trial to quash the information charging him with theft by unlawful taking. The information should have been quashed, he argues, because he was required to be prosecuted under the section of the Crimes Code which more specifically defined his offense as retail theft. See: Commonwealth v. Lawson, 315 Pa.Super. 84, 461 A.2d 807 (1983) (retail theft is more specific statutory offense and, when elements thereof are present, prosecution thereunder must be pursued rather than prosecution under general statutory provisions).

This issue was also waived by appellant’s failure to file post-trial motions. At trial, defense counsel demurred to the theft charge on the ground that appellant had been prosecuted under the wrong section of the Crimes Code. The trial court denied the demurrer and found appellant guilty of theft by unlawful taking. Thus, trial counsel had been aware of the issue and had raised it in the trial court. Further consideration thereof was waived, however, when appellant failed to file any post-trial motions.

Moreover, this issue is also without merit. Subsection (a)(1) of the retail theft statute states that a person is guilty of retail theft if he

(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof; ...

“Store or other retail mercantile establishment” is defined as “[a] place where merchandise is displayed, held, stored or sold or offered to the public for sale.” The definition of “retail theft” is admittedly broad. The legislature, it would seem, set out to include all thefts of merchandise within the protection of the statute. Still, the statute is not without limits. If a thief breaks into a storekeeper’s separate warehouse and removes merchandise therefrom, his crime would be theft by unlawful taking. His conduct in removing goods from a warehouse does not coincide with the general concept of retail theft or shoplifting, as it is sometimes known.

To be guilty of retail theft, one must take merchandise from a “store or other retail mercantile establishment.” A store or retail mercantile establishment is a place where goods of any type are “displayed, held, stored or sold or offered to the public for sale.” This definition speaks in terms of a place to which the public has been invited to inspect and buy the merchant’s goods. When the statute refers to merchandise which is “stored,” it refers to merchandise which has been stored in a place where the public is invited to see, inspect and buy goods which a merchant has offered for sale. In the construction of laws, the rule of ejusdem generis requires that where general words follow an enumeration of things having a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to things of the same general kind or class as those specifically mentioned. Black’s Law Dictionary (5th ed. 1979). See also: Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979); Commonwealth v. Simmons, 211 Pa.Super. 344, 236 A.2d 563 (1967). So it is with retail theft. When the statute refers to merchandise which is stored, it refers to merchandise which is stored in that portion of the establishment into which the public has been invited, i.e., where the merchant has displayed and seeks to sell his wares to the public. It does not include untagged and unmarked merchandise which has been stored in a separate, non-public warehouse or enclosed stockroom and which is not being offered for sale to the public.

In the instant case, although appellant had taken at least one item of clothing from the store, most of the clothing found in his bag was unmarked, was not then being offered for sale to the public, and was stored in a separately enclosed stockroom. With respect to such clothing, appellant could be prosecuted for violating the general statutory proscription against theft by unlawful taking.

Finally, appellant contends, as he did in his motion to modify, that the sentence imposed by the trial court was excessive. Without expressing any opinion with respect to the alleged excessiveness of the sentence, we believe that the interests of justice require that the sentence imposed for criminal trespass be vacated and that this matter be remanded for resentencing.

The trial court’s verdict, as announced and as recorded, was that appellant was guilty generally of criminal trespass. The court did not then state whether appellant’s offense was a felony of the second degree or a felony of the third degree. As we have observed in this opinion, the evidence presented was sufficient to support a finding of criminal trespass under 18 Pa.C.S. § 3503(a)(l)(i). This is a felony in the third degree. However, at sentencing, the trial court announced that it intended to sentence appellant as though his crime had been a felony of the second degree.

To increase the degree of the crime to a felony of the second degree, it was necessary that the Commonwealth prove that appellant “broke into” the separately secured stockroom. This required evidence, according to the statute, that appellant had gained entry by “force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.” The term “force” has been defined as “(a) power, violence, compulsion, or constraint exerted upon or against a thing ...; (b) strength or power of any degree that is exercised without justification or contrary to law upon a person or thing____” Webster’s Third New International Dictionary (1965). For purposes of the present case, then, the issue is whether opening an unlocked door is sufficient force to increase a criminal trespass from a felony of the third degree to a felony of the second degree.

After careful consideration, we conclude that it was the intent of the legislature that a criminal trespass involving the entry of a building or separately secured portion thereof by opening an unlocked door was punishable as a felony of the third degree. That the legislature defined criminal trespass to include all unauthorized and unprivileged entries is clear. In some cases, however, the circumstances surrounding an entry were deemed sufficiently egregious to require a more severe punishment. These circumstances included the use of force or the “opening of a lock.” If no force was exercised and no lock was picked, broken, or opened in order to achieve entrance, the more severe punishment was not deemed necessary. Entry into most buildings or separately secured portions thereof involves at least the opening of a door. Such entries are not generally considered to involve the use of force, violence, or compulsion. Similarly, they do not involve a “breaking into.” They involve, rather, the normal means of entering a doorway intended for human access. If all unauthorized entries through an unlocked door were to be equated with “breaking into” a building or separate portion thereof, there would have been no need for the legislature to create a lesser crime for entries made without the use of force to break in.

Because appellant did not gain entrance to the stockroom by breaking into it, but merely entered through an unlocked door, his crime was a felony of the third degree. The evidence was clearly sufficient to sustain such a conviction. However, the evidence does not support a finding of criminal trespass which was a felony of the second degree. So that it will be clear that appellant has been sentenced for the correct offense, therefore, a remand for resentencing is necessary.

The judgment of sentence for theft by unlawful taking is affirmed. The judgment of sentence for criminal trespass is vacated, and that matter is remanded for resentencing consistent with the foregoing opinion.

BECK, J., concurs in the result.

      . 18 Pa.C.S. § 3503(a)(1).

      . 18 Pa.C.S. § 3921.

      . The trial court sustained a demurrer to a separate charge of burglary.

      . 42 Pa.C.S. § 9541 et seq.

      . There is no merit in appellant’s contention that trial counsel was ineffective because he failed to challenge appellant’s "career criminal” trial assignment.

      . 18 Pa.C.S. § 3929(a)(1).